NUMBER 13-14-00038-CR 

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

ALLEN LATOI STORY, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 19th District Court

of McLennan County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Perkes

Memorandum Opinion by Justice Perkes1

Appellant Allan Latoi Story appeals his conviction for murder, a first-degree felony,

enhanced by prior convictions. See TEX. PENAL CODE ANN. §§ 12.42(c), 19.02(b)(1), (c) 

 

1

 Pursuant to a docket-equalization order issued by the Supreme Court of Texas, the appeal has 

been transferred to this Court from the Tenth Court of Appeals in Waco, Texas. See TEX. GOV'T CODE 

ANN. § 73.001 (West, Westlaw through 2015 R.S.).
2

(West, Westlaw through 2015 R.S.). A jury found appellant guilty and assessed 

punishment at life imprisonment. By two issues, appellant argues the trial court erred: 

(1) by excluding evidence of a recorded interview between appellant and a police officer;

and (2) by refusing to give a jury instruction on self-defense. We affirm.

I. BACKGROUND

Appellant was indicted for murder relating to the stabbing death of Zachary Davis. 

Joyce Akers testified that she was a longtime friend of Rene Davis, Zachary’s sister. 

Akers was at Rene’s apartment with Zachary, Rene, and appellant on the night of the 

altercation. She recalled that Rene and appellant were arguing, when appellant said “if 

you keep at it, I’m going to put my hands on you.” Zachary responded “as long as I’m 

here, you’re not going to put hands on her.” Appellant told Zachary that if he interfered, 

he would kill him. Akers testified that appellant then left the room, and when he returned, 

Zachary told him “whatever you went back there to get or whatever you call yourself doing, 

you’re going to have to use it.” Appellant then walked out the back door, and Rene 

followed as the two continued arguing. Akers testified that appellant then grabbed Rene 

and lifted her up by her throat. At that time, Zachary intervened and struck appellant with 

his fist, which resulted in a physical altercation between Zachary and appellant. Akers 

recalled that, as Zachary and appellant were punching each other, appellant fell to the 

ground and Rene started hitting appellant. Akers testified that the fighting stopped and 

appellant stood up and walked toward the back door, while Zachary walked away from 

the back porch and into the yard. As appellant was walking away, he dropped a knife 

and picked it up. Akers stated appellant then approached Zachary who fell to the ground
3

on his back. Akers testified appellant got on top of Zachary and stabbed him several 

times, while she yelled “please stop stabbing him.” After the stabbing, Rene ran into the 

house and came back outside with a hammer. Appellant stood up and entered the 

apartment, while Zachary ran away from the apartment. Akers stated that neither 

Zachary nor Rene had a weapon when they were fighting appellant. 

Officer Jason Ireland with the Waco Police Department testified that he responded 

to the scene and observed Zachary on the ground gasping for breath. Zachary died

shortly after his arrival. Officer Ireland learned that appellant was suspected of stabbing

Zachary and obtained his cell phone number. He attempted to locate appellant’s cell 

phone by determining its GPS location. For three to four hours, Officer Ireland and other 

law enforcement officials searched for appellant using “pings” from appellant’s cell phone. 

Officer Ireland narrowed appellant’s location to a residence within four to five blocks of 

the crime scene. After confirming appellant was located in the house, an officer with a 

canine called for him to come out. After two commands from the officer, appellant exited 

the residence. Officer Ireland did not observe any physical injuries, and appellant did 

not request medical treatment. Appellant was arrested and taken to the county jail.

Appellant’s counsel questioned Officer Ireland outside the presence of the jury

concerning his interview with appellant. Officer Ireland testified he talked to appellant in 

his patrol car shortly after his arrest, and the interview was recorded. During the 

interview, appellant stated “[Rene and Zachary] were jumping me and I defended myself.” 

Appellant claimed that he saw a hammer and some knives. Appellant stated he was on 
4

the ground and “they hit me first.” Appellant explained that “[Zachary] hit me and I fell to 

the ground and [Rene] came over and kicked me.” 

Appellant’s counsel moved to admit the recorded interview as impeachment of 

Officer Ireland’s testimony “about [appellant’s] voluntariness of coming out of the house

and also about injuries and so forth.” Appellant’s counsel also argued the recording was 

admissible under “Texas Rules of Evidence 107, the Rule of Optional Completeness.” 

The State objected that the video was hearsay and irrelevant. The trial court sustained 

the State’s objections. 

Angelika McCallister, a crime scene technician for the Waco Police Department, 

testified concerning photographs of the crime scene and the parties involved in the 

altercation. McCallister explained that appellant had a number of superficial and non-life 

threatening injuries, but that Rene did not exhibit any injuries. 

Dr. Janice Townsend-Parchman, the Dallas County medical examiner, performed 

Zachary’s autopsy. She testified that Zachary suffered three stab wounds to the: (1)

front left shoulder, penetrating 43⁄4 inches; (2) liver, penetrating 43⁄4 inches; and (3) right 

thigh, penetrating 3 inches. Dr. Townsend-Parchman concluded the three stab wounds 

caused Zachary’s death. 

Rene testified during appellant’s case-in-chief. Rene stated that after arguing 

with appellant, she went outside with Zachary. Appellant followed them, and they 

continued to argue. Rene testified Zachary punched appellant “because [appellant] 

acted like he was going to choke me.” Rene denied that appellant picked her up by her 

throat. During the altercation between appellant and Zachary, appellant ended up on the 
5

ground, and she began hitting appellant with a stick. Rene estimated that the stick was 

two to three feet long and less than four inches in diameter. After she saw appellant stab 

Zachary, she went inside the apartment to get a hammer. Rene was not sure if she hit

appellant with the hammer or not. Following the altercation, appellant ran into the 

apartment and locked the door, while Zachary ran toward the parking lot. 

On cross-examination, Rene testified that she gave a statement to police on the 

night of Zachary’s death, but did not mention the stick or the hammer because she was 

scared. Rene acknowledged she visited appellant in the jail on four occasions following 

Zachary’s death. She admitted appellant asked her to marry him during one of the visits

and discussed his upcoming trial with her. 

The jury found appellant guilty and assessed punishment at life imprisonment. 

This appeal followed.

II. HEARSAY

By his first issue, appellant argues “the trial court erred in excluding from evidence 

an audio recording of an interview of appellant by a police officer that was made 3–4 

hours after the stabbing of the victim.” Specifically, appellant maintains the video 

recording was not hearsay because it was not offered to prove the truth of the matter 

asserted. We disagree.

A. Preservation

We must first address whether the issue raised on appeal comports with the

objection made at trial. To have evidence admitted over a hearsay objection, the 

proponent of the evidence must specify which exception he is relying upon or how the 
6

evidence was not hearsay. Willover v. State, 70 S.W.3d 841, 845–46 (Tex. Crim. App. 

2002); see also Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005) (“So it is 

not enough to tell the judge that evidence is admissible. The proponent, if he is the losing 

party on appeal, must have told the judge why the evidence was admissible.”). 

Additionally, to complain about a trial court's evidentiary ruling, a party must have first 

made his complaint to the trial court in a manner that states the grounds for the desired 

ruling with sufficient specificity to make the trial court aware of the complaint. See TEX.

R. APP. P. 33.1(a)(1)(A). If the trial court never has the opportunity to rule upon the 

proponent's appellate rationale, the argument cannot be raised on appeal. See Reyna, 

168 S.W.3d at 178. 

At trial, appellant’s counsel argued that the recorded interview was admissible over 

the State’s hearsay objection to impeach Officer Ireland’s testimony “about [appellant’s] 

voluntariness of coming out of the house and also about injuries and so forth.”2 On 

appeal, appellant argues two theories for the admissibility of his statements to Officer 

Ireland. First, appellant maintains that the statements are admissible to show that 

“appellant began to say he was defending himself far earlier than the State had 

deliberately misled the jury to think.” Appellant did not make this argument to the trial 

court with respect to his statements to Officer Ireland. Rather, the argument was made 

with respect to appellant’s later interview with Detective Steve January.

3 Appellant does 

 

2 Appellant’s counsel also argued, at trial, that the recording was admissible under “Texas Rules 

of Evidence 107, the Rule of Optional Completeness,” but he does not raise that argument on appeal. 

3 Story’s counsel argued to the trial court that the statements made to Detective January were 

admissible as impeachment of Rene’s testimony “that they were getting their plan together and so forth as 

far as this case.” 
7

not challenge the trial court’s ruling concerning the admissibility of his statements to 

Detective January. Therefore, this argument is not preserved for appeal. See Reyna, 

168 S.W.3d at 178.

Second, appellant maintains on appeal his statements to Officer Ireland were not 

hearsay because they were offered “to show that Officer Ireland’s testimony that appellant 

was uncooperative . . . was not correct.” We will address this argument to the extent it 

comports with the argument actually raised in the trial court. See Willover, 70 S.W.3d at

845–46.

B. Standard of Review and Applicable Law

We review the trial court's decision to admit or exclude evidence under an abuse 

of discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); 

Whipple v. State, 281 S.W.3d 482, 499 (Tex. App.—El Paso 2008, pet. ref'd). The trial 

court does not abuse its discretion unless its determination lies outside the zone of 

reasonable disagreement. Martinez, 327 S.W.3d at 736; Whipple, 281 S.W.3d at 499–

500. We will uphold a trial court's decision so long as it is supported by the record and 

is correct under any theory of applicable law. De LaPaz v. State, 279 S.W.3d 336, 344 

(Tex. Crim. App. 2009); Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005).

Hearsay is defined by the rules of evidence as “a statement, other than one made 

by the declarant while testifying at the trial or hearing, offered in evidence to prove the 

truth of the matter asserted.” TEX. R. EVID. 801(d). It is well-settled that when the 

accused does not take the stand, self-serving statements are generally not admissible. 

Hafdahl v. State, 805 S.W.2d 396, 402 (Tex. Crim. App. 1990), disavowed on other
8

grounds by Cook v. State, 858 S.W.2d 467, 469–470 (Tex. Crim. App. 1993); see Reado 

v. State, 690 S.W.2d 15, 17 (Tex. App.—Beaumont 1984, pet. ref'd). 

[S]elf-serving declarations of the accused are ordinarily inadmissible in his 

behalf, unless they come under some exception, such as: being part of the 

res gestae of the offense or arrest, or part of the statement or conversation 

previously proved by the State, or being necessary to explain or contradict 

acts or declarations first offered by the State. 

Singletary v. State, 509 S.W.2d 572, 576 (Tex. Crim. App. 1974); see Allridge v. State, 

762 S.W.2d 146, 152 (Tex. Crim. App. 1988); Davis v. State, 970 S.W.2d 758, 761 (Tex.

App.—Austin 1998, no pet.). “The theory behind the third exception is to prevent the fact 

finder from being misled or perceiving a false, incorrect impression when hearing only a 

part of an act, declaration, conversation or, especially, a writing.” Reado, 690 S.W.2d at 

17. Under this exception, the proffered testimony may be admitted only if necessary to 

prevent the jury from being misled or mistaken. Id.

C. Analysis

Appellant does not argue that his self-serving statements were admissible as being 

part of the res gestae of the offense or arrest or that his statements were part of a 

statement or conversation previously proved by the State. Rather, appellant maintains 

that his statements to Officer Ireland were admissible “to show that Officer Ireland’s 

testimony that appellant was uncooperative . . . was not correct.” To determine whether 

appellant’s self-serving declaration would be admissible under this theory, we must 

decide whether such statements “were necessary to explain or contradict acts or 

declarations first offered by the State.”4 See Singletary, 509 S.W.2d at 576. 

 

4 While appellant argued at trial that the statements were admissible under Texas Rule of Evidence 

613, he does not raise this argument on appeal. Further, rule 613 would have no application here, because 
9

Appellant contends Officer Ireland’s testimony that he was uncooperative 

necessitated admission of his entire recorded statement. Officer Ireland testified that it 

took officers three to four hours to locate appellant and that appellant did not exit the 

residence until an officer with a canine issued commands for appellant to come out. 

Appellant’s statements to Officer Ireland focused on his assertions that he acted in selfdefense. Officer Ireland offered no testimony concerning his conversation with appellant 

or whether he acted in self-defense. 

In reviewing the record, we find no portion of Officer Ireland’s testimony that 

created a false impression or misled the jury. Therefore, we cannot conclude that 

appellant’s recorded statement was necessary to explain or contradict acts or 

declarations first offered by the State. See Reado, 690 S.W.2d at 17; see also Allridge, 

762 S.W.2d at 153 (explaining that “to adopt appellant's position would mean that all selfserving statements by an accused would be admissible”). Accordingly, appellant’s

statements to Officer Ireland constitute inadmissible self-serving hearsay, and the trial 

court did not abuse its discretion in excluding those statements. See Martinez, 327 

S.W.3d at 736; Hafdahl, 805 S.W.2d at 402. We overrule appellant’s first issue.

 

appellant’s statements do not constitute a prior inconsistent statement made by Officer Ireland. See 

Willover v. State, 70 S.W.3d 841, 846 n. 8 (Tex. Crim. App. 2002) (“Texas Rule of Evidence 613 allows into 

evidence (for impeachment purposes) proof of a witness's prior inconsistent statements (provided the 

proper predicate is established). Such prior inconsistent statements are considered hearsay and, unless 

they fall within some hearsay exception, they are admissible for impeachment purposes only (as opposed 

to substantive purposes).”).
10

III. JURY INSTRUCTION

By his second issue, appellant argues the trial court erred by “den[ying] his request 

for a jury instruction on self-defense because the issue was raised by the evidence.” We 

disagree.

A. Standard of Review 

Appellate review of alleged jury charge error generally involves a two-step process. 

Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012); Ngo v. State, 175 S.W.3d 

738, 743 (Tex. Crim. App. 2005). First, we must determine whether error occurred. 

Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013). If there is error in the 

charge, we must then analyze whether sufficient harm resulted from the error to require 

reversal. Id.; Ngo, 175 S.W.3d at 744. If error has been properly preserved, as in this 

case, reversal is required if the error is “calculated to injure the rights of defendant,” 

meaning there must be some harm. See TEX. CODE CRIM. PROC. ANN. art. 36.19 (West, 

Westlaw through 2015 R.S.); Sakil v. State, 287 S.W.3d 23, 25–26 (Tex. Crim. App.

2009). The defendant must have suffered some actual, rather than merely theoretical, 

harm from the error. Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). 

We consider “‘the entire jury charge, the state of the evidence, including the contested 

issues and weight of probative evidence, the argument of counsel and any other relevant 

information revealed by the record of the trial as a whole.’” Barron v. State, 353 S.W.3d 

879, 883 (Tex. Crim. App. 2011) (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1984)).
11

B. Applicable Law

The trial court is required to instruct the jury on statutory defenses, affirmative 

defenses, and justifications whenever they are raised by the evidence. TEX. PENAL CODE 

ANN. §§ 2.03(d), 2.04(d) (West, Westlaw through 2015 R.S.); Walters v. State, 247 

S.W.3d 204, 208–09 (Tex. Crim. App. 2007). A defendant is entitled to an instruction on 

every defensive issue raised by the evidence, regardless of whether the evidence is 

strong, feeble, unimpeached, or contradicted, and even when the trial court thinks the 

testimony is not worthy of belief. Walters, 247 S.W.3d at 209. A defensive issue is 

raised by the evidence if there is some evidence, regardless of its source, on each 

element of a defense that, if believed by the jury, would support a rational inference that 

the element is true. See Shaw v. State, 243 S.W.3d 647, 657–58 (Tex. Crim. App. 2007). 

In determining whether a defensive instruction should have been given, “we view the 

evidence in the light most favorable to the defendant's requested submission.” Bufkin v. 

State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006). The question of whether a defense 

is raised by the evidence is a sufficiency question, which we review as a question of law. 

Shaw, 243 S.W.3d at 658.

In order for a trial court to submit a self-defense instruction to the jury, a defendant 

must produce sufficient evidence on each element to raise the issue. TEX. PENAL CODE 

ANN. § 2.03 (West, Westlaw through 2015 R.S.). Sections 9.31 and 9.32 of the Texas 

Penal Code provide in relevant part that a person is justified in using deadly force against 

another “when and to the degree the actor reasonably believes the force is immediately 

necessary . . . to protect the actor against the other's use or attempted use of unlawful 
12

deadly force.” Id. §§ 9.31(a), 9.32(a). “Deadly force” means force that is intended or 

known by the actor to cause, or in the manner of its use or intended use is capable of 

causing, death or serious bodily injury.” Id. § 9.01(3). “Serious bodily injury” means 

bodily injury that creates a substantial risk of death or that causes death, serious 

permanent disfigurement, or protracted loss or impairment of the function of a bodily 

member or organ. Id. § 1.07(a)(46). 

C. Analysis

Appellant did not testify. However, he argues he was entitled to a self-defense 

instruction on the use of deadly force because he “was on the ground, being assaulted 

by two adults, one of whom was hitting him with a stick that was 2–3 feet long and as 

thick as a female’s wrist, immediately before he stabbed [Zachary].” The trial court 

denied the requested instruction, concluding there was “no evidence or testimony that 

[appellant] reasonably believed that deadly force was necessary to protect himself against 

somebody else's use of deadly—of unlawful deadly force.”

The evidence, viewed in the light most favorable to the requested instruction,

reflects that appellant threatened Rene by saying “if you keep at it, I’m going to put my 

hands on you.” When appellant “acted like he was going to choke [Rene,]” Zachary hit 

appellant with his fist, and the two began punching each other. Zachary and Rene were 

both hitting appellant while he was on the ground, but at some point appellant was able 

to get up and Zachary walked away from him. It was at this time appellant approached

the unarmed Zachary and stabbed him with a knife and Zachary fell to the ground. While 
13

Rene testified she previously struck appellant with a stick, the evidence shows the three 

had already separated when appellant approached Zachary and stabbed him. 

Assuming appellant was initially justified in using non-deadly force in response to 

being hit by Zachary, there is no evidence that he reasonably believed the use of deadly 

force was immediately necessary to protect himself at the time he stabbed Zachary. See 

Bennett v. State, 726 S.W.2d 32, 37–38 (Tex. Crim. App. 1986) (holding that 

reasonableness of fear for a self-defense claim must be judged from the standpoint of the 

accused at the “instant he responds to the attack”); Trammell v. State, 287 S.W.3d 336, 

341 (Tex. App.—Fort Worth 2009, no pet.) (concluding that the defendant was not entitled 

to self-defense instruction in absence of immediacy of threat from victim); Oestrick v. 

State, 939 S.W.2d 232, 238 (Tex. App.—Austin 1997, pet. ref'd) (determining that the 

defendant was not entitled to a self-defense instruction when victim had a baseball bat 

but was walking away from defendant when defendant shot the victim). 

We conclude appellant was not entitled to a self-defense instruction, and the trial 

court did not commit error in denying the requested instruction. See Wooten, 400 

S.W.3de at 606. We overrule appellant’s second issue.

IV. CONCLUSION

We affirm the judgment of the trial court.

GREGORY T. PERKES

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the 

19th day of November, 2015.