## NUMBER 13 - 1 4 - 00 0 3 8 - 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 19 th District Court of McLennan County, Texas.



## MEMORANDUM OPINION
Before Chief Justice Valdez and Justice s Rodriguez and Perkes

Memorandum Opinion by Justice Perkes 1 Appellant Allan Latoi Story appeals his conviction for murder , a first

- degree felony , enhanced by prior convictions. S ee T EX

. P ENAL C ODE A NN . § § 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 T EX

. G OV ' T C ODE A NN

. § 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 jur y instruction on self

- defense

. We affirm.
I. B ACKGROUND 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 ap artment 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 go ing 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 grabb ed Rene and lift ed 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 dr opped a knife and picked it up. Akers stated appellant then approached Zachary who fell to the ground3

on his back

. Akers testified appellant got on top of Zachary and s tabb ed 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 th e 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 pres ence of the jury concerning his interview with appellant . Officer Irel and 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 on4

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 [ a ppellant ’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 McCal lister, 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 inj uries, but that Rene did not exhibit any injuries. Dr. Janice Townsen d

- Parchman, the Dallas County medic al 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. D uring the altercation between appellant and Zachary , appellant ended up on the5

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 diame ter. A fter she saw appellant stab Zachary, she went inside the apartment to get a hammer . Rene w as 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 t oward 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. H EARSAY 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 comport s with the objection made at trial. T o have evidence admitted over a hearsay objection, the proponent of the evidence must specify which exception he is relying upon or how the6

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 specifi city to make the trial court aware of the complaint. See T EX

. R. A PP

. 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

“ a ppellant 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 J anuary

. 3 Appellant does

2 Appellant’s counsel also argue d , 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 Janua ry 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. Martin ez , 327 S.W.3d at 736; Whipple , 281 S.W.3d at 499

– 500. W e 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); Mart in 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.” T EX

. R. E VID

. 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 other8

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); s ee 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, t he proffered testimony may be admitte d 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 h is 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 uncoop erative . . . 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 Stat e.” 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 , because9

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 comm ands for appellant to come out. Appellant ’s statements to Officer Ireland focus ed on his assertions that he acted in self

defense. Officer Ireland offered n o testimony concerning his conversation with appellant or whether he acted in self

- defense. In reviewing the record, w e find no portion of Officer Ireland’s testimony that created a false impression or misled the jury. Therefore, w e cannot conclude tha t appellant ’s recorded statement was ne cessary to explain or contradict acts or declarations first offered by the State. See Reado , 690 S.W.2d at 17 ; s ee also Allridge , 762 S.W.2d at 153 ( explaining that “ to adopt appellant's position would mean that all self

serving statements by an accused would be a dmissible”). Accordingly, appellant ’s
statement s 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 a ppellant ’s first issue.

appellant’s statements do not constitute a prior inconsistent state ment 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 predic ate 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 oppo sed to substantive purposes).”)

.10 III. J URY I NSTRUCTION By his second issue, a ppellant 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 whethe r 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 T EX

. C ODE C RIM

. P ROC

. A NN

. 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. Reeve s 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 b y the r ecord 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. T EX

. P ENAL C ODE A NN

. §§ 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 infe rence 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. T EX

. P ENAL C ODE A NN

. § 2.03 (West , Westlaw through 2015 R.S. ). S ections 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 unlawful12

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, ser ious 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 [ a ppellant ] r easonably believed that deadly force was necessary to protect himself agains t 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 . While13

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. Sta te , 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 i mmediacy 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. W e overrule appellant ’s second issue.
IV. C ONCLUSION We affirm the judgment of the trial court. GREGORY T. PERKES Justice Do not publish. T EX

. R. A PP

. P. 47.2(b). Delivered and filed the 19th day of November , 201 5

.