/

PD-1565-14

IN THE COURT OF

CRIMINAL APPEALS

AUSTIN, TEXAS

CLINT WELDON WILSON,

Appellant Pro Se

Vs.

THE STATE OF TEXAS,

Appellee

<H

ORIGINAL

RECEIVED IN

COURT OF CRIMINAL APPEALS

APR 15 2015

Abel Acosta, Clerk

Appeal Ffdm FILED IN

THE SIXTH COURT OF APPEALS, TEXARKANA, TEXASJu'RT OF CRIMINAL APPEALS

APR 17 2015

NO. 06-14-00021-CR

Mel Acosta, Clerk

PETITION FOR DISCRETIONARY REVIEW

CLINT WELDON WILSON

T.D.C.# 1891353

CLEMENTS UNIT

9601 Spur 591

AMARILLO, Texas 79107

ORAL ARGUMENT NOT REQUESTED
IDENTITY OF PARTIES

Pursuant to Texas Rule of Appellate Procedure the following is

a list of the Parties:

Appellant

Clint Weldon Wilson,

Pro Se

Clint Weldon Wilson

T.D.C.* 1891353

Clements Unit

9601 Spur 591

Amarillo, Texas 79107

Appellee

THE STATE OF TEXAS

Will Ramsey

Hopkins County Dist.

Attorney

114 Main Street

Sulphur Springs, Tx.

75482

903-885-0641

i.
Table of Contents

Identity of Parties i.

Table of Contents ii.

Index of Authorities...., iii.

Statement of Case pg. 1

Statement of Procedural History pg. 1

Grounds for Review pg. 2

Argument pg. 2

Prayer pg. 7

Certification pg. 7

Appendix pg. 8

ii
Index of Authorities

Texas Criminal Appeals Case Laws:

Williamson Vs. State, 672 Sw.2nd 484-86 (Tex.Crim.App.1984)

pg. 2,3,4,5,

Smith Vs. State, 965 Sw.2nd 509-13 (Tex.Crim.App. 1988)

Pg- 2

Texas Rules of Appellate Procedure

Rule 66.3 (c) pg. 2

Rule 68.6 pg. 1

in.
PD-1565-14

In The Court of

Criminal Appeals

Austin, Texas

Clint Weldon Wilson,

Appellant Pro Se,

Vs.

The State of Texas,

Appellee

Appeals From The Sixth. Court of Appeals, Texarkana,

Texas In Court of Appeals No. 06-14-00021-CR

Petition for Discretionary Review

Statement of Case

Appellant was indicted for murder out of the 8th District •

Court of Franklin County, Texas in Cause No. F8775. A jury was

empaneled on November 19, 2013, and on November Ql^ 2013, that

jury rendered a verdict of guilty and sentenced to Life in prison

with a fine assesed of 10,000.00 dollars.

Statement of Procedural History

On November 7, 2014, the Sixth Court of Appeals handed down

it's opinion to affirm the trial courts conviction in F8775.

Appellant filed a Motion for Extension of Time to file his Pe

tition For Discretionary Review on November 25, 2014 and was

granted by this court, making it due on February 6, 2015.

This court issued an order on Marchl8, 2015 that Appellants

Petition violates Texas Rule of Appellate Procedure 68.6 be

cause the Petition exceeds the proper length. This Petition for

Discretionary Review is due on April .16, 2Q15.
Grounds for Review

ONE:

The Court of Appeals erred in it's disposition because it has

decided an important question of State Law that the evidence in

Appellants Trial wa sufficient to justify the trial courts charge

to the jury on the issue of Appellant having Provoked .the diffic-^

ulty " in a way that conflicts, with applicable decision of The

Court of Criminal Appeals", see Texas Rule of Appellate Proced

ure 66.3 (c).

Argument

Ground One:

In the Court of Appeals Memorandum Opinion of Page 7, this

Court did erred in it's disposition_.f_o.r_.Lt_w.as in conflict with

William Vs. State, 672 Sw.2nd 484,486 (Tex.Crim.App. 1984) deci

sion made by the court, that the evidence presented at the App

ellants trial was sufficient to justify the trial Court's charge

to the jury on the issue of the Appellant having provoked the

difficulty.

The question Appellant presents to this court was there suff

icient evidence to charge the jury on having provoked the diffi

culty in accordance with these facts and in this courts decesion in Williamson Vs. State, 672 Sw.2nd 484?

Jury Instruction on Provoking the Difficulty

The governing law on instructing a jury on provoking the

jury in properly giving when: (1) Self-defense is an issue; (2)

These are facts in evidence which show that the deceased made

the first attack on the defendant; and (3) tyhe defendant did so

me act or used some words intended to and calculated to bring

on the difficulty in order to have a pretext for inflicting in

jury on the deceased, see Williamson id. at 485-86; also Smith

Vs. State, 965 Sw.2nd 509-513 (Tex.Crim.App. 1998).

All elements are questions of fact. id. at 513. An instruc

tion on provocation should be given when there is evidence from

which a rational jury could find every element of provocation

beyond a Reasonable Doubt, id.

2.
Element One:

"Viewing the evidence in light most favorable to the given in

struction" ,id. , there was sufficient evidence that self-defense

was the issue. See Entire Record.

Element Two:)

"Viwing the evidence in the light most favorable to the given

instruction:id., there was sufficient evidence that the deceased

made the first attack on the Appellant, first by his prior numer

ous threats of death - for example,"to drag Appellant out of the

house, hang him from a tree and skin him like a fish," (vol. 6 pg.

147-48, L 8-17). Then by showing up at the residence and refusing

to leave despite::Eepeated:.:Eeqaests":byAAldis the owner of"the: res

idence, and then by the appellant. Finally the deceased's lunge

toward appellant after :._"wo- warning shots were fired was the

physical act that xeod:e_*_dr_hisec__d_ct--^

Element Three:

Here, "viewing the evidence in the light most favorable to the

given instruction"id., there was [Njo sufficient evidence to cha

rge the jury on provoking the difficulty, that the Appellant, "

did some act or used some words intended to and calculated to

bring on the difficulty in" order ~to: have7 a:pretext-foriittElicting injury on the deceases", see Williamson Vs. State, 672 Sw.2nd

at 485-86, that a rational jury could have found beyond a reason

able Doubt. The facts of the case clearly show beyond a Reasonab

le Doubt that on the morning of the shooting: (1) Appellant was

engaged in a full relationship with Aldis, (the ex-girlfriend

of the deceased)(Vol. 4, pg. 172. L. 10-21), (2) the deceased was

a heavy drinker (vol. 4, pg. 82. L. 4; pg..40, L. 9-10; pg. 149,
L. 11-12, pg. 215, L. 1-2); (3) the deceased was very drunk at

the time of the shooting (0.296) (vol. 5 pg. 176-77, L. 24-31)

(4) the deceased came to the residence of Aldis & Appellant (

vol. 4 pg. 45-47); (5) the deceased was told by Aldis and her

mother not to come over, they had a restraining order against

the deceased and he was not allowed on the property (vol. 4 pg.

187. L. 5-14); and finally (6) the deceased unlawfully entered

the habitation of Aldis and Appellant without permission (vol.

4 pg. 155-56)

That morning Aldis & Appellant were in thier bed asleep when

the deceased entered the trailor without any permission or with

out even knocking on the.door. The deceased woke up Aldis & App

ellant by yelling from the living room. Aldis jumped out of the

bed and ran to the living room to confront the deceased and to

make him leave. (Vol. 4 pg. 124, L 10)(vol. 4 pg. 124, L. 22-24)

Aldis repeatedly told the deceased to leave he refused and they

began to argue and then to fight. Appellant could hear the figh

ting from the bedroom (vol. 4 pg. 156-57, L. 19-5) Appellant then

heard Aldis scream Appellant heard panic in her voice (vol. 6 pg.

140, L. 4-8). Appellant then went to help Aldis. When Appellant

entered the room the deceased had Aldis by her arm (vol. 6 pg.

143, L. 4-6). Appellant told the deceased to let go of Aldis and

to leave ( vol. 6. 143-44, L. 24-2).

..The deceased le.t_go of.Aldis and she ran behind the Appellant

but the deceased refused to leave and the two began to exchange

heated words (vol. 4 pg. 131-32) said Aldis "Appellant continued

to ask the deceased to leave and refusing to do so deceased came

4.
towards the Appellant to start fighting". Appellant then fired

twoawarningo: shots, one in the wall and one in the floor. Pursu

ant to the testimony of Aldis, the warning shots just "pissed .. .....:"

off" the deceased (vol. 4 pg. 152. L. 22-23) the deceased stopped

and told the Appellant "you don't know who your fucking with bitch

" the deceased then lunged toward Appellant and after the repeats

ed threats—then—the—warning-shots-and finally the lunge toward

Appellant, the Appellant fired several shots that ended in the

killing of the deceased.

From this evidence it. is perverse from a factual point of view

to have a provocation instruction, especially when before the sh

ooting, (1) Appellant repeatedly asked the deceased to leave (2)

Appellant then gave two warning shots (3) the deceased then told

the Appellant "you don't know who your fucking with bitch" and

then lunged toward him.

In view of this evidence that is clearly in the record, a rea

sonable jury would have seen that the deceased provoked the diff

iculty unto:. Appellant. The Appellant sought to avoid a conflict

not to incite it. This case mirror's this courts decision in

Williamson Vs. State.

In Williamson Vs. State, 672 Sw. 2nd 484-86 (Tex.Crim.App. 19-

84), Williamson asked the deceased Jamison to leave his house and

Jamison began to argue with Williamson. Jamison reacted violently

by lunging toward Williamson's Machete to assault him and Williason killed Jamison by shooting him in the head. This Court made

a judicial determination on the facts that the evidence did not

Raise the issue that it was Williamson's purpose to provoke and

5.
attack from the deceased, in order that he might have a pretext

for killing Jamison. This Court Reversed and Remanded that cause

back to trial court .see id. at 486.

Therefore, here in this instant case, viewing the evidence in

light most favorable to the given istruction, the evidence is in

sufficient to show that it was the Appellant who provoked the att

ack from the decesed, in order that he might have a pretext for

killing him.

The Court of Appeals did err in its disposition for it is" in"

conflict with Williamson Vs. State. Based on these facts and the

evidence, a Rational Jury could not have found every element of

provocation beyond...a Reasonable Doubt.
Prayer

Wherefore, Premises Considered, Appellant prays this Honor

able Court of Criminal Appeals consider the facts of this peti

tion in accordance with this court's opinion in Williamson Vs.

State.

So prayed on this V^\Kday of April, 2015

Respectfully Submitted,

Clint Weldon Wilson

T.D.C. #1891353

9601 Spur 591

Amarillo, Texas 79107

Certificate of service

I, Clint Weldon Wilson, state under the Penalty of Perjury

that these facts are true and correct. Also a true and correct

copy has been forwarded to the opposing party at the address

below.

Executed on this day YXNK, April, 2015.

Will Ramsey

Hopkins County Dist. Attny.' *^l\_ov-C \^_>&j^v-n

114 Main Street Cli^vtWeldon Wilson

Sulphur Springs, Texas 75482

7.
APPENDIX

APPENDIX

APPENDIX

APPENDIX

APPENDIX

APPENDIX

8.
MEMORANDUM OPINION

In January 2013, Aldis Mendez1 stood between two men, her then boyfriend, Clint

'° Weldon Wilson, and her ex-boyfriend and father to her three children, Juvenal Gonzales, just

before Wilson shot and killed Gonzales. Except for the central fact that Wilson shot Gonzales,

Aldis' version of the events that ensued had little in common with Wilson's version. The jury

believed Aldis and delivered a verdict that Wilson was guilty of murdering Gonzales. On

appeal, Wilson complains about the jury charge, the lack of a mistrial, and the amendment ofthe

indictment after trial began. We affirm the judgment of the trial court, because (1) the jury

instruction onprovocation was warranted bythe evidence, (2) ajuryinstruction onthreats by the

victim was properly refused, (3) a juryinstruction on necessity was properly refused, (4) mistrial

was notmandated, (5) Wilson's complaint regarding the lack of a jury instruction onjustifiable

force isinadequately briefed on appeal, and (6) we have no jurisdiction over the amendment of

the indictment in a companion case not on appeal.

We set out the basics ofthe two different versions ofthe facts surrounding the shooting.

Wilson's version ofthe facts portrayed him as a disabled man seeking only to protect his

girlfriend and himself from a drunken, violent ex-boyfriend. Wilson testified that he met Aldis

in late August 2012 and had lived with her and her three children in her mobile home until late

November ofthat year. He left her for another woman, but began seeing her again inDecember

'Because we also refer herein to Aldis Mendez' mother, Supaya Mendez, we will refer toboth women bytheir first

names.

2On the murder charge, appealed here, Wilson was sentenced to life in prison and assessed a $10,000.00 fine.

Wilson was also found guilty of unlawful possession of a firearm by a felon and sentenced to ten years'

confinement, to run concurrently, and assessed another $10,000.00 fine. He does not appeal the firearm conviction.
when the other relationship faltered. Around Christmas, his hands and a foot were" frostbitten

from exposure.3 Aldis picked him up from the hospital and took him to her home where he

stayed until the shooting. Several times during the period he lived with Aldis, she would receive

telephone calls late atnight from Gonzalez. Aldis would give Wilson the telephone. He would

tell Gonzalez that she did not want to talk to him or get back together with him and to stop

calling. Gonzalez would call two orthree nights ina row, then stop and begin again two orthree

weeks later. During these conversations, Gonzalez would reportedly curse Wilson, threaten to

«f*** [Wilson] up," and threaten his life. About seven to ten days before the shooting, Gonzalez

told Wilson he was "going to come out there, drag [him] from the house, hang [him] on a tree,

and skin [him] like a fish."

Wilson also testified that, on the morning of January 19, 2013, he and Aldis were

sleeping in bed when they were awakened by yelling in the living room. Aldis looked at him

with panic inher eyes and said, "It's [Gonzales]," and ran into the living room. Wilson did not

follow her because he thought she could handle the situation. But Aldis and Gonzales kept

arguing, and it was getting louder and louder. Wilson heard her scream, grabbed a pistol, and

proceeded to the kitchen. Wilson claimed he grabbed the pistol because he could not defend

himself against Gonzalez. When Wilson got to the kitchen, Aldis was struggling to get away

from Gonzalez. Wilson told him, "[L]et her go, motherf*****," then pointed the pistol at

Gonzalez. Gonzalez let Aldis go, and she ran behind Wilson. Wilson kept telling Gonzalez to

leave, but Gonzalez just said, "[Y]ou ain't going [to] do nothing, you little bitch." Wilson then

3Wilson had been hanging out with his cousin, took methamphetamine, got lost, and passed out in afield in the snow

for several hours.

3
fired a warning shotthrough the floor. He did not want to hurt Gonzalez, but he was afraid of

him andwanted him to leave. Instead, Gonzalez got more aggressive, and Wilsonfired a second

warning shot through thewall. Gonzalez bowed up, cursed him, and lunged at him. Wilson then

shot him four or five times "for [himself] and for ~ Aldis and Lexi (Aldis' daughter)." Wilson

said he was afraid for his life, as well as the lives of Aldis and Lexi, and claimed he had no

choice. Wilson then told the jury of a similar incident that occurred a year earlier in which he

hadto defend himselffromthe ex-boyfriend of histhen girlfriend. Wilson ended up killing him,

also. Although denying he posted it, Wilson admitted opening a Facebook page in which he

bragged about having studied at the Harvard Law School of Self-Defense Class of 2011. He

claimed self-defense in that case, also, and charges were dismissed in August 2012. On

August 8,2012, apost appeared onhis Facebook inwhich he apparently bragged about it.

Aldis' version was considerably different, andshewasthe only other surviving witness to

the events inside the mobile home. She testified that Gonzalez was the father of her three

children and that they had broken up in March 2012. She said that she met and began dating

Wilson inSeptember and that he would stay every other day orso. She confirmed that Gonzalez

came over unannounced that morning and that she went out to talk with him. They began

arguing "a little bit" and she told him to leave, then Wilson came out ofthe bedroom. Wilson

was walking with his hand behind his back and she got scared because she thought he had a gun.

Aldis told Wilson to go back to the bedroom and that she would handle it, not to worry about it.

Wilson told Gonzalez to leave, and the two men began mouthing back and forth, cussing at each

other. She kept telling Wilson that she would handle it and that she would make Gonzalez leave.
She was not afraid Gonzalez would hurt her. Then Wilson took a step forward and pulled out the

gun. She told him not to do anything. She picked up her daughter, Lexi, and lifted her out

through the back door because she did not want her to see whatever was going to happen. Then,

Wilson fired a shot through the floor. Next, Wilson shot through the wall. Right after that, he

shot Gonzalez the first time, then a second time. Gonzalez had only taken one step forward and

then he was shot. She closed her eyes and kept telling Wilson to stop. The shots came back to

back, and she opened her eyes after the third or. fourth shot, when Gonzalez was going out the

door. She was in shock.

She also testified that she did not feel threatened by Gonzalez that day and did not think

he made anythreatthat deserved being shot. He never displayed a weapon and neverthreatened

to kill anyone that day. Aldis acknowledged that Gonzalez and Wilson had argued over the

telephone, but denied that Gonzalez ever threatened to come over and kill him. On crossexamination, she admitted that Gonzalez was "pissed off at both she and Wilson that day. She

also admitted that Wilson could not make a fist that day because of his frostbite.

Supaya Mendez, Aldis' mother, testified that Gonzalez was a fighter but never used

weapons. Supaya was never afraid of him killing anyone. She said that Aldis and Gonzalez

would argue a lot because he drank a lot. He would get violent when he drank, but not toward

her, just toward the walls.

The medical examiner who performed the autopsy on Gonzalez testified that, based on

her examination, oneshotentered the front ofhis body, one entered his leftside, andtwo entered

at his lower back/buttocks. One or two other bullets grazed his back.
(1) The Jury Instruction onProvocation Was Warranted by the Evidence

Wilson complains of the trialcourt'sinclusion of a charge on provocation, asserting there

was no evidence that would support its inclusion.4 We find there was sufficient evidence to

include the instruction and overrule this point of error.

Ourreview of an alleged error in a jury charge involves a two-step inquiry. Abdnor v.

State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). First, we determine whether an error

occurred, and, if it did, then we "determine whether sufficient harm resulted from the error to

require reversal." Id. at 731-32; Almanza v. State, 686 S.W.2d 157, 172 (Tex. Crim. App. 1984)

(op. onreh'g), reaffdby Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003).

The level of harm an appellant must demonstrate as having resulted from the erroneous

jury instruction depends on whether the appellant properly objected to the error. Abdnor, 871

S.W.2d at 732. When a proper objection is made at trial, reversal is required if the error is

"calculated to injure the rights of defendant"—the appellant need only demonstrate "some harm"

onappeal. Id.; see also Almanza, 686 S.W.2d at 171. Inthe case ofunpreserved error, reversal

isrequired only when "the error isso egregious and created such harm that [the defendant] 'has

not had a fair and impartial trial' ~ inshort 'egregious harm.'" Almanza, 686 S.W.2d at 171; see

Ruddv. State, 921 S.W.2d 370, 373 (Tex. App.—Texarkana 1996, pet. refd). "Egregious harm"

results from errors affecting the very basis ofthe case orthat deprive the defendant ofa valuable

4The Jury Instructions included a definition of"Provoking the Use or Attempted Use ofForce," an instruction on

"Failure toRetreat," and an instruction on"Presumption," all ofwhich are substantially the same asthose setforth

in Sections B14.8 and B15.3 of the State Bar of Texas' TEXAS CRIMINAL PATTERN JURY CHARGES—DEFENSES §§

(2013). The "Failure toRetreat" and "Presumption" instructions are based on Sections 9.32(b) and (c), respectively,

ofthe Texas Penal Code. See TEX. PENAL CODE ANN. §9.32(b), (c) (West 2011). It isunclear from the record and

Wilson's briefwhether heis complaining ofthe definition only oralso the mentioning ofprovocation inthese other

instructions.

6
right, vitally affect a defensive theory, ormake the case for conviction orpunishment clearly and

significantly more persuasive. Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991);

Smith v. State, 424 S.W.3d 588, 597 (Tex. App.—Texarkana 2013, no pet.).

"[T]he jury is the exclusive judge ofthe facts, but it isbound to receive the law from the

court and be governed thereby." Tex. Code Crim. Proc. Ann. art. 36.13 (West 2007). A trial

court must submit a charge setting forth the "law applicable to thecase." Tex.CodeCrim. Proc.

Ann. art. 36.14 (West 2007); Reeves v. State, 420 S.W.3d 812 (Tex. Crim. App. 2013). "Itis not

the function ofthe charge merely to avoid misleading or confusing the jury: it isthe function of

the charge to lead and prevent confusion." Reeves, 420 S.W.3d at 818 (quoting Williams v.

State, 547 S.W.2d 18, 20 (Tex. Crim. App. 1977)).

The trial court must give a charge on provocation

when there issufficient evidence (1) thatthe defendant did some act or used some

words which provoked the attack on him, (2) that such act or words were

reasonably calculated to provoke the attack, and (3) that the act was done or the

words were used for the purpose and with the intent that the defendant would

havea pretextforinflicting harm on the other.

Smith v. State, 965 S.W.2d 509, 513 (Tex. 1998).

Each of the three elements may be proved circumstantially. Id. at 515, 517-18. A

provocation instruction should be submitted to the jury only "when there is evidence from which

a rational jury could find every element ofprovocation beyond a reasonable doubt." Id. at 514.

Our inquiry is whether "a rational jury could have found provocation beyond areasonable doubt,

viewing the evidence in the light most favorable to giving the instruction." Id.
There is ample evidence to support instructing the jury on provocation. Fromthe above

relevant testimony, it couldbe reasonably inferred thatWilson purposefully inserted himselfinto

a domestic dispute and that threatening Gonzalez with a firearm and the words he used were

calculated to provoke the attack by Gonzalez. In his brief, Wilson focuses on the lack of direct

evidence of "words or acts"that provethe thirdelement, i.e.,that Wilsonintended to provoke the

difficulty as pretext for inflicting injury on the deceased. However, a jury does "notneed to be

able to put its hands on the particular act or words[;]" rather, "thisfinding canbe made through

inference relying on circumstantial evidence." Id. at 515. From the medical examiner's

testimony, a jurycould reasonably infer thatGonzalez stopped his advance after being shotonce

and began turning toretreat. Wilson, however, kept shooting and shot Gonzales intheside, then

at least three times in the back. In addition, Wilson testifiedthat he had had severalrun-ins with

Gonzalez over thetelephone andthata few days before this incident Gonzalez threatened to kill

him. A rational jury could have inferred his intent from this evidence, coupled with Wilson's

recent prior homicide in which he successfully claimed self-defense. Thus, there is evidence of

each element thatsupports the court's decision to include the instruction.

Accordingly, we conclude that the trial court did not err in instructing the jury on

provocation.
(2) AJury Instruction on Threats by the Victim Was Properly Refused

Wilson also complains of the lack of an instruction on the prior threats made by

Gonzalez.5 Because the proposed instruction would have been animpermissible comment onthe

weightofthe evidence, we overrule this point of error.

Inasserting entitlement toan instruction on threats by Gonzalez, Wilson relies on Fielder

v. State, 756 S.W.2d 309 (Tex Crim. App. 1988). However, the complaint in Fielder was the

exclusion of evidence related to the defendant's past relationship with the deceased and the

reasonableness ofher fear of him. Id. at 318. Wilson makes no such complaint on appeal.6

Rather, this case is controlled by Walters v. State, 247 S.W.3d 204 (Tex. Crim. App. 2007).

In Walters, the Texas Court of Criminal Appeals considered whether, in a murder case

where the jury is charged on self-defense, the defendant is entitled to an instruction on prior oral

threats bythe deceased.7 The court held that,

generally speaking, neither the defendant nor the State is entitled to a special jury

instruction relating to a statutory offense or defense if that instruction (1) is not

grounded in the Penal Code, (2) is covered by the general charge to the jury, and

(3) focuses the jury's attention on a specific type of evidence that may support an

element of an offense or a defense. In such a case, the non-statutory instruction

would constitute a prohibited comment ontheweight of the evidence.

5Wilson requested the following instruction:

Where a defendant accused ofmurder seeks tojustify himself onthe ground ofthreats against his

own life, he is permitted to introduce evidence ofthe threats made, but the same shall not be

regarded as affording justification for the offense unless itbe shown, at the time ofthe killing, the

person killed by some acts then done, manifested in an intention to execute the threats so made,

and provided that areasonable person in the defendant's situation would not have retreated.

6Wilson testified attrial about the threats tohis life made by Gonzalez, and his trial counsel emphasized these

threats and Gonzalez' violent nature in his final argument.

7The proffered instruction was identical tothe one inthis case.

9
Id. at 212. As in Walters, the proffered instruction meets all three criteria. First,the Texas Penal

Code does not recognize prior oral threats as a defense or justification. Second, the trial court

included the statutory definition of "reasonable belief," whichwould necessarily include threats

made before the incident. Id. at 213. Third, giving the instruction would unduly focus attention

on evidence in support of a finding of self-defense by "improperly tell[ing] the jury how to

consider certain evidence before it." Id. at 214.

Accordingly, we conclude that the trial court did not err in denying Wilson's request for

an instruction on prior oral threats.

(3) AJury Instruction onNecessity Was Properly Refused

o

Wilson complains that he was entitled to a jury instruction on the defense of necessity.

Since the trial court charged the jury on self-defense using deadly force, we find that the trial

court did not err in refusingto include an instruction on necessity.

Under Section9.22 of the Texas Penal Code, conduct is justified under necessity, if

(1) the actor reasonably believes the conduct is immediately necessary to avoid

imminent harm;

(2) the desirability and urgency of avoiding the harm clearly outweigh, according to

ordinary standards of reasonableness, the harm sought to be prevented by the law

proscribing the conduct; and

(3) a legislative purpose to exclude the justification claimed for the conduct does not

otherwise plainly appear.

Tex. Penal Code Ann. § 9.22 (West 2011).

8In his brief on this point oferror, Wilson merely quotes verbatim his trial counsel's argument made to the trial

court. Since the argument below included appropriate legal authority and argument based on that authority, we will

address the point of error. Our addressing this point of error should not be taken as approval ofthis very

questionablepractice.

10
Thus, if there is a plain legislative purpose to exclude the defense of necessity, then

subsection (3) precludes its application. This Court has previously held that a defendant is not

entitled to an instruction on necessity when self-defense using deadly force is an issue since

including an instruction on necessity "would undermine the Legislature's purpose in imposing

the duty to retreat" in Section 9.32 of the Texas Penal Code. Searcy v. State, 231 S.W.3d 539,

544 (Tex. App.—Texarkana 2007, pet. refd); see Butler v. State, 663 S.W.2d 492, 496 (Tex.

App.—Dallas 1983), aff'donother grounds, 736 S.W.2d 668 (Tex. Crim. App. 1987).

However, these cases were decided under the former version of Section 9.32 that

contained a "legislative purpose" to require retreat, if a reasonable person would, before using

deadly force.9 See Butler, 663 S.W.2d at 496. In 2007, the Legislature amended Section 9.32,

removing the retreat provisions and adding "provisions specifying when a person does not have a

duty to retreat." Morales v. State, 357 S.W.3d 1, 5 (Tex. Crim. App. 2011). Thus, a legislative

purpose torequire retreat before using deadly force no longer "plainly appear(s)" in Section 9.32,

as required to preclude an instruction under Section 9.22. Nevertheless, we find that

9The former version of Section 9.32 of the TexasPenal Code provided,

A personis justified in using deadly force againstanother:

(1) ifhewould bejustified inusing force against the other under Section 9.31 ofthis code;

(2) if a reasonable person intheactor's situation would nothave retreated; and

(3) when and tothedegree hereasonably believes the deadly force isimmediately necessary:

(A) to protect himself against the other's use or attempted use of unlawful deadly

force; or

(B) to prevent the other's imminent commission of aggravated kidnapping, murder,

rape, aggravated rape,robbery, or aggravated robbery.

Act ofMay 27, 1995, 74th Leg., R.S., ch. 235, § 1, 1995 Tex. Gen. Laws 2141, 2141 (amended 2007)

(current version at TEX. PENAL CODE ANN. §9.32(a)(West 2011)).

11

VI
Section 9.32 still contains a plain legislative purpose that precludes the inclusion of an

instruction on necessity when a Section 9.32 defense is implicated.

Section 9.32 provides, in pertinent part, as follows:

(a) A person isjustifiedin using deadly force against another:

(1) if theactor would bejustified inusing force against the other under

Section 9.31; and

(2) when and to the degree the actor reasonably believes the deadly

force is immediately necessary:

(A) to protect the actor against the other's use or attempted use

of unlawful deadly force; or

(B) to prevent the other'simminent commission of aggravated

kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or

aggravated robbery.

Tex. Penal Code Ann. § 9.32(a) (West 2011).

From a plain reading ofthe statute, it is clear that the Legislature intended to justify the

use ofdeadly force only when one's life isimmediately threatened by another's use ofunlawful

deadly force orto prevent the commission ofspecific violent crimes. By contrast, the defense of

necessity has a much lower threshold before it can be asserted. Necessity requires only that the

conduct be necessary to "avoid imminent harm." Tex. Penal Code Ann. §9.22(1). "Harm" is

defined as "anything reasonably regarded as loss, disadvantage, or injury, including harm to

another person in whose welfare the person affected is interested." TEX. PENAL CODE ANN.

§1.07(a)(25) (West Supp. 2014). Allowing an instruction on necessity when, as here, the

evidence requires an instruction on self-defense using deadly force would undermine the

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legislative purpose of only allowing deadly force to be used to prevent the immediate threat to

one's life or to prevent the commission of specific violent crimes.

Accordingly, we conclude that the trial court did not errin denying Wilson's request for

an instruction on necessity.

(4) Mistrial Was NotMandated

Wilson also complains about not being granted a mistrial after the State put on evidence

ofitems used for "distributing narcotics." We find thatthe trial court properly instructed thejury

and overrule this point of error.

During the State's direct examination of Robert Zinn, an inspector for the Franklin

County Sheriffs Department, the following exchange took place:

Q. Besides the items directly related to the shooting, were there other

things found in the housethat wereof interest?

A. Yes, sir.

Q. And what was that?

A. There was, I believe, some digital scales found, some

methamphetamines found, and I believe that there was aprice list ofhow much - forsomeone thatwas distributing narcotics, it broke down the price of howmuch

each ofthose —

MR. LONG: May we approach the bench?

THE COURT: You may.

Outside the presence ofthe jury, Wilson objected to any testimony regarding distributing

narcotics, and the court sustained the objection. When the jury returned, the court gave the

following instructions:

THE COURT: Please be seated. Thank you.

10Since we have found that Wilson was not entitled to an instruction onnecessity when self-defense using a deadly

weapon is implicated, we do not reach the State's contention that the necessity defense was not available to Wilson

since hedidnot admit to theconduct. See Juarez v. State, 308S.W.3d 398 (Tex. Crim. App. 2010).

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Ladies and gentlemen, I have an instruction for you. It's one of those

instructions that I told you you may very well be given. And what I'm going to

tellyou isthat just before your break, you heard some testimony regarding digital

scales, price lists, and some suggestion of distribution of narcotics. You are to

disregard that testimony and consider itfor no purpose whatsoever. All right?

Wilson then moved for a mistrial, which was denied. Thus, Wilson has properly preserved the

point for appeal. Hines v. State, 269 S.W.3d 209, 214 (Tex. App.—Texarkana 2008, pet.

refd).11

Granting a mistrial is appropriate in "those cases in which an objection could not have

prevented, and an instruction to disregard could not cure, the prejudice stemming from an event

attrial—i.e., where an instruction would not leave the jury in an acceptable state to continue the

trial." Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004). However, a mistrial is not

required where prejudice is curable by an instruction to the jury to disregard. Ovalle v. State, 13

S.W.3d 774, 783 (Tex. Crim. App. 2000). "Atrial court's denial ofamistrial is reviewed under

an abuse of discretion standard and must be upheld if within the zone of reasonable

disagreement." Brooks v. State, 420 S.W.3d 337, 340 (Tex. App.—Texarkana 2014, no pet.)

(citing Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010)).

At the time this exchange occurred, there had already been unopposed testimony

regarding the presence of marihuana and methamphetamine in the mobile home and Wilson's

own drug use. Later, Wilson testified ofhis prior convictions for aggravated assault and felony

u"The proper method ofpreserving error in the admission of improperly offered evidence is for appellant's counsel

to: (1) state a timely specific objection, (2) obtain a ruling on the objection from the trial court, (3) move for an

instruction for the jury to disregard, (4) obtain aruling on the instruction and ifsustained, have the jury instructed,

(5) move for amistrial, and (6) obtain aruling on the motion for mistrial. These steps must be taken in sequence, and counsel cannot object and move for an instruction and mistrial without obtaining a ruling on the objection." Hines, 269 S.W.3d at214 (quoting Hadden v. State, 829 S.W.2d 838, 841 (Tex. App.—Corpus Christi 1992, pet.

refd)).

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possession ofmarihuana. In addition, the testimony and items mentioned were never mentioned

again. Ina case such asthis, inwhich thebulk oftestimony centered around theviolent behavior

and the abuse of drugs andalcohol by bothWilson and Gonzalez, it is unlikely that any prejudice

caused by this one isolated comment could not be cured by the trial court's instruction to

disregard it.

The trial court did not abuse its discretion in overruling Wilson's motion for mistrial.

(5) Wilson's Complaint Regarding the Lack of a Jury Instruction on Justifiable Force Is

Inadequately BriefedonAppeal

Wilson also complains that the trial court erred by denying his request to include an

instruction on justifiable force. In his brief, Wilson merely sets forth verbatim the argument

made by his trial counsel to the trial court. The argument does not contain any citations to

statutory or caselaw, other thanonegeneral reference to the"Penal Code."

It isthe duty of an appellant to cite specific legal authority and provide legal arguments

based on that authority. Bell v. State, 90 S.W.3d 301, 305 (Tex. Crim. App. 2002). Appellate

counsel isrequired to "cite specific, legal authority and to provide legal argument based on that

authority." Rhoades v. State 934 S.W.2d 113, 119 (Tex. Crim. App. 1996) (citing Vuong v.

State, 830 S.W.2d 929, 940 (Tex. Crim. App. 1992)); see Tex. R. App. P. 38.1(i); Ex parte

Granger, 850 S.W.2d 513, 515 n.6 (Tex. Crim. App. 1993). Where adequate briefing is not

provided, the contention can be overruled. Rhoades, 934 S.W.2d at 119. We overrule this

contention of error.

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(6) We Have No Jurisdiction Over the Amendment of the Indictment in a Companion Case

Not on Appeal

In his final point of error, Wilson asserts that the trial court erred when it allowed the

State to amend the indictment on a related charge after trial began and over his objection. We

overrule this contention.

Wilson was charged with two separate offenses thatwere triedtogether. The first, which

is the subject of this appeal and over which we have jurisdiction, was for murder (trial court

cause number F-8775). While the murder indictment was amended, that was done seventeen

days before trial and is not part ofWilson's complaint.

The second charge was for the offense of unlawful possession of a firearm by a felon

(trial court cause number F-8776). On the third day oftrial, before introducing evidence ofthe

prior offense, the State moved to amend the firearm indictment. Wilson timely objected to the

amendment.

Although these charges were tried together, Wilson has not appealed from his conviction

for unlawful possession of a firearm by a felon. Because no timely notice of appeal regarding

that conviction was filed, wehave no jurisdiction over the firearm possession case. See Olivo v.

State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Accordingly, we overrule this point of

error.

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We affirm the judgment ofthe trial court.

Date Submitted: August 28, 2014

Date Decided: November 7, 2014

Do Not Publish

Josh R. Morriss III

ChiefJustice

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