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In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-11-00156-CR 

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TAMMY LYNN JONES, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 1st District Court

Jasper County, Texas

Trial Cause No. 10621JD 

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MEMORANDUM OPINION

In this appeal, we consider only one of the two issues that have been raised on its 

merits: whether the evidence is sufficient to support the jury’s verdict that Tammy Lynn 

Jones committed manslaughter. The other issue raised in the appeal, complaining of the 

trial court’s exclusion of a report, was not perfected for our review.

The State indicted Tammy for murdering her husband, Roy L. Jones. Tammy pled

not guilty, claiming she had acted in self-defense. The jury failed to find that Tammy 

murdered Roy, but found her guilty of manslaughter. In Tammy’s first issue, she argues 
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the trial court erred by failing to admit a toxicology report that she offered while 

examining the State’s expert pathologist, Dr. Tommy Brown. Because Tammy advances

an argument for admitting the report on appeal that she failed to make at trial, we hold 

that Tammy has not perfected her right to have us review this issue.

In her second issue, Tammy argues the jury could not have rationally rejected her 

self-defense claim; as a result, she concludes the evidence is insufficient to support the 

jury’s verdict finding her guilty of manslaughter. Based on the evidence admitted at trial, 

we conclude the jury could rationally reject Tammy’s claim that she acted in selfdefense; therefore, we affirm the trial court’s judgment. 

Sufficiency of Evidence

Because issue two is resolved on its merits, we address that issue first. Tammy and 

Roy were the only witnesses with personal knowledge of what happened; Tammy did not 

testify at trial. Roy did not testify either, as he was killed by a twenty-two caliber bullet 

that Tammy fired, which struck him in the chest. According to Dr. Brown, Roy probably 

lost consciousness about a minute after being shot. 

Tammy gave the police her statement on the night of Roy’s death. Her statement, 

admitted without objection, constitutes the bulk of the direct evidence admitted during 

the trial explaining the circumstances of Roy’s death. Both the audio recording of her 

discussion with police as well as a written transcription were admitted. According to 

Tammy’s statement, she and Roy had an abusive relationship, and he had beaten her 
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many times before the evening that she shot him. The day Roy died, they got into an 

argument about having his prescription refilled. When Tammy told Roy that the drug 

store had not filled his prescription, he was angry, accusing her of lying to him about 

getting the pharmacy to fill the prescription.

Tammy explained that, after Roy left the house that day, she got a pistol from the 

house because she felt she needed protection. Because she did not know how the pistol 

worked, she fired it twice, trying to learn how it worked. The night Roy died, she was 

returning home in her car when Roy used a baseball bat to strike the exterior of her car 

twice. Tammy stated that she wanted Roy to stop hitting the car, so she took the pistol 

that she had placed beneath her car seat earlier that day, and then she fired it in Roy’s 

direction. However, Tammy also said that she did not aim the pistol at Roy and that she 

only intended to scare him. According to Tammy, if she had not fired the pistol: “I don’t 

know what would have happened next or what.” Nevertheless, Tammy told the police

that she had fired the pistol to make Roy stop beating the car. After explaining what

happened, and after the police advised Tammy that she would be charged with murder, 

Tammy said: “[W]hat was I supposed to do? [ ] Let him kill me?” This statement is the 

only point during her conversation with the police that Tammy directly suggested that she 

believed she was in danger of being seriously injured or that she feared for her life. Then, 

Tammy explained that all of the property in their family belonged to Roy, except for her 

car.
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Other witnesses testified during the trial that Tammy and Roy had an abusive 

relationship and that they were arguing on the day Roy died. There was circumstantial 

evidence admitted during the trial showing that Roy fell to the ground after being shot 

near a gate that led to the Joneses’ home and that Tammy’s car had been hit with a 

baseball bat found near Roy’s body. Officers, who investigated the shooting, testified that 

the Joneses’ vehicles were found near a gate to the fence around the Joneses’ house. 

Testimony and exhibits of the scene showed the outside mirror on the driver’s side of 

Tammy’s car had been damaged. Another witness, Jim Okun, testified that on the 

evening Roy died, he and Roy were sitting in Roy’s pickup at a house across the highway 

from the Joneses’ home. According to Okun, Tammy drove up and began arguing with 

Roy; at that point, Tammy and Roy left in their vehicles. 

Tammy contends that under these circumstances, no rational jury could have 

found she did not act in self-defense. When a defendant challenges the sufficiency of the 

jury’s rejection of an affirmative defense, we view the evidence in the light most 

favorable to the State, and determine:

whether a rational fact finder could find the defendant guilty of committing 

the essential elements of the offense beyond a reasonable doubt; and 

whether a rational fact finder could reject the defendant’s affirmative 

defense. 
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See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991); see also Tex. Penal 

Code Ann. § 9.31 (West 2011) (defining self-defense).

A defendant asserting a claim of self-defense has the burden of production and 

must bring forth some evidence to support the particular defense. See Tex. Penal Code 

Ann. §§ 2.03(c), 9.02, 9.31, 9.32 (West 2011); Zuliani v. State, 97 S.W.3d 589, 594 (Tex. 

Crim. App. 2003). But, once the defense is raised, the State bears the burden of 

persuasion to disprove the defense. Zuliani, 97 S.W.3d at 594. The State’s burden is not 

one that requires the production of evidence; rather, it requires the State to prove its case 

beyond a reasonable doubt. Id. The issue of self-defense is a fact issue to be determined 

by the jury, which can freely accept or reject any defensive evidence on the issue. Saxton, 

804 S.W.2d at 913-14. A jury’s guilty verdict “is an implicit finding rejecting the 

defendant’s self-defense theory.” Id. at 914.

On appeal, Tammy has not argued the State did not prove the elements of 

manslaughter. Instead, she contends that the State failed to meet its burden to prove that 

she did not act in self-defense. With respect to the State’s burden of proving that Tammy 

did not act in self-defense, the jury was instructed that the State was required to prove 

that Tammy “did not believe her conduct was immediately necessary to protect herself 

against [Roy’s] use or attempted use of unlawful deadly force;” or that Tammy’s “belief 

was not reasonable.” 
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Given all of the reasonable inferences available from the evidence, the jury could 

reasonably find that Tammy did not believe she had to shoot Roy to protect herself from 

him. The night Roy died, Tammy repeatedly told police that she had fired the pistol only 

to scare Roy; thus, the jury could infer that she shot at Roy to scare him so he would stop

hitting her car—her only possession—not because she subjectively believed that he was 

about to hit her. The circumstantial evidence together with all of the circumstances that 

led to the shooting allowed the jury to conclude that Tammy fired the pistol to protect her 

property, not to protect herself. 

Additionally, Tammy indicated that she got the pistol shortly after she and Roy 

argued that day; fired it to familiarize herself with how it worked; and placed it under the 

seat of her car. The evidence further shows that, even after leaving their house where they 

argued, Tammy later pursued Roy by finding him at a neighbor’s house, which 

precipitated even further argument. That circumstance offers additional support for the 

jury’s conclusion that Tammy shot Roy shortly after she contacted him at a neighbor’s 

home, an additional circumstance that tends to show Tammy had not acted out of a fear 

for her safety. 

Finally, after shooting Roy, Tammy never directly stated that she thought Roy was 

about to hit her with the bat; even had she done so, the jury could have considered all of 

the other circumstances in deciding to reject such a statement. See Sells v. State, 121 

S.W.3d 748, 753-54 (Tex. Crim. App. 2003) (concluding that defendant’s statement that 
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he did not enter home with the specific intent to commit sexual assault was not enough to 

render the evidence insufficient).

We conclude that the evidence that Tammy acted in self-defense was not so strong 

that it greatly preponderates against the jury’s finding that Tammy was guilty of 

committing reckless manslaughter. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. 

Crim. App. 2000) (rejecting argument that jury verdict was supported by insufficient 

evidence where the defendant asserted a claim of justification to protect his personal 

property); Denman v. State, 193 S.W.3d 129, 133 (Tex. App.—Houston [1st Dist.] 2006, 

pet. ref’d) (holding that jury could reject defendant’s statement that he had acted in selfdefense where evidence included the defendant having been assaulted and threatened by 

the complaining witness). Having carefully reviewed the testimony from the trial, we 

conclude the jury’s determination that Tammy was guilty of reckless manslaughter was 

not irrational. We further conclude that the circumstantial evidence allowed the jury to 

conclude, beyond reasonable doubt, that Tammy did not believe her conduct was 

immediately necessary to protect herself from Roy. Consequently, we hold that the 

evidence is sufficient to support the jury’s verdict finding Tammy guilty of reckless 

manslaughter. We overrule issue two.

Exclusion of Toxicology Report

In her first issue, Tammy contends the trial court erred in excluding a toxicology 

report, which indicated that Roy had a blood alcohol level of .231 milligrams per deciliter
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and a methamphetamine result of 14 nanograms per milliliter. Tammy’s attorney offered

the toxicology report during his cross-examination of Dr. Brown, the State’s expert

pathologist. After the State objected, asserting the report was hearsay because it was not a 

report prepared by Dr. Brown, Tammy’s attorney argued that the report was admissible. 

Specifically, at trial, Tammy’s attorney argued that the report was admissible 

because Dr. Brown relied on it in formulating his opinion about whether the gunshot 

wound to Roy’s chest had caused Roy’s death, asserting that an expert “can rely on what 

would otherwise be inadmissible hearsay . . . and can talk about it.”1See Tex. R. Evid. 

705.2 When the court ruled that it would allow the expert to say that he had relied on the 

toxicology report, but would not allow the expert to testify regarding the results of the 

report, Tammy’s attorney then offered another argument for admitting the report. 

Tammy’s attorney explained to the trial court that the State had provided the report to 

him during discovery, making the report admissible because the State was “vouching for 

its authenticity.” However, Tammy failed to advance either of the arguments that she 

 

1At trial, Tammy’s attorney did not reference Rule 705 of the Texas Rules of 

Evidence to support her argument that the toxicology report was admissible. However, 

the trial court, based on the argument advanced by Tammy’s attorney, would have 

understood that her counsel intended to reference Rule 705. 

2Rule 705 provides that during cross-examination, an expert may be required to 

disclose his underlying facts or data in formulating his opinion; but, if the facts or data 

would be inadmissible, the trial court “shall exclude [them] if the danger that they will be 

used for a purpose other than as explanation or support for the expert’s opinion outweighs 

their value as explanation or support or are unfairly prejudicial.” Tex. R. Evid. 705.
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made at trial in her appeal. Instead, on appeal, Tammy argues that the trial court should 

have admitted the toxicology report under:

1. Rule 107 of the Texas Rules of Evidence, the rule of optional completeness; or

2. Rules 803(4) and 803(8) of the Texas Rules of Evidence, which are, 

respectively, hearsay exceptions for statements made for the purposes of a 

medical diagnosis and for public records and reports; or

3. The Sixth Amendment of the United States Constitution.

See U.S. Const. amend. VI; Tex. R. Evid. 107, 803(4), 803(8). 

In seeking to overturn the trial court’s ruling regarding the toxicology report, the 

basis of the arguments that Tammy raises on appeal are not the same as the arguments

she made during trial. Because the arguments she raises on appeal were not first raised at 

trial, she has failed to preserve them for appellate review. Tex. R. App. P. 33.1(a)(1)

(preserving error for appellate review requires the complaining party to show that he 

presented his complaint to the trial court in a timely request, objection, or motion and that 

the trial court ruled on the request). These same error preservation rules apply to 

Tammy’s complaint that the Sixth Amendment required the trial court to admit the 

toxicology report. See Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) 

(holding that defendant failed to preserve Sixth Amendment complaint because he did not 

object at trial on the constitutional ground).

Because Tammy did not present the arguments she made at trial regarding the 

admissibility of the toxicology report for our review, and because the arguments she has 
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made regarding issue one were not first presented in the trial court, we overrule her first 

issue. Having overruled both of Tammy’s issues, the trial court’s judgment is affirmed.

AFFIRMED.

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HOLLIS HORTON

Justice

Submitted on June 27, 2012

Opinion Delivered November 28, 2012

Do Not Publish

Before Gaultney, Kreger, and Horton, JJ.