### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00504
- CR

Tiffany Wade , Appellant

v. The State of Texas , Appellee

FROM THE 427TH DISTRICT COURT OF TRAVIS COUNTY NO. D
- 1
- DC
- 18
- 202900 , THE HONORABLE TAMARA NEEDLES , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
Tiffany Wade was convicted of aggravated assault with a d eadly weapon and was sentenced to ten years ’ imprisonment

. See Tex. Penal Code § § 12.33 , 22.02

. On appeal, Wade contends that the trial court erred when it preven t ed her from presenting evide nce from a witness who she contends was necessary to establish an element of her self

- defense claim . We will affirm the trial court ’ s judgment of conviction.

BACKGROUND Wade was charged with a ssaulting Ishanae Ro gers outs i d e the Aus tin Re source Center for the H omeless ( “ ARCH ” ) late one evening in April 2018. At trial, the following witnesses testif

ied: Rogers ; Mi chael Partida , who witnessed the assault ; Officer Michael Taylor, who responded to the scene ; Officer Br ian Huc k a by, who arrested Wade near the ARCH ; and Detective Darrell Lambert, who investigated the c ase . Addition ally , a recording of the assault2

was admitted into evidence. T he recording was cap tured by the City of Austin ’ s HALO system of cameras monitoring the d owntown are a.

In her testimony, Rogers explained that she wen t to a club downtown and then walk ed past the ARCH on the night in question ; that one of her friend s yelled, “ Someone has a knife ” ; that she felt something st ab her in th e back; that she t u rne d to see what hap pe ned; and that she saw Wade holding a knife and heard W ade say, “ Yeah, I got you. ” Next, Roge rs testified that a man and a woman grabbed Wade and that the man knock ed the knife out of Wade ’ s hand. Furthe r, Rogers related that she pa s sed out, was taken to the hospital, and had
surgery because one of her lungs collapsed during the stabbing

. Additionally, Rogers testified that she did not have any kind of interaction with Wade prior to the stabbing. Specifically , Rogers denied yellin g at W ade , telling Wade to move locations, and slamming Wade ’ s face in to th e sidewalk two days earlier

. In her testimony, Rogers admitted that she was placed in jail months after the assault , but she denied making any type of threat ening gesture to Wade in ja i l

.

After Rogers fi nished tes tifying, Pa rti da testified regarding the events that h e

o bserv ed outside th e AR CH. Specifically, Parti da explained that Rogers w as walking on the sidewalk , that another woman w as following her, that the woman came “ up b e hi n d ” Rogers , and that Rog ers subsequently fell to her knees while holding her side . Further, Partida related that he went up to the woman and knocked a knife out of her hand. In his testimony, Parti da explained that Rogers is a drug dealer, can be an ag gr e ss i ve dealer, and will “ yell at people ” and “ raise her hand at somebody just to . . . tell the m to get lost. ” Howe ver, Parti da also described Rogers as “ a very sweet person ” and stated that he h ad never seen Rogers raise a hand “ t owards ” someone.

Ne x t, Of f icer Tayl or testified that h e watched surveillance footage of the assault. When desc ribing the fo otage, Of ficer Taylor explain ed that the victim was facing away from a3

woman in a green jacket and that the woman in the gre en jacket appro ached the vic ti m . F urther, Officer Taylor related that the recording did not show the victi m talking with or having an y sort of interaction with the woman in the green jacket before the offense but did sho w the woman in the ja cket walking for a block and a hal f before t h e i n cident

. More over , Offi ce r Taylor descr ibed how t he recording captured se veral people approach ing the woman in the green jacket and confron t ing her after the assault

.

In addition , Officer Huckaby testified that he was informed about a stabbing a t
t he AR C H committed by a person wearing , among other things , a green jack et. Further, Officer
Huc kaby related that he found Wade a few blocks from the ARCH, that Wade matched the descr iption of the suspect, and that Wade admitted that she had been involv ed in a d isturbance earlier. Moreover, Officer Hu ckab y re called that one of Wade ’ s eyes was swollen and br uised.

Following Officer Huckaby ’ s testimony , Detective La mbert testified that he interviewed Wade after she was arrested. Detecti ve Lamb ert rel ate d that d uring the interview Wade men tioned a prior interaction between Rogers and he r , but Dete ctive Lambert testified that he reviewed th e footage cap turing the assault as well as foot age from other camer as in the area and did not see any other in terac ti o n betwe e n the two wom en.

Du ring the S t ate ’ s case - in

- chief, a recording of the incident was admitted into evidence. T he recording depicts a woman who was identified at trial as Rogers walking on a sidewalk and then stopping to inter act with individu als in the a r ea. The recording also captures a woman in a gre en jacket, who was identified at t r ia l as Wade , walking towards Rogers before thrusting one of her arms forward in the direction of Rogers ’ s back while Rogers was facing away fr om W a de . In addi tio n, the re c ording shows Roger s subsequently grabbing her back4

before running from the area and shows Wade walk ing aft er Rogers before several people in the

area confronted Wade , knocked her to the ground, and kicked and punch ed her

.

After the S t ate f

ini shed callin g its witnesses , Wade asked to call Lena Carson as a witness , and Carson testi fied out side the presence of the jury . In her testimony , Carson related that she was arrested in February 2018 , ha d been i n custody since bei ng a rrested , and did n ot witness the assault in April 2018

. Moreover, Carson testified that she knew Wade and Rogers from when she stayed at the ARCH before being arrested but that neither of them told her anything about the assault. W hen asked to describe Rogers, Carson stat ed that Rogers was “ a bully ” and aggressive. For example, Carson r elated that Roge rs once appr oached her at the
ARCH and aggressively stated that Carson owe d her money

. Next, Carson exp lained that Wade and Rogers were placed in the same jail months after th e assault a n d that Rogers “ made a gesture to thre aten ” Wade when Rogers walked past Wade inside the jail

. Additionally, Carson testi fied that Rogers has force fully move d people when she di d not want them resting in certain locations outsi de the ARCH an d t hat Rogers h as hit women in the past. Regarding one of those incidents , Carson testif

ied that she prev i ously saw Rogers tell a woman to move from a particular location

o utside the ARCH , hit her in the face , and throw her pe rsonal belongings down the st ree t.

At the hearing, Wade ar gued that Carson should be allowed to testify about Rogers ’ s character for violence and about the specific incidents of conduct sum marized above because the testimony would be relevant to her cl a im of self

- defense. I n res p ons e, the State

a sserted that Carson ’ s testimony wa s not relevant to an y ele ment of the alleged assault or to

a self

- de fen se claim. Af

ter considering the parties ’ arguments, the trial court sustained the
S t ate ’ s objecti on.5 Following the hearing, the t ria l resumed , and Wade was ultim ately convicted o f
ag gravated assault with a deadl y weapon. Wade appeals the trial court ’ s judgment of conviction.

DISCUSSION In one issue on appeal , Wade contends that the trial court erred when it den ied her request to have Carson test i fy to the jury . More specifically, Wade contends that Carson ’ s testimony would have established an essential element of her self

- defense claim. Wade argues that evidence establishing t hat R oger s had an agg ressive and disruptive ch arac ter and had engaged in threatening and assaultive beh avior , including making a threatening gesture to Wade while they were in jail, are “ matters pertin ent to the facts in t his case . ” Additionally, Wade
asserts that the testimony would have es t abli shed th a t Rogers had previo u sly beco me angry and violent with other people who , like Wade, were living near the ARCH

. Wade also contends that
Carson ’ s testimony should have been admitted because it would have helped p rove that she was not the in itial aggr e sso r . Accordingly, Wade c o ntend s that the trial court erred by no t allow ing Carson to testify.

Appellate courts review a trial court ’ s ruling regard ing the admission or exclusion

o f evidence for an abuse of discretion. See Tillman v. State , 354 S.W.3d 4 25, 435 (Tex. Crim.
A pp. 20 1 1)

. Under that standard, a trial court ’ s ruling will onl y be deemed an abuse of discretion if it is so clearly wrong as t o lie outside “th e zone of reaso nable disagreement,” Lo pez v. State , 86 S.W.3d 228, 230 (Tex. Crim. App. 2 002) , o r is “arbitrar y o r u n reasonable,” State v. Mechler , 153 S.W.3d 435, 439 (Tex. Crim. App. 2 005)

. Moreover, the ruling will be upheld provided t hat the trial cou rt ’ s decision “ is reasonably supported by the record and is correct under any theory of l aw appl i cable to the cas e.” Carrasco v. State , 154 S.W.3d 127, 129 (Tex. Crim. App. 20 05)

.6

In a ddition, an appellate court reviews the trial court ’ s ruling in light of the record b efore the court “at the time the ruling was made.” Khoshayand v. State , 1 79 S.W. 3 d 779, 784 (T ex. App

. — Dallas 2005, no pet.)

.

With certain exceptions, the Rule s of Evidence explain that c haracter evidence “ is not admissible to prove that on a p articular occasion the person acted in accordance with the cha rac ter or trait. ” Tex. R. Evid. 404(a)

. One ex c e ption applicabl e to victims in criminal cases provides that a defendant “ may offer evidence of a victim ’ s perti nent trait. ” Id. R. 404(a)( 3)(A)

. The Rules also prohibit the admission of evidence regard ing a “ crime, wrong, o r other act

. . . to
prove a pe r son ’ s character in order to show that on a particular occasion the person acted in accordance with the character ” but further clari fies tha t this type of evide nce may be admitted for nonconformity purposes, “ such as proving motive, opportunity , intent, p r eparation, pl an, knowledge, identity, abs ence of mist ake, or lack o f acci dent. ” Id. R. 404(b)

.

Rule 405 applies when “ evidence of a perso n ’ s character or char acter trait is admissible ” and states that a person ’ s character may be p roved by testimony about the person ’ s reputation or by testimony in the form of an opi nion; however , Rule 405(b) also specifies that a
person ’ s “ character or trait may also be proved by relevant specific instances of the person ’ s conduct ” when the “ p erson ’ s character or character trait is an essential element of a charge, claim, or defense. ” Id. R. 405

. E vidence is relevant if “ it has any tendency to make a fact more or less probable than it would be without the evidence ” and if “ the fact is of co nsequen c e in determining the act i on. ” Id. R. 401 ; see also Miller v. St ate , 3 6 S.W.3d 503, 507 (Tex. Crim. App. 2001) (explaining that e viden ce must be material and probative to be relevant ).

On appeal, Wade argues that Carson ’ s testimony about Ro ge rs ’ s ch a racter and about specific co n duct that Rogers engaged in should have been admitted as proof of her self

-7

defense claim under Rule 405

. See Te x. R. Evid. 405

. However, “ a victim ’ s character is not

an essential element of a claim of self

- defense

. ” Tate v. State , 981 S.W.2d 189, 192 n

. 5 (Tex. Crim. App. 1998) ; see Campos v. St ate , No. 11

- 14

- 00089

- CR, 2016 WL 3 65375, at * 3 (Tex. App.

— Eastland Jan. 28, 2016, pet. ref ’ d) (mem. op., not designated for publication)

. “ [T] he justification theory of self

- de fense d o es not inquire into, as an e s sential element, the character of the victim

. ” Evans v. State , 876 S.W. 2d 459, 464 (Tex. App.

— Texarkana 1994, no pet.) ; se e also Tate , 981 S.W.2d at 192 n.5 ( observing that “ [c] haracter per se is almost never an elemen t of a c harge or defense in criminal cases ” (qu oting Goode, Wellborn, & Sharlot, Guide to the Texas Rules of Evidence: Civil and Criminal § 405.2 (2 d ed. 1993) ) )

. Accordingly, the trial court could have reasonably determined that Carson ’ s testimony amoun ted to im permis sible character eviden c e and was not admis sible as proo f of an essential element of her self

- defense claim

. See T ex. R. Evid. 404 , 405 ; see also Tate , 981 S.W.2d at 192 (observing that “ evidence of a person ’ s character may ” generally “ not b e used to prove that she behaved in a parti cular way at a given time ” even though evidence of disposition might be relevant to person ’ s behavior on particular occasion).

To the extent that Wade argues that Car s on ’ s testimony c ould have been admitted

on a non ch aracter co nf

orming basis be cau se it w ould have helped prove that she was not the
in itial aggre sso r , we note that “ [e] vidence of the victim ’ s viol ent character ” can be “ relevant to support a claim that the victim w as the first ag gressor . ” See Dudzi k v. S ta te , 276 S.W. 3d 55 4, 560 (Tex. Ap p.

—

Waco 2008, pet. ref ’ d) (citin g Tex. R. Evid. 404(b) )

. “ However, for this theory
t o apply, the defendant must first offer evidence of an actual act of aggression by the victim
at the time of the offense. ” Id. St ated d if ferently, th is type of “ ‘ uncom mu nicated charac ter ’ evidence ” may be admitte d when “ a wit ness testifie s that the victim made an aggressive move8

against the defendant ” and then another witness “ testifies about the victim ’ s character for violence. ” S ee Ex pa rte Miller , 330 S.W.3d 610, 61 9 (Tex. Crim. App . 2009)

.

Durin g the trial, no witne ss provide d any testimony describing an aggressive move by Rogers against Wade at the time of the assau lt

. Cf. Dudzik , 276 S.W.3d at 560 (concluding that de fe ndant “ w as entitled to offer evide nce of ex tr ane ous acts of violence by the vi ctim ” because defendant “ testified that [vic tim] was the fi rst aggressor ” ). On the contrary, Rogers denied having any interaction with W ade before the assault, and Partida did not testify regarding any agg ressiv e move by R oge rs before or after the stabbing. In addition, the re cording of the incident d id not capture any aggressive action by Rogers at any poi nt

. Although Detective Lambert testified that Wade told him during his investigat io n “ that she had h ad som e interac ti on with ” Rogers prior to the incident , he did n ot provide any additional information regarding the
nature or timing of this prior interaction

. Moreover, Detective Lamber t testified that he reviewed

s ecurity foo tage from o ther HALO camer as in th e downtow n are a and did not observe any interaction between Rogers and Wade. Furt hermore, although Officer Huckaby testified that Wade ’ s left eye was swollen and bruised , no witness tes tified that Rogers ca used the injury. In addit ion, the record in g of the assaul t c ap tured Wade being shoved to the ground and punched and kicked repeatedly by people who witnessed the st abbing and were attempting to disar m her. Accordingly, the trial court could have reasonably concluded that the requ irements for ad mittin g evidence o f prior acts of violen ce were not met. Cf. id. (explaining that “ the defendant may

not offer evidence of the victim ’ s prior specific acts of violence to prove the victim ’ s violent character and hence that the victim acted in conformit y with that character t rait at the time of the assault ” ).9 For these reasons, we con clude b ased on this record that the trial court did not abuse its discretion by concluding that Carson ’ s testi mony describing specific instances of Rogers ’ s con duct and h er cha ract er was not a dm issible. See Tex. R. Evid. 404, 405 . Therefore , we overrule Wade ’ s issue on appeal.

CONCLUSION

Having overruled Wade ’ s issue on appeal, we a ffirm the t rial court ’ s judgment of convi ction.

___________________ ______________ _________ Thomas J. Baker , Justice Before Chief Justice Byrne, Justices Baker and Smith Affirmed Filed: May 27, 2021 Do Not Publish