In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-20-00048-CR

No. 02-20-00049-CR

___________________________

On Appeal from the 372nd District Court

Tarrant County, Texas

Trial Court Nos. 1546892D, 1546894D

Before Sudderth, C.J.; Birdwell and Walker, JJ.

Memorandum Opinion by Justice Birdwell

OTIS DON TROTTER, Appellant

V.

THE STATE OF TEXAS
2

MEMORANDUM OPINION

I. Introduction

At a crowded gas station on an early evening in May, Appellant Otis Don 

Trotter fired a gun several times at his nemesis’s retreating vehicle. At least three

shots ricocheted off a passing vehicle, and one of the bullets grazed a bystander across 

the street. See Tex. Penal Code Ann. § 22.02(a)(2). A jury found Trotter guilty of 

aggravated assault with a deadly weapon (firing at his nemesis) and guilty of the lesserincluded offense of reckless aggravated assault with a deadly weapon (grazing the 

bystander). The trial court assessed concurrent twenty-five-year sentences as 

punishment.

1

In four points, Trotter argues that the evidence is insufficient to support his 

conviction of the lesser-included offense; that the trial court committed jury-charge 

error by including the lesser-included-offense instruction and by failing to include a 

self-defense instruction; and that the trial court abused its discretion by admitting 

improper lay opinion testimony. We affirm.

1

Trotter pleaded true to the State’s repeat-offender notice and stipulated to his 

criminal history. See Tex. Penal Code Ann. §§ 12.32, .42.
3

II. Background

Trotter and Austin Wade had been friends for twenty years, but on the evening 

of May 23, 2018, according to Wade, they fought over the same woman’s affections.

2

Wade claimed that Trotter hit him first, and they exchanged punches until Wade 

pulled a box cutter from his pocket and “poked” Trotter with it “a couple of times.”

Lee Moore, who witnessed the altercation, testified that he had been talking 

with Trotter at the Z Mini Mart when Wade showed up in a heated and excited state, 

exchanged a few words with Trotter, and then took a swing at Trotter. When Trotter 

pushed back, Moore stepped between them and pulled Wade away. He then heard 

Trotter yell, “He cut me.” Moore said that Trotter was “bleeding real bad,” and video

from a responding police officer’s body camera showed that Trotter was bleeding 

from cuts on his arms and chest. Wade had left the scene, and Trotter told the officer 

that he had cut himself by trying to jump a nearby chain-link fence.

Wade said that after midnight that evening, Trotter found him in his truck with 

a different woman and that Trotter threatened him with a silver handgun. Wade’s 

companion covered Wade with her body and told Trotter to leave or she would call

the police. After threatening Wade, Trotter “bust[ed] out” some of the truck’s 

windows, showering Wade and his companion with broken glass, and then left.

2

During the punishment trial, Trotter’s wife testified that she had been present 

for some of the men’s arguments, that there was no other woman, and that the 

dispute between Trotter and Wade had been about something else.
4

Wade’s companion called the police, who took photos of the truck’s shattered

windows.

Three days later, on a beautiful Saturday evening at 6 p.m.,3 Wade stopped at 

pump 3 of the Valero gas station and convenience store at the intersection of 

Sycamore School Road and Everman Parkway. The Valero’s neighboring businesses

included a smoke shop and two fried chicken restaurants, in addition to a dental office 

and a Family Dollar across the street. Trotter and his stepson Sederick Campbell

stopped at the Valero at the same time as Wade. Campbell said that it had been his 

idea to stop and that he had not known Wade was going to be there.

After Wade entered the convenience store, Trotter emerged from Campbell’s 

black Charger, opened and closed the trunk, and then walked into the convenience 

store, stuck a cigarette in his mouth, and walked back out. Wade, who had been

standing in line, saw Trotter in the doorway and said that Trotter had “smok[ed] . . . 

his cigarette and g[ave] [Wade] a look” before backing out. Wade testified that he 

could see the shape of a gun in Trotter’s pocket.

After Wade returned to his truck, Trotter approached the truck’s driver’s side 

window, and they briefly conversed. Campbell described Wade as “standing there 

yelling” at Trotter while digging into his truck’s door compartment.

3

The surveillance and body camera footage and photographs taken at the scene 

show that the weather was clear and sunny.
5

Wade stated that Trotter had asked him if he had a gun and that he told Trotter 

that he did not and then told Trotter to leave. Wade said that Trotter had seemed

angry and had talked about how Wade had “dissed him.” He denied that he had 

pulled out his box cutter and asked Trotter if he wanted some more of it. Wade said 

that he was halfway into his truck’s driver’s seat when Trotter dug into his pocket for 

his gun. Wade stated that he put the truck into reverse as Trotter fired five or six 

times.

4

Campbell said that he did not see Wade hold a weapon that day and that 

although Wade had threatened them, he did not hear Wade say that he was going to 

kill them or shoot them. He nonetheless testified about being afraid “because [he]

knew what [Wade] had done to [Trotter]” and worried that Wade, who was “talking 

gang talk to [Trotter],” might have a weapon or might try to run over Trotter. He 

testified as follows:

Q. Okay. And so as [Wade] is trying to pull something out of his 

front car door, what do you do? 

A. I – I grab [Trotter] once and I took off running to the car. 

Q. Did you take [Trotter] with you? 

4

At the Valero, the police found four spent shell casings, which were admitted 

into evidence. The police department’s crime-lab expert examined the four casings, 

the .25-caliber gun recovered from the passenger side of Campbell’s Charger, and the 

gun’s magazine, which could hold seven cartridges in addition to one in the gun’s 

chamber, and the expert confirmed that the gun had fired the four casings found at 

the Valero. The officer who had picked up the gun testified that there were no 

remaining rounds in the gun’s magazine or chamber.
6

A. I thought he was running right behind me. I don’t know. I 

was trying to hurry up and get in my car. 

Q. Okay. So at this point you turned around and you don’t have

your face to [Wade]?

A. No. 

Q. Okay. What happened after you turned around and were 

going back to your car? 

A. By the time I had got up to my door, I had heard gunshots. 

Q. Okay. And you were sprinting to your car? 

A. I was running. I was trying to get out of there. 

Q. And at the time, you had no idea where those gunshots came 

from; is that right? 

A. No, sir. 

Q. Okay. And what did you do after you got in your car? 

A. As soon as I got in, [Trotter] got in, in the car, and we had –

we proceeded to leave out and that’s when I [saw] the police officer. . . .

Q. So you pulled over as soon as you saw the police officer? 

A. Yes. As soon as I s[aw] him, I pulled over. 

Q. Were you relieved when you saw the police officer? 

A. Yes. 

Q. Because you were afraid?

A. Yes. 

Q. Okay. Okay. When you saw [Wade] reaching into his car for 

something, you stated that you were afraid; is that right?
7

A. Yes. 

Q. Okay. Did you think that [Wade] was going to hurt you? 

A. It was possible because he had already hurt my stepfather. 

Q. Did you think that he might have killed you or your stepfather? 

A. Yes.

Q. Is that why you ran? 

A. Yes. . . . I felt like he was going to shoot at us and try to . . . 

kill both of us.

However, Campbell testified during cross-examination that when he first saw Wade 

inside the convenience store, he had slowly walked away, stating, “I didn’t fe[el] no 

reason to run to the car at that point. Like . . . it wasn’t that kind of fear” because 

there were so many witnesses around. During his testimony, Wade acknowledged his

2009 conviction for aggravated assault with a deadly weapon and his 2007

misdemeanor assault conviction, as well as his 2014 forgery conviction. He also 

stated that he was five feet, four inches tall, that he weighed 140 pounds, and that 

Trotter was almost twice his weight.

Three of the shots that Trotter fired in the direction of Wade’s truck ricocheted 

off Reverend Clayton Jones’s vehicle as the reverend drove past the Valero. The 

aerial map of the intersection, combined with Jones’s testimony, indicates that his car 

was initially in the lane of traffic nearest to the Valero when the three shots 

ricocheted.
8

Jones testified that a fourth shot penetrated his car’s passenger door, making “a 

big boom” and shaking the car.5 Body camera footage from a responding police 

officer, combined with the aerial map and photographs taken at the scene, illustrates

that pump 3, where Wade had been parked before the shooting began, is across from 

the Family Dollar just before the roadway begins to widen for a second left-hand turn 

lane. Jones said that there were people around the Valero and neighboring 

establishments, and the Valero surveillance video corroborates his testimony.

Across the street from the Valero, Carlos Torrez had been walking to his car 

with a kiddie pool from the Family Dollar when he heard the “pop, pop, pop, pop, 

pop” sounds of “legit gunshots” and felt something strike him in the head. Torrez 

testified that his head had been grazed by one of the bullets fired from across the 

street and that it made him bleed and left him with a huge and painful “knot.” He 

described the feeling of being struck as being hit with a brick. Emergency medical 

technicians treated Torrez at the scene with a gauze pad to stop the bleeding. They let

him go home after he refused to go to the emergency room. Photos of Torrez’s 

injuries were admitted into evidence and published to the jury.

Fort Worth Police Officer Brandon Lance, who was responding to an earlier 

incident at the Valero, arrived immediately after the shooting. Wade flagged him 

5

Jones said that when his car shook, he “said a little prayer and just kept going”

without looking back until he got home; he also sped up and moved his vehicle into 

the lane farther from the Valero. Although his wife called 911, the police did not 

respond, and the State offered no photos of Jones’s vehicle.
9

down, pointed at Trotter, and shouted that Trotter had shot at him, and Officer 

Lance stopped Campbell’s Charger. Wade drove back to the gas pump and gave the

police his version of events. Trotter told Officer Lance that there was a .25-caliber 

firearm in the Charger, and when Officer Lance searched the Charger, he found the 

handgun on the passenger-side floorboard.

When the prosecutor asked Officer Lance if a .25-caliber handgun could fire a 

projectile across the street to the Family Dollar, Trotter’s counsel objected and, during 

voir dire, elicited Officer Lance’s admission that he had no specific expertise on that 

caliber of weapon’s effective range. The trial court sustained the objection but 

allowed Officer Lance to testify that in his experience with firearms in general, it was 

possible for a firearm to fire a bullet across the five-lane street and that it could be 

unpredictable where a bullet might end up. Officer Lance also said that it was 

possible in a multiple-round shooting to be unable to locate one of the bullets. He 

did not find a bullet across the street and did not know if anyone else had found one. 

During cross-examination, Officer Lance said that he could not tell what a bullet’s 

trajectory would be based on where its casing was found.

III. Discussion

A. Evidentiary Sufficiency

In his first point, Trotter argues that there was no testimony that a bullet could 

travel the distance required to graze Torrez, no testimony that the recovered weapon 
10

was capable of firing a round that far, and no expert testimony that Torrez was 

actually struck by a bullet.

1. Standard of Review

In our evidentiary-sufficiency review, we view all the evidence in the light most 

favorable to the verdict to determine whether any rational factfinder could have found 

the crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 

307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex. 

Crim. App. 2017).

Under the Jackson test, a jury may draw multiple reasonable inferences if each 

inference is supported by the evidence presented at trial. Hooper v. State, 214 S.W.3d 9, 

15 (Tex. Crim. App. 2007). In Hooper, the court explained the distinction between 

reasonable inference and speculation in a hypothetical:

A woman is seen standing in an office holding a smoking gun. There is 

a body with a gunshot wound on the floor near her. Based on these two 

facts, it is reasonable to infer that the woman shot the gun (she is 

holding the gun, and it is still smoking). Is it also reasonable to infer that 

she shot the person on the floor? To make that determination, other 

factors must be taken into consideration. If she is the only person in the 

room with a smoking gun, then it is reasonable to infer that she shot the 

person on the floor. But, if there are other people with smoking guns in 

the room, absent other evidence of her guilt, it is not reasonable to infer 

that she was the shooter. No rational juror should find beyond a 

reasonable doubt that she was the shooter, rather than any of the other 

people with smoking guns. To do so would require impermissible 

speculation. But, what if there is also evidence that the other guns in the 

room are toy guns and cannot shoot bullets? Then, it would be 

reasonable to infer that no one with a toy gun was the shooter. It would 

also be reasonable to infer that the woman holding the smoking gun was 

the shooter. This would require multiple inferences based upon the 
11

same set of facts, but they are reasonable inferences when looking at the 

evidence. We first have to infer that she shot the gun. This is a 

reasonable inference because she is holding the gun, and it is still 

smoking. Next, we have to infer that she shot the person on the floor. 

This inference is based in part on the original inference that she shot the 

gun, but is also a reasonable inference drawn from the circumstances.

Id. at 16.

A person commits an assault if he intentionally, knowingly, or recklessly causes 

bodily injury to another. Tex. Penal Code Ann. § 22.01(a)(1). The assault becomes 

“aggravated” if, during the assault’s commission, the assailant either causes serious 

bodily injury to another or uses or exhibits a deadly weapon. Id. § 22.02(a). A person

acts “recklessly” when he is subjectively aware of a substantial and unjustifiable risk 

that specific circumstances exist and consciously disregards that risk. Romano v. State, 

610 S.W.3d 30, 35 (Tex. Crim. App. 2020) (citing Tex. Penal Code Ann. § 6.03(c)). 

The risk must be of such a nature and degree that it constitutes a gross deviation from 

the standard of care that an ordinary person would exercise under all the 

circumstances as viewed from the actor’s standpoint. Id. (citing Tex. Penal Code Ann. 

§ 6.03(c)). By its nature, a culpable mental state must generally be inferred from the 

circumstances; because we cannot read an accused’s mind, absent a confession, we 

must infer his mental state from his acts, words, and conduct. Id.

2. Evidence of Reckless Aggravated Assault with a Deadly Weapon

Torrez heard gunfire and testified that he was hit in the head by something that 

felt “like a brick” while Trotter was across the street, firing shots at Wade’s truck and 
12

hitting Jones’s car as Jones drove between the Valero and the Family Dollar. The 

impact of the bullet that lodged in Jones’s car door was hard enough to shake the car. 

The photographs; body camera footage; and testimony by Wade, Campbell, and 

Torrez, among others, show that Trotter fired a gun several times in an area where 

other potential victims were around.

3. Analysis

There is no dispute on appeal that Trotter fired a gun at least four times in the 

general direction of the Family Dollar and, based on Wade and Torrez’s testimonies

(and the size of the gun’s magazine), Trotter could have fired it up to six times. Cf. 

Hooper, 214 S.W.3d at 16. There was also evidence that Torrez was in the Family 

Dollar parking lot when he was hit in the head with something while Trotter was 

firing the gun; that at least one shot fired from the gun had sufficient force to shake 

Jones’s vehicle in its relatively closer proximity to the weapon; and that three other 

shots bounced off Jones’s vehicle. Could a rational jury reasonably infer under these 

circumstances, without additional testimony, either that Trotter had fired more than 

four bullets and one grazed Torrez or that one of the three bullets fired from Trotter’s 

weapon that ricocheted from Jones’s vehicle had grazed Torrez’s head? We conclude 

that the jury could reasonably draw such conclusions in the absence of evidence that 
13

anyone else was flinging projectiles near Torrez’s head at that time and in that area.

6

 

See id.

We likewise conclude that the jury could have reasonably concluded that 

Trotter’s action of firing several times in an area with other people around—at 6 p.m. 

on a sunny Saturday at a gas station and convenience store located next to two fastfood restaurants and across the street from a Family Dollar—was reckless. See 

Romano, 610 S.W.3d at 31, 35 (holding that the evidence was sufficient to find 

appellant recklessly exposed his genitalia when he was in a public park in the middle 

of a clear summer day “in densely-populated Houston in a parking lot that was open 

and visible to passing road traffic, bicyclists and pedestrians, and anyone using the 

public restroom facilities or picnic tables immediately nearby”); see also State v. 

Rodriguez, 339 S.W.3d 680, 683–84 (Tex. Crim. App. 2011) (listing as examples of

disregard of a known and unjustifiable risk: shooting into the ground in a crowd of 

people, shooting into the air or at beer bottles in a residential district, shooting at a 

stop sign in a business district, and shooting into the bushes at a city park); Ishmael v. 

6

As the trial court observed when it denied Trotter’s directed-verdict motion, 

when viewed in the light most favorable to the State’s case, a rational jury could find 

that Torrez had been struck with one of Trotter’s bullets based on “the descriptions 

given, what was pointed out on photographs and maps . . . [and] [i]n light of the 

timing of the sounds, the shots[,] and all the other witnesses who were impacted in 

the same line of trajectory, with the car and his location.” Further, the jury notes 

reflect that during deliberations, the jury requested the photos of Torrez’s head injury 

and the aerial map of the streets and buildings at 11:20 a.m. and additional evidence 

from the videos at 12:01 p.m. By 1:15 p.m., the jury had announced that it had 

reached a verdict.
14

State, 688 S.W.2d 252, 258 (Tex. App.—Fort Worth 1985, pet. ref’d) (“When a person 

fires a gun into a crowd of people with no particular intended victim, the probability 

that serious bodily injury will result is so great that it is worse than reckless disregard 

of the consequences; if a death is thus caused, it is murder.”).

Accordingly, we hold that the evidence is sufficient to support the jury’s verdict 

without expert testimony that Torrez had been struck by a bullet (as opposed to 

something else) and without additional testimony about how far bullets fired from the

gun could be expected to travel. We overrule Trotter’s first point.

B. Jury Charge

In his second and third points, Trotter argues that the trial court committed 

jury-charge error by including the lesser-included-offense instruction and by denying 

his requested self-defense instruction. We must review “all alleged jury-charge error 

. . . regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645, 649 

(Tex. Crim. App. 2012). If no error occurred, then our analysis ends. Id.

1. Lesser-Included Offense

Trotter was charged with intentional or knowing aggravated assault with a 

deadly weapon. However, if recklessness is raised by the evidence, a trial court does 

not err by submitting a charge on reckless aggravated assault as a lesser-included 

offense of a charged intentional or knowing aggravated assault. Gonzalez v. State, 610 

S.W.3d 22, 28 (Tex. Crim. App. 2020); see generally Tex. Code Crim. Proc. Ann. arts. 

37.08 (providing for lesser-included offenses), 37.09(3) (stating that an offense is a 
15

lesser-included offense “if it differs from the offense charged only in the respect that 

a less culpable mental state suffices to establish its commission”).

Trotter contends in his second point that there “was no testimony or evidence 

of a conscious disregard of a known risk” to warrant the lesser-included-offense 

instruction on reckless aggravated assault with a deadly weapon.

We disagree. As set out above in our sufficiency analysis, the record reflects 

that Trotter fired several times in a crowded public area7 on an early Saturday evening 

in May and, while he missed hitting Wade, his targeted victim, he managed to hit

Jones’s vehicle and graze Torrez’s head. See Romano, 610 S.W.3d at 35; Rodriguez, 339 

S.W.3d at 683–84; Ishmael, 688 S.W.2d at 258; see also Tex. Penal Code Ann. 

§ 1.07(a)(17)(A) (defining a firearm as a deadly weapon), § 22.05(c) (“Recklessness and 

danger are presumed if the actor knowingly pointed a firearm at or in the direction of 

another whether or not the actor believed the firearm to be loaded.”). Accordingly, 

there was sufficient evidence to include the lesser-included-offense instruction in the 

jury charge, and we overrule Trotter’s second point.

7

During closing arguments, Trotter argued, “You know from the video that the 

gas station was packed. . . . You know that this was a busy gas station with a lot of 

people.” And Campbell testified that he was not initially afraid when he saw Wade at 

the Valero because they were in an area with “a lot of witnesses.”
16

2. Self-Defense

In his third point, Trotter argues that there was sufficient evidence to raise selfdefense as part of the law applicable to the Wade case.

8

A defendant is entitled to an instruction on any defensive issue that is raised by 

the evidence regardless of the evidence’s strength or credibility. Jordan v. State, 593 

S.W.3d 340, 343 (Tex. Crim. App. 2020). A defensive issue is raised by the evidence if 

there is sufficient evidence to support a rational jury finding as to each element of the 

defense, and we view the evidence in the light most favorable to the defendant’s 

requested defensive instruction. Id.

Self-defense is a confession-and-avoidance defense requiring the defendant to

admit to his otherwise illegal conduct. Id. He cannot both invoke self-defense and 

flatly deny the charged conduct. Id. Further, a person is only justified in using force 

against another when and to the degree he reasonably believes the force is 

immediately necessary to protect against the other’s use or attempted use of unlawful 

force. See id. (citing Tex. Penal Code Ann. § 9.31(a)). And he is justified in using 

8

During the charge conference, Trotter conceded, “[W]e do not have a basis 

for saying that we shot Mr. Torrez in self-defense.” See generally Tex. Penal Code Ann. 

§ 9.05 (providing that even though an actor may be justified in threatening or using 

force or deadly force against another, “if in doing so he also recklessly injures or kills 

an innocent third person, the justification afforded by this chapter is unavailable in a 

prosecution for the reckless injury or killing of the innocent third person”).
17

deadly force9 against another only if he would be justified in using force under Penal 

Code Section 9.3110 and reasonably believes that deadly force is immediately necessary 

to protect himself against the other’s use or attempted use of unlawful deadly force.

See id. (citing Tex. Penal Code Ann. § 9.32(a)). A trial court errs by refusing a selfdefense instruction if there is some evidence, viewed in the light most favorable to the 

defendant, that will support its elements. Id.; see Bedolla v. State, 442 S.W.3d 313, 315, 

317 (Tex. Crim. App. 2014) (stating that when the appellant was charged with

aggravated assault with a deadly weapon based on his having run over the 

complainant with his car, self-defense with deadly force was the only defense that 

would justify his conduct).

Trotter directs us to the following evidence to support his argument that he 

was entitled to a self-defense instruction:

• Wade’s having sliced Trotter with a box-cutter blade after the two men engaged in 

fisticuffs three days before the incident at the Valero;

• Wade’s confirming his 2009 aggravated-assault-with-a-deadly-weapon conviction 

and his 2007 assault conviction; and

9

“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.” Tex. Penal Code Ann. § 9.01(3).

10Penal Code Section 9.31 prohibits the use of force against another in response 

to verbal provocation alone. Tex. Penal Code Ann. § 9.31(b)(1). It also states that the 

use of force is not justified if the actor provoked the other’s use or attempted use of 

unlawful force unless the actor then abandons the encounter or clearly communicates 

to the other his intent to do so. See id. § 9.31(b)(4).
18

• Campbell’s testifying that he was afraid that Wade might have a weapon or might

try to run over Trotter when he saw Wade at the Valero.

We review this evidence in the light most favorable to Trotter to determine if the trial 

court erred. See Jordan, 593 S.W.3d at 343.

The record reflects that there may have been verbal provocation by Wade

during the Valero encounter, but verbal provocation alone is insufficient to justify a 

self-defense instruction. See Tex. Penal Code Ann. § 9.31(b)(1). And while Campbell 

testified that he was not initially afraid but then became afraid—and proved it by 

fleeing back to his vehicle before Trotter fired the shots—nothing in the record 

illustrates Trotter’s state of mind or that there was anything for Trotter to fear when 

Campbell testified that he did not see Wade hold a weapon that day or hear Wade 

threaten to kill or shoot them, and Trotter, armed with a gun, approached Wade at the 

gas pump.

The Valero’s surveillance video, which has no audio, shows Trotter calmly 

emerge from the passenger side of his stepson’s vehicle, open the trunk, close the 

trunk, walk into the convenience store, leave the convenience store, and then engage 

Wade in conversation outside the convenience store before firing his weapon at 

Wade’s departing vehicle.

11 Nothing in this record supports that Trotter’s use of 

deadly force was immediately necessary to protect himself from Wade or that Wade

11During the charge conference, Trotter argued that he was entitled to a selfdefense instruction even though “firing at a car that’s backing up . . . might not make 

the self-defense perfect or might not make it reasonable.”
19

was imminently going to harm Trotter. Cf. id. § 9.32(a)(2), (b)(1). And even when 

Wade had actually harmed Trotter during their altercation at a different convenience 

store three days before the shooting, Trotter told the police that he had injured 

himself trying to climb a fence and said nothing about his altercation with—or fear 

of—Wade. Instead, according to Wade, Trotter threatened him with a gun later that 

evening, broke some of his truck’s windows, and showered him in broken glass.

Further, as the State points out in its appellate brief and as it argued in response 

to Trotter’s request for the self-defense instruction, the defense’s theory at trial had 

been to challenge whether Trotter had even fired the gun rather than attempt to 

confess to the offense and then avoid it through self-defense.12 See Jordan, 593 S.W.3d 

at 343. Based on the above, we conclude that the trial court did not err by denying 

Trotter’s request for a self-defense instruction, and we overrule his third point.

C. Preservation

In his final point, Trotter argues that the trial court abused its discretion by

admitting lay opinion testimony. Compare Tex. R. Evid. 701 (stating that lay witness 

testimony is limited to that which is rationally based on the witness’s perception and 

helpful to clearly understand the witness’s testimony or to determine a fact in issue),

12Trotter opened fire outside of the range of the Valero’s surveillance cameras; 

accordingly, only Wade’s testimony, the location of four of the firearm’s spent casings, 

and the expert’s testimony that the casings matched the gun found on Campbell’s 

floorboard supported identifying Trotter as the shooter. During closing arguments, 

Trotter relied on this evidence to argue that only Wade had seen him fire the gun, that 

he had not been tested for gunpowder residue, and that the gun had not been tested 

for fingerprints or DNA.
20

with Tex. R. Evid. 702 (stating that a witness who is qualified as an expert by 

knowledge, skill, experience, training, or education may testify in the form of an 

opinion if his scientific, technical, or other specialized knowledge will help the trier of 

fact to understand the evidence or to determine a fact in issue).

Specifically, Trotter complains that the trial court should not have admitted 

testimony about Torrez’s “gunshot” wound when the jury “would not fully 

understand the evidence or be able to determine the fact in issue without the assistance 

of someone with specialized knowledge that must be qualified as an expert.” He 

complains that nothing was presented about Torrez’s background to establish that he 

could opine that he had been shot and that no qualified witness had determined that 

Torrez had sustained a gunshot wound.

The State responds that Trotter failed to preserve this complaint because

Torrez had testified several times that he was either grazed or hit by a “bullet” by the 

time Trotter objected to Torrez’s testimony that he was struck by a bullet, and Trotter 

did not object to any of these earlier instances.

To preserve a complaint for our review, a party must have presented to the trial 

court a timely request, objection, or motion stating the specific grounds, if not 

apparent from the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1); Thomas v. 

State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016). A party must object as soon as 

the basis for the objection becomes apparent. Tex. R. Evid. 103(a)(1); London v. State, 

490 S.W.3d 503, 507 (Tex. Crim. App. 2016); see Saldano v. State, 70 S.W.3d 873, 889
21

(Tex. Crim. App. 2002) (“We have consistently held that the failure to object in a 

timely and specific manner during trial forfeits complaints about the admissibility of 

evidence.”). Generally, a party must object each time the objectionable evidence is 

offered. Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003); Martinez v. State, 98 

S.W.3d 189, 193 (Tex. Crim. App. 2003); Clay v. State, 361 S.W.3d 762, 766 (Tex. 

App.—Fort Worth 2012, no pet.).

During the State’s direct examination, Torrez testified about his injury:

Q. And as you got there -- did you already buy the pool before 

you were grazed by that bullet?

A. Yes.

. . . .

Q. . . . And just above your left ear there’s a mark and some 

blood. Is that where you were grazed by that bullet?

A. Yes.

. . . .

Q. And then here we see, again, above the left side of ear, a mark 

with some blood. Is that where the bullet hit you? 

A. Yes. 

Q. Okay. And then kind of on your forehead there’s another little 

mark. Did the bullet also graze there, too? 

A. Yes.

. . . .
22

Q. . . . Was it pretty clear to you that after those gunshots, that

you were hit by one of those bullets, or grazed by one of those bullets? 

. . . .

[Defense counsel]: Objection. . . . I object on the basis of 

qualification. The witness isn’t qualified to answer.

The trial court overruled Trotter’s objection that Torrez was unqualified, 

stating, “He can give a lay opinion,” and “[t]he jury can weigh it as they set fit.” See

Clark v. State, 305 S.W.3d 351, 357 (Tex. App.—Houston [14th Dist.] 2010) (stating 

that for lay testimony to be based on a witness’s perception, the witness must have 

personally experienced or observed the event and may make reasonable inferences 

based on his perceptions), aff’d, 365 S.W.3d 333 (Tex. Crim. App. 2012).

The record reflects that by the time Trotter objected to the “bullet” testimony, 

the jury had already had the opportunity to consider it and had viewed the 

photographs, admitted without objection, of Torrez’s wound. Accordingly, we conclude 

that Trotter failed to preserve this point for our review, and we overrule his final point.

IV. Conclusion

Having overruled all of Trotter’s points, we affirm the trial court’s judgments.

/s/ Wade Birdwell

Wade Birdwell

Justice

Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: September 30, 2021