## In the Court of Appeals Second Appellate District of Texas at Fort Worth

_____________________ ______ No. 02

- 20

- 000 48

- CR No. 02

- 20

- 00049

- CR

___________________________

On Appeal from the 372nd District Court Tarrant County, Texas Trial C ourt No s . 1546892D, 1546894D

Before Sudderth, C.J.; Birdwell and Walke r, JJ.

M emorandum Opinion by Justic e Birdwell 

### O TIS 

### D ON 

### T ROTTER 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEM ORANDUM O PINION
I. Introduction At a crowded gas station o n an early evening in May , Appel lant Otis D on Trotter fired a gun several ti m es a t his nem esis ’ s retreating vehicle

. A t least t hree
shots ricochet ed off a passing vehicle, and one of the bullets grazed a by stander across the street
. See Tex. Penal Code Ann. § 22.02(a)(2). A jury found Trotter guilt y of aggravated assault with a dea dly weapon ( firing at his nem es is) and guilty of the lesse r

included off ens e of reckless ag gravated assault with a deadly weapon (grazing the bystan der) . T he trial court a ssessed concurrent twenty

- five

- year sentence s as punishment

. 1 In four po ints, Tr otter argues that the evidence is in sufficient to support his
conviction of the lesser

- included offense ; that t he trial court committed jury

- charge

error by including the les ser

- included

- offense instruction and by failing to include a
self

- defense instruct ion ; and that the tri al court abuse d its d is cretion by admitting
im proper la y opinion testimony

. We af f irm.

1 Tr ot ter pleaded true to the S tate ’ s repea t

- of fender n otice and st ipulated to his
cr i minal history

. See Tex . Penal Co de Ann. § § 1 2.32 , . 42

.3 II
. Bac kground
Trotter an d Austin Wade had been friends for twenty years , b ut o n t he evening
of May 23, 2018, a ccord in g to Wade, they fou ght over t he sa m e woman ’ s affections

. 2
Wade claimed that Tr otte r h it him first , and they exchanged punches until Wade pulled a box cutte r from his pocket and “ poked ” Trotter with it “ a coup le of times

. ”
Lee Moore , who witn essed the alter cation , testified that he h ad been talking
with Trotter at the Z Mini Mart when Wade showed up in a heated and ex cite d s tate, exchanged a few words with Trotter, and then took a swing at Trotter. When Trotter pushed back , M oo re stepped between them and pulled Wade away

. H e th en he ard Trotter yell, “ He cut me

. ” Moore said that Trotter was “ bleeding real ba d, ” and v ideo from a responding police office r ’ s body came ra sh owed that Trotter wa s bleedin g from cuts on his arms and chest

. Wade had left the scene, and Trotter told the offic er that he had cut himself by trying to jump a nearby chain

- link f en c e . Wa de said that after midnight that eve ning, Trotter found h im in hi s tru ck wi th

a different woman and that Trotter threatened him with a silver handgun

. Wade ’ s

c ompanion covered Wade with her body and told Trot t er to leave or she wo uld call the police. After threa teni ng Wa de, Trotter “ bust[ ed] out ” s ome of t h e truck ’ s windo ws, showering Wade and his companion with broken glass , and then left.

2 During the punishment tr ial, Trotte r ’ s wife testifie d that sh e had b e en present for some of the men ’ s arguments , that there wa s no other w oman , and that the dispute between Trotter and Wade had been about something else

.4 Wade ’ s companion called the police, who t o ok photos of the truc k ’ s shattered
windows.
Three d ays later, on a beautiful Saturday evening at 6 p.m., 3 Wa de stop pe d at pump 3 of the Va lero gas station and conveni ence store at the intersec tion of Sycamore Schoo l Road and Everman Park way . Th e V a lero ’ s ne ighboring businesse s included a smoke shop and two f ried chi cken r estaurants , in addition to a dental office
and a Fa mily Dollar across the street

. Tro tter and his ste pson Sederick Campb ell stopped at t he Valero at the same t ime as Wade

. Campbell sai d that it had been his
idea t o stop and that he had not know n Wade was going to be there.
Aft er W ade entered the co nvenie nce store , T rott er emerged fro m Campbe ll ’ s black C harger , opened and closed the trunk , and then walked int o the convenien ce store, stuck a cigarette in his mouth, and walked back out

. Wa de , w ho had been standing in line, saw Trotte r in the doo rway and said that T ro tter had “ smok [ed]

. . . his cigar ette and g [ave] [Wade] a look ” before backing out. Wade testified that he
could see the s ha pe of a gun in Trotter ’ s p ocket.
After Wade return ed to his truck , T rotter approac he d t he truck ’ s driver ’ s side
window , and they bri efly converse d

. Ca mpbe ll described Wade as “s tanding there yelling ” at Trotte r while d iggi ng into his truck ’s door compartm ent.

3 The survei llance and b ody camera foota ge and phot ographs t aken at the scene show tha t the w eather was clea r and sunny.5 Wade stated that T rotter had asked him i f he had a gun and that he told Trotter
th at he did not a nd then told Trotter to leave. Wade said that Trotter had seemed
angry and h ad tal ked abou t ho w Wade had “ dissed him. ” He denied that he had pulled out hi s bo x cutter and asked Trotter if he want ed some m ore of it. Wa d e said
that h e was halfway into his truck ’ s driver ’ s seat when Trotter dug into his pocket for his gun

. Wa de stated that he put the truck into reverse as Trotter fired five or six
times

. 4
Cam pb ell said that he did not see Wade hold a weapon that day and that although Wade had t hreat en ed them , he did not hear Wad e say that he was going to
kill them or shoot them

. He nonetheless testifi e d about being a fraid “ because [he]
knew w hat [Wade] had done to [Trotter ] ” a nd worried that Wade , who was “ talking

ga ng talk to [Trotter], ” might have a weapon or might try to run over Trotter

. He
testified as follo ws: Q. Okay. And so a s [Wade] is trying to pull something out o f his front car door, what do y ou do?
A. I

– I grab [Trotter] once and I took off running to the car. Q. Did you t ake [Trotter] with you?

4 At the Valero, t he police found f our spent shell casings , which were admitted into evidence. The po lice departmen t ’ s cri me

- lab exper t e xamined th e four cas in gs , the .25

- cal iber g un recovered from the passenger side o f Campbell ’ s C harger , and the gun ’ s magazine , which could h old seven ca r tri dges in addition to one in the gun ’ s chamber , and t h e expert confirmed that th e gun had fired the four casi n gs found at th e V alero

. The officer who had picke d up the gun testified that there were no remaining rounds in the gun ’ s maga zine or chamber

.6 A. I thoug ht he was running right behind me. I don ’ t know. I was tr y

ing to hurry up and get in my car. Q. O kay. So at thi s point you turne d around and you don ’ t have your face to [Wade] ?
A. No. Q. Okay. What hap pened afte r y ou turned around and were going back to your c ar? A. By the time I h ad got up to my door, I had heard gunshots. Q. Okay. And you were s printing to your car?
A. I was running. I was trying to get out of there. Q. And at the time, you had no ide a w here those gunshots came from; is that right? A. No, sir. Q. Okay. And what did you do a fter you got in your car?
A. As soon as I got in, [Tro tter] got in, in the car, and we had

– we proceeded to leave out an d that ’ s when I [saw] the police offi ce r
. . . . Q. So you pulled o ver as soon as you saw the police officer?
A. Yes. As s oon as I s [a w] him, I pulled over. Q. Were you relieved when you saw the p olice o ff icer?
A. Yes. Q. Because y ou were afra id ?
A. Yes

. Q. Okay. Okay. When you saw [Wade ] reaching into his ca r for something, you s tated 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 m y stepfather. Q. Did y ou think that he might have killed you or your stepfather?
A. Yes. Q. Is that why you ran?
A. Yes.

. . . I felt like h e was going to shoot at us and try to . . . kill both of us. However, Campbell t estified dur in g 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 t o the car a t that point. Like . . . it wasn ’ t that kind of fear ” beca us e there were so many witnesses ar ou nd. During his testimo ny, Wade ackn owledged his
20 09 convict ion for aggravated ass ault with a deadly we apon a nd his 2007
mis demeanor assaul t conviction , as well as his 2014 fo rgery conviction

. He also
stated that he w as five feet , four inches tall , that he wei gh ed 140 pounds , and that
Trotter was alm ost twice his weight.
T hree of the shots that Trotter fired in the di rection of Wade ’ s truck ricocheted
off Reverend Clayton Jones ’ s vehicle as the reverend drov e pas t the Va le r o . The aerial map of the int e rsecti on , combined with J ones ’ s testimony , i ndi cate s that his car

was initially in the lane of tr affic nearest to the Va lero when th e three shots
ricocheted

.8 Jones t estified tha t a fourth shot penetrat ed his car ’ s passenger door , making “ a big boom ” and shaking the car. 5 B ody cam er a footage from a responding police
officer , combined with the aerial map and photograph s taken at the scene , illustrate s that pump 3 , where Wade had been par ked before the sho oting began , is acros s from the Family Dollar just before th e roadway begin s to wide n for a second left

- hand turn
lane. J ones said that t here w er e people around the Va lero and neighboring
establishments , and the Valero sur veillance vid eo corroborates his testimony.
Across the street from the V alero, Carlo s Torre z had been wa lking to his car with a kiddie pool from the F amily Dollar w hen he heard the “ pop , pop, pop, pop , po p ” sound s of “ legit gunshots ” a nd felt s omething st rike him in t he h ea d. Torrez
testified that h is head h ad been grazed by one of the bullet s fi red from across the

street and that it mad e him bleed an d left him with a huge and painful “ kno t
. ” H e descri bed the f eeling of being struck as bei ng hit wit h a bri ck

. Emergency medical
technicians trea t ed T or rez at t he scene with a gauze pad to stop the bleeding

. T hey let him go home a fte r he refused to go to the e mer ge ncy room
. P hoto s of Torre z ’ s injuries we re admitted into evidence a nd published to the jury.
Fort Worth Police O fficer Br andon Lance , who was re spon ding to an earlier
inci de n t at the Va lero , arrived immediately after the shooti ng . Wa de flagg ed him

5 Jones said that when h is car shoo k, he “ s aid a l it tle pray er an d just kep t going ” without looking bac k unti l he g o t h ome ; he a lso sped up and moved his vehicle into the lane farther from the Valero

. Although hi s wife called 911, the polic e did not respond, and th e State offered no photo s of Jones ’ s ve hicle

.9 down , po int ed a t Trotter , and sh outed that Trot ter had s hot at him , and Officer
Lance stopped Cam pbell ’ s Charger

. Wade drov e bac k to t he ga s pu mp and gave the
po lice his version of events. T rotter told Officer Lance tha t there was a

. 25

- caliber
firearm in the Charger , and when Of ficer Lance searched the Charger, he found the handgun on the passenger

- s ide flo orboa rd

. When the prosec ut or a sked Office r Lance if a .25

- cal iber han d gun could fire a projecti le across the street to the Family Dollar, Trotter ’ s counsel obj ected an d, during
voi r dire, elicited Office r Lance ’ s ad mi ssio n that he had no specific expertise on that
caliber of weapon ’ s e ff ective rang e . Th e tria l court sustain ed th e objection but
allow ed Officer Lance to testify that in his experience with firearms in gen eral, it was possible for a firear m to fi re a bull et across the five

- lane street an d that it cou ld be
unp r edictable w here a bul let might e nd up
. Off icer Lance also said that it was possible in a multi ple

- round shooting to be unable to locate one of t he bullets. He
did n ot find a bu l let ac ross the street and did not know if anyone else ha d foun d one. During cros s

- ex amination, Officer Lance said that he could not tell what a bullet ’ s

tra jectory would be based on where its casin g was found.
II I
. Discussion
A. E videntiary Sufficiency
In his first point , Trotte r a rgue s that there was n o testi mony that a bullet could
travel the distance requi r ed to graze Torrez , no testimony that the recovered weapon10 was capable of firing a round that far , an d no e xpert te stimo ny that Torrez was actually struck by a b ullet

. 1. S tandard of R evi ew
In our evidentiary

- sufficienc y review, we view a ll the ev idence in t h e light most
favorable to the verdict to dete rmine whether an y ration al factfinder could have found
the crime’s es senti al elemen ts beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979 ) ; Queeman v. State , 520 S.W.3 d 616, 622 (Tex. Crim. App. 2017).
Under the J ackson test, a jury may draw multiple reasonable inferences if ea ch
inference is supported by the evide nce presented at tr ia l. Hooper v. State , 214 S.W.3d 9, 15 (Tex. Cri m. App. 20 07) . In Hooper , the court ex p lained the distinction between
reasonable i nference and s p e culation in a hypothet ical:
A woman is seen standin g in an office h olding a smoking gun. There is a body wi th a gunshot wo und on the floor near her. Based on these t wo facts, it is reasonable to infer that the woman sh ot the gun (she is h olding the gun , and it is still smoking). Is it also reasonable to infer that she shot the person on the floor? To make th at determinatio n, oth er factors must be taken int o consider ation. I f she is the only pe r son in the room with a smo king gun, then it is reasonable t o infer that she shot the person on the floor. But , if there are o ther people with smoki ng guns in the room , absent other eviden ce of her guilt, it is not r easonable to infer that she was the sho o ter. No rational juror shou ld find beyond a reasonable d ou bt that she was the shooter, rather than any of the other people wi th smoking guns. To d o so would require impermissible
s pecula tion. But, what if there is also evid ence that the other guns in t h e room are toy guns and cannot shoot bullet s? Then, it w ou ld be reasonable to infer that no one with a toy gu n was the shoote r. It would also be r easonable to infer that the woman holdin g the smoking gun was the sh ooter. Th is would require multiple inf e rences based upon the11 same set of facts, bu t they are rea so nable inferences when looking at the evidence. We first have to in fer that she shot the gun. This is a
rea sonable inferen ce bec ause she is holding the gun, and it is still
sm oking. Next, we hav e to infer that she shot the person o n the f loor. This inf er ence is based in part on the original inference tha t she shot the g

un, but is also a reas onable inference dr awn from the ci rcumst ances. Id. at 16

. A p erson commits an a ssault if he intentionally , knowi ngly, or recklessly causes bodily inj ury to another

. Tex. Penal Code Ann. § 22.01(a) (1)

. The assault becomes

“ aggrav ated ” if , during the assault ’ s comm ission, t he assailant either causes serious
bo dily injury to another or uses or exhibits a deadl y weapon
. Id

. § 22.02( a)

. A person

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

t hat specific circum stances exist a nd consciously d isregards that ris k

. Romano v. State , 610 S.W.3d 30, 35 (Tex. Crim. App. 2020 ) ( citing Tex. Penal C ode Ann. § 6.03( c )).
T he risk must be of such a nature and degree that it constitut es a gross deviation f rom the standard of care that an o rdinary person w ould exercise under all the
cir cumstances as viewed from the actor ’ s stand poin t. Id. (citing Tex. P enal Code Ann. § 6.03(c)). By its nature, a culpable mental state must generally be inferred from the
cir cumstances ; because we cannot read an accused ’ s mi nd, absent a confession, we
must infer his mental state from his acts, words, an d conduct. Id.
2
. Evide nce of Rec k l ess Agg ravated Assault with a Deadly Weapon
T orrez he ard gu nfire a nd test ified that he w as hit in the head by something th at
felt “ like a brick ” while T rotter was across the street , firing sh ots at Wade ’ s truck and12 h it t ing Jone s ’ s car a s Jones drove betw e en the Valero and the Family Dollar

. The impact of the bullet that l odged in Jones ’ s car doo r was hard enough to s hake the car. The photographs ; body camera footage ; and tes timony by Wade , Campb ell, and
Torrez , amo ng others, sho w that Trot ter f i red a gun several times in a n area where
other potential victims we re around

. 3 . Analysis There is no dispute on appeal that Trotter fired a gun at least four time s i n the general direction of the Family Dollar and , bas ed on Wa de an d Torrez ’ s testimo n ies ( and the size of the gun ’ s magaz ine ) , Trotter cou ld have fired i t up to si x time s . Cf. Hooper , 214 S.W.3d at 16. There was a lso evidence that Torrez was in the Family Dollar p arking lot when he was hit in the h e ad with so methi ng while Tr otter was firing the gun ; that at least o ne s hot fired fro m the gun had suff icient force to shake Jones ’ s vehi cle in its relatively closer proxi mity to the weapon ; and that three other
shots bounced off Jones ’ s ve hic le . Could a r ati onal ju ry re asonably infer under these
circumstances , w ithout ad dit ional testimon y , either that Trotter had fired more than
four bullets and one grazed Torrez o r that one of the three bullet s fired from Trotter ’ s
weapon that ric och et ed fro m Jo n es ’ s vehicle had graze d Torrez ’ s head ? We conclude
that the ju ry c ould reason ably d raw such concl usions in the absence of evidence t hat13 anyon e else was flinging projecti les near Tor rez ’ s head at that time and in that area

. 6
See i d.
We like wise c onclude that the jury could have reasonably conclude d tha t
Trotter ’ s act i on of firin g s evera l 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 fast

fo od restaurants and acro ss the stree t from a Family Dollar

— was reckless. See
Roma no , 610 S.W. 3d at 3 1, 35 (hol ding that the e vidence w as sufficient to find appel lant recklessly exposed his genitalia when he was in a public park in the middle
of a clear sum mer day “ in densel y
- pop ula ted Houst on in a parking lot th at was open and visible to p assing r oad traffic, bicy clists and pede strians, and anyone usi ng the public rest room facilities or pic nic tables immediately nearby ” ) ; see also State v. Rodriguez , 339 S. W.3d 680, 683

– 84 ( Tex. Crim. App. 2011 ) (l isting as e x amp les of disregard of a known an d unjusti fiable risk : sho ot ing into the ground in a crowd of
pe ople, sho oting into th e air or at beer bottles in a residential district , shooting a t a stop sign in a bu siness district, a nd sh ooting into the bus hes at a city p ark) ; Ishmael v.

6 As the trial court observed when it denied Tro tter ’ s direct e d

- verdi ct m otion , when vi ewed in the light m ost favorable to the S t ate ’ s case, a rati onal jury could find t hat Torrez had been str uc k with one of Tr otter ’ s bu llets bas ed o n “ the descripti ons given, what was pointed out on p hotographs and maps

. . . [and] [ i]n light o f the timing of the sounds, the shots [,] and all the other witnesses who w ere impac ted in the sa me line of tra jectory, wi th the car and his locat io n. ” Further, t he jury not es reflect tha t during delib erations, the jury requested t he photos of T orrez ’ s hea d injury and t he aerial map of the streets and buildings at 11:20 a.m. and additional evidence from the vi deos a t 12:01 p.m. B y 1:1 5 p. m., the jury had announced that it had reached a verdict.14 State , 688 S.W.2d 252, 258 (Tex. App.

— F ort Worth 1985, pet. ref ’d) ( “ When a p erson fires a gun into a crowd of people with no particular intended victim, the probability
that serious bodily injury wil l res ult is so great that it is worse t han r eckless disregard of the consequen ces; if a death i s thus caused, it is mur der. ” ).
Accord ingly, we hold tha t the evidence is suffici ent to support the j ury ’ s verdict
without expert testimony tha t Torre z had been struc k by a bullet (a s o p posed to

somet hing else ) a nd wit h o ut additional testi mony about how fa r 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 tha t the trial court committed jury

- charge error by including the lesser

- included

- offense instructi on and by denyi ng his re quest ed self

- defense instruction. We must review “all alleged jury

- charge error

. . . regardless of preserva tion in the trial court.” Ki rsc h v. S t ate , 357 S.W.3d 645, 649 (T ex. Crim. App. 2012). I f no error occur red, then our ana lysis e nds. Id

. 1 . Les ser - I ncl uded O ff ense Trotter was charged with intentional or knowing aggravated assault with a deadly w eapon. However, i f recklessness is r aised by the evidence , a trial cour t d oes not err by submitting a charge on reckless aggravated assault as a lesser

- included
offense of a char ged intentional or knowing aggravated assault

. G onzalez v. Stat e , 610 S.W.3d 22, 2 8 (Tex. Crim. App. 2020) ; s ee g enerally Tex. Code Crim. Proc. Ann. ar t s . 37.08 (providing for lesser

- inclu ded offenses) , 37.09( 3) (stating that an offense is a15 lesser

- includ ed offense “ if it differs from the offense charge d only in the r espect that
a less culpable mental state suffi c es to estab lish its commission ” ).
Tro t ter co ntends in his second point that th ere “ was no testimony or evidence
of a co nsc ious disregard of a k no wn risk ” to warrant the lesser

- included

- offense
i nstruction on r eck less aggravated assault with a deadly weapo n. We disagree. As set out above in ou r sufficiency analysi s, the record reflects
that Trotter fired several times in a crow ded publi c area 7 on an early S a turday even ing in May and , while he m issed hitting Wade, his targeted victim , he managed to hit Jone s ’ s vehicle and graze Torrez ’ s head. S ee Roma no , 610 S.W.3d at 35 ; Rodriguez , 339
S.W.3d at 683

– 84 ; I shmael , 688 S.W.2d at 258 ; see also Tex. Penal Code Ann. § 1.0 7 (a)(1 7)(A) (de fining a firearm as a deadly we apon), § 22.05(c) ( “ Recklessness and
da nger ar e presumed if the actor knowingly poin t ed a firearm at or in the dir ection of
another whether or not t he actor believed the firearm to be loaded. ” ). Accordingly,

t here was suffic ient evidence to include the le sser

- inc luded

- offens e instruction in the jury charg e, and we overrule Trotter ’ s secon d point.

7 D uring closing arguments, Trotter ar gued, “ You kn ow from the video that the gas station was packed . . . . You know that th is was a busy gas stati on w ith a lot o f people. ” And Campbell testified that he w as n ot initially afraid when he s aw Wade at the Valero because they were in an area wit h “ a lot of w itnesses. ”16 2
. S elf

- Defense
In his third point, Trotter argues that there w a s sufficient e vidence to raise self

defense as part of the law appli cable to t he Wade case

. 8
A defendant is e ntitled to an instru ction on any defensive iss ue that is raised by
the ev idence regardl ess of the evidence ’ s strength or credibi lity

. Jordan v. State , 593 S.W.3d 340, 343 (Tex. Crim. App. 20 20) . A def ensi ve issue is raised by the evide nce if
there is suf fici ent evidence to support a rational jury fi nding as to each element of the
defense , and we view the evidence in the light mos t favorable to the defendant ’ s requested def e nsive instruction. Id.
Self

- de fense is a confession

- and

- avoid ance defense requir ing the defendant to
admit to his otherwise ille gal conduct

. Id. H e canno t both invok e self

- defense and flatly deny the charge d conduct. Id. Further , a pers on is only justified in using f orce against an other when and to the deg ree he reasonably believe s the for ce is
immed iately necessary to protect against the other ’ s use or attempted us e of unlawful
force

. See i d. (citing Tex

. Pe nal Code Ann. § 9.31(a) )

. A n d he is justified in using

8 During the charge conference , Trotter conced ed , “ [W]e do not have a b as is for sayi ng that we shot Mr. Torrez in self

- defense. ” See generall y Tex. Penal Co de Ann. § 9.05 (pro viding that even though an actor may be justified in thre atening or us ing force or deadly force against another, “ if in doing so he also re ck lessly injure s or kills an innocent third person, the justificati on affor ded by t his chapt er is u n availa ble in a prosecution for the reckless injury or killing of the innoc ent third per son ” ).17 dea dly force 9 agai nst another o nly if he wo uld be justified in using force und er P enal
C ode Section 9. 31 10 and reason ably believes that deadly f orce is imme diately necessary to protect himself agai nst the other ’ s use or attempted use of unlawful deadly force.
See i d. (citin g Tex. Penal Code Ann. § 9.32(a ) )

. A trial court errs by r efusing a s elf

defense instruction if t here is some evidence, view ed in the li ght most favorable to the defendant, that will support its elements. Id. ; see Bedolla v. State , 442 S.W .3d 313, 315,
3 17 (Tex. Crim. App. 2014 ) (stat ing that when t he a pp ell ant was charge d with aggravated assault wit h a deadly weapon based on his having r un over the compl ainant with his car, sel f

- defense w ith deadly force was the only defense that would jus tify his conduc t).
Trotter directs us t o t he f ollowing evidence t o sup port his argume nt that he
was enti tled to a self

- d efe nse instruction :

• Wade ’ s havi ng sliced T rotter with a box

- cutter blade a fter the two men engaged in fisticuffs three days before the incident at the Valer o ;

• W ade ’ s confirm in g his 2009 aggravated

- assault

- with

- a

- dea dly

- we apon conviction and his 20 07 assa ult conv iction ; and

9 “ Dea dly forc e ” means “ force that is intended or known by the ac tor to cause, or in the manner of its use or intended use is capa ble of causing, death or seriou s bodily inj ury. ” Tex. Pe nal Code Ann. § 9.01(3).

10 Penal Code Secti on 9. 31 prohibits t h e use of for ce agains t another in re s ponse to verbal provocation alone

. Tex. Penal C ode Ann. § 9.31 (b)(1). It also states that t he
use of force is not justifi ed if th e actor prov oked the other ’ s use or attempted use of unlawful force unless the actor the n aban dons t he encoun ter or clearly communi cates to the other his inte nt to do so

. S ee i d. § 9.31(b) (4).18 • Ca mpb ell ’ s tes ti fying that he was a fraid that Wade might hav e a we apon or might try to run over Tro tter when he saw Wade at the Valero

. W e re view this evidence in the light most favorable to Trotter to determine i f t he trial

co u rt erred

. See Jordan , 5 93 S.W. 3d at 343.
The reco rd reflects that the r e may have been verbal provocation by Wade during the Valero encou nter , but verbal provocation alone is ins ufficient to justify a
self

- defense instruction. See Tex. Pena l Code Ann. § 9 .31 (b)(1). And while Cam pb ell
testified that he w as not initially afr aid but then became afraid

— and proved it by fleeing back to h is vehicle before Trotter fired the s hots

— n othing in the record
illus trates Trott er

’ s state o f mind or that there w as anythi ng for Trotter to fear when
C a m pbell test ified that he did no t see Wade hold a weapon that day or hear Wa de
threaten to kil l or shoot them , and Trotter , armed with a gun , approached Wade at the
gas pump
. T he V a lero ’ s surve illance video , which has no a udio, show s Trotter calm ly

eme rge from the p assenger side of his stepson ’ s vehicle, open the trunk, close the

t runk, walk into the convenience store, leave the convenience store, and then engage Wade i n conversat ion outside the convenience store before firing h is weapon at Wade ’ s depar tin g vehicle

. 11 N othing in this record supports that Trotter ’ s use of deadly forc e was immediately necessary to protect himself from Wade or that Wade

11 During the charge conference , Trotter argued that he was enti tled to a se lf

d efense instruction even though “ firing at a car that ’ s back ing up

. . . might not ma ke the self

- defense perf ect o r might not make it reasona bl e. ”19 was imminently going to harm Tr otter
. Cf. id. § 9.32(a)(2) , (b) (1)

. And even w hen
Wade had actual ly har med Trotter du ring their altercation at a different convenience

store three days before the shooting , Trotter told the police that he had injured
himself tr ying to climb a fence and said nothing ab out his altercation with

— or fear

o f

— W ade

. Instead, a ccording to Wade, Tr otter threatened him with a gun later that evening , broke some of h i s truck ’ s windows, and sho were d him i n broken glass. Further, as the S tate points out in its appella te brief and as it argued in response

to Trotter ’ s request for the s elf

- defen se instruct ion , the defense ’ s theory at trial had
be en to challenge whether Tr otter had even fired the gun rathe r t h an attempt to
conf ess to the offense and t hen avoid it through self

- defense. 12 See J ordan , 593 S.W .3d

at 343

. B ased on the above, we con clu de tha t the trial court did not err by den ying
T rotter ’ s request for a self

- defense instruction, and w e overrule his third point.
C. Preserv ati on In his final p oin t, Trotter argu es th a t the trial court abused its discretion by
adm i tting la y opinion te sti mony . Compare Tex. R. Evid. 701 (stating that lay witness
testi mony is limited to that which is ratio nally based on the witness ’ s perception an d helpful to clearly unders tand t h e witness ’ s testimony or t o determin e a fact in is sue),

12 Trotter opened fire outside of the range o f the V alero ’ s surveillance cameras ; accordingly , only Wade ’ s testimony , the location of four of the firearm ’ s spent casings , and the exper t ’ s test imon y that the casing s matched the gun found on Cam pbell ’ s floorboard s upported identifying Trotter as the shooter. D uring closing arguments, T rotter r elied on this evidence to argue th at only Wade ha d seen him fire the gun , that he h a d not been t ested fo r gu npowder resid ue , 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
knowle dge, skill, experience, training, or e ducation may testify in the form o f a n opinion if his scie ntific, te chnic al, or other specialized knowledge will help the trie r of
fact to unders tand t he evidence or to determine a fact in issue). Specifically, Trott er complains that the trial court shou ld not have admitted testimony about Torrez ’ s “ gunshot ” wo und when the ju ry “ would not fully
understand the evid ence or be abl e to determine the fact i n is sue without the assistance
of someone with specialized know ledg e that must be qua lified as an expert. ” He complains that nothing was pres ent ed about Tor rez ’ s background to establish that he

c ould opine t hat he had been shot and th at no q ualified witness h ad determined that
Torrez had s ustained a gunshot wound

. The State responds that Trotter failed to preser ve t his compla int because
Tor rez had testified se veral times that he was either g razed or hit by a “ bullet ” by the
time Tro tter obje cted to Torrez ’ s te stimony that he was str uck by a bullet , and Trotter
did not o bject to any of these earlier instances. To preserve a com plaint for our revi ew, a party must hav e presented to the trial court a timely request, objection, or moti on stating the speci fic ground s, if no t apparent from the context, for the desired ruling. Tex. R. App. P. 33. 1(a)(1); Thomas v.
State , 505 S.W.3d 91 6, 924 (Tex. Crim. App. 2016). A party must object as soon as the basis for the objection becomes apparen t. Tex. R. Evid. 1 03(a)(1); L ondon v. State , 490 S.W.3d 503, 507 (Tex. Crim. App. 2016) ; see Sa l dano v. State , 70 S.W.3d 8 73, 88921 (Tex. Crim. App. 2 002) (“We have consi stently held that th e failure to object in a timely and specific manner during trial fo rf eits complaints about the ad missibil ity of
evidence. ” ). Generally, a party must object each t ime the objecti onable evidence is
offered. Geuder v. State , 115 S.W.3d 1 1, 13 (Tex. Crim. Ap p. 2003); Martinez v. State , 98 S.W.3d 189, 193 (Tex. Crim. App. 20 03 ); Clay v. State , 361 S.W.3d 762, 76 6 (Tex. App.

— Fort Worth 2012, no pet.).
D uring the State ’ s direct examin ation , Torrez testified about his inju ry : Q. And as you go t there

-- did you a lready buy the pool before you were grazed by that bullet?
A. Yes.

. . . . Q.

. . . A nd just above your left ear there ’ s a mark and some blood. Is t hat where you w ere grazed by that bullet?
A. Yes.

. . . . Q. And then he re we see, again, above the left side of ear, a mark with some bloo d. Is that where the bullet hit you?
A. Yes. Q. Okay. And then kind of on your forehead there ’ s a nother little
m ark. Did the bullet also graze there, too?
A. Yes

.

. . . .22 Q.

. . . Was it pretty clear to you that after those gunshots, that yo u were hit by one of those bulle ts, or grazed by one of those bullets?

. . . . [Defense counsel] : Ob jection.

. . . I object on the basis o f qualification. Th e witness isn ’ t qualified t o an swer. The trial court overruled Trotter ’ s object ion that Torrez was unqu alified,

stat i ng, “ 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 35 1, 357 (Tex. App.

— Houston [ 14th Dist.] 2010) (stating
that for lay testimony to be ba sed on a witness ’s perception, the witness must have personally e xperienced or observed the eve nt and may make r easonable infer ence s based on his perce ptions) , aff ’ d

, 365 S.W.3d 333 (Tex. Crim. App. 2012)

. The record refl ects that b y the time Trotter objected to t he “ bullet ” testimony , the jury had al ready had the oppor tunity to consider it and had viewed the photographs , admitted without objection, of Torrez ’ s wound

. Accordingly, w e conclude
that Trotter fa iled to pr eserv e this point for our review, and we overrule his final point

. IV . Conclusion Having over ruled all of Trotter ’ s points, we affir m the trial court ’ s judgment s . /s/ Wade Birdwell
Wade Bird we ll Justice
Do Not Publish Tex. R. App. P. 47. 2(b )
D elivered : September 30, 2021