### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00804- CR

Kait lyn L ucret ia Ritcher son, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 331 ST JUDICI AL DISTRICT NO. D-1 -DC- 11- 3026 63, H ONO RAB LE DAVID CRAIN, J UDGE P RESIDING

O P I N I O N
Kaitly n L ucre tia Ritcherson was char g ed with the m u rd er of Fa tima Ba rrie under
two alterna tive theories. See Tex. Penal Code § 19.02(b)( 1)-( 2) (setting out alterna tive elements for murder)

. During the trial, Ritcherson reque sted a jury instruction for the lesser- included offe nse of manslaug hter, see id. § 19.04 (listing elements for crime of manslaug hter); see also Tex. Code Crim. Proc. art. 37.09 (def

ining lesser- included offe nse), but the district court denied that reque st. At the end of the trial, the jury found Ritcherson g uilty and sentenc ed her to 25 y ear s’ imprisonment, a nd the distric t court enter ed its judgme nt in acc ordanc e with the jury ’s deter minations. On appea l, Ritcherson asser

ts that the district court err ed by deny ing her lesser- included-of fense instruction, by excluding a video recording of her at t he poli ce station that captur ed her re action when the police told her that Ba

rrie would die from her injuries, and by admitting hear say evidenc e during the punishment phase. We will affir m the district court’s judg ment of convic tion.BACK GR OUND The seemingly senseless trag edy at i ssue i n this case occur red wh en two g roups of friends, who for the most part did not know each other , inauspiciously crosse d paths afte r l eaving

a club late on e n i gh t i n d o wntown Austin, Texas. The first g roup was composed of the victim,
Ba rrie, as well as her friends J amie Hopkins, Hopkins’s boy friend Kelvin J ones, and J ones’s friend Ronald Pace. The second g roup was composed of Ritcherson and her friends Ashley York, L y nsie Carson, and Shronda

Dobin as we ll as Chris Carson and Ry an Moore , who is York’s boy friend. 1 On the night of t h e o ff

en se, Ba rrie made plans with Hopkins to g o to a downtown club. After Ba

rrie and Hopkins left for the club, J ones decide d to g o to the same club with Pace and another friend. Meanw hile, Ritcherson was socializing with her friends at York and Moore’ s home. Although Ritcherson had plans to meet Michae l Boone to g o to a conce rt and then g o to dinner, the

rema inder of her g roup made plans to g o to the same club that Ba rrie and her friends wer e g oing to. W h i l e they wer e g etting rea dy for the evening , Ritcherson and her friends wer e drinking and socializing toge ther. After Ritcherson left for the conce rt, York, L y nsie, and Dobin arr ang ed to have

a ride to drop them off at the club, and Chris, Moore, and another friend drove to the club separ ately

.

Whil e the two g roups wer e inside the club, Chris and Pace had a neg ative encounte r. T h e two of them had previously met, and the arg ument inside the club rela ted to that prior interac tion. At some point in the evening, L y nsie was kicked out of t he club becau s e she beca me
too intox icated, and York called Ritcherson, who was eating dinner with Boone , and asked her if she

Severa l of the individuals involved in this ca se ar e re lated and sha re ide ntical last names. 1 Where ne eded f

or cla rity , we will re fer

to those individuals by

their first name s. 2would drive to the c l u b t o help wit h L y nsie. Ritcherson agr eed, drove Boone home, and drove to the club. After parking her car near the club, R i t ch er s o n h el p ed put L y nsie in her car and then heade d to the club to socialize with some people that we re outside.

When the club closed at t h e en d of the evening , ever y one inside the club walked outside. After leaving the club, Dobin wa l k ed t o R itcherson’ s car to chec k on L y nsie, who was

s le e p in g in th e c a

r . A r o u n d th is ti me a

n d a f te r g o in g o u ts id e , Ch

r is a n d Pa c e c o n ti n

u e d th e ir a r g u me n t from ear lier in the evening , but the alterc ation never beca me phy sical. During the arg ument, J ones stood next to his friend Pace and attempted to settle the dispute peac efully

. Simi larly , Moore stood

n ex t to his friend Chris in the event that the arg ument esca lated. Ritcherson and York also stood

near Pace and Moore. When Ba rrie and Hopkins wer e leaving the club, they noticed the arg ument betwee n Chris and Pace and we nt to see wha t was g oing on.

The e vents that occ urre d next are di sputed and form the basis for the a ppeal in this

case , but what is no t d i s p u ted is that Ritcherson and Ba rrie g ot into an arg ument, that the dispute beca me phy sical at some point, that York left th e ar ea when the situation beca me phy sical, that
R i t cherson stabbed Bar

rie in the chest with a knife, and that Ritcherson sus tained an injury to h er le g d u r in g th e f ig h t. A f te r s h e w a s s ta

b b e d , B a r r ie to o k a f

e w s te p s a n d th e n c o ll a

p s e d o n th e g r o u

n d , and someone who witnessed the event s ca l l ed 9 1 1

. When EMS arr ived on the scene , Ba rrie was rushed to a near

by hospital w here it wa s discovere d that the knife had rea ched Ba rrie’ s pulmonary
arte ry . Although the trea ting phy sic i an s and hospital staff worke d tirelessly to save Ba rrie’ s life,
Ba rrie die d from her

injuries sever al day s later.

3Shortly afte r the st ab bing, Ritcherson caug ht up with York, who was walking

towards Ritcherson’s car . When Ritcherson and York arr ived at the car , the two of them and Dobin d i s cussed the wound to Ritcherson’s leg

. Dobin offe red to drive Ritcherson to the hospital, b u t Ritcherson ref

used. Dobin drove Ritcherson’s car in the direc tion of York’s home in south Austin, b u t eventua lly Ritcherson asked Dobin to drive her to the hospital when her leg starte d h u rt i n g. Simul taneously , Moore and Chris left the scene , and Moore drove them back to his home. After talking with York, Moore drove to the hospital an d met up with his friends. Due to the nature of Ritcherson’s wound, the staff a t the hospital called the police

.

After conducting an investiga tion of the scene outsid e t h e club and interviewing witnesses that wer e still at the club, the police interviewe d Ritcherson afte r picking her up from the hospital. A few day s l at er , the police arr ested Ritcherson, and she was char g ed with alterna tive
counts of murder. First, Ritcherson was alleg ed to have “intentionally and knowing ly cause [d] the death of Fa tima Ba

rrie, by stabbing Fa tima Ba rrie with a knife or another object

. . . , eac h of which

was a deadly wea

pon, during the commission of this offe nse.” See Tex. Penal Code § 19.02(b)( 1). Second, Ritcherson was alleg ed to have committed “an act clea rly dang erous to human life” with the “intent to cause serious bodily injury to Fa tima Ba rrie

. . . by stabbing Fa tima Ba rrie with a knife or another object

. . . , eac h of which was a deadly wea pon, during the commission o f t h i s offe nse.” See id. § 19.02(b)( 2).

Subsequent to Ritcherson being char g ed, a jury trial was held. At the end of the first trial, a hung jury was rea ched, and the district court g rante d a mistrial. A few months later, another trial was held. During that trial, various witnesses testified reg arding their rec ollections of the events

4in question, and testimony from sever al witnesses who testi fi ed during the first trial was rea d for

the j ury beca

use t hose wit nesses were not available during the s econd trial. After considering the evidenc e, the jury deter

mined that Ritcherson was g uilty of murder, and the district court enter ed a judgme nt of conviction in acc ordanc e with the jury ’s deter mination. Ritcherson appea ls the district court’s judg ment of convic tion.

DISCUSSIO N

On appe al, Ritcherson challeng es various ruling s made by the district court. I n her first issue, as set out above, Ritcherson contends that the district court err ed by deny ing her reque st for a jury instruction for the lesser- included offe nse of manslaug hter. I n her second and third issues, Ritcherson asser

ts tha t the district c ourt err ed by deny ing her reque st dur ing the g uilt or innocenc e phase as well as the punishment phase of th e trial to have a video rec ording of her at the police station play ed for the jury

. The video chronic led the moments in which the police told her that she

was g oing to be arr ested and that Ba rrie was g oing to die. Finally , Ritcherson arg ues that the district

c o u r t e r r e d d u r in g th e p u

n is h me n t p h a s e w h e n it o v e r r u le d h e r o b

je c ti o n to th e a d

mi s s io n o f te s ti mo ny reg arding an extraneous a ct in which she a lleg edly attempted to stab her

brother dur ing a

dispute.

Lesser- Includ ed Of

fense I n her first issue on appea l, Ritcherson conte n d s t h at the district court err ed by deny ing he r re quest for a

jury instruction for the lesse r-include d offe nse of mansla ug hter. W h en revie wing an alleg ed jury -cha rg e err or, appellate courts first deter mine whether an err or exis ts. Kirsch v. State , 357 S.W .3d 645, 649 (Tex. Crim. App. 2012); Ngo v. State ,

5175 S .W.3d 738, 743 (Tex. Crim. App. 2005). I f the court deter mines that there was an err or, it then decide s whether the err or resulted in harm sufficie nt to war rant a reve rsal. Kirsch , 357 S.W .3d
at 649 ; Ngo , 175 S.W .3d at 743. When deciding whether a lesser- included-instruc tion should have been g iven, cou rt s must deter mine whether the offe nse listed in the reque sted instruction is
actua lly a lesser- included offe nse of the offe nse that the defe ndant was char g ed with. Rice v. State , 333 S.W .3d 140, 144 (Tex. Crim. App. 2011); see Hall v. State , 225 S.W .3d 524, 535 (Tex. Crim. App. 2007). I f the revie wing court deter mines that the offe nse listed in the reque sted instruction is

a lesser- included offe nse, the revie wing court must then deter mine whether the evidenc e prese nted during the trial supports the reque sted instruction. Goad v. State , 354 S.W .3d 443, 446 (Tex. Crim. App. 2011); Rice , 333 S.W .3d at 144.

As discussed previously , Ritchers o n wa s char g ed under alterna tive theories of murder. U nder the first theory , as set out i n subsection 19.02(b)(1) of the Penal Code, Ritcherson

was alleg ed to have “intentionally or knowing ly cause [d] the death of an individual,” see Tex. Penal Code § 19.02(b)( 1), and under the second theory , as s et o u t in subsection 19.02(b)(2), R itcherson

was alleg ed to have intended “to cause serious bodily injury ” and to have committed “an act clea rly dang erous to huma

n life that ca

use[d] the dea th of an individual,” see id. § 19.02(b)( 2). “‘Ser ious bodily injury ’ means bodily injury that cre ates a substantial risk of death or that cause s death, serious
perma nent disfigur ement, or protrac ted loss or impairment of the function of any bodily member or org an.” Id. § 1.07(a) (46).

Under the Penal Code, an individual commits manslaug hter “if he rec klessly cause s the death of an individual.” Id. § 19.04. Acc ording ly , manslaug hter only differ s from murder as set

6out in subsection 19.02(b)( 1) in that manslaug hter require s a less culpabl e mental state, see Tex.

Code Crim. Proc. art. 37.09(3) (explaining that offe nse is lesser- included offe nse if “it differ s from the offe nse char g ed only in the respe ct that a less culpable mental state suffice s to establish its commission”), an d the State does not dispute on appea l that manslaug hter is a lesser- included offe nse of the first theory of murder char g ed, see Arnold v. Sta t e , 2 3 4 S

. W

. 3 d 664, 671 (Tex. App.—Houston [14t h Dist.] 2007, no pet.) (explaining that “it is well-e stablished that manslaug hter is a lesser- included offe nse of murder” ); see also Cavazos v. State , 382 S.W .3d 377, 384 (Tex. Crim. App. 2012) (conc luding that manslaug hter is lesser- includ ed offe nse for murder under subsection 19.02(b)( 2) as well and stating that m anslaug hter “diffe rs from intending to cause serious bodily injur y wi t h a resulti ng death only in the respe ct that a less culpable mental state establishes its commission”). Acc ording ly , the first prong is satisfied in this case.

Turning to th e s ec o n d prong , when deciding whether the evidenc e supports the
reque sted instruction, the revie wing court considers all of the evidenc e admitted at trial and not just the evidenc e prese nted by the defe ndant, Goad , 3 5 4 S

. W

. 3 d at 446; see Rousseau v. State , 855 S.W .2d 666, 672 (Tex. Crim. App. 1993), and must deter mine whether there is some evidenc e from which a rational jury could acquit the defe ndant of the g rea ter offe nse and convict the defe ndant of the lesser offe nse, Cavazos , 382 S.W .3d at 385. I n other words, courts must e valuate if there is

some evidenc e that would allow the jury to rationally deter mine that if the defe ndant was g uilty , he

w a s o n ly g

u il ty o f th e le s s e r o f

f e n s e . S e e R ic e , 3 3 3 S. W. 3 d a

t 1 4 5 ; G u z m a n v
. S ta te , 1 8 8 S. W. 3 d 1 8 5 , 188-89 (Tex. Crim. App. 2006); see also Rice , 333 S.W .3 d at 1 4 5 (e x plaining that evidenc e
must prove lesser- included offe nse as rational and valid alterna tive to offe nse char g ed). To meet

7this re quirement, there must be aff irmative evidenc e that raises the lesser- included offe nse and that nega t es an el em ent of the g rea ter offe nse. Cavazos , 382 S.W .3d at 385. “‘A ny thing more than a sc intill a of e vidence is sufficient to entitle a defe ndant t o a lesser char g e.’” Sweed v . State , 351 S.W .3d 63, 68 (Tex. Crim. App. 2011) (quoting Bignall v. State , 887 S.W .2d 21, 23 (Tex. Crim. App. 1994)). The “thre shold showing is low,” but “‘it is not en o ug h that the jury may disbelieve

cruc ial evidenc e perta ining to the g rea ter off ense, but r ather , there must be some evidenc e direc tly
g erma ne to the less er -i n cl u d ed offe nse for the finder of fac t to consider befor e an instruction on

a lesser- included offe nse is war rante d.’” Id. (quoting Skinner v. State , 956 S.W .2d 532, 543 (Tex. Crim. App. 1997)). I n perf orming this analy sis, the court may not consider the cre dibilit y of the evidenc e supporting the lesser char g e or consider whether that evidenc e is controve rted o r conflicts with the other

evidenc e. Goad , 354 S.W .3d at 446-47. For this case , the relev an t i n quiry turns upon Ritcherson’s intent. The State was req u i re d t o p rove that Ritcherson acte d intentionally or knowing ly when she cause d the death of Ba rrie or that Ritcherson intended to cause serious b o dily injury to Ba rrie. See Tex. Penal Code § 19.02(b)( 1)-( 2). To be g uilty of manslaug hter, there must be evidenc e establishing that Ritcherson

ac t ed rec klessly when she cause d Ba rrie’ s death, see id. § 19.04, and under the Penal Cod e, “[ a]
person acts rec klessly

. . . , with respe ct to circ umstances surrounding his conduct, when he is awa re of but consciously disreg ards a substantial and unjustifiable risk that the circ umstances exis t or the result will occur ,” id. § 6.03(c)

. Acc ording ly , for Ritcherson to be entitled to the instruction, there
must be some evidenc e that she did not intend to cause either death or serious bodily injury and some evidenc e that would allow a rational jury to deter mine t hat she was awa

re of but disreg arde d a

8s u

b s ta n ti a l a n d u n ju s ti f ia b le r is k th a

t d e a th w o u ld o c c u

r a s a r e s u lt o f h e r c o n d

u c t. S e e id

. § § 6

. 0 3 ( a ) , ( c ) ( s e tt in g o u t c ir c u

ms ta n c e s in w h ic h p e r s o n a c ts in te n ti o n a ll y o r r e c k le s s ly

) , 1 9

. 0 2 ( b ) ( 1 )

- ( 2 ) ( li s ti n g alterna tive elements for murder) , .04 (desc ribing offe nse of manslaug hter); cf. Cavazos , 382 S.W .3d
at 385 (ana ly

zing whether second prong was satisfied for lesser- included offe nse of manslaug hter). During the trial, various members from b o th g r o u p s o f f riends, sever al police office rs,

sever al medical profe ssionals, and witnesses at the scene who wer e unaff iliated with either g roup of friend s testified reg arding the events on the ni g ht of t he offense, reg arding the i njuries t hat Barr ie and Ritcherson sustained, and reg arding statements that R i t ch er son made afte r the incident. I n addition, a video of Ritcherson’s interview with the police that was t ak en a few hours afte r the incident was pla

y ed for the jury

. 2
Barrie’s Group of Friends

When prese nting its case , the State called two members of Ba rrie’ s friend g roup that

wer e prese nt at the club, Hopki n s an d J o n es, to testify reg arding the events that they witnessed. Reg arding the events leading up to the stabbing , Hopkins testified that when she and Ba rrie left the club, they saw a g roup of people arg uing. I n particula r, she r elated tha t she saw Ritcher son acting

During the trial, some of the witnesses di d not identify Ritcherson or know her name, 2 and som e did not know Barr ie’s name . Howeve r, the undisputed witness testimony and the DNA analy ses perf

ormed on items rec overe d from the scene established that Ritcherson and Ba rrie wer e the individuals involved in the dispute at issue, and no evidenc e was introduced sug g esting that there was a p hy sical fig ht betwee n two other women at the club on the night in question. Moreove r, Ritcherson does not asser t on appea l that she was not the person who stabbed Ba rrie or that she was not proper ly identified as the offe nder during the trial, and during the trial, Ritcherson conce ded that identity was not an issue. Acc ording ly , when summarizing the testimony from the witnesses, we will ref er to the individuals involved in the dispute as Ritcherson and Ba rrie for ease of rea ding even if the witnesses did not use those na mes to identify the par ticipants. 9“row dy .” I n addition, she stated that as they wer e walking by , Ritcherson and another woman came

up to them and said “[s] omething neg ative” to them, and Hopkins admitted that they said something
neg ative back and that she might have called Ritcherson a “bitch.” She descr ibed the encounte r as “a bad situation,” stated that she felt threa tened, and explained that she communicated to Ritcherson that she had no desire to fig ht. Nex t , Ho p k i ns rela ted that she g rabbe d Ba

rrie’ s arm and tried to move them out of the a

rea . When descr ibing the events immediately prec eding the stabbing , Hopkins explained that J ones g rabbe d her to g et her awa y from Ritcherson, that she noticed when she was being pulled

awa y that Ritcherson had “something in her hand” and was “wa iving it in the air,” and that the object “looked like a knife.” When questioned about testimony that she had g iven in the previous trial, she

rec all ed that she previously testified that the blade of the object that she thought was a knife was
two and a half inche s long. In her testimony during this trial, Hopkins admitted that she could not

see what was happening to Ba rrie afte r she was p u l l ed aw ay , b ut she explained that she did not

see Ba rrie tr y t o h it Ritcherson. I n addition, Hopkins rela ted that afte r J ones pulled her from the

s i t u ati on, he went back to g et Ba rrie, that the three of them started walking awa y , and that Ba

rr i e collapsed when they wer e walking and fell to the g round. Finally , Hopkins rec alled that she noticed that Ba rrie’ s ey es rolled back into her hea d, that Ba rrie did not re spond to any questions that were asked of her, a nd that Ba

rrie w as blee ding. 3

Du ri n g the trial, Detec tive Michele Apar icio was called to the stand to discuss her 3 conver sation with Hopkins at t he scene after the incident. I n her testimony , Offic er A paric io said that Hopkins told her that something happene d that cause d Ba rrie to turn around, that Ba rrie turned back a round and c ollapsed, and tha t she did not see B arr ie g et stabbed. 10After Hopkins finished her testimony , J ones was called to the stand. I n his testimony ,

J ones explained that someone from Carson’s g roup y elled an insult at him, that Hopkins and Ba rrie hear d the comment when they wer e leaving the club and beca me offe nded, that Hopkins and Ba rrie turned and responde d to the insults, and that he saw that “anothe r situation wa s about to oc cur” so he “pic ked Hopkins up and ba sically turned he r ar ound to push her off down the stree t.” Next, he stated that he went back for Ba rrie and “picke d her up and we walked awa y ,” rec alled that her hand

was in the air when he picked her up but that she did not have any thing in her hand, and ag ree d that
Ba rrie was “swing ing at” or “g oing at” Ritcherson. I n addit i o n , he testified that afte r he pulled
Ba rrie out of the situation, the g roup started to walk awa y and that afte r they walked for a few steps, Ba rrie fell to the g round. Fur thermore , althoug h he explained that he did not see Ba rrie g et stabbed, it was appa

rent fr om her injuries that she ha d been sta bbed.
Ritcherson’s Group of Friends

When prese nting its case , the State also called to t h e s t an d various members of Ritcherson’s fr iend g roup, including York, Dobin, and Moore . During the trial, Ritcherson c alled her f riend Chris to the stand.

I n her te stimony

reg arding the eve nts leading up to the stabbing , York rec alled that
Ba rrie and Hopkins started y elling at Chris during Chris’s arg ument with Pace, that Ritcherson told the girls “to l eave it alone” b ec ause the arg ument had nothi ng to do with them, that Ba rrie started
y elling at Ritcherson, that Ritcherson started laug hing at Ba rrie, and that Ba

rrie and Hopkins started
y elling at Ritcherson. Next, York testified that she noticed that Ritcherson had a knife in her hand, that she tried to pull Ritcherson awa y , that she told Ritcherson that they s h o uld leave , and that

11Ritcherson would not leave

. Moreove r, York rela ted that she left the are a and heade d to the car afte r

Ritcherson ref

used to leave and that as she was leaving , she saw Ba rrie hit Ritcherson on the head; howeve r, York clar ified that she never saw Ritcherson attack Ba rrie. I n addition, York rela ted that

n o one else had a knife, that there was nothing g oing on around them that would have j u s t i fi ed Ritcherson pulling out a knife, that she did not believe that Ritcherson was in dang er when she g ot hit in the head, and tha t if she thoug ht Rit cher son was in dang er, she would not have lef t. 4 When Dobin testified, she explained that shortly afte r she went to the car to chec k on L y nsie, Ritcherson and Moore returne d to the car and said that Ritcherson had an injury to he r leg , that Ritcherson stated that she did not know how it happene d, that Ritcherson never mentioned being threa tened by any one, and that Ritcherson never said that she was defe n d i ng herse lf or that she was attacke d. I n addition, she ex plain ed t h at Ritcherson carrie d a sm all pocket knife that she used to cut hair e x tensions.

After Dobin and York testified, the State called Moore to the stand. I n his testimony , he explained that Chris had had too much to drink that night and g ot into an arg ument with Pace and that he, York, and R itcherson were standing by near wher e the a

rg ument was occurr ing. Next, he rela ted that Ba

rrie came out of the club with H opkins, tha t the y saw the arg ument with the ir friend Pace, that they thought that Ritcherson and York wer e i n v olved, that they started arg uing with

I n her t es t i m o n y , York admitted that she repe atedly lied to the police in order to protec t 4 Ritcherson and admitted that she previously told the g rand jury that she and Ba rrie bumped into one another , that they both said excuse me, that Ritcherson tho u ght Ba rrie said something rude and s t ar t ed arguing with Ba

rrie and Hopkins, that Ritcherson had a knife in her hand during th e arg ument, and t hat Ba

rrie hit Ritcherson in the head with her phone. Reg arding her g rand jury testimony , York also rec alled that she previously testified that s he was not sure if Ba rrie hit Ritcherson bec ause she was wa lking a way at that point. 12Ritcherson and York, that Hopkins tried to pull Ba rrie awa y and said that the arg ument had nothing
to do with them, that Rit cher son and York sta rted making fun of B arr ie, that Ritcherson a nd York

wer e talking loudly but not direc tly at Ba rrie, that Ba

rrie g ot mad, that Ba

rrie took off her shoes, that 5
Ba rrie y elled “fuc k y ou-all,” that Ba rrie lunge d at Ritcherson, and that Ba rrie’ s friend stopped her. When discussing this incident, Moore explained that Ritcherson did not seem scar ed. Next, Moore

rec alled that Ba

rrie lunge d a second time, that Ba rrie had an object in her hand, that he did not know if it was a phone or a shoe, that the object was not a g un or a knife, that Ba rrie “made contac t,” and that he thoug ht it was on Ritcherson’s for ehea d; however , he later clar ified that B arr ie did not use

a shoe t o h i t Ritcherson and that he did not actua lly see the hit, but he explained that he saw Ritcherson later

with knots on her fore head a nd “put two and two tog ether .” 6
Fur thermore , Moore explained that he was holding Ritcherson back and that Hopki ns

was pulling Ba

rrie awa y , and he rec alled that Ritcherson was swing ing her hand at Ba rrie when he

was try ing to hold her back. When descr ibing this exchang e, he stated that he did not see any thing in Ritcherson’s hand at the time, that Ritcherson made one overha nd swing , and that Ritcherson did
not rea ch over Ba

rrie’ s back or shoulder, and he agr eed that it seeme d like Ritcherson swung as a ref lex to g etting hit. L ater , he explained that R itcherson was defe nding herself from being hit but
ag ree d that the hit did not g ive Ritcherson the rig ht to kill Ba rrie. Next, he testified that Ba rrie fell

When testify ing, Moore l at er cl arifie d that althoug h Ba rrie could probably see York and 5 Ritcherson laug hing, she probably could not hear the insults that t h ey we re say ing. I n addition, Moore said that Ritcherson was insulti ng Ba rrie and that Ritcherson does that to provoke people; howeve r, he a lso testified that Ba rrie w as the pe rson who initiated the taunting

. During the t rial, Boone testi fied that Ritcherson did not have knots on her head e arlier

in 6 the eve ning. 13down, that Hopkins helped her up, that they walked to the sidewalk, and that Ba rrie collapsed betwee n two car s.

Also, Moore explained that he “tussle[d] ” with Ritchers o n , noticed that she had a knife, tried to g et the knife awa y from her , manag ed to g et the knife out of her ha nd, and kicke d it

awa y . When descr ibing the knife, he said that it was short and was approximately four and a half

or five inches long, including the handle, and test i fi ed t h at there was no rea son for Ritcherson to have the knife at that moment, that Ba rrie did not do any

thing that could have cause d serious bodily injury or death to Ritcherson, and that Ritcherson never said or did any thing that led him to believe that she fea

red for her life or s af

et y . Finally , Moore explained that afte r he g ot the knife out of Ritcherson’s hand, Ritcherson appea red “shocke d or confuse d,” left the are a, and met up with York, who left befor e the stabbing occur red afte r unsucce ssfully try ing to g et Ritcherson to leave and afte r telling Ritcher son, “I t don’t have nothing to do with us, let’s go.”

During her case in chief

, Ritcherson called Chris to the stand. I n his testimony , Chris stated that during his arg ument with Pace, Ba rrie moved towards him carry ing a high- heele d shoe in her raised hand, and he rec alled that it seeme d like she was “g oing to hit me.” Fur ther, he stated that instead of hitting him, Ba rrie went past him and hit Ritcherson on the head and that h e s aw Ri tc h e r s o n a

n d B a r r ie “ c r a s h in

to e a c h o th e r . ” H o w e v e r , h e la te r c la r if ie d th a t h e d id n o t a c tu a ll y s e e wher e the hit connec ted, that he did not see what happene d befor e Ba rrie hit Ritcherson, that he did
not see any

thing afte r the hit beca

use people g ather ed around the fig ht, and that he never saw a knife.

14W

itnesses That were Not w ith Either Group

I n ad dition to the t estimony from members of t he two g roups, t he S tate also called
to the stand other individuals who wer e prese nt at the club on the night in question. First, the State called Stef

ne He nderson who te stified that she wa s at the club on the ni g ht of t he offense a nd that when she left the club, she saw Ritcherson arg uing with someone. Specifica lly , Hende rson rec alled
t h at she saw Ritcherson arg uing with a g roup of men, that one of Ritcherson’s friends pulle d h er back awa y from the alterc ation, that the men quieted down, that Ritcherson moved around wher e the

men wer e standing , that Ritcherson “starte d arg uing with” a woman other than Ba rrie, t hat the

women arg ued but nothing phy sical happene d, that Ritcherson and Barrie started arg uing, that it looked like Ritcherson “wa s looking for a fig ht beca use she was arg uing with so many people,” that
Ba rrie n ev er ra i s ed her hand or tried t o touch R itcherson, that Ba rrie did not have any

thing in her hand, that Ba

rrie turned to walk awa

y , that Ritcherson raised a knife into the air, and that Ritcherson stabbed B arr ie. When descr ibing the stabbing , Hende rson rela ted that Ritcherson reached over Ba rrie’ s rig ht shoulder and stabbe d Ba rrie. Fur thermore , Hende rson t estified that it appea red that
Ba rrie did not know that she had been stabbed beca use she continued to wa l k fo rw ar d and then collapsed. Next, Hende rson rec alled that Moore struggl ed wi t h Ritcherson to g et the knife awa y from her, that Ritch e r s o n dropped the knife, and that Ritcherson walked awa y . During her testimony , H e n d e r s o n a g r e e d th a

t s h e h a d p r e v io u s ly c h a

r a c te r iz e d th e k

n if e a s “ h u g e ” a n d th a t s h e h a d p r e v io u s ly estimated that the knife had a six-inch blade whe n she talked to the police afte r the incide nt.

Next, the State called Og henebr ohien Shermay Uwalog ho who explained that on the night of the offe nse, she was hired as a photogr apher for the event at the club. Moreove r, she rela ted
15that afte r the club closed, she hear d two g roups of people arg uing. I n her testimony , she explained

t h at afte r the men from the two g roups stopped arg uing, women from both g roups, i n cl u d i n g Ritcherson and Bar

rie, star ted ar g uing. N ext, s he testified that she saw Ritcher son hold a knife in the air above her head but that Moore was re s t ra i ning her, was try ing to stop her from using the knife, a nd was try

ing to c alm her dow n. Fur ther, Uwalog ho testified that she saw Ba rrie walk awa

y with her friend and stated that afte r Barr ie s tarted walking awa y , she saw Ritche rson move aw ay from Moore and out of her sight and that she later saw Ba rrie lay ing on the g round bleeding

. I n addition, she admitted that she did not see Ritcherson stab Ba rrie but e x plained that Ritcherson was the only person she saw with a knife . When describing Ritcherson’s demea nor, Uwalog ho testified that Ritcherson appea red to be “in defe nse mode” and was acting like she was protec ting herse lf, but Uwalog ho clar ified that she simply meant that Ritcherson was in a heate d alterc ation and that ever y one involved was in defe nse mode and de fending themselves. Moreove r, she re called tha t she did not see any one use a ny kind of wea pon ag ainst Ritcherson and stated that she never s aw a moment wher e Ritcherson had to phy sically

defe nd herse lf. During her case in chief , R i t cherson called Br itney Carson to the stand. I n her testimony , Br itney explained that she is Chris’s sister and that she was at the club on that night with

a differ ent g roup of friends. Moreove r, she stated that althoug h she saw Chris with his friends, she did not hang out with them inside the club. Fur ther, she testified that when she was leaving the club, she saw York standing by Ritcherson, that York was in an arg ument with a g roup of g irls, that York told the g roup that “[t] his has nothing to do with y ou,” that Ritcherson was not participa ting, and that

16“a g roup of g irls lunge [d] towards [York] and [R itcherson], then they take a couple steps back. The

next thing I see [Barr ie] hit [R itcherson]” on the fore head with her hand while holding a cell phone. When descr ibing t h e h i t , Br itney stated that the hit was very loud, that she thought Ritcherson

wo u l d be injured afte r g etting hit that hard, that Ritcherson stumbled backw ards afte r the hit b u t did not fall, and that B arr ie slipped afte r hitting Ritcher son.

Next, Britney

rela ted that she notice d that Ritcherson had a knife in her rig ht hand; that Ritcherson wa s trembling; that Ri tcher son looked sca red; that B arr ie said, “I

don’t ca re a bout
y our kni fe, I ’m still going to kick y our ass” ; and that Ba rrie’ s tone was threa

tening

. Fur

thermore , Br itney stated that the other g roup of g irls, inc luding Ba rrie, rushed towards Ritcherson, that there

was a short “viol en t cl as h ” when a huge crowd rushed t og ether , and that she di d not see any thing afte r the clash. I n her testimony , Br itney stated that she did not see a knife in Ritcherson’s rig ht hand befor e she was hit but stated that Ritche rson’s left hand was on her purse prior to her g etting hit. When descr ibing the knife, Br itney said that the knif e wa s s m al l and that althoug h she could not

reme mber exactly how long the blade was, she ag ree d that her previous testimony that the blade was two and a ha lf inches long was a ccur ate.
Law-Enforcement W

itnesses I n addition to the ey ewitness testimony , the State called various law-e nforc ement office rs to testify reg arding their investiga tions of the offe nse and reg ard i n g interviews that they conducte d during their investig ations.

First, Detec tive Anthony Nelson explained t hat when he interviewe d Ritcherson about the incident, Ritcherson admitted that she had been in a fig ht with another woman that night,

17stated that the other woman “ca me at her,” and rela ted that someone hit her. I n addition, a lthough Offic er Nelson also reve aled that Ritcherson never stated that she was acting in self-de fense , he

rec alled that Ritcherson stated that she was conce rned ab o u t h er s afe ty and about try ing to g et to safe ty when the fig ht broke out. Fur ther, Offic er Nelson rela ted that Ritcherson stated that she was the one who started the arg ument, which cause d the other woman t o co m e af t er her, but Offic er Nelson clar ified that Ritcherson never said the other person came at her with a wea pon or object of
any kind. Finally , Offic er Nelson rela ted that Ritcherson denied stabbing any one or being near the
person when she was stabbed. A rec ording of this interview was admitted into evidenc e during trial 7 and was play ed for the jury

. On the video, Ritcherson admitted that she was in a fig ht with Ba rrie, that she had been “talking mess” about Ba rrie, and that althoug h Ba rrie’ s friends wer e pushing her

awa y , Ba rrie w as still able to punch her

. Next, the State called Offic er Paul J ohnson, who testified that he responde d to the

scene and talked with a witness to the incident named Shermay Gre en. Fur ther, he rela ted that Gre en reve aled that she saw Ritcherson and Ba rrie ar gu i n g, t hat Ritcherson had a knife that was approximately four inches long, that some men wer e try ing to separ ate Ritcherson from Ba rrie, and

I n his testimony , Offic er Nelson rela ted that Rit ch erson explained that she did not know 7 how she sustained an injury to her leg

. Howeve r, Offic er Ne l s on also explained that “it’s not uncommon” for an individual who stabs another person to sustain a self-inflicte d stab wound. During the trial, the State called Tinny J ones, who was a nurse with the Travis Cou n t y Sheriff’ s Offic e, and J essica Og lesby , who was a counselor for the Travis County Sheriff’ s Offic e, to the stand to discuss conver sations that they had with R itcherson after the incident. Both witnesses testified that Ritcherson explained tha t she acc identally stabbed herse lf in the leg during a fig ht. Relatedly , the nurse who trea ted Ritcherson on the night of the offe nse, J enny Stepp, char acte rized Ritcherson’s wound as small, not serious, not life threa tening , and more like a cut. Moreove r, Stepp testified that stab wounds ar e norma lly deepe r than the injury

that Ritcherson sustained. 18that R i t ch er s o n ran around the men and ran toward Ba rrie. I n addition, Offic er J ohnson rec alled that Gre en did not “ac tually see any one getting stabbed” but believed that Ritcherson wa s the one who stabbed B arr ie.

Medic al W

itnesses As set out above, the State also called various medical personne l to testify reg arding the injuries that B arr ie sustained that eve ning.

First, the State called Dr. Charlie Ross, who testified that he trea ted Ba rrie’ s injuries

a n d th a t B a r r ie w a s s ta

b b e d in h e r le f

t p u lm o n a r y a r te r y . F u r th e r , h e a g r e e d th a

t in s e r ti n g a k n if e in to

a p e r s o n ’ s c h e s t in a ma

n n e r th a t c a u s e s a h o le in a

n a r te r y is a n a c t th a t is c le a r ly d a n g e r o u s to h

u ma n life and that the wea

pon used was capa

ble of causing and did cause serious bodily injury and death. Second, the State called Dr. Stephen Dewa n, who testified that he trea ted Ba rrie on the night of the incident and explained that she had “a hole on the upper anter ior chest wall that
appea red -- that was the entra

nce side of the wound that we could follow that trac k throug h the chest wall, throug h the lung, throug h the peric ardium and to the pulmonary arte ry .” Fur ther, he explained that for an object to rea ch the pulmonary arte ry in the manner at issue here , it would have to be two and a half inches long at least. Moreove r, he rela ted that the object would have “to be pretty sharp”

a n d a g r e e d th a

t th e in ju r ie s w e r e c o n s is te n t w it

h h a v in g b e e n c a

u s e d b y a k

n if e . I n a d d it io n , h e a g

r e e d that using a

small object in the manner at issue in this case wa s an ac t clear ly dang erous to human life and tha t the instrument at issue was c apable of ca using a nd did cause serious bodily injury

. Finally , the State called Doctor Vickie Wil lo u g h b y , who testified that she is a medical examiner and rela ted that the autopsy that s h e perf ormed on Ritcherson reve aled that Ba rrie died

19from complications resulting from a stab wound that she suffe red to the chest that was inflicted by

someone other t h an Ba

rrie. When descr ibing that initial injury , Dr. Wil loughby testified that the
tear to the pulmonary arte ry resulted in blood filling the are a around the hear t and cause d the hear

t
to stop beating

. Fur

ther, she explained that the wound would have cause d Ba rrie to pass out within seconds or minutes depending on how fast the blood was flowing out of the arte ry and that she might be able to take “a

couple, se vera l” steps rig ht after the injury

but would not have bee n able to run.
I n her testimony , Dr. Wil loughby rela ted that the injury was thre e inche s deep, tha t the wound went from left to rig ht and from front to back, and that she was unable to discern whether the wound had a

ny upwar d or downward angle to it. Moreove r, Dr. Wil loughby reve aled that the siz e of the wound would have been aff ecte d by various fac tors such as whether the hear t was beating
at the time of the stabbing , which would have cause d the pulmonary arte ry t o move slightly

. A c c o r d in g ly , s h e e xp la in e d th a t th e b la d e c o u ld h a

v e b e e n lo n g e r th a

n th r e e in c h e s o r s li g h tl y s h o r

te r . Moreove r, althoug h she conce ded that her ana l y s i s could not deter mine who committed the act or whether it was done intentionally , she ag ree d that the way that knife was used

was capa ble of causing serious bodily injury or death, that the act of stabbing someone in the chest

was an act clea

rly dang erous to human life, and that using a sharp instrument to penetr ate the chest
reg ardle ss of whether the stabbing was done fac e to fac e or ove r someone’ s shoulder is an ac t that

cre ates a substantial risk of dea

th.
Ritcherson’s Argume nts in Support of Lesser-Inc luded Instruction When asser

ting that there was evidenc e prese nted at trial upon which the jury could have deter

mined that she was g uilty of manslaug hter and not g uilty of murder, Ritcherson urg es that

20the only evidenc e perta ining to her intent to kill u n d er the first theory of murder came from

Hende rson, who testified that Ritcherson att ac k ed Ba rrie from behind, rea ched over Ba rrie’ s shoulder, and sta

bbed B arr ie with a larg e knife . Moreove r, Ritcherson c ontends that Hende rson’s testimony was inconsistent with the medical testimony and evidenc e prese nted at trial. Specifica lly , Ritcherson contends that if Hende rson’s testimony wer e ac cura te, there would have been a wound with a downwar d ang le beca use Ritcherson was signific antly taller than Ba rrie, but Ritcherson
notes that Dr. Wil loughby testified that she was unable to tell whether the wound had an upwar d or downwar d ang le. I n addition, Ritcherson contends that if Hende rson’s testimony wer e acc urate , the wound would have had a rig ht to left trac k b ec au s e Hende rson testified that Ritcherson rea ched

over Ba rrie’ s rig ht shoulder to stab Ba rrie; howeve r, Ritcherson notes that Dr. Wil loughby testified that the wound had a l ef

t to rig ht trac k. Fur

thermore , Ritcherson notes that none of the medical experts testified that the act demonstrated an intent to kill and t h at Dr. Wil loughby stated that the result s o f t h e autops y could not deter mine whether the act was done intentionally

. For these

rea sons, Ritcherson arg ues that the jury may well have deter mined that the evidenc e showed that Ritcherson behave d in a rec kless and dang erous manner but did not show that Ritcherson intended to kill Barr ie. 8

I n a rela ted set of arg uments, Ritcherson co n t en ds that the testimony from Dr. Dewa n 8 undermined the asser

tion that Ritcherson “spec ifically intend ed to targ et and strike the hear t.” Howeve r, under neither the ory of murder

was the State require d to pr ove that Ritcherson intended to specific ally targ et Barr ie’s heart when she st abbed Ba rrie. I n any ev ent, we do not believe that the portion of Dr. Dewa

n’s testimony relied on by Ritcherson undermines the evidenc e establishing that Ritcherson intended to kill Ba rrie or that Ritcherson intended to inflict serious bodily injury on Ba rrie. See Tex. Penal Code § 19.02(b)( 1)-( 2). I n the portion of the testimony at issue, Dr. Dewa n explained that if y our g oal was to put a hole in the pulmonary arte ry , y ou could do it from differ ent ang les but that the ideal way would be to g o straig ht throug h. Fur ther, he explained that y ou could 21As a preliminary matter, we note that Ritcherson assumes in this issue that the only

evidenc e indicating that Ritcherson had an intent to kill was the testimony from Hende rson beca use Hende rson was the only witness who testified that she saw Ritcherson stab Ba rrie by rea ching over B a r r ie ’ s s h o u ld e r . H o w e v e r , o th e r e v id e n c e w a s p r e s e n te d d u r in g th e tr ia l th a

t s u p p o r te d H e n d e r s o n ’ s version of events. I n particula r, York testified that she noticed t h at R i t cherson had a knife in her hand befor e Ba

rrie all egedly hit Ritcherson, and Br itney rec alled that she noticed a knife in Ritcherson’s hand rig ht afte r Ritcherson was hit. I n addition, Uwalog ho explained that she saw Ritcherson hold a knife above her head, that Ba rrie walked awa

y from Ritcherson, that Ritcherson then g ot a way from Moore afte r Ba rrie started walking awa

y , and that Ba

rrie was late r see n on the
g round bleeding

. Simi larly , Offic er J ohnson rela ted that when he interviewe d Gre en about what she observ ed , Gre en rec alled that a g roup of men wer e try ing to separ ate Ba rrie from Ritcherson but that Ritcherson g ot away

from the men a

nd ran toward Ba

rrie. Moreove r, as discusse d above, D r. Wil loughby testified that an individual with the kind of injury that Ba rrie sustained might have been able to take a few steps but could not have g one far , which supported the testimony that the stabbing

occur red afte r Ba

rrie started walking awa

y with her friends. I n addition, intent to kill can be inferr ed f r o m th e u s e o f a d e a d ly w e a p o n . Ca v a

z o s , 3 8 2 S. W. 3 d a

t 3 8 4 ; s e e W

in g fi e ld v
. S ta te , 2 8 2 S. W. 3 d 1 0 2 , 107 (Tex. A

pp.—For t Worth 2009, pet. ref

’d) ( setting out e lements for deter mining whether knife is deadly wea

pon, including manner in which it is used). Acc ording ly , in light of this evidenc e and

hit the pulmonary

arte ry from any position and that there is no optimum position or approac h, but he stated that the optimum s u r gical position would be to have the person ly ing down without clothing on a

nd not moving.

22the evidenc e establi s h i n g t h at Ba rrie was stabbed, the jury could have rea sonably inferr ed that Ritcherson stabbed B arr ie in the manner sug g ested by

Hende rson. I n any event, we do not ag ree with Ritcherson’s s u g g estion that the medical testimony
prese nted during the trial disproved Hende rson’s rec ollections. Although Dr. Wil loughby did testify that she wa s unable to dete ct any upwar d or downwar d ang le to the wound inflicted on B arr ie and that the wound trac ked from left t o ri gh t , Dr. Wil loughby did not testify that her finding s wer e inconsistent with someone rea ching over Ba rrie’ s rig ht shoulder to sta b her or that the injuries that
Ba rrie sustained could not have been cause d by the manner sug g ested by Hende rson. Moreove r, the jury coul d al s o h av e rea sonably inferr ed from the testimony reg arding the chaotic nature of the
events that Hende rson did see Ritcherson stab Ba rrie as Ba rrie was walking awa

y but that Hende rson incorre ctly

rec alled which shoulde r Ritcherson r eac hed over

. Even assuming that the medical testimony ref err ed to by Ritcherson could disprove

an intent to kill and even assuming that the rema inder of the evidenc e could not establish an intent
to kill, the evidenc e still could have established that Ritcherson was g uilty of the alterna tive char g e: that Ritcherson i ntended to cause serious bodi ly injury and commit ted an act clear ly dang erous to hum an l i fe t h at caused Ba rrie’ s death. See Tex. Penal Code § 19.02(b)( 2). The ey ewitness and medical testimony conclusively proved that Ba rrie was stabbed in the chest, that she died from that in ju r y , a n d th a t Ri tc h e r s o n w a s th e p e r s o n w h o s ta b b e d B a r r ie

. I n a d d it io n , d

u r in g th e tr ia l, D r . Ro s s , Dr. Dewa n, and Dr. Wil loughby testified that inserting a knife into a person’ s chest is an act that is clea rly dang erous to human life and that the inst rum ent used in this case did cause serious bodily injury , and Dr. Wil loughby further clar ified that usin g a sharp instrument to penetr ate the chest

23reg ardle ss of whether it wa s done from the front or over the victim’s shoulde r is a n act that car

ries

a substantial risk of death. Moreove r, as descr ibed ear lier, althoug h York and Br itney differ ed in their testimonies reg arding when Ritcherson pulled a knife out, both of them testified that they saw

a k n ife in Ritcherson’s hand befor e Ba rrie was stabbed. Fur

thermore , Hopkins explained that Ritcherson was waiving an object that looked like a knife, and Uwalog ho rela ted that Ritcherson was holding a knife above her head but that Moore was restra ining Ritcherson in an attempt to stop her from using the knife. I n addition, Moore rec alled that he thought that Ba rrie hit Ritcherson and that Ritcherson made a single overha nd swing in Ba

rrie’ s d i re ct i o n when he tried to pull Ritcherson

awa y , and he later discovere d that Ritcherson had a knife in her hand. Acc ording ly , the jury was fre e
to decide that Ritcherson intended to cause serious bodily injury to Ba rrie when she stabbed Ba

rrie and that by stabbing Ba

rrie in the chest, Ritcherson committed a n act clea rly dang erous to life that

cause d Ba

rrie’ s death.
I n addition to asser

ting th at the medical testimony prese nted at trial undermined the evidenc e establishing her intent, Ritcherson also contends that the contra dictory descr iptions of the knife ref

uted the evidenc e that she had the specific intent to kill Ba rrie. Specifica lly , Ritcherson contends that althoug h Hende rson descr ibed the blade as being six inches long, the testimony from other witness es estimated the siz e to be approximately two and half inches long. Acc ording ly , Ritcherson urg es that the jury could have conclude d that someone using a small knife, “as opposed
to a larg e car

ving knife, would not ne cessa rily have specific ally intended to kill another person, as opposed to mere ly

intending to injure her.” Howeve r, as summarized above, the evidenc e prese nted during trial, particula rly the testimony from Hende rson, York, Uwalog ho, and Offic er J ohnson, would have allowed the jury to
24conclude that Ritcherson intended to kil l Ba rrie by stabbing her in the c hest reg ardle ss of whethe r the knife was small or larg e in siz e. I n any event, as set out previously , Ritcherson was also char g ed with intending to ca

use ser ious bodily

injury to Ba rrie a nd committing an act clearly dang erous to human l ife, see id. , and the evidenc e fro m t h e wi tnesses would have allowed the jury to conclude that Ritcherson i ntended to cause serious bodi ly injury and c ommitt ed an act clear ly dang erous to human life. I n addition, Dr. De wan testified that even a small obje ct is capa ble of c ausing serious bodily injury and that using a small object in the manner at issue in this case would be an at clea rly dang erous to human life

.

When arg uing that she should have been g iven a lesser- included instruction, Ritcherson primarily focuse s on the portion of Moore’ s testimony in which he ag ree d that Ritcherson

was acting ref

lexi vely in response to being hit when she stabbed Ba rrie and that Ritcherson appea red “s h o cked or confuse d” afte r the act. Acc ording ly , Ritcherson asser ts that the jury could have deter mined that she “lacked a specif i c i n t en t , b ut in her striking out ag ainst Ba rrie with a knife in
response to the assault, had disre g arde d the dang erousne ss of her a ctions.”

D u r in g M o o r e ’ s te s ti mo n

y , Ri tc h e r s o n tw ic e p o s e d th e q u e s ti o n o f w h e th e r Ri tc h e r s o n swung her arm at Ba

rrie as “a ref

lex from having been hit in the head,” and Moore answe red, “Ye s, sir,” both times. I n the context of the questions being asked, Moore’ s testimony would seem to more appropr iately be rea d as stating that Ritcherson swung her arm as a rea ction to having been hit in the head rathe r than an asser

tion that Ritcherson was somehow not in control of her behavior

. I ndeed, in the question posed by Ritcherson immed i at el y fo llowing the two questions descr ibed above, Ritcherson asked, “And I think y ou called that a rea ction, corr ect? ” And Moore replied, “Ye s, sir.”

25Acc ording ly , testimony establishing that Ritcherson stabbed Ba rrie as a rea ction to having been hit would not se em to c onstitut e sufficie nt e vidence establishing that Ritcherson did not intend to kill
Ba rrie and that Ritcherson did not intend to cause serious b o d i l y injury to Ba rrie while also establishing tha t Rit cher son rec klessly cause d the dea th of Ba

rrie.
I n a simi lar case , the court of criminal appea ls explained that “[p] ulling out a g un, pointing it at someone, pulling the t rig g er twice, fleeing the s cene . . . , and later telling a friend ‘ I didn’t mean to shoot any one’ does not rationally support an infere nce that [t he defe ndant] acte d

rec klessly at the moment h e fi re d the shots,” “does not support a finding of rec klessness[,] and does not rise to [a] level that would convince a rational jury to find that if [t he defe ndant] is g uilty , he is g uilty of only the lesser- included offe nse” of m anslaug hter. Cavazos , 382 S.W .3d at 385. Acc ording ly , the court of criminal appea ls conclude d that “[w]i thout additional evidenc e supporting

a finding of rec klessness,” testimony that the defe ndant stated that he did not intend to shoot any one “is insufficient to re quire a n instruction on the lesser- included off ense of manslaug hter.” Id. Simi larly , we conclude that pul l i n g a knife out, that swing ing the knife at another individual and stabbing the individual in the ch es t as a rea ction to g etting hit in the head, that
appea ring confuse d afte r stabbing someone in the chest, and that flee ing the scene immediately afte r stabbing someone would not support a finding of rec klessness to a sufficie nt level that would allow

a rational jury to have conclude d that if Ritcherson was g uilty , she was g uilty of only manslaug hter. Wit hout a dditional evidence establishing that Ritcherson acte d rec klessly , Moore’ s testimony was insufficient to wa

rra nt an instruction on the lesser -included of fense of manslaug hter.

26For all of these re asons, we conclude that the district court did not err by deny ing

Ritcherson’s reque st for an instruction on manslaug hter. Acc ordin gl y , we overr ule Ritcherson’s first issue on appe al.

Evid entiary Rulings

I n her next three issues, Ritcherson cha lleng es the district cour t’s ruling s reg arding
t he admission of evidenc e. When revie wing a trial court’s ruling on the admission o f ev i d en ce , appellate courts use an abuse- of-discr etion standard of revie w. Davis v. State , 329 S.W .3d 798, 803 (Tex. Crim. App. 2010). Under that standard, a trial court’s ruling will only be deeme d an abuse of discretion if it is so clea

rly wrong as to lie outs ide the zone of rea sonable disag ree ment, Lopez v. State , 86 S.W .3d 228, 230 (Tex. Crim. App. 2002), or is arbitra ry or unrea sonable, State v. Mec hler , 153 S.W .3d 435, 439 (Tex. Crim. App. 2005). Moreove r, t he ruling wil l be upheld provided that the t rial court’s decision “is rea sonably supported by the re cord a nd is corre ct under

any theory of law applica

ble to the ca se.” Carrasco v. State , 154 S.W .3d 127, 129 (Tex. Crim. App. 2005).
Video During the Guilt or Innoce nce P hase

As discussed in the first issue, a video rec ording of Offic er Nelson’s interview with Ri tc h e r s o n s h o r

tl y a f te r th e in c id e n t w a s a d

mi tt e d in to e v id e n c e a

n d p la y e d f o r th e ju r y . A c o u p le o f d a y s a f te r th a t in te r v ie w , Ri tc h e r s o n r e tu

r n e d to th e p o li c e s ta

ti o n a g a in to me e t w it

h O f f ic e r N e ls o n , and this interac tion was also rec orded. On the video, Ritcherson quickly invokes her rig ht to counsel, and Offic er Nelson ended the i n t er v i ew shortly there afte r; howeve r, befor e he left the
room, he did inform Ritcherson that she was under arr est and that Ba rrie was brain dead and would

27likely die from her injuries in the near futu re . I n response, Ritcherson appeare d visibly upset and

asked if she could talk to Ba rrie’ s mother to explain what happene d, but Offic er Nelson stated that it was too late and that she neede d to talk to her lawy er now. After Offic er Nelson left the room, he allowed Ritcherson’s mother, Patricia Ritcherson, to g o into the room to comfort Ritcherson befor e she wa s taken to jail.

Du ring Offic er Nelson’s testimony at trial, Ritcherson informed the district court that she would like to question Offic er Nelson outside the prese nce of the jury reg arding her second interview. After the j ury was e x cused, Rit cher son asked whether Office r Nelson told her that she

was under arr est, whether she invoked her rig ht to counsel, whether he informed her that Ba rrie was g oing to die, whether she beca me upset, whether she asked to talk to Ba rrie’ s mom to explain what happene d, whether he left the room shortly there afte r, whether he came back and offe red her a trash

can in case she beca

me sick, whether he allowed her mother to g o into the room, whether she crie d when she saw her mom, and whether she talked about the event and indicated that she wanted to kill herse lf. When Offic er Nelson finished answe ring her questions, Ritcherson stated “we would offe r that as an e x cited uttera

nce unde r Rule 803.” See Tex. R. Evi d. 803(2). On redire ct, the State asked what Offic er Nels o n observe d when he was in the interview room with Ritcherson. When answe ring the State’s questions, Offic er Nelson explained that Ritcherson beca

me emotional and started cry ing, but he testified that “[s] he d i d n ’t tell me any thing like

. . . I ’m sorry .” I n light of this testimony , the State said that it objected to the admission of Offic er Nelson’s testimony becau se she did not make any statements to Offic er Nelson. Ritcherson counter ed and asser ted that Ritcherson’s statements to Offic er Nelson and to her mother

28wer e excited utteranc es that she made afte r becoming upset when she hear d that Ba rr i e would

likely die from her injuries. Be fore making its ruling , the district court clar ified that Offic er Nelson testified that Ritcherson made no statement to him, and both parties ag ree d. Acc ording ly , the district
court deter

mined that there was “no excited utteranc e as to” Offic er Nelson and sustained the State’s objection. After the district court made its ruling , Ritcherson reque sted that the video rec ording of the interview be made part of the appellate rec ord, and the district court ag ree d to hold onto the video until the end of trial and to se nd it to thi s Court as part of the appellate rec ord.

On appeal, R itcherson asserts t hat s he wanted t o introduce into evidenc e the video

rec ording of her second interview wi t h t h e p o l ice but that the district court denied her reque st. Ho we v er, as summarized above, althoug h the district court denied Ritcherson’s reque st to adm i t into evidenc e Offic er Nelson’s testimony reg arding the interview, Ritcherson never soug ht to admit the video of the interview into evidenc e fo r t h e jury to consider it. I nstead, Ritcherson soug ht to have the video included in the rec ord for appellate p u rp o s es af t er the district court ruled that Offic er N elson could not te stify reg arding statements that Ritcherson made in the interview r oom. Be cause Ritcherson never reque sted that the video be admitted as an exhibi t f or trial purposes, the district court never made a ruling reg arding the admissibili ty of the video. Acc ording ly , as the State
urg es, Ritcherson failed to prese rve any issue reg arding the admissibili ty of the video. See Tex. R. App. P. 33.1 (explaining that in order to prese rve issue for appea l, rec ord must show that complaint was made to “the trial court by a timely reque st, obje ction, or motion” a nd that trial court r

uled on
reque st or ref

used to rule); cf. Randolph v. State , No. 01-08-00453- CR, 2012 Tex. App. L EXI S 4589,

a t * 6 ( T e x. A

p p . — H o u s to n [1 s t D is t. ] Ju

n e 7 , 2 0 1 2 , n o p e t. ) ( me m. o p . , n o t d e s ig n a te d f o r p u b li c a ti o n )

29(dete rmining that issue asser ting that surveillance footag e should have been admitted into evidenc e beca use it showed person that looked simil ar to defe ndant on night of offe nse was not prese rved for
appea l beca

use that arg ument was not m ad e to trial court); Lewis v. State , No. 13-11-00468- CR, 2012 Tex. App. L EXI S 2248, at *23 (Tex. App.—Corpus Christi Mar. 22, 2012, no pet.) (mem. op.,
not desig nated for publication) (conc luding that defe ndant waived is s u e r e g arding whether trial court

err ed by ref

using to play entire video rec ording rathe r than portion of it beca use defe ndant “did not obtain a ruling from the tria l court on his reque st to play the entire video”)

. Even a ssuming that this issue had been prese rved, we would be unable to conclude that the district court abused its discretion by failing to a dmit the video into e vidence

. Under Rule of Evidence 803(2), “[a] statement rela ting to a startling event or condition, made while the decla rant

was under the stress of excitement that it cause d” is admissible as an exception to the hear say rule. See Tex. R. Evid. 803(2). Although the Rule may allow for the admission of statements rela ting “to

a much earlier incident” when a startling event trigg ers a spon t an eo u s s t at ement about the earlier i n ci d en t , s ee McCarty v. State , 257 S.W .3d 238, 240 (Tex. Crim. App. 2008), the s tatement mus t

o cc u r b efore the decla

rant has time to ponder “the conseque nces of one’s exclamation,” W hite v. Illinois , 502 U.S. 346, 356 (1992). I n other words, for the statement to qualify for the exception, it must be “g iven under circ umstances that eliminate the possibili ty of fabr icati o n, coac hing, or confa bulation, and that there fore the circ umstances surrounding the making of the statement provide sufficie nt assura

nce that the statement is trustworthy .” Idaho v. W right , 497 U.S. 805, 820 (1990). Moreove r, the proponent of the evidenc e has the burden of establishing that the evidenc e falls under

a hear say exception, Taylor v. S tate , 268 S.W .3d 571, 578-79 (Tex. Crim. App. 2008), and when

30deter

mining whether a statement qualifies as an excited utteranc e, courts may consider “t h e l ap s e of time b et we en t he event and decla ration, and whether the statement is made in response to a question.” Ove al v. State , 164 S.W .3d 735, 740 (Tex. App.—Houston [14t h Dist.] 2005, pet. ref ’d). The video at issue was made two day s afte r the stabbing , which is a signific ant period of time under which Ritcherson could have ref lected on the offe n s e an d o n t h e potential leg al
conseque nces stemming from her misconduct. Compare Martinez v. State , 178 S.W .3d 806, 814-15 (Tex. Crim. App. 2005) (dete rmining that statement made afte r victim had been awa y from offe nder for over two day s did not qualify for excited-utteranc e exception wher e no evidenc e that she was in
g rasp of excitement or pain), and Eisenman v. State , No. 13-05-00705- CR, 2008 Tex. App. L EXI S 282, at *43-44 (Tex. App.—Corpus Christi J an. 10, 2008, pet. ref ’d) (mem. op., not desig nated for publi ca t i o n ) (conc luding that statement made two day s afte r offe nse did not fall under excitedutteranc e ex ception when there was no e vidence that decla rant was experiencing violent emotion, excitement, or pain), with Apolinar v. State , 155 S.W .3d 184, 190 (Tex. Crim. App. 2005) (noting that four day s betwee n event and statement was “a very long time” to be considere d excited utteranc e b u t co n cl uding that statement qualified, in part, beca use decla rant was unconscious and heavily medicate d for much of that time). Moreove r, althoug h the statements that Ritcherson made on the video wer e not ma de in r esponse to questions posed by law-e nforc ement per sonnel or any one else and althoug h Ritcherson contends that she made those statements in response to lear ning that Ba

rrie could die from her i n

j u ries and afte r becoming overc ome with emotion, no evidenc e was offe red establishing that Ritcherson was previously unawa re of the seriousness of Ba rrie’ s injuries or of the possibili ty that Ba

rrie might not survive. On the contra ry , Dobin testified that afte r Ritcherson and

31York returned to the car, t hey drove down the stree t where the incident happe ned; that Dobin saw

Ba rrie on the g round and said out loud, “I wonder what happene d”; and that there wer e police on the

scene when they

drove by

. Acc ording ly , even assuming that the district court e xp r e s s ly d e te r mi n e d th a t the video could not be admitted and assuming that Ritcherson prese rved her complaint for appea l, we would be unable to conclude that the district court would have abused its discretion by deter mining that the
statements on the video wer e not made under circ umstances that assure d that those statements wer e trustworthy

. See Dyk

e v. State , No. 06-11-00129- CR, 201 2 T ex . App. L EXI S 2181, at *9 (Tex. App.—Texarkana Mar. 21, 2012, pet. ref ’d) (mem. op., not desig nated for publication) (explaining that courts may consider whether statement is self-se rving when deciding whether to admit evidenc e as excited utteranc e).

For all of these r easons, we overr ule Ritcherson’s se cond issue on appe al. 9

As will be discussed more thoroug hly i n the next issue, the district court did allow 9 Ritcherson’s mother to testify in the punishment pha se reg arding statements that Ritcherson made to her in the interview room beca use the district court deter mined that those statements constituted excited utteranc es. See Tex. R. Evid. 803(2). Ritcherson asser ts that this later ruling indicates that the district court’s r

uling r eg arding the video in the g uilt or innocence phase w as incorr ect. However, as set out above, it does not appea r that Ritcherson actua lly reque s t ed a ru l i n g reg arding the admissibili ty o f t h e v i deo at issue and instead soug ht to admit testimony from Offic er Nelson, and the district co u rt denied that reque st beca use Ritcherson did not make the statements at issue to Offic er Nelson. I n any event, even assuming that the district court did rule that the video was not admissible as an excited utteranc e during the g uilt or innocenc e phase, we do not believe that the subsequent ruling allowing the testimony of Ritcherson’s mother, not the video, into evidenc e during the punishment pha se would somehow compel a conclusion that the district c ourt abused its discretion by not allowing the video into evidenc e in the first phase. See Tex. Code Crim. Proc. art. 37.07, § 3(a) (1) (allowing State and defe ndant to offe r evidenc e during punishment phase p e r ta in in g “ to a

n y ma tt e r th e c o u

r t d e e ms r e le v a

n t to s e n te n c in g ” ) ; c

f. Ce d il lo v
. S ta te , 9 0 1 S. W. 2 d 6 2 4 , 627 (Tex. App.—San Antonio 1995, no p et.) (explaining that differ ent policies g overn rele vancy deter minations during punishment phase ). 32Video During the Punishment Phase
I n her third issue on appea l, Ritcherson asser t s t h at t h e district court err ed when it ref used to allow her to admit during the punishment phase the video discussed in her previous issue. During the punishment phase, Ritcherson offe red to admit the video during the testimony from her mother, Patricia, and informed the district court that she wanted to play the video as evidenc e of her

remorse . Although the dis tr ic t c o u r t allowed Patricia to testify reg arding statements that her daug hter made to her in the interview room, the district court denied Ritcherson’s reque st to admit the video into e vidence

. When ma

king its ruling , the district court explained tha t it was deny ing the reque st under Rule of

Evidence 403. See Tex. R. Evi d. 403. Under Rule 403, a trial “c ourt may exclude rele vant evidence if its probative value is substantially outweig hed by a dang er of one or more of the following : unfair prejudice , confusing the issues, misleading the jury , undue delay , or needle ssly prese nting cumulative evidenc e.” Id. When perfor

ming a 403 analy sis, courts should balance the following fac tors:
(1) the inhere nt probative forc e of the proff ere d item of evidenc e along with ( 2) the p r o p o n e n t’ s n e e d f

o r th a t e v id e n c e a g a in s t ( 3 ) a

ny te n d e n c y o f th e e v id e n c e to s u g g e s t decision on an improper basis, (4) any tendenc y of the evidenc e to confuse or distract the jury from the mai n i s s u es , (5) any tendenc y of the evidenc e to be g iven undue we i g ht by a jury that has not been equipped to evalua te the probative forc e o f t h e evidenc e, and (6) the likel i h o o d that prese ntation of the evidenc e will consume an inordinate a mount of time or mere ly repe at evidenc e alr eady

admitted.
Gigliobianco v. State , 210 S.W .3d 637, 641-42 (Tex. Crim. App. 2006) (footnote om i t t ed); see Davis , 329 S.W .3d at 806 (explaining that “proba tive value” ref ers to how strong ly evidenc e makes exis tence of fac t more or less probable and to how much proponent needs evidenc e and that “unfa ir

33prejudice ” considers how likely it is that evidenc e might result in decision made on improper basis,

in c lu d in g e mo ti o n a l o n e )

. A lt h o u g h a p p e ll a te c o u r ts r e v ie w a tr ia l c o u

r t’ s r u li n g o n Ru le 4 0 3 g r o u

n d s for an abuse of discretion, see Pawlak v. State , 420 S.W .3d 807, 810 (Tex. Cr i m . App. 2013), revie wing court s s h ould bear in mind that trial courts are g iven “an espec ially high level of defe renc e” for Rule 403 deter minations, see United States v. Fields , 483 F.3d 313, 35 4 (5 t h C i r. 2007). See also Moreno v. State , 1 S.W .3d 846, 861 (Tex. A pp.—Corpus Christi 1999, pet. ref ’d) (explaining that “[t] he trial court has broad discretion in deter mining admissibili ty of evidenc e at the punishment phase of tria l”).

On appea l, Ritche rson contends that the district court a bused its discretion beca

use its ruling was inconsistent with the presumption that rele vant evidenc e should be admitted. See Tex. R. Evid. 402; Sanders v. State , 4 2 2 S.W .3d 809, 815 (Tex. App.—For t Worth 2014, pet. ref

’d).
M o re over, althoug h she rec og nizes that rele vant evidenc e may be excluded under Rule 4 0 3 , s h e contends that the require ments of that rule wer e not satisfied. See Tex. R. Evid. 403. Specifica lly , R i t ch er s o n contends that the evidenc e has strong probative value reg arding her remorse , that the video m ade by the pol ice would not have unf airly prejudice d the S tate because it mere ly captur ed Ritcherson’s rea ction, that the video would not have confuse d the jury beca use the issue of remorse is a rele vant consideration when deciding punishment, and that the video would not have misled the jury beca use play ing the video would have allowed the jury to ev al u at e Ritcherson’s emotional

rea ction and level of remorse . Moreove r, Ritcherson asser ts that the video would not have cause d 1 0

I n her b ri ef

s, Ritcherson poi nts out that she sought the admis sion of t he video under the 1 0 best-evide nce rule beca

use the video was the best evidenc e of the co n v ersation in the interview room. Under the best-evide nce rule, “[a]n orig inal writing , rec ording , or photogr aph is require d in 34undue delay beca use the trial had lasted nine day s at that point and beca use the rele vant portions of the video totaled 40 minutes or less. Finally , Ritcherson arg ues that the video would not have been 1 1 cumulative of any other evidenc e beca use “the video was the only evidenc e rela ting to [her] remorse for ha ving c aused B arr ie’s dea

th.” On the video, Ritcherson expressed conce rn for Ba rrie’ s family and stated that Ba rrie did not deser

ve what happene d to her, that she did not “mea n for any of this to happen,” that she was sorry for what happene d, that she wanted to ta lk to Ba rrie’ s mother to explain what happene d, that she d i d n o t want to live any more, and that she was rea dy to meet her dece ased fathe r ag ain. Howeve r, in the video Ritcherson also denied responsibility by stating repe atedly that the stabbing

was not her fault, attempting to explain that the stabbing occur red beca use there wer e “so many people” around, and mentioning that she had never been in a situation li ke that befor e. Moreove r,

order to pr ove its content unless these rules or other law provide s otherwise .” Tex. R. Evid. 1002 (empha sis added)

. Alth o u gh R i t cherson acknow ledg es that the district court denied the reque st under Rule of Evidence 403, we also note t hat t his Court rece ntly aff irmed a tria l court’s de cision to allow into evidenc e testimony from a police office r reg arding an interrog ation that he was a part of without requiring the State to prese nt the video of the interrog ation, which the defe ndant asser ted would have been the best evidenc e of that interrog ation. See Matute v. State , No. 03-13-00601- CR, 2 0 1 4 T e x. A

p p . L E X I S 1 2 7 4 3 , a

t * 1 1

- 1 6 ( T e x. A

p p . — A u s ti n N o v . 2 6 , 2 0 1 4 , p e t. r e f ’ d ) ( me m. o p . , n o t d e s ig n a te d f o r p u b li c a ti o n )

. I n r e a c h in g o u

r d e c is io n , w e n o te d th a

t va r io u s c o u r ts h a v e d e te r mi n e d that the best-evide nce rule does not require t h e ad m i s s i on of a video rec ording when one of the participa nts to or observe rs of the conver sation that was rec orded is called to testify

. Id. at *13-15. I n her brief, Ritcherson states that the district court’s ruling “injecte d a signific ant inequity 1 1 of time betwee n the Sta t e an d [ h er] punishment phase prese ntations” beca use the State prese nted twice as many witnesses during the punishment phase. Moreove r, Ritcherson urg es that the district court evidenc ed its intention to finish the punishment hear ing by 5:00 p.m. that day and that this may have motivated the district court’s ruling

. To the extent that this alleg ed inequitable skewing of time in favor of the State has any rele vancy to this issue, we note that the rec ord does not demonstrate that Ritcherson as k ed for additional time, does not sug g est in any fashion that she had not been g iven enoug h time, and does not ref lect that Ritcherson asked to call additional witnesses but was denied that reque st. 35the focus of the rema inder of the video was on topics other than expressing remorse for what she did.

For example, Ritche rson discussed various failure s that have happene d in her life, questioned why this event had to happen, beg g ed her mother to not “let [her] rot” in prison, stated that she had been
p ra y i n g an d had lost her rela tionship with God, expressed frustra tion at never being able to g o t o colleg e, and articula ted her reg ret t h at t h i s event had cause d her to lose ever y thing and ever

y one except her mother

and brothe r. Moreove r, Ritcherson’s need for the video for establishing remorse was minimi zed by the fac t that the statements that she made to her moth er o n the video expressing her remorse

wer e admitted during Patricia’s testimony

. I n particula r, Patricia explained that when she was with Ritcherson at the police station, Ritcherson wa s very upset and c ry ing, tha t “[s] he kept say ing that she wanted to g o to her d ad,” that she no longe r wanted to live, and that she wanted to talk with
Ba rrie’ s mother to express how sorry she was and to s ay t h at she never intended to harm Ba rrie.
F u r th e r mo r e , Pa tr ic ia d id n o t te s ti f

y r e g a r d in g th e s ta

te me n ts ma d e b y Ri tc h e r s o n in w h ic h s h e d e n ie d responsibility

for the inc ident and expressed f rustration re g arding the incident’s e ffe ct on her life. Although the nature of t he evidence at issue would ar gu ab l y have been unlikely to confuse the jury or distract it from the issue of punishment or to cause the jury to g ive the evidenc e undue weight, see Gigliobi anco , 210 S.W .3d at 641 (explaining that scientific evidence is ty pe of evidenc e that might misle ad j u ry not proper ly equipped to consider probative value) , the district
court could have deter

mined that the contents of the video had the potential to encour ag e a decision

on an improperly emotional basis, see id. (stating that evidenc e might encour ag e decision on improper basis if it arouse s jury ’s sy mpathy without reg ard to logic al probative forc e of evidenc e).

36The video is disturbingly sad to watch beca use it shows Ritcherson appea ring to be emotionally d ev as t at ed and overwroug ht. At first, Ritcherson st arts cry ing after Offic er Nelson left t he roo m . Next, Ritcherson starts sobbing and wailing afte r her mother enter s the room, an d Ritcherson continues expressing those emotions for approximately 40 minute s b ef o re she is taken out of the

room. Moreove r, g iven that the distr i ct co u rt ru l ed befor e ultimately excluding the video that it would allow Ritcherson’s remorse ful statements to be admitte d t h ro u gh the testimony of Patricia

as excited utteranc es, the district court could have deter mined that admitting and play ing the video for the jur y would have be en re petitive of that testimony

. Fur thermore , gi v en that the video at issue was approximately one hour and fiftee n minutes l o n g an d that even the portion of the video chronic ling Ritcherson’s outburst was approximately 30 to 40 minutes long, the district court could have deter mined that play ing the video

wo u ld have consumed an inordinate amount of t ime in the one-day punishment phase of the t rial. Cf. Hack ler v. State , No. PD-1400-06, 2008 Tex. Crim. App. Unpub. L EXI S 94, at *18 (Tex. Crim. App. Fe b. 6, 2008) (Ke asler, J ., concur ring ) (not desig nated for publication) (explaining that video that was approximately one and half minutes long did not take inordinate amount of time to prese nt); Schiele v. State , No. 01-13-00299- CR, 2015 Tex. App. L EXI S 1646, at *20 (Tex. A pp.—Houston [1st Dist.] Fe b. 19, 2015, pet. ref ’d) (mem. op., not desig nated for publication) (dete rmining that fac t that evidenc e in dispute spanned 50 pag es of 118-pag e rec ord and was composed of video rec ording s lasting approxim ately 30 minutes weig hed aga inst admissibili ty beca use evidence consumed “not insignifica

nt” amount of time).

37I n l ight of the prec eding , we must conclude that the district court did not abuse its

discretion by ref

using to admit the video into evidenc e. Acc ording ly , we overr ule Ritcherson’s third issue on appea l.
Testimony Regarding Extrane ous Offense

I n her final issue on appea l, Ritcherson contend s t h at t h e district court err ed by allowing Offic er J are d J ensen to testify during the punishment pha se reg arding statements that her mother Patricia and that her brother Donald Ritcherson made to the office r y ear s befor e the incident at issue in this case whe n he re sponded to a 911 c all at their home.

I n his te stimony , Offic er J ensen rec alled that he was dispatched to the Ritchersons’ h o me a t a p p r o xim a te ly 4 :0 0 a . m. a

n d th a t h e s p o k e w it

h Ri tc h e r s o n , Pa

tr ic ia , a n d D o n a ld

. Re g a

r d in g his conver sation with Ritcherson, Offic er J ensen explained that Ritcherson told him that she g ot in

an arg ument with her brother when she decided t o g o out that night, that her brother hit her in the fac e, that she gra

bbed a knife, and “that she swung t h e k nife at her brother .

. . in response to him hitting her.” Moreove r, Offic er J ensen rec alled that Ritcherson had a mark on her fac e and that her hair a ppear ed messed up. Con cer ning his conver sation with Donald, Offic er J ensen rela ted that Donald communicated that Ritcherson was try in g t o go o u t for the evening , that Patricia did not want Ritcherson t o g o out, that he st ood in Ritcherson’s path to the door, and that Ritcherson got ang ry “and r etrieve d a steak knife and attempted to stab him with it.” Moreove r Off icer J ensen te stified that Donald stated that Ritcherson “held the knife in her hand and sw u n g i t at him,” that Patricia intervene d, t h at h e wa s able to g et the knife out of Ritcherson’s hand, and that Ritcherson called

38the police afte r he t o o k t h e k n i fe awa y . I n addition, Offic er J ensen stated that Donald denied hitting Ritcherson.

When discussing his conver sation with Patricia, Offic er J ensen asser ted that Patricia
ag ree d with Donald’s version of events, that Donald did not hit Ritcherson, and that she intervene d in the fig ht betwee n her children. Moreove r, Offic er J ensen rec alled that Patricia stated that the mark on Ritcherson’s fa ce pr obably occur red w hen she trie d to keep Ritcher son and Dona ld separated. Prior to Offic er J ensen t es tify ing, the State called Patricia to testify reg arding the incident. I n her testimo n y , P at ri ci a stated that the arg ument started when she tried to preve nt Ritcherson from leaving the house late one evening , that the arg ument occur red “ea rly morning ” at approximately 4:00 a.m., that she asked Donald to help her stop Ritcherson, that Ritcherson g rabbe d a knife , that she interve ned and g ot be tween her children, that she and Donald wer e able to g et the knife from Ritcherson, and that Ritcherson called the police afte r they g ot the knife awa y from her. 1 2 During the trial, Ritcherson objected to the testimony of Offic er J ensen reg arding the statements that Patricia a

nd Donald made to him because the evidenc e did not establish that those
statem en t s we re excited utteranc es when they wer e made, and the district court overr uled that objection. See Tex. R. Evid. 803(2). On appea l, Ritcherson contends that the district court abused its discretion by

admitting into evidenc e those portions of Of fice r Jensen’s testimony

. A s d is c u s s e d p r e v io u s ly , “ [a ] s tatement rela ting to a startling event or condition, made while the decla

rant was under the stress of excitement that it cause d” is admissible as an exception

I n her te stimony , Patricia stated tha t she could not reme mber whe ther Ritcher son swung 1 2 the knife a t Donald. 39to th e h e a

r s a y r u le

. S e e id

. M o r e o v e r , in d e te r

mi n in g w h e th e r a s ta

te me n t q u a li f ie s f o r th e e xc e p ti o n , courts must consider whether the decla rant was do m i n at ed b y the pain, excitement, or fea r of the
event when the statement was made, Salazar v. State , 38 S.W .3d 141, 154 (Tex. Crim. App. 2001), and in making t h i s d et ermination, courts may consider the amount of t ime elapse d betwee n when the event occur

red and when the statement was made and the nature o f t h e d ecla rant as well as whether the statement was made in response to a q u est ion and whether the statement was selfserving

. Apolinar , 155 S.W .3d at 187.

I n addition to testify ing about the statements that Ritcherson, Patricia, and Donald made wh en he talked with them afte r arr iving at the Ritchersons’ home, Offic er J ensen also descr ibed how they wer e acting when he arr ived. Specifica lly , he stated that the scene “wa s very chaotic” ; that Ritcherson, Patricia, and Donald wer e “ver y excited” and “ver

y loud”; an d t h at Ritcherson was “ver

y ang ry ” with Patricia, was swea ring at him and Patricia, and was very animated. Moreove r, he ag ree d that all three individuals appea red to be under the influence of a rec ent startling event, and he explained that when he tried to talk with Patricia and Donald individually , Ritcherson continued to y ell at them.

A lt h o u g h th e r e w a s n o te s ti mo ny e s ta b li s h in g p r e c is e ly h o w lo n g it to o k O f f ic e r Je n s e n
to arr ive at the Ritchersons’ home afte r being dispatched to the location, no evidenc e was introduced indi c a ting that there was a leng thy response time, and the testimony demonstrated that Offic er J ensen

a r r iv e d o n th e s a

me n ig h t th a t th e 9 1 1 c a ll w a s ma d e a

n d th a t th e a r g u me n t o c c u r r e d a t a p p r o xim a te ly the same time that the 911 call was made. Acc ording ly , the district court co uld have rea sonably conclude d that the lapse in time betwee n when the fig ht oc curr ed and when Offic er J ensen arr ived

40was minimal. More i m p o rt antly , Offic er J ensen testified that when he arr ived at the scene , the

individuals involved in the family dispute wer e excited and appea re d t o h av e been involved in a

rec ent startling event, and Offic er J ensen explained that the dispute continued when he arr ived and when he talked with them. See id. at 190 (e x p l ai n i ng that testimony that decla rant was speaking loudly and was “animate d” weig hed in favor of deter mination that statement was excited utteranc e). Fur thermore , althoug h Offic er J ensen testified that h e t al k ed with the three family members ab out what had happene d that night, nothing in the testimony of Offic er J ensen or of Patricia indicated that the statements that they made wer e not f ree ly g iven or that those statements

wer e made in response to questions asked by Offic er J ensen that wer e desig ned to sug g est an answe r

as opposed to a g ener al inquiry

. See id. (noting that statement at issue was m ad e i n response to question but that question g ener ally asked what happene d and that nothing in rec ord sug g ested that

answe r wa s any

thing other

than spontaneous) ; see also Ov eal , 164 S.W .3d at 740 (e x plaining tha t fac t that statements wer e made in response to questions posed by law enfor ceme nt is not dispositi ve and is only one fac tor to be considere d); Zulian i v. S t a t e , 97 S.W .3d 589, 596 (Tex. Crim. App. 2003) (conc luding that fac t that some of decla rant’s statements wer e made in response to questions does not make the m inadmissibl e under hear say exception). Fi nally , althoug h the statements made to Offic er J ensen by Patricia and Do n al d might arg uably be chara cte ri zed as self-serving in that they place d the bl ame on Ritcherson, m ost of the statements that they m ad e wer e consistent with statements that Ritcherson herse lf made to the Offic er, i n cluding her statement that she g rabbe d a knife and swung the knife at her brother.

41See Tex. R. Evid. 803(24) (expl aining that statements aga inst interest are admissi ble as e x ception

to prohibition aga inst admissi on of hea rsay evidenc e).
I n l i gh t of the prec eding , we cannot conclude that the district court abused i t s discretion when it overr

uled Ritcherson’s objection and allowed into evidenc e as excited utteranc es the portions of Offic er J ensen’ s testimony rela ting statements that Patricia and Donald made to him. Acc ording ly , we ove rrule Ritche rson’s fina l issue on appea l.

CONCLUSION Having overr

uled all of Ritcherson’s issues on appea l, we aff irm the district court’s judgme nt of conviction.

__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Pemberton, and B ourland Affir med Filed: Aug ust 31, 2015 Publis h

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