# /S65-/Y

ORIGINAL PD-1565-14

IN THE COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

CLINT WELDON WILSON, Appellant Pro Se Vs.
THE STATE OF TEXAS, Appellee 

### FILED IN COURTOF CRIMINALAPPEALS FEB 03 23:5
Abel Acosta, Clerk

Appeal From THE SIXTH COURT OF APPEALS, TEXARKANA, TEXAS NO. 06-14-00021-CR

PETITION FOR DISCRETIONARY REVIEW



### RECEIVED IN COURTOFCRIMINALAPPEALS FEB 03 2015
AbelAcosta, Clerk CLINT WELDON WILSON T.D.C.# 1891353 CLEMENTS UNIT 9601 Spur 591 AMARILLO, Texas 79107IDENTITY 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 903-885-0641Table of Contents Identity of Parties i.
Table of Contents ii. Index of Authorities iii. Statement of Case >• pg • 1 Statement of Facts pg. '2 Preview of Argument pg. 20 Argument pg • 20, 22 Conclusion pg . 22 Prayer pg • 22 Certification pg • 23

ii.Index of Authorities
Texas Criminal Appeals case laws: Williamson Vs. State, 672 Sw. 2nd,484-86 (Tex.Grim.App.1984) pg. 20,22 Smith Vs. State, 965 Sw 2nd,509-13 (Tex.Crim.App.1998) pg. 20 Matthews Vs. State, 708 Sw. 2nd,835-38 (Tex.Crim.App. 1986) pg. 20

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 NO. 06-14-00021-CR

PETITION FOR DISCRETIONARY REVIEW

Statemnet of Case CLINT WELDON WILSON T.D.C.# 1891353 CLEMENTS UNIT 9601 Spur 591 AMARILLO, TEXAS 79107
This is an appeal of The Sixth Court of Appeals judgement that has Rendered on November 7, 2014 from a conviction and life sentence-.for murder rthat arose out of the 8th District Court of Franklin County, Texas, trial court No. F8775. A jury has empan eled on November 19, 2013 and on November 2, 2013, that jury re ndered a Verdict of Guilty.Appellant filed a Motion for Extension of Time to file this said Petitionfor Discretionary Review on November 25, 2014 and wa granted by The Court of Criminal Appeals making this Petition to be due on on February 6, 2015. Statement of Facts On January 19, 2013, Aldis Mendez, herein as Aldis stood in be -tween two men, her then boyfriend, Clint Weldon Wilson, herein : as Appellant, and he ex-boyfriend and father to her three childr en-, Juvenal Gonzales, herein as Gonzales, just before Appellant shot and killed Gonzales.

BACKGROUND ON DECENDENT The decendents name Mr. Juvenal Gonzales -("Gonzales"). There
... is no dispute that .Gonzales died from multiple gunshot wounds on the morning of Saturday, January 19, 2013, and that it was the de -fendent, Appellant who shot-him. As the State noted in its open ing statement, "This is not a.whodunit". (Vol. 4;P. 18; 1. 5-6). Appellant agrees. Also in its opening statement:the State told the jury, "Rememb -er what i said about Juvenal." (Vol. 4; P. 25; 1. 20). Appellant agrees with this, too. Evidence adduced at trial showed that Gonz -ales had the following three (3) flaws, all of which are importa -nt for understanding of the facts of this case:l ) First, Gonzales drank alot. ): Second, Gonzales fought alot. ) Third, and with regard to a; woman who bore .him: three children,: Gonzales argued alot.
Each flaw is discussed below. Gonzales drank alot Evidence adduced by the State showed that Gonzales was a "heavy 

### drinker." (Voo. 4; P. 82; 1. 4) (Vol. 4; P.:40; 1. 9-10) (Vol. 4; p. 149; 1. 11-12) (Vol. 4; P. 215; 1. 1-2). Gonzales drank almost every day (Vol. 4; P. 40; 1. 11-12) and he drank heavily on week ends. (Vol. 4; P. 40; 1. 13-15). According to his girlfriend at 

### the time, "Juvenal [Gonzales] would wake up and statt drinking. And he would take a nap, eat,wake up again -you know, eat and ta ke a nap, wake up, you know, and start drinkng again, and go back

2.to sleep." (Vol. 4; P. 40; 1. 17-20). This same girlfriend also :. testified that she had seen Gonzales drink an entire 30 pack of beer starting from when Gonzales woke up at aboutsix in the mor ning to the time when Gonzales satrting sleeping it off at eight in the evening. (Vol.4; p. 82; 1. 12-13). Givcen evedence like this, it should come as no surprise that during its opening state -ment the State discribed called Gonzales a "functioning alcoholi ic." (Vol. 4; p. 19;1. 8). Gonzales girlfriend on January 19, 2013 acknowledged that Gon -zales's drinking "affected his judgement." (Vol; 4; p. 82; 1. 16 -17). Gonzales's girlfriend also acknowledged that if a person is three times the legal limit of alcohol for driving, as was Gonza les—at- -the -time- of -the shooting, its-going- to-affect a persons ju

-dgement. (Vol.4; pp. 82-83; 1. 25-2). The jury also heard from Gonzales's former girlfriend, the one with whom he had three^children. This person testified, in subst ance, that Gonzales was a mean drunk: Q. How did he [i.e. Gonzales] act when he was intoxicated? A. Well, different ways. Depends on what he was doing. Q. Well, if, in your words, he was pissed off, how would he act if he was drunk? A. He would probably just start fighting. Q. Would you say that he was more than likely to get into a .." fight if he was drunk than if he was-sober? A. Yes. Q. He would be more aggressive? A. Yes. (Vol. 4; p. 172; 1. 10-21). The mother of former Gonzales's girl friend gave similar testimony: Q. Did he [i.e. Gonzales] get violent when he drank? A. L say vilent. He used to hit the walls . He never hit her [i.e. his former girlfriend], but he use to get mad and he would hit the walls. •Q. But he wouldn't do that if he-wasn't drinking? Ai No. Q. He was more upset , or more violent...when was drinking? A. Yes. (Vol. 4;jPP. 233-34; 1. 24-8).2 Gonzales fought alot During its opening, the .State told the jury that Gonzales "was not afraid to fight ."(-Vol. 4; p.19; 1. 15-16). Defendent- Appell3.ant agrees with the States assessment. Citing one example, Gonzales former girlfriend wrote the foilowing after the shooting and put it on Facebook®:

"[E]veryone that ireally knew Juvenal Gonzales would only-would : know thatxhe is gone today, he is resting. Juvenal Gonzaleswas n* ever scared of shit. He always had heart. He didn't step away the day when he had warning shots first because all it did was piss
... him off. That's what happened. Juvenal Gonzales straight up gang ster, Latin^Kings, Bloods. Will always love you with all of my heart." (VOL4; p. 152; 1. 18-25).3 The mother of Gonzales former girlfriend also testified that she had seen Gonzales fight. (Vol.4; p. 215; 1. 19). This;happened at a party hosted by his sister. (Vol. 4; p. 222; 1. 6-9). The mother of Gonzales former girlfriend also testified tha~t~she~h~ad~seen Gonzales get into a heated argument with a 17 year old family member named Luis. (Vol. 4; p.221; p. 5 -13). Although the argument did not escalate to punches being th rown, or worsey it was sufficiently severe for the police to show up and put Gonzales in hand cuffs. (Vol.4; p. 222; 1. 2-5). Gonzales proclivity for fightingwas so acute-and alarming-it prompted the mother Gonzales's former girlfriend to obtain what
. she believed to be some sort of order from the police instructing Gonzales-to stay away from her daughters home. (Vol.4; p.220; p. 

## 22-24). '-1'* Gonzales argued alot with tfag mother of his'children
Gonzales was the father:of at least three children. The mother of these three children is Ms. AldisrMendez. (Vol. 4; p.117; 1. 1 -19). Both the mother and the grandmother of these three children share:;the same last name. For that reason Ms. Aldis Mendez, Gon zales's former girlfriend and the mother of Gonzales's chidren, shall hereinafter be referred to as "Aldis M." The children's grandmother and Aldis M."s mother is Suyapa Men -dez. She shall hereinafter be referred to as "Suyapa M." She gave the following assessments of the relationship between her daughter and Gonzales: "They did have problems. I can honestly say 

### that he [i.e. Gonzales] was jealous." (VOL. 4; p.234; 1. 13-14).

4.Suyapa m."s assessement is supportedby other evidence adduced at trial, which shows that from Year 2006 through March 2012, Gonzales and Aldis m. had an on again, off again relationship. (Vol. 4; p. 118; 1. 1-16). In in its opening statement, the State expressed it s beliefthat Gonzales's relationship with Aldis M. was "rocky at best" (Vo;. 4; p. 24; 1. 17). That Gon zales and Aldis M. often argued (Vol. 4; p.24; 1. 17-18). Defendent-Appellant agrees. Gonzales's girlfriend at the time of the shooting was Ms. Bridget Sanchez. Sanchez discribed her understanding of the relationship"between Gonzales and-A-idis~M T~as" -follows: "there -was—[-sic-]—breakups, cheating. There was- they never got along

or understood each other, so there was aggression from both : parties." (Vol. 4; p. 104-105; 1. 25-3) At trial, Aldis M. insisted that "I always did love him," referring to Gonzales. (Vol. 4; p. 139; 1.11). Aldis M. pointed to the fact.:that Gonzales was the father of my kids. (Vol.4; p. 139; 1. 12). Apparently the State was not impressed. During its closing arguments, it called Aldis M. a "crook" and a "liar." (Vol. 7.; p. 52; 1. 8).

BACKGROUND ON DEEENDANT-APPELLANT Defendant-Appellant's name is Clint Weldon Wilson. There are nr two important things one needs to know to understand the facts of this case. They are: ) First, Wilson suffered from frostbite in both hands and one foot. ) Second, Wilson was in an intimate, live-in relationship with Aldis M. at the time of the shooting. Each of the foregoing is discussed below.
WILSON SUFFERED FROM FROSTBITE IN BOTH HANDS AND ONE FOOT In late December 2012, Wilson suffered from severe frost bite in his hands and feet (Vol. 4; p. 141; 1. 22-25), for which he was treated at East Medical Center ("ETMC") in Clarksville. (Vol. 

### 6; p. 72; 1. 9)(admitting Def.Ex. 1, which are medical records). Wilson's frostbite was so severe that ETMC Clarksville Careflited 

### Wilson to ETMC in Tyler. (V01.6; p.88; 13-17).Recovery from frostbite takes six to eight weeks. (Vol. 6; p. 90;1. 11-15). Thus it is most likely that Wilson was still suffering from the effects of the frostbiteon January 19, _201_3_, the date of the shooting. (Vol. 6; p. 90; 1. 6-10). Wilson was in an intimate, live-in relationship with Aldis M. at the time of the shooting The person who picked up Wilson from ETMC Tyler was Aldis M. (vol. 4; p. 142; 1. 11-13) (Vol. 4; p. 181; 1.' 9-16) (Vol.4; p. 181; 1. 21)(Vol. 6; p. 112; 1.24-25). One Aldis M.'s three children, a 

### three year old"named Lexis, even called Wilson "daddy".(Vol. 4; p

. 182-83; 1. 25-1). The other two children also called Wilson "daddy" sometimes. (Vol.4; p. 183; 1. 2-3), Wilson felt pain when somebody touched his frostbitten hands. (Vol. 4; p. 224;1. 4-6). Suyapa M. testifeid that she saw Wilsons 

### hands without any bandages. (Vol.4; p. 225; 1. 2-4). According to her, Wilson's hands were dark, and Wilson was unable to move his fingers. (VOL.4; p.. 225; 1. 4-9), although by January 19, 2013 he was able to use his hands to drive a car. (Vol.4; p. 194; 1. 11- 13). 

### According to Aldis M. she and Wilson began "going out" in the 

### beginng of the September 2012. (Vol.4; p. 119; 1. 6-14). Aldis M. testified that although she and Wilson did not live together, Wi lson did spend"every other day", with Aldis M. at her trailor ho 

### me in Franklin County, Texas. (Vol. 4; p. 119; 1. 19-23)(Vol. 4; p. 180; 1. 25). 

### SuyapaM. who lived next door to Aldis M., was more candid abo ut her daughters living arrangements. Suyapa M. testified that what Aldis M. may have said, Wilson was living with her daughter at her daughters trailor'home, and Wilson had been living their for about two months. (Vol.4; p. 223; 1. 4-8). Wilson also testified that he lived with Aldis M. at Aldis M. 

### trailer home beginng inearly September 2012. (Vol. 4; p. 223; 1. 176-23). After a brief hiatus around Christmas, Wilson testified 

### that he resumed living with Aldis M. after leaving ETMC Tyler for frostbite. (Vol. 6; p. 116; 1. 8-12).

### Aldis M.'s relationship with Wilson infuriated Gonzales-never mind the fact that Gonzales and AldisM. had split up around March 

### 2012, and never the fact that Gonzales had been living with anot 

### her woman, Bridget Sanchez, in September 2012. According to Aldis 

### M., "Juvenal "Gonzales" would call me, and call me." (Vol. 4; p. 140; 1. 14). Accord, (Vol. 4; pp. 150-51; 1. 18-1). Said Aldis M.

, Gonzales "would just keep calling and calling, and finally Cli nt [Wilson] would get on the phone himself, and tell him [i.e. Gonzales] to stop calling." (Vol.4; p. 140; 1.19-21)(Vol.4; p. 

### 151; 1. 2-4). Wilson agrees with his testimony. (Vol. 6; pp. 129- 30; 1. 21-4)("just leave us alone"). But Gonzales did not stop calling, and he did not leave Aldis : M. or Wilson alone. Instead,Gonzales continued to call Aldis M., 

## prompting Wilson to pick up the phone. (Vol.4; p. 151;1.5-12). Wilson and Gonzales then "would argue" (Vol. 4; ip. 140; 1. 14-15) 

### whereupon Gonzales would often threat Wilson(Vol. 6; p. 127-28; 1. 20-1),4 and they would cuss out each other. (Vol. 4; pp. 140- 41; 1. 25-l)(Vol. 4; p.151; 1.16). EVENTS OF SATURDAY, JANUARY 19,2013 

### At about six-o-'.clock in the morning (Vol. 4; p. 41; 1. 4-6), 

### Gonzales telphoned Sanchez(Vol.4; pp. 37-38;l. 25-5)(Vol.4; p. 105; 1. 4-6), who had spent friday night at the home of her mo ther. (Vol. 4; p. 180; 1.5-8). The two were having problems, and 

## they about two hours on the phone. (Vol. 4; p. 41; 1. 6). Dur ing this telephone call Gonzales told Sanchez that he was com ing over to pick her up, but only after he stops in Winnsboro 

### and buys a 30 pack of beer. (Vol.4; p. 41; 1. 8-9). Gonzales got into his brothers Blue GMC truck(Vol. 4; p. 121; 

### 1. 15-18)(Vol. 4; p. 201; 1. 23-24)(Vol. 4; p. 70;) 1. 17-19)(Vol. 

## 4; p. 212; 1. 13), and drove to Winfield (not Winnsboro), where he bought a 30 pack of beer. (ol.4; p. 41; 1. 11-12 & 20-22). Gozales made his purchase within the store had opened at 8:00 o'cl ock. (Vol. 4; p. 81; 1. 4-7). 

### Gonzales then drove to Mount Vernon to the home of Sanchez's 

### mother, (vol.4; p. 41; 1.24-25)(Vol.4; p. 80; 1. 18-20). This ha 

## ppened between 8:30 a.m. and 9:00 a.m.(Vol. 4; p. 80; 1. 23-25). Gonzales and Sanchez stayed at the home of Sanchez's mother for "less than an hour." (Vol 4; p. 81; 1. 14). 

### Gonzales and Sanchez then left in the same truck and went to
7.

### Sulpher Springs to see a friend/former co-worker of Gonzales. (Vol. 4; pp.42-43; 1. 20-11). While there-it was still Saturday mo rning—Sanchez saw Gonzales"drinking a few beers."(Vol 4; p. 43; 1. 21). Gonzales and Sanchez then left Sulphur Spings. (Vol. 4; p. 44; 1. 10-11). According to Sanchez told her that he "should just go ahead and pick up the chidren," whereupon he telephoned the mot her of his children, AldisM., who did not answer the phone.(Vol. 4; p.44-45; 1. 24-1). Gonzales then left a voicemail message with Aldis M. saying that he was on his way to pick up the child ren. (Vol. 4; p. 45; 1. 2-3). On the way over Gonzales called AldisM. a second—time -,- this -time while-he- was- getting-gas -in- Win — nsboro. (Vol. 4; p. 45; 1. 7). Gonzales with Sanchez riding shotgun, drove Aldis M.'s trailer home in Mount Vernon. (Vol. 4; p. 45; 1. 14-16). Unlike Sanchez ,_ _ Gonzales knew the way. After all, Gonzales had lived there with Aldis M. and there three childre as recently as March 2012, i.e, 

### nine months earlier. (Vol. 4; pp. 118-19; 1. 12-1). Aldis M.'s trailer home in Mount Vernon, Franklin County, was located next to the home o.f_ Aldis M.'s mother, Suyapa M.(Vol.4; p. 116; 1 609). Gonzales did not drive straight into Aldis M.'s driveway, in stead, Gonzales "kind of made this swirl to see who was parked in the back." (Vol.4; p. 46; 1. 4-5). Gonzales did this said Sanchez 

### "to see... who was parked in the back [of Aldis's trailer home]." (Vol. 4; p. 86; 1. 12-14). Gonzales then starting honking.(Vol.4; p. 46; 1. 12&16). Sanc hez was aware of the rocky relationship between Gonzales and Ald is M., and she ask Gonzales to stop honking. (Vol. 4; p. 46; 1. 12-14). However, Gonzales continued honking. (Vol.4; p. 46; 1. 15). Sanchez then suggested taht Gonzales get out of the truck and knock on the door of Aldis M.'s trailer home, which Gonzales did. 

### (Vol. 4; p. 47; 1. 10).. Sanchez watched Gonzales' "walking up.>to

- 

### the porch" ofi the dwelling;. (Vol.4* p. 47; l.i 10). Sanchez testif ied that she saw how Gonzales "was getting ready to open the door" 

### ofv the dwelling. (Vol.J4; p. 47; 1. 10-11). However, Sanchez test ified that before Gonzales actually opened the door, a three year child with whom Sanchez was familiar with named Lexis(Vol. 4; p. •;• - • . • /' : . . ^ :.-.:. .:-::- .'•" :8-. • • • '"• - '•-' '-

### 51; 1. 4-8) opened the door.(Vol. 4; p. 47; 1. 12-14)(Vol.4; p. 51; 1. 1-11). Sanchez never saw Gonzales knock. (Vol. 4; pp. 87-88; 1. 23-1). Rather, Sanchez testified thta what she did see was Gonzales "touch the doorknob." (Vol. 4; p. 87; 1. 18). Sanchez conceded 

### that touching a doorknob "is not knocking[.]"(Vol.4; p. 87; 1. 22). Gonzales's presence came as a surprise. Gonzales had not come to Aldis M.'s home to see the kids at any time while Wilson had been living with Aldis M.(As previously noted, Wilson began liv 

### ing Aldis M." in Setember 2012, and this was January-19,-2013.) While there is evidence that Gonzales did try to call Aldis M., there is no evidence that he and Aldis M. actually talked by tel ephone that morning. In any event, Aldis M. testified that when she left the back bedroom she saw that Gonzales "had the door open" and was "step 

### ping in" to Aldis M.'s home.(Vol.4; p. 122; 1. 10). Aldis M. gave the following testimony: Q. Now, Mr. Gonzales did'nt have permission to be in the hou se, did he?
A. No. 

### Q. So when he came into the housey—your little girl did'nt let him in, did she? A. No. He opened the door. (Vol.4; p. 155; 1. 4-7). Q. At that moment, did you think he was tresspssing in your house? 

### A. Well, yeah. I did'nt ask - I mean, he did'nt knock or any thing. 

### Q. That's right. He just came in did'nt he?
A. Yes. 

### (Vol. 4; p. 155-56; 1. 21-1). Indeed, Aldis M. was under the im 

### pression that her mother had somehow obtained a restraining order Aldis M. called it a restricting order, That prohibited Gonzales 

### from going to her trailer home. (Vol.4; p. 187; 1. 5-14). Whatev er it was called, Suyapa M. had obtained this order because, as 

### Aldis M. put it, Gonzales was always looking for her.(Vol.4; p.179; 1. 7-10). However, he got there, neither party disputes that Gonzales * was eventually inside the home of Aldis M. According to Sanchez, Gonzales was "[r]ight inside the door" of Aldis M.'s home. (Vol. 

### 4; p. 52; 1. 7) (Accord, Vol. 4; p. 129; 1. 13-16)(Aldis M. de 

### scribing Gonzales as standing "right infront of the door"). Sa nchez testified thta she saw Gonzales take "a big step - like one or two steps" - so she agreed that Gonzales was about two feet Aldis M.'s home.(Vol.4; p. 88; 1. 5-9). Sanchez who was still in side the truck at the time, saw, only Gonzales's back(Vol. 4; p. 52; 1. 7-9)

- but other than that, she saw nothing out of the or dinary. (Vol.4; p. 52; 1. 13-15). On cross e ;xamination, Sanchez acknowleged that she was trying to use Gonzales's mobile phone at the time to call and text her 

### brother, and that she was not familiar with Gonzales's mobile ph-> one nad could not unlock it(Vol. 4; p. 51; 1. 23). As a result, Sanchez was more focused on the mobile telephone than what was 

### taking place inside Aldis M.'s home. (Vol.4' p. 93; 1. 7-9). With Gonzales inside, Aldis M. shut the bedroom and approach ed him. (Vol. 4; p. 122; 1. 13-14). According to Aldis M. , she asked Gonzales what he was doing here; also according to Aldis M. Gonzales answered that he was there because he "wanted to see the 

### kids." (Vol.4; p. 122; 1. 21-23)(Vol.4; p. 123; 1. 18). Aldis M. responde by telling Gonzales that the children were-next—door at 

### the home of her mother, Suyapa M.(Vol.4; p. 123; 1.20-23)(Vol. 4; 

### p.199; 1. 7-10). According to Aldis M. Gonzales said that she ly ing. (Vol. 4; pp. 123-24; 1. 25-2). But this one time when Aldis M. was'nt lying. Suyapa M. con firmed that the children were indeed next door at her house. That is because according to Suyapa M. the children were always at my house on Saturday mornings, and because Aldis M. had told her Mo ther that at some point he [i.e Gonzales] was going to come over 

### and pick up the children, from Suyapa M.'s house. (Vol. 4; p. 218 -19; 1. 12-2). 

### Regardless, according to Aldis M., she and Gonzales then "just argued a liitle bit"(Vol.4; p. 124; 1. 10)(Vol. 4; p. 130; 1.16- 18), as they often did(Vol. 4; p. 124; 1.12-14). During this ar gument. Aldis M. was telling Gonzales that she wanted him to lea ve. (Vol.4; p. 124; 1. 22-24).

----.• • - •:;.; .-• v 10.But Gonzales didnot leave. He was still in Aldis M.'s trailer home. The two were arguing "right beside the couch" near the fro 

### nt, door. (Vol.4; p. 130; 1. 19)(Vol. 4; p. 130; 1. 13-14). Aldis M. gave the following testimony: Q. [D]o you recall telling - I guess its investigator Zinn that he [i.e. Gonzales] wouldn't step outside; he started insulting me. do you remember that? A. We started arguing. Q. what was he saying that was insultimg you? A. I don't remember. 

### Q. Well, apparently that day at

- 30 minutes later [i.e. aft 

### er the shoting], "you remember that he [i.e. Gonzales] was insulting you. What was he saying that was insulting you? A. We were arguing. (Vol. 4; p. 156-57; 1. 19-5) Q. It [i.e., the argument] was loud?
A. Yes. Q. Loud enough that Clint [Wilson] could hear it back in the bedroom if he had been listening.

.. _-A..-Y.e.s Q. And then before Clint [Wilson] ever came out, Juvenal Go- .nzales.:said something about the little bitch boyfriend inthe bedroom did'nt he?
A. No. Q. Now that you've had a chance to refresh your recollection by reading your statement, do you recall that you said he starting insulting me and saying, what, you got your litt le bitch boyfriend in there - do you remember that now? A. That part, yes, I do. 

### Q. And again, you told him to just leave, did'nt you.
A. Yes. Q. Because you and he were through?
A. Yeah. Q. Did that piss him off?
A. Yes. 

### Q. So he wasn't just a happy guy just coming to see his kids,

was he?

11.;.. •.:; . A. No. 

### Q. He was pissed off at you and Mr. Wilson, was'nt he?
A. Yeah. 

### (Vol. 4; pp. 157-59; 1. 18-7). During cross, Aldis M. admitted that she wrote a statement to the police about thirty minutes 

### after the shooting saying that Gonzales had "tried to.go. forward to the kitchen."(Vol. 4; p. 160; 1. 17-23). 

### According to Aldis M., it was around this time "when Clint [ Wilson] came out of the [back] bedroom." (Vol. 4; p. 124; 1. 10- 11). Gonzales presence surprised Wilson. Gonzales had never been at Aldis M.'s home while he was there. (Vol.6; p. 162; 1. 11-13). Wilson came out.of the bedroom because he had heard Aldis M. 

### screaming in a way that he had never heard before. (Vol.6; p. 140 ; 1. 6-8). Said Wilson, "[T]here was panic in her voice, so that 

### scared me. I thought he [ i.e., Gonzales] was hurting her." (Vol. 6; p. 140; 1. 8-10). See also(Vol 6; p. 142; 1. 7-8)(referring to Wilson hearing "panic" in Aldis M."s voice). Wilson knew that with his frostbit hands he coild not defend 

### himself against Gonzales. (Vol.6; p. 142; 1. 18-19). For that re ason Wilson had gotten the pistol that was on the nightstand in the bedroom he and Aldis M. were sharing. (Vol.6; p. 142;1. 15-1 16). Wilson observed Aldis M. struggling to get away from Gonzales, 

### who was holding Aldis M. by Aldis M.'s right arm. (Vol. 6; p. 143



### ; 1. 4-6). Wilson told Gonzales to leave, that Aldis M. had asked her to leave. (VOl. 4; p. 131; 1. 10-11). Gonzales then let Aldis m. go. (Vol.6; p. 143-44; 1. 24-2). 

### After that, Gonzales began "mouthing' and "cussing out" Wils 

### on. (Vol. 4; p. 131; 1. 23), and Wilson responded in kind. (vol. 4 ; p. 132; 1. 1-4). Said Aldis M., "They were just cussing- each other out." (Vol. 4; p. 132; 1. 7).Aldis M. admi-tted that Gonza les called Wilson " a bitch", and she testified that Wilson cuss 

### ed Gonzales back. (Vol. 4; p. 162; 1. 25-3). 

### Wilson was only wearing boxer shorts. (Vol. 4; p. 162; 1-.- 20-21 

### ). Wilson was not wearing a shirt. (Vol.4; p. 188; 1. 5). According to Aldis M., Wilson first stayed back'near the back bedroom for a few minutes. (Vol.4; p. 130; 1. 7). Wilson " start 

### ed walking [out of the bedroom] he had his hands behind his back" .(Vol. 4; p. 125; 1. 2-3). This scared Aldis M. she was afraid
12.Wilson had a gun behind his back. (Vol. 4; p. 125; 1. 6 & 10-11). Aldis M. told Wilson to go back into the bedroom, that she wo uld handle it. (Vool. 4; p. 125; 1. 16-18). After all Wilson was not the subject of the argument. Rather, Aldis M. and Gonzales , were arguing about there children. (Vol. 4; p. 125; 1. 21-23). Meanwhile, Sanchez wa still out in the truck, and she continu ed to be looking down at Gonzales's cell phone trying to unlock it(Vol.4; p. 92; 1. 22-24), so she could call and text her both

er. Around this time Sanchez testified that she heard "a really loud noise like - you know, l.i.k.e...a__shot_was„_Tihad_be.en-flred...-L (Vol. 4; p. 153; 1. 15-17). Although it scared her, Sanchez saw Gonzales was still standing at "[t]he same spot where he had been standing at the whole time. He wa just standing there." (Vol.4; p. 54; 1. 4-5)(Vol.4; p. 95; 1. 5-7)(Vol.4; p. 96; 1. &). Accord ing to Aldis M; Wilson had just shot into the floor.(Vol.4; p. 136;1. 7-9)(Vol.4; p. 165; 1.8)(Vol.4; p. 185; 1. 17-20). Wils on agreed with this testimony. (Vol.6; p. 145; 1. 1-7). GOnzales did not leave (Vol. 4; p. 138; 1.5-8). To the contr ary Gonzales responded to this warning shot by telling Wilson, "You don't know who your fucking with bitch."(Vol. 6; p. 146; 1. 15-17). Aldis M. later wrote on Facebook that Wilson's warning shot had nothing mor~than "piss off" Gonzales. (Vol. 4; p. 152; 1. 22-23)(Vol. 4; p.153; 1. 6-8). Sanchez then heard a second shot. (Vol.4; p. 55; 1. 4). Accor ding to ALdis M., Wilson had just shot into the wall. (Vol.4; p.' 136; 1. ll)(Vol.4; p.165; 1. 18)(Vol.4; p.185; 1. 21-22). Also according to Aldis M., This second shot took place "a little less than" one minute fater the first shot. (Vol. 4; p. 86; 1. 15). Her mother, Suyapa M. said it was "seconds."(Vol.4; p.229; 1. 4-5). Gonzales still did not leave.(Vol.4; p.138; 1. 5-8). Again Aldis M. later wrote on Facebook that all Wilson's warning shot 

### had done was "piss off" Gonzales.(Vol.4; p. 152; 1. 22-23)(Vol. 

### 4; p.153; 1. 6_8). In this regard Aldis M. gave the folowing tes timony :Q. Do you remember telling officer Zinn, your statement, Juvenal [Gonzales] didn't get scared or anything; he 

### just started coming towards my boyfriend [i.e. Wilson]
13.to start fighting?
A. No. Q. After having had an opportunity to refresh your recol lection by reading your staement [which she gave to 

### police 30 minutes after the shooting], do you recall stating, but Juvenal [Gonzales] did'nt get scared or anything; he just started to come towards my boyfriend to start fighting? A. When I talked to them [i.e., the police], that's - not the way I said it. Q. Again, this is your handwriting? A. Yes, but I talked to them_-- Q. These are your words?
A. Yeah. Q. You wrote it out? A. Yes, I did. Q. You signed it? Q. Nobody told you what to write down?
A. No. Q. You wrote - they said, write what happened?
A. Yeah. 

### (Vol. 4; pp.165-67; 1. 22-2). As for Wilson he testified that af 

### ter a warning shot, Gonzales indeed made a step towards him. (Vol .6; p. 164; 1. 21-25). Given the fact that it was less than four weeks aftewr the fr ostbite, Wilson knew he could not fight mano -a- mano with Gonza les. Once again, Aldis M. confirms this

-- albeit very reluctant ly:

- 

### Q. And then the next [written] statement [you make to the police] is, but my boy friend then shot straight be cause he fight. He had an accident and has both his hands and foot hurt. Correct? Or do you need to read it again? A. I heard you. Q. Do you need to read it?
A. No. Q. Do you recall making that statement?
A. No. 

### Q. I'm going to let you read it;[iie., her own statement]
14.and see if you recall making it then? A. I already read it, you showed it to me. Q. So you don't recall writing this out that .day? A. I wrote but like I said that's - that day, I was in shock, and just did'nt know how to put words. (Vol. 4;p. 167; 1.3-19) Q. Could Clint [Wilson] have defended himself that day with his hands? A. Could he? Q. In the condition that his hands were in?
A. Yeah. 

### Q. Even though you say on - that-day it happend, he :[i._e.,
. Wilson] can't fight; he had an accident and both of his hands nad his feet [were] hurt? A. he couldn't move that good but he - he could. 

### Q. In fact, you remember that all he [i.e., Wilson] could
was this gesturing?
A. Yeah. 

### Q. That all he could was that; he couldn't make a fist. And in fact, it hurt his hand to touch anything with them, didn'tit?

_ A. Yeah.. (Vol.4; p.168; 1. 2- 18). As noted previously, Suyapa M. testi fied that she had seen Wilson's hands without any bandages.(Vol. 

### 4;:p.225; 1. 2-4). According to her Wilson's hands were dark, and Wilson was unable to move his' fingers. (Vol.4; p.225; 1. 4-9), although by January 19,2013 he was able to use his hands to drive a car.(Vol. 4; p. 194; 1. 11-13). It was at that point

- i.e., after Gonzales moved towards Wil 

### son dispite Wilson firing a warning shot (Vol. 6; p. 164; 1, 21- 25)

- that Wilson fired a third shot, which, according to Aldis 

### M., hit Gonzales, although she is not sure where. (Vol.4; p. 136; 1. 15-24). 

### Wilson acknowledged that he shot Gonzales. (Vol.6; pp.108-09; 1. 25-5)(Vol.6; p. 146; 1. 21). Wilson explained: 

### Q. At that moment[i.e., at the time of-the,, shooting], did you have reason to believe, based on your conver rsations with him in the past and the way ha appeared that day, that he was going to hurt you? 15.A. I knew he was going to hurt me. Q. And when I say hurt you , what did you think he was going to do to you? A. Exactly what he told me he was going to do. Drag me out of the house, hang me from a tree, and skin me like a fish. That's what he told me. Q. Were you afraid he was going to - you would not be abr le to defend yourself to the point that you could stop him without anything other than the weapon? A. I couldn't have stopped him at all. Q. At that moment, were you in fear for your life? A. I was in fear for my life, as well as their safety and their life, yes. Q. And did you believe that you had to act right at that instant to prevent anything else from happening? A. Yes, sir . He was coming at me.

• • • Q. Did you feel it was necessary for you to act in some fashion at that point? 

### A. Yes, sir. I had no choice. I gave him [i.e., Gonzales] every opportunity to leave. He refused to leave. I did not want to hurt the man. I practically begged him to leave. He refused. (VOl. 6; pp.147-48; 1. 8-17). Wilson then fired additional shots; 

### they; too hit Gonzales. (Vol. 4; p.136; 1. 10-16). Wilson also remembered a time when another individual, this one Hopkins County, had stabbed him, resulting in him being hos-* pitalized and receiving about a dozen staples near his heart. (Vol. 6; p. 156-57; 1. 11-9). Said Wilson, "My chest was laid op en." (Vol.6; p.210-; 1. 13-14). Sanchez heard the shots. (Vol.4; p. 55; 1. 10-12). So did Suy 

### apa M. according to her, there were no pauses; rather, the shots 

### were fired in rapid succession.-(Vol.4; p.229; 1. 11-15). Sanchez then saw Gonzales "run out the door."(Vol.4; p.55; 1. 4-8)(Vol.4; p.55; 1. 13-14). Sanchez saw Wilson

- apparently, he was now fully clothed-- leave the trailer home and drive off quickly in his car past the driver side of Gonzales's truck.(Vol. 4; p. 63; 1. 15-24)(Vol. 4;
16.

### p. 214; 1. 14-15). Wilson acknowledged that he left Aldis M.'s trailer home. (Vol.6; p. 161; 1. 7-8).Wilson added that he left the pistol on the bed in the bedroom where he and Aldis M. stay ed. (Vol.6; p. 161; 1. 10-11). Curiously, Aldis M. covered up the pistol with a towel. (Vol. p.145; 1. 3-8). Aldis :H. testified that 

### she does not know why she did this.(Vol. 4; p.145; 1. 17). The first responding officer on the scene checked Gonzales for a pulse rand—found none^r(Votr5-;—p-31-;—It 21 -25-)t-Sanchez--tes-ti-f-i-ed-———_- 

### " I saw him [i.e., Gonzales] die, and I knew he was dead[.]"(Vol. 4; p. 73; 1. 17). The first responding also talked to Aldis M. The officer ask ed Aid-is—M.- -to -step out-of—the-trailer-home:, fif anyone-else- was inside, and if she would give a brief discription of what happen ed. (Vol.5; p.33; 1. 19-24). The officer found Aldis M. to be de fensive. (Vol.5; pp.33-34; 1. 25-2). Aldis M. told the first responding officer on video tape - law enforcement produced the tape minutes after the shooting, and the State offered it at trial -- that Gonzales had been hitting her. (Vol.7; pp.30-31; 1. 25-1). Aldis M. also told the first respond 

### ing officer that Gonzales had threatened her multiple times. (Vol ^5;—pp. 40-41; 1. 24-6). Finally, Aldis M. -told the first respond



### ing officer that Gonzales was "not even allowed" to be there. (Vol. 5; p.42; 1. 7-12). The Justice of the Peace went to the Hospital and pronounced Gonzales "deceased" from "multiple gun shot wounds." (Vol.5; pp. 213-14; 1. 23-4). Sanchez testified that during the entire morning - i.e., from the time that Gonzales picked her up to the time of the shootingGonzales had drunk less than five beers.(Vol.4; p.43; 1.24). How ever, Sanchez also acknowledged that Gonzales had been drinking 

### the night before. (Vol.4; p.44; 1. 2).In any event, the State ad vised that at the time of his death, Gonzales's blood alcohol co ncentration was about 0.27

- actually, according to the medical 

### examiners report it was 0.296 (Vol. 5; pp. 176-77; 1. 24-1)

-- which the State "observed, correctly, is " over three times the 1- 

### egal limit of .08 if your going to.drive a car."(Vol.4; p .19; 1. 10-12).
17.Wilson was arrested later that same day, i.e, January 19, 20- 13. According to the arresting officer, Wilson offered no resist ance whatsoever. (Vol. 5; p.24; 1. 16-17).

18P.O. Box_9_18 Sulphur Springs, TX 75483-0918 903.689.4144 East Texas 972.499.4004 Dallas/Fort Worth 903.689.7001 Facsimile wade@forsmanlaw.com Attorney for Appellant Clint Weldon Wilson
Certificate of Word Count Pursuant to Tex.R.App.P. 9.4 (i)(3), This document contains 10,- 808 words. /s/ Wade A. Forsman Wade A. Forsman

Certificate of Service This is to certify that on May 7, 2014, I served a true and coi rrect copy of the above and foregoing Appellant's Brief by hand
on Will Ramsay, District Attorney, and Peter Morgan, Assistant District Attorney, at 114 Main Street, Sulphur Springs Texas 754- 82. /s/ Wade A. Forsman Wade -a.- Forsman

19.Preview of Argument
Ground One: The court of Appeals erred in it's disposition; that the ev idence was sufficient to Justify the trial court's charge to the 

### Jury on the issue of Applicant having Proviked the difficulty.

Argument
Ground One: 

### The Court of Appeals erred in it's disposition of Applicants Fourth Ground of error, thta the evidence was sufficient to just 

### ify the trial court's charge to the Jury on the issue of Applic ant having Provked the difficulty. 

### The Court of Appeals, in it's Memorandum Opinion of page 7, 

### sec, exhibit A., claimed there is ample evidence to support in

### stucting the JUry on the Provocation from the Relevant testimo 

### ny, the Court claimed that " Applicant purposefully inserted him self into a Domestic Dispute and threatened Gonzales with a fire arm and the words he used were calculated to Provoke the attack

on Gonzales." Id. Jury-Instruction on—Provoking The Difficulty 

### The governing law on instructing a Jury on Provoking the dif 

### ficulty is properly given when: (1) Self defense is an issue; (2) there are facts in evidence which show that the deceased made the first attack on the defendant; and (3) the defendant did some act or used some words intended to and calculated to bring on the di 

### fficulty in order to have Pretext for inflicting injury on the deceased. see Williamson Vs. State, 672 Sw. 2nd 484-485-86 (Tex. 

### Crim.App. 1984); Smith Vs. State, 965 Sw. 2nd 509-513-(TexCrim.App. 1998). 

### All elements are qouestions of fact. Id. at 513. An instructi on on Provocation should only be given where there is evidence from which a Rational Jury could find every element of Provoca 

### tion beyond a Reasonable Doubt, see Id. at 513; also Matthews Vs. 

### State, 708 Sw. 2nd 835,838 (Tex.Crim.App. 1986). Under such an analyses the Appellate ask if there was sufficient from which a Rational Jury could have found Provocation beyond a Reasonable Doubt, viewing the evidence in light most favorable to the given instruction. Smith,at 513. 20.In the case at hand, viewing the evidence in the light most favorable to the given instruction, there were sufficient evide nce from which a Rational Jury could have found Provocation be- -j yond a Reasonable Doubt in the first two elements in this Jury instruction. (1) Self-defense was the issue inthis instant case; and (2) there are facts that deceased Gonzales made the first at tack on the Applicant. The facts that a Rational Jury could have found beyond a Rea sonable Doubt, that the deceased made the first attack on Applic ant was that; the deceased Gonzales threatend Applicant to drag him out of the house, hang him in a tree and skin him like a fish. Here,to the question of the fact upon thr third element, to charge the Jury on Provoking the difficulty, that applicant did
some act or used some words intended to or calculated to being on the difficulty in order to have a Pretext of inflicting injury upon the deceased; the evidence is insufficient from which a Rat ional Jury could have found Provcation beyond a Reasonable Doubt. The facts of this case clearly shows beyond a Resonable Doubt, 

### that on the morning of the killing of Gonzales, Gonzales: (1) was known to be a mean drunk; (2) was verey drunk, (0.296); (3) came to the residence (Habitation) of Aldis M.; (4) knew applicant was living with Aldis M. in a full relationship for over 6 months; (5) was told not to come over to the Residence; (6) entered the 

### habitation of Aldis M.'s and applicant without permission (unlaw fully); and (7) was asked by Aldis M. to leave, and refusing to leave Gonzalews reacted violently by grabbing Aldis M. by the arm with force making Aldis M. scream. Applicant, being concerend for Aldis M., which a reasonable person would have, came out of the bedroom with a firearm, because he could not have defended himself or Aldis M. with his bare han ds being seriously frostbitten. He then asked Gonzales to leave, and Gonzales began to argue. Applicant and Gonzales began to ex change heated words between the two. In doing so , when Gonza;es still refused to leave, Applicant pulled out the firearm from be hind his back and pointed it at Gonzales. Gonzales had already made the first at-tack on applicant when he told applicant that he

21.wil drag him out of the house, hang him in a tree, and skin him 

### like a fish. Applicant demended Gonzales to leave. Refusing to 

### leave and ignoring all Respected Pleas by Applicant and Aldis M., Gonzales reacted more violently. Applicant then fired two warning 

### shots, one in the wall and one in the "floor. Ignoring all these l> Pleas
. Gonzales lunged toward applicant and applicant fired sev eral shots ended in killing Gonzales. From this evidence that clearly shows in the Record, a Reason 

### able Jury would have seen that Gonzales provoked the difficulty unto applicant. Applicant gave Gonzales every opportunity to lea ve even though Gonza-les^was acting violently. 

### In Williamson Vs. State, 672 Sw. 2nd 484, 486 (tex.Crim.App. 

### 1984), the same situation as it is here in applicants case, Will iamson asked the deceased Jamison to leave his house and Jamison 

### began to argue with Wiliiamson. Jamison reacted violently by lun ging toward -Williamson's Machete to assault him and Williamson killed Jamison by shooting him in the head with his Rifle. This Court made a Judicial determination on the feats that the eviden ce did not raise the issue that it was Williamson's purpose to provoke an attack from the deceased Jamison, in order that he mi ght have a Pretext for killing Jamison. This Court Reversed and Remanded this cause back to trial Court. Id. at 486. Therefore, here in this instant case, viewing the evidence in light most favorable to the given instruction, the evidence is insufficient to conclude that applicant provoked difficulty in order to have a Pretext for inflicting deadly force upon the de ceased. Thses feats clearly prove beyond a Reasonable Doubt that this evidence does not Raise the issue, that it was applicant's purpose to provoke an attack from Gonzales in order that he have a Pretext for killing Gonzales. The Court of Appeals did erred-in it's disposition, for these facts and the evidence, a Rational i.Jury could not have found eve ry element of Provocation beyon a Reasonable Doubt.

Conclusion Through this evidence and the facts at hand, this Court can • conclude that the Court of Appeals did erred in it's disposition in Ground One of their Memorandum Opinion. This case mirrors this courts decision made in Williamson Vs. State. The Court of Appea ls :. . •:.-.'.-• 22.Is did not address the issue of a duty to Retreat; for not doing so, Applicant does not. In The Court of Appeals Memorandum Opinion on Grounds 2-6, the issues were determined in accordance with the law of this State.
Prayer wherefore, Premises Considered, Applicant prays that this Hon orable Court of Criminal Appeals determined these facts to be tr
ue and address it in accordance with the Judicial determinations made by this Honorable Court. 

### So prayed on this
.v3>0 day of January, 2015. Respectfully Submitted,

Clint Weldon Wilson #1891353 Clements Unit 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 bel

ow. Excuted on this day of January, 2015.

Will Ramsay Hopkins County District Attorney 114 Main Street Sulphur Springs, Texas 75482 903.885.0641

23 Clint Weldon WilsonIn The 

### Court of Appeals 

### Sixth Appellate District ofTexas at Texarkana

No. 06-14-00021-CR

CLINT WELDON WILSON, Appellant

V. THE STATE OF TEXAS, Appellee

On Appeal from the 8th District Court Franklin County, Texas Trial Court No. F8775

Before Morriss, CJ., Carter and Moseley, JJ. Memorandum Opinion by ChiefJustice MorrissMEMORANDUM 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 shotGonzales, Aldis' version ofthe 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 aboutthejury charge, the lack ofamistrial, andthe amendment ofthe indictment after trial began. We affirm thejudgment ofthe trial court, because (1) the jury 

### instruction onprovocationwas warrantedbythe evidence, (2) ajury instruction onthreats by the 

### victimwasproperlyrefused, (3) ajury instructiononnecessity was properlyrefused, (4) mistrial
was not mandated, (5) Wilson's complaintregarding the lack of ajury instruction onjustifiable 

### force isinadequately briefed on appeal, and (6) we have nojurisdiction 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 portrayedhim as adisabled man seeking only to protecthis 

### girlfriend and himselffrom adrunken, violent ex-boyfriend. Wilson testified that he met Aldis inlate August 2012 and had lived withher and herthree children inher mobile home until late Novemberofthatyear. He leftherfor anotherwoman, butbegan seeing her againin December

'Because we also referherein toAldis Mendez' mother, SupayaMendez, we will refertoboth womenby their 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 ofunlawful possession of a firearm by a felon and sentenced to ten years' confinement,torunconcurrently, and assessedanother$10,000.00 fine. Hedoes notappealthefirearm conviction.

### when theother 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 stayeduntilthe shooting. Several times during the periodhe lived with Aldis, she wouldreceive 

### 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 calltwo orthree nights inarow, then stop andbegin againtwo orthree 

### weeks later. During these conversations, Gonzalez would reportedly curse Wilson, threaten to "f*** [Wilson] up," andthreatenhis life. About sevento ten days beforethe shooting, Gonzalez toldWilson hewas "going to come outthere, drag [him] from thehouse, hang [him] on atree, and skin [him] like a fish." Wilson also testified that, on the morning of January 19, 2013, he and Aldis were 

### sleeping inbed when they were awakened by yelling inthe living room. Aldis looked athim 

### with panic in her eyes and said, "It's [Gonzales]," and ran into the living room. Wilson did not follow herbecause he thought she could handle the situation. ButAldis and Gonzales kept 

### arguing, and itwas getting louder and louder. Wilson heard her scream, grabbed apistol, and proceeded to the kitchen. Wilson claimed he grabbed the pistol because he could not defend himselfagainst Gonzalez. When Wilson got tothe kitchen, Aldis was struggling to get away from Gonzalez. Wilson told him, "[L]et her go, motherf*****," then pointed the pistol at 

### Gonzalez. Gonzalez letAldis go, and she ran behind Wilson. Wilson kept telling Gonzalez to 

### leave, but Gonzalezjust said, "[Y]ou ain't going [to] do nothing, you little bitch." Wilsonthen
3Wilsonhadbeenhangingoutwithhis cousin, tookmethamphetamine, gotlost, andpassedoutinafield inthe snow for several hours. 3fired a warning shot through the floor. He did not want to hurt Gonzalez, but he was afraid of him and wanted him to leave. Instead, Gonzalez got more aggressive, and Wilson fired a second warning shotthrough the wall. Gonzalez bowed up, cursed him, andlunged 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 ofAldis 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 had to defend himselffrom the ex-boyfriend of his thengirlfriend. Wilson ended up killinghim, 

### 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, apostappeared onhis Facebookinwhichheapparentlybraggedaboutit. Aldis' versionwas considerably different, andshe was the only othersurviving witness to the events inside the mobile home. She testified that Gonzalez was the father of her three 

### children and thatthey hadbroken up in March 2012. She said that she metand began dating 

### WilsoninSeptemberandthathewould stay every otherday orso. She confirmedthat Gonzalez

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

### arguing "alittle bit" and she told him to leave, then Wilson came out ofthe bedroom. Wilson
was walking withhis handbehindhis backand she got scaredbecause shethoughthe had agun. Aldis told Wilsontogo backtothe bedroom andthat she wouldhandle it, not toworry about it. Wilsontold Gonzalez toleave, and thetwo men began mouthing back and forth, cussing ateach 

### other. Shekepttelling Wilsonthat shewouldhandle itandthat shewouldmake Gonzalezleave.She was not afraid Gonzalez would hurt her. Then Wilson took a step forward and pulled outthe gun. She told him not to do anything. She picked up her daughter, Lexi, and lifted her out throughthe back door becauseshe did not want her to seewhatever was going to happen. Then, Wilson fired a shot through the floor. Next, Wilson shotthrough 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 thirdor. fourth shot, whenGonzalez 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 hemade any threatthatdeserved beingshot. He neverdisplayed a weaponand 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 thatGonzalez was "pissedoff at both she andWilson thatday. She also admitted that Wilson could not make a fist that day because ofhis frostbite. 

### Supaya Mendez, Aldis' mother, testified that Gonzalez was a fighter but never used weapons. Supaya was never afraid ofhim killing anyone. She said thatAldis and Gonzalez 

### would argue a lotbecause he drank alot. He would get violent when hedrank, but not toward her,justtoward the walls. 

### The medical examiner who performed theautopsy onGonzalez testified that, based on herexamination, one shotenteredthefront ofhisbody, one enteredhisleftside, andtwo entered at his lowerback/buttocks. One or two other bullets grazed his back.(1) TheJuryInstruction onProvocation Was Warrantedbythe Evidence Wilson complains of the trial court's inclusion of acharge onprovocation, 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 oferror. Our review 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. at731-32; Almanza v. State, 686 S.W.2d 157, 172 (Tex. Crim. App. 1984) (op. onreh'g),reaff'dbyMiddleton v. State, 125 S.W.3d450, 453 (Tex. Crim. App. 2003). The level of harm an appellant mustdemonstrate as havingresulted from the erroneous 

### jury instruction depends onwhether 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 "calculatedtoinjuretherights ofdefendant"—the appellantneed only demonstrate "some harm"
onappeal. Id.; seealso Almanza, 686 S.W.2d at 171. Inthe case ofunpreserved error, reversal 

### isrequired only when "the error is so egregious and created such harm that [the defendant] 'has nothad afair 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 of avaluable "The Jury Instructions included adefinition of"Provoking the Use orAttempted Use ofForce," an instruction on "Failure toRetreat," and an instruction on "Presumption," all ofwhich are substantially the same as those set forth in SectionsB14.8 and B15.3 of the State Bar of Texas' Texas Criminal Pattern Jury Charges—Defenses §§ (2013). The "Failureto Retreat" and "Presumption" instructions arebasedon Sections 9.32(b) and (c), respectively, ofthe Texas Penal Code. See Tex. Penal CodeAnn. §9.32(b), (c) (West2011). It isunclearfrom the record and Wilson's briefwhetherhe iscomplaining ofthe definition only oralso the mentioning ofprovocation inthese other instructions. 6

### right, vitally affect adefensivetheory, ormakethe case for convictionorpunishmentclearly and 

### significantly more persuasive. Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991); Smith v. State, 424S.W.3d 588, 597(Tex. App.—Texarkana2013, no pet.). 

### "[T]hejury is the exclusivejudge ofthe facts, butitis boundto receive the law from the court andbe governed thereby." Tex. Code Crim. Proc. Ann. art. 36.13 (West 2007). Atrial courtmust submitacharge setting forththe "lawapplicabletothe case." Tex. CodeCrim. Proc. 

### Ann. art. 36.14 (West2007); Reeves v. State, 420 S.W.3d 812 (Tex. Crim. App. 2013). "Itisnot 

### the function ofthe charge merelyto avoidmisleading orconfusingthejury: itis the 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 onprovocation 

### whenthere is sufficientevidence (1) thatthedefendant did some act orused 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 orthe words were used for the purpose and with the intent that the defendant would have apretextforinflictingharmon theother. Smith v. State,965 S.W.2d 509, 513 (Tex. 1998). 

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

### provocationinstruction shouldbe submittedto thejuryonly "whenthere is evidencefromwhich


### arationaljury couldfind every elementofprovocationbeyond areasonable doubt." Id. at 514. 

## Ourinquiryiswhether"arationaljurycouldhavefoundprovocationbeyondareasonabledoubt, viewingthe evidenceinthelightmostfavorableto givingtheinstruction." Id.There is ample evidence to supportinstructing the jury on provocation. From the above relevanttestimony, it couldbereasonably inferred thatWilsonpurposefully inserted himselfinto



### a domestic dispute and thatthreatening Gonzalez with a firearm and the words he usedwere 

### calculatedtoprovoke theattack by Gonzalez. In hisbrief, Wilson focuses on thelack ofdirect evidence of "wordsor acts"that provethe thirdelement, i.e.,thatWilson intendedtoprovoke the 

### difficulty aspretext for inflicting injury on thedeceased. However, a jurydoes "notneed to be able to put itshands on theparticular act orwords[;]" rather, "thisfinding can bemade through inference relying on circumstantial evidence." Id. at 515. From the medical examiner's testimony, a jurycould reasonably inferthatGonzalez stoppedhisadvance afterbeing shotonce 

### andbeganturning toretreat. Wilson, however, kept shooting and shotGonzales inthe side, then at least three times in the back. In addition, Wilson testified that he had had several run-ins with 

### Gonzalez overthe telephone and that afew days before this incident Gonzalez threatened tokill him. Arationaljurycould have inferred his intent from this evidence, coupled with Wilson's 

### recent priorhomicide inwhich he successfully claimed self-defense. Thus, there isevidence of eachelementthatsupports the court's decisionto includetheinstruction. 

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

### (2) AJuryInstruction on Threats bythe Victim Was ProperlyRefused 

### Wilson also complains of the lack of an instruction on the prior threats made by Gonzalez.5 Becausetheproposedinstructionwouldhavebeen animpermissible comment onthe weight of theevidence, we overrulethis point oferror. 

### Inasserting entitlementto aninstructiononthreats byGonzalez, Wilsonrelies onFielder
v. State, 756 S.W.2d 309 (Tex Crim. App. 1988). However, the complaint inFielder was the exclusion of evidence related to the defendant's past relationship with the deceased and the reasonableness of her fear of him. Id. at 318. Wilson makes no such complaint on appeal 

### Rather, thiscase iscontrolledby Walters v. State, M7 S.W.3d 204 (Tex. Crim. App. 2007). 

### In Walters, theTexas Court ofCriminal Appeals considered whether, in a murder case 

### wherethejury ischarged on self-defense, the defendantisentitledto an instruction onpriororal threats bythe deceased.7 The courtheldthat, 

### generally speaking, neitherthe defendantnorthe State isentitledto aspecialjury instruction relating to a statutory offense ordefense ifthat instruction (1) is not 

### grounded inthe Penal Code, (2) is coveredbythe general charge to thejury, and (3) focuses thejury's attention on a specific type ofevidence thatmay support an element ofan offense or a defense. In such a case, the non-statutory instruction would constitute aprohibitedcomment ontheweightof theevidence.

5Wilsonrequestedthefollowing instruction: Where adefendant accused ofmurder seeks tojustify himselfonthe ground ofthreats againsthis own life, he is permitted to introduce evidence ofthe threats made, but the same shall not be 

### regardedas affordingjustificationforthe offenseunless itbe shown, atthetime of thekilling, the 

### personkilledby some acts then done, manifested in an intention to execute the threats so made, andprovidedthatareasonablepersoninthe defendant's situationwouldnothaveretreated. 6Wilsontestifiedattrial aboutthethreats tohis lifemadeby Gonzalez, andhis trial counsel emphasizedthese threats and Gonzalez' violent nature in his final argument. 7Theproffered instruction was identicalto theone inthis case. 9 6Id. at 212. As in Walters, theproffered instruction meets all threecriteria. First, the Texas Penal Code does not recognize prior oral threats as a defense orjustification. Second, the trial court included thestatutory definition of"reasonable belief," which wouldnecessarily include threats madebefore the incident. Id. at 213. Third, giving the instruction wouldunduly 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, weconclude that thetrial court did not err in denying Wilson's request for

an instruction on prior oral threats. (3) AJuryInstruction onNecessity Was Properly Refused 

### Wilson complains that hewas entitled to a juryinstruction on thedefense ofnecessity. Since thetrial court charged the jury on self-defense using deadly force, wefind that the trial court did not err in refusing to include an instructiononnecessity. Under Section 9.22 ofthe Texas Penal Code, conduct is justified under necessity, if 

### (1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm; 

### (2) thedesirability and urgency ofavoiding theharm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and 

### (3) alegislative purpose toexclude thejustification claimed for the conduct does not otherwise plainly appear. Tex. Penal CodeAnn. § 9.22 (West 2011).

8ln his briefon this point oferror, Wilson merely quotes verbatim his trial counsel's argument made to the trial court. Sincethe argumentbelow included appropriate legal authority andargumentbasedonthatauthority, we will 

### address the point oferror. Our addressing this point oferror should not be taken as approval ofthis very questionable practice.
10Thus, if there is a plain legislative purpose to exclude the defense of necessity, then 

### subsection (3)precludes its application. This Court haspreviously held that a defendant is not entitled to an instruction on necessity when self-defense using deadly force is an issue since 

### including aninstruction onnecessity "would undermine the Legislature's purpose in imposing theduty toretreat" in Section 9.32 of theTexas 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), off'don othergrounds, 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" torequire retreat, if areasonable person would, before using 

### deadly force.9 See Butler, 663 S.W.2d at496. In2007, the Legislature amended Section 9.32, removing the retreatprovisions andadding "provisions specifying when apersondoes nothave a duty toretreat." Morales v. State, 357 S.W.3d 1, 5 (Tex. Crim. App. 2011). Thus, alegislative 

### purposetorequireretreatbefore using deadly force no longer "plainly appear(s)" inSection9.32,
as required to preclude an instruction under Section 9.22. Nevertheless, we find that

9Theformer version ofSection 9.32 ofthe Texas Penal Code provided,

Apersonisjustifiedinusingdeadly force against another: (1) ifhe wouldbe justifiedinusingforce againstthe otherunder Section9.31 of this code; (2) ifareasonablepersoninthe actor's situationwouldnothaveretreated; and (3) whenandtothe degree hereasonablybelievesthe deadly force is immediately necessary: (A) to protect himselfagainst the other's use orattempted use ofunlawful deadly force; or(B) to preventthe other's imminent commission ofaggravated kidnapping, murder, rape, aggravatedrape, robbery, oraggravatedrobbery. Act ofMay 27, 1995, 74th Leg., R.S., ch. 235, § 1, 1995 Tex. Gen. Laws 2141, 2141 (amended 2007) (currentversion atTex. PenalCodeAnn. §9.32 (a)(West2011)). 11

### Section9.32 still contains a plain legislative purpose that precludes the inclusion of an instruction onnecessity when a Section9.32defense isimplicated. Section9.32 provides, in pertinent part, as follows: (a) A personis justifiedin usingdeadly force against another: 

### (1) if theactorwouldbejustifiedinusing force againsttheotherunder Section 9.31; and 

### (2) when and to the degree the actor reasonably believes the deadly force is immediately necessary: 

### (A) toprotecttheactor against the other's use orattempted use ofunlawful deadly force; or 

### (B) to prevent theother's imminent commission ofaggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. Tex. PenalCodeAnn. § 9.32(a) (West 2011). 

### From aplain reading ofthe statute, it isclearthat the Legislature intended tojustify the
use ofdeadly force only when one's life isimmediately threatened by another's use ofunlawful 

### deadly force orto preventthe commission ofspecificviolent crimes. By contrast, the defense of necessityhas amuch lowerthreshold before itcanbe asserted. Necessity requires only thatthe conductbe necessary to "avoid imminentharm." Tex. PenalCodeAnn. §9.22(1). "Harm" is defined as "anything reasonably regarded as loss, disadvantage, orinjury, 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

12

### legislative purpose ofonly allowing deadly force to beused toprevent the immediate threat to one's life or to preventthe commission ofspecific violentcrimes. 

### Accordingly, weconclude thatthetrial court did not err indenying Wilson's request for

an instruction on necessity. (4) Mistrial Was Not Mandated 

### Wilson also complains about not being granted amistrial after theState putonevidence ofitems usedfor"distributingnarcotics." We find thatthetrial courtproperly instructedthejury and overrule this point oferror. 

### During the State's direct examination ofRobert Zinn, an inspector for the Franklin County SheriffsDepartment, thefollowing exchangetookplace: 

### Q. Besides theitems directly related to theshooting, were there other things found in the house that wereofinterest? A. Yes, sir. Q. And what was that? A. There was, I believe, some digital scales found, some 

### methamphetamines found, and Ibelievethatthere was aprice listofhowmuch

- for someone thatwasdistributing narcotics, itbroke down theprice of howmuch each ofthose

— MR. LONG: May we approachthe bench? THE COURT: You may. 

### Outsidethepresence ofthejury, Wilsonobjectedto anytestimonyregarding 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 thatWilson was not entitledtoan instruction on necessity when self-defense using adeadly 

### weaponis implicated, wedonotreachthe State'scontentionthatthenecessitydefense was notavailabletoWilson since hedidnotadmitto theconduct. SeeJuarezv. State, 308 S.W.3d 398 (Tex. Crim. App. 2010). 13Ladies and gentlemen, I have an instruction for you. It's one of those instructions that I told you you may verywell be given. And what I'm going to 

### tell you isthatjustbefore yourbreak, youheard some testimony regarding digital scales, price lists, and some suggestion ofdistribution of narcotics. You are to 

### disregardthattestimony andconsiderit fornopurpose whatsoever. Allright? Wilson thenmoved for a mistrial, which was denied. Thus, Wilson hasproperly preserved the 

### point for appeal. Hines v. State, 269 S.W.3d 209, 214 (Tex. App.—Texarkana 2008, pet. refd).11Granting amistrial is appropriate in "those cases in which anobjection could not have 

### prevented, and an instructiontodisregard could not cure, the prejudice stemming from an event attrial—i.e., where aninstruction would not leave thejuryin anacceptable state tocontinue the 

### trial." Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004). However, amistrial isnot 

### requiredwhereprejudice is curable by aninstructionto thejuryto disregard. Ovalle v. State, 13 S.W.3d774, 783 (Tex. Crim. App. 2000). "Atrial court's denial of amistrial isreviewedunder

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 ofmarihuana and methamphetamine in the mobile home and Wilson's


### own drug use. Later, Wilsontestified of his priorconvictions for aggravated assault and felony n"Thepropermethodofpreservingerrorintheadmission ofimproperlyofferedevidenceis forappellant's counsel to: (1) state atimely specific objection, (2) obtain aruling onthe objection from the trial court, (3) move for an instructionforthejuryto disregard, (4) obtain aruling onthe instruction and ifsustained, have thejury instructed, (5) move for amistrial, and (6) obtain aruling onthemotionformistrial. These steps mustbe taken in sequence, and counsel cannot object and move for an instruction and mistrial without obtaining aruling 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)). 14

### possession ofmarihuana. Inaddition, thetestimony and items mentioned were nevermentioned again. In acase such asthis, inwhichthebulkoftestimony centered aroundtheviolentbehavior andtheabuse ofdrugs andalcohol by bothWilson andGonzalez, it isunlikely thatanyprejudice 

### 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 InadequatelyBriefed on Appeal 

### Wilson also complains that the trial court erred by denying his request to include an instruction onjustifiable force. In his brief, Wilson merely sets forth verbatim the argument 

### made by bis trial counsel to the trial court. The argument does not contain any citations to statutory orcaselaw, otherthan onegeneralreference to the"Penal Code." 

### It isthe duty of anappellant tocite specific legal authority and provide legal arguments based onthat authority. Bell v. State, 90 S.W.3d 301, 305 (Tex. Crim. App. 2002). Appellate counsel isrequired to "cite specific legal authority and toprovide legal argument based onthat 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 oferror.

15(6) We Have NoJurisdiction Over the Amendment ofthe 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. 

### Wilsonwascharged withtwoseparate offenses thatwere triedtogether. Thefirst, which is the subject of this appeal and overwhich we have jurisdiction, was for murder (trial court cause numberF-8775). While the murderindictment was amended, that was done seventeen days before trial and is not part ofWilson's complaint. 

### The second charge was for the offense ofunlawful 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 tothe

amendment. 

### Although these charges were tried together, Wilson has not appealed from hisconviction for unlawful possession of a firearm by a felon. Because notimely notice ofappeal regarding thatconviction was filed, we have nojurisdiction overthefirearm possession case. SeeOlivo v. 

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

error.

16We affirm thejudgment ofthe trial court.

Date Submitted: August 28, 2014 Date Decided: November 7, 2014
Do Not Publish Josh R. Morriss III ChiefJustice

17