1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

_________________ NO. 09
- 11
- 00156
- CR



### _________________ TAMMY LYNN JONES, Appellant

V. THE STATE OF TEXAS , Appellee

______________________________________________________________ ____ On Appeal from the 1st District Court Jasper County, Texas Trial Cause No. 10621JD

_______________________________________________________________ ___ MEMORANDUM OPINION In this appeal, we consider only on e 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 , complain ing 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 ple d not guilty , claim ing she had acted in self

- defense

. The jury failed to find that Tammy murder ed Roy, but found her guilty of manslaughter

. In Tammy’s first issue , she argues2

the trial court erred by failing to admit a toxicology report that she offer ed while examining the State’s expert pathologist , Dr. Tommy Brown. B ecause Tammy a dvance s 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 s econd issue , Tammy argues the jury could not have rationally rejected her self

- defense claim ; as a result, she conclude s the evidence is insufficient to support th e jury’s verdict finding her guilty of manslaughter

. B ased on the evidence admitted at trial, we conclude the jury could rationally reject Tammy’s claim that she acted in self

defense ; therefore, w e affirm the trial court’s judgment. Sufficiency of E vidence
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 testif y at t rial

. 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 conscious ness a bout a minute after being shot. Tammy gave the police her statement on the night of Roy’s death

. Her state ment , admitted without objection, constitutes the bulk of the direct evidence admitted during the trial explain ing 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 her3

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, a fter Roy left the house that day, she got a pistol from the house because she felt she need ed protection . B ecause she did not know how the pistol worked, she fir ed it twice, trying to learn how it worked

. T he 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 s tated 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 s aid 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 explain ing 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 suggest ed 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 the i r family belonged to Roy , except for her

car.4

O ther witnesses testified during the trial that Tammy and Roy had an abusive relationship and that they were arguing on the day Roy died . T here 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

. O fficers , who investigat ed the shooting, testified that the Jone ses ’ 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 Oku n , 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 Oku n , Tam my 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 t he jury’s rejection of a n affirmative defense, we view the evidence in the light most favorable to the State , and determine:

whether a rational fact finder c ould f ind the defendant guilty of committing
the essential elements of the offense beyond a reasona ble doubt ; and
whether a rati o nal fact finder could reject the defendant ’s affirmative
defense

.5

See Saxton v. State , 804 S.W.2d 910, 914 (Tex. Crim. App. 1991) ; see also Tex. Penal Code Ann. § 9.31 (West 20 11 ) (defining self

- defense). A defendant assert ing 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). B ut, 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 re asonable doubt. Id. The issue of self

- defense is a fact issue to be determined by the jury, which can free ly accept or reject any defensive evidence on the issue. Saxton , 804 S.W.2d at 91 3

- 1 4. A jury’s guilty verdict “is an implicit finding rejecting the
d efendant’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 se lf

- 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.”6

G iven all of the reasonable inference s available from the evidence, the jury could reasonably f

ind 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 h e was about to hit her

. The circumstan tial evidence together with all of the circumstances that led to the shooting allow ed the jury to conclude that Tammy fired the pistol to protect her property, not to protect herself. Additionally, Tammy indicated tha t 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 the ir house where they argued , Tammy later pursued Roy by finding him at a neighbor’s house , which precipitat ed even further argument. Th at circumstance offer s additional support for the jury’s conclusion that T ammy shot Roy shortly after she contacted him at a neighbor’s
home , an additional circum stance that tends to show Tammy had not act ed out of a fear for her safety. Finally, after sh o ot ing 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 ot her 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 that7

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

- def e nse was not so strong that it greatly preponderate s against the jury’s finding that Tammy was guilty of committing reckless manslaughter. See We s brook v. Stat e , 29 S.W.3d 10 3, 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. Ap p.

— Houston [1st D ist.] 2006, pet

. ref’d) ( holding that jury could reject defendant’s statement that he had acted in self

defense where evidence included the defendant having been assaulted and threatened by the complaining witness )

. Having carefully revie wed the testimony from the trial, we
conclude t he jury ’s determination that Tammy was guilty of reckless manslaughter was not irrational

. We further conclude that the circumstantial evidence allow ed the jury to conclude , beyond reasonable doubt, that Tammy did not believe her conduct was immediately necessary to p rotect her self 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 tw o. Exclusion of Toxicology Report In her first issue, Tammy contends the trial court erred in excluding a toxicology report , which indicat ed that Roy had a blood alcohol level of .231 m illigrams per deciliter8

and a methamphetamine result of 14 nanograms per mill il iter

. Ta mmy ’s attorney offered the to x icology 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 th at 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 cause d Roy ’s death, asserting that an expert “can rely on what
would otherwise b e inadmissible hearsay . . . and can talk about it.” 1 See 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 admissi ble because the State was “vouching for its authenticity.” However, Tammy failed to advance either of the arguments that she

1 At 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.

2 Rule 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 cour t “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. 705.9

made at trial in her appeal. Instead, o n appeal, Tammy argues that the trial court should have admitted the toxicolo g y report under : 1. Rule 107 of the Texas Rules of E vidence, the rule of optional completeness ; or 2. Rules 803(4) and 803(8) of the Texas Rules of Ev idence, which are, respectively, h earsay 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 C onstitution.
See U.S. Const. amend. VI ; T ex. R. Evid. 107, 803(4), 803(8). In seeking to overturn the trial court’s ruling regarding the to x icology report, t he basis of the arguments that Tammy raise s on appeal are not the same as th e 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 f

or 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 com

plaint that the Sixth Amen d ment required the trial court to admit the toxicology report

. See Reyna v. State , 168 S.W.3d 173 , 179 (Tex. Crim. App. 200 5 ) ( 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 t he arguments she has10

made regarding issue one were not first presented in the tr ial court, we overrule her first issue. Having overruled both of Tammy’s issues, the trial court’s judgment is affirmed.
AFFIRMED.

___________________________ HOLLIS HORTON Justice

Submitted on June 27, 2012 Opinion Delivere d November 28, 2012 Do Not Publish Before Gaultney, Kreger, and Horton, JJ.