AFFIRMED as MODIFIED and Opinion Filed October 7, 2019 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-18-00760-CR MARCUS DEWAYNE WILLIAMS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court Cause No. F-1675985-I 

### MEMORANDUM OPINION Before Justices Pedersen, III, Reichek, and Carlyle Opinion by Justice Reichek A jury convicted Marcus Dewayne Williams of aggravated robbery, and the trial court assessed punishment, enhanced by a prior felony conviction, at sixty-five years in prison. In four issues, appellant argues the trial court erred in refusing a ju ry instruction on self-defense and committed fundamental error in allowing certain testimony by th e investigating detective. For reasons discussed below, we overrule appellant’s issues. The State presents a cross-issue requesting that we modify the judgment to correct the name of the prosecutor. Our review o f the judgment reveals an addit ional error regarding enhancement paragraphs. We modify the judgmen t to correct these errors and affirm as modified.–2– Factual Background On the night of June 4, 2016, longtime friends Roger Rodriguez and Jessie Ramos went to the Lower Greenville area of Dallas to eat. Jessie drove. The y stayed for a few hours and left at about 1:20 a.m. On the way home, one of the tires on Jessie’s car went flat. Jessie drove to a nearby tire store that he believed was still open, but it was n ot. He then drove to an area where two tire shops were located, but both were closed. At that poi nt, the tire was “shredded” and Jessie could not continue to drive on it . He parked in the lot of one of the tire stores and tried, unsuccessfully, to get an Uber. While he and Roger were discus sing what to do, appellant pulled up and offered assistance. At first, Jessie asked if appellant had a spare tire. Appellan t did, but the spare tire did not fit Jessie’s car. Appellant then offered to give Jessie and Ro ger a ride home. Both Jessie and Roger said appellant was “friendly” and “nice” and they thought they could “trust” him, so they agreed. Jessie got in the back seat and Roger got in the front passenger seat. Roger gave appellant directions to their homes, which were nearby. On the way, appe llant suddenly stopped the car, and Jessie and Roge r thought he was havi ng car trouble. Roger got out and walked to the front of the car and waited for appellant to open the hood. When appell ant exited the car, however, he had a gun and told both Jessie and Roger to give him their wallets. Before Roger could hand appellant his wallet, appellant shot him in the stomach. Roger fell to t he ground. When Roger heard a second shot, he got up and ran i nto a nearby neighborhood, wher e he hid and called 911. After appellant shot Roger, he tu rned the gun on Jessie, who ha d also exited the car. He shot Jessie twice in the stomach and once in the arm as Jessie tried to retrieve his wallet. Jessie said he dropped his wallet, whic h distracted appellant long eno ugh for Jessie to also run away. He heard another gunshot as he f led. Jessie also called 911.–3– Police located the men in different areas, and both were taken to the hospital. Roger was hospitalized for six days. Jessi e was hospitalized for much lo nger due to various complications and, at the time of trial, said hi s diagnosis was end-stage ren al failure. Police were able to connect appe llant to the shootings from the tire shop’s surveillance video showing the license plate number of the car he drove thatnight. At trial, appellant testified similarly to Roger and Jessie that he saw them stranded at the tire shop and stopped to offer assistance. But, appellant’s version of events was drastically different once Roger and Jessie entered his car. He testified that during the drive, Roger and Jessie began spea king in Spanish and he could not understand them. One of the men then directed him to turn on to a dark street, and appellant began to get “uncomfortable.” S uddenly, he said, the back seat passenger (Jessie) “grabbed” him and appellant “hit the gas,” which “kind of jerked him back awa y from me.” Appellant then hit the brakes and put the car i n park. He opened the door, and th e front seat passenger (Roger) tried to grab his keys, and appellant sai d he turned and elbowed the man in the face. Appellant got out of the car at about the same time as Roger. As he exited the c ar, he got a gun fr om under his seat. He said he felt he needed the gun be cause he was “threatened” a nd needed to “fight” for his life. Once outside the car, appellant said one man was in front of hi m and the other was behind him. According to appellant, the man behind him tried to grab him, and appellant turned around and “the shot went off.” Appella nt was not sure if he hit the man so he shot again at the ground. Appellant said the two men ran away, and he drove off and went home. He did not call the police because he did not trust the police to believe his story. He t estified that “at the end of the day, I stopped to help somebody out, tw o guys, and they tried to attac k me and rob me.” In addition to this testimony, the jury also heard from the pol ice officers who responded to the scene and investigated the case. Additionally, a video rec ording of a police interview with–4– appellant as well crime scene photographs and evidence collecte d at the scene were admitted. At the conclusion of the evidence, a ppellant requested a self-defe nse instruction, which the trial court denied. Denial of Self-Defense Instruction In his first issue, appellant contends the trial court erred b y denying his self-defense instruction to aggravated robbery. The jury was authorized to convict appellant of aggravated robb ery if it found appellant intentionally or knowingly, while in the course of committing t heft of property and with intent to obtain and maintain control of said property, caused bodily inj ury to Roger Rodriguez by shooting Rodriguez with a firearm, and a ppellant used or exhibited a dea dly weapon, a firearm. When analyzing a jury charge on appeal, we utilize a two-pronge d test. Ngo v. State , 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g). The first prong requires us to dete rmine whether error exists. See Ngo , 175 S.W.3d at 743. If no error is found, the analysis ends; bu t, if charge error is found, the error is analyzed for harm. See Almanza , 686 S.W.2d 171. Here, the analysi s ends with first prong. Chapter nine of the Texas Penal Code sets out the law on self-d efense. It provides that a person is justified in using “for ce against another,” including “deadly force,” when the person “reasonably believes the force is immediately necessary” to pro tect himself from another’s use or attempted use of unlawful deadly force or to prevent the other’ s commission of various enumerated offenses, including murder or robbery. See T EX

. P ENAL C ODE A NN

. §§ 9.31, 9.32. But, a defendant’s use of force against another individual is not just ified if the defendant provoked the other individual’s use or attemp ted use of unlawful force. See T EX

. P ENAL C ODE A NN

. § 9.31(b)(4).–5– When a defendant is accused of m urder or assault, the defendant is entitled to an instruction on the law of self-defense if he presents some evidence, even i f weak or contradicted, that he reasonably believed his use of force was immediately necessary to protect himself against his victim’s unprovoked use or attempted use of unlawful force. See, e.g., Gamino v. State , 537 S.W. 507, 512 (Tex. Crim. App. 2017) (cons idering self-defense instr uction in aggravated assault case). However, the same is not true when a defendant is accused of ro bbery. Macias v. State , No. 08- 17-00144-CR, 2019 WL 4058584, at *5 (Tex. App.—El Paso Aug. 28, 2019, no pet. h.) (not designated for publication). As our sister court explained in Macias , while the penal code allows a person to respond to another’s use of force by using equivalent force to protect himself, i.e., by assaulting or even killing the other person, the code does not allow a person to r espond to another’s use of force by committing a wholly unrelated offense against the person, such as robbery. Id . Thus, as other courts have recognized, including this one, a defendant who is charged with the offense of aggravated robbery has no legal right to claim self-defense aga inst his intended victim, and is therefore not entitled to receive a self-defense instruction. Id . (citing Russell v. State , No. 05-17- 00124-CR, 2018 WL 525559, at *10 (Tex. App.—D allas Jan. 24, 201 8, pet. ref’d) (mem. op., not designated for publication) (defe ndant had no right to a jury i nstruction on self-de fense with regard to robbery allegations in indictment); Gorman v. State , No. 04-03-00311-CR, 2004 WL 2450875, at *1 (Tex. App.—San Antonio Nov. 3, 2004, pet. ref’d) (mem. op ., not designated for publication) (defendant charged with aggravated robbery with a deadly weapon had no right to receive a jury instruction on the law of self-defense); Toliver v. State , No. 01-87-00591-CR, 1988 WL 15126, at *1 (Tex. App.—Houston [1st Dist.] Feb. 25, 1988, pet. ref’d) (n ot designated for publication) (defendant accused of aggravated r obbery was not e ntitled to a self-defense instruction)).–6– Moreover, self-defense is a conf ession-and-avoidance defense th at justifies conduct that would otherwise be unlawful. Rogers v. State , 550 S.W.3d 190, 192 (Tex. Crim. App. 2018). When the defensive evidence merely negates the necessary culpab le mental state, it will not suffice to entitle the defendant to a self-defense instruction. Shaw v. State , 243 S.W.3d 647, 659 (Tex. Crim. App. 2007). Rather, a defenda nt is entitled to a self-def ense instruction only “when the defendant’s defensive evidence essentially admits to every elem ent of the offense including the culpable mental state, but interposes the justification to excu se the otherwise criminal conduct.”
Id. Thus, even assuming self-defense defense could apply to an aggr avated robbery charge, appellant did not admit to every element of the offense. To th e contrary, appellant testified that he stopped to help the two men and was attacked. He said the firs t shot just “went off” when one of the men grabbed him and he shot a second time at the ground. H e told jurors he did not even know if anyone was hit. He did not admit shooting Roger to further or complete a theft. Rather, appellant’s testimony was that he committed no offense and not that his commission of aggravated robbery was justified a s self-defense. See Young v. State , 991 S.W.2d 835, 839 (Tex. Crim. App. 1999) (concluding defendant not e ntitled to necessity instructi on because he merely “argued he did not commit the offense because he did not have the requisit e intent and he did not perform the actions the State alleged”). We conclude the trial court did not err in denying appellant’s request for a jur y instruction on self-defense. We ove rrule the first issue. Admission of Evidence In issues two through four, appe llant contends t he trial court committed fundamental error by permitting the investigating detective to testify that (1) h e did not believe there was any truth to appellant’s statement that Roger and Jessie were trying to r ob or harm him; (2) he did not–7– believe, based upon the totality of the circumstances and throu gh all of his investigation, that Jessie or Roger tried to harm appellant; and (3) based upon his invest igation, he believed appellant shot Roger and Jessie after attempting to steal their wallets and th at there was no evidence to suggest otherwise. Recognizing no object ion was made to any of this te stimony, appellant argues on appeal the error is “fundame ntal” requiring no objection. The court of criminal appeals ha s explained that rights not req uiring an objection are a “narrow exception” to the general rule that error must be prese rved. See Grado v. State , 445 S.W.3d 736, 739 (Tex. Crim. App. 2 014). In fact, the court of criminal appeals has “consistently held that the failure to object in a timely and specific manner during trial forfeits complaints about the admissibility of evidence.” Fuller v. State , 253 S.W.3d 220, 232 (Tex. Crim. App. 2008). Here, appellant does not explain why these complaints are not f orfeitable. After reviewing the complaints, we see no reas on why they should not require an objection below. See Fuller , 253 S.W.3d at 232 (concluding that, in capital murder trial, compla ints about State’s expert’s qualifications and scientific r eliability of his testimony were forfeited for failure to object);
Saldano v. State , 70 S.W.3d 873, 889 (Tex. Crim. App. 2002) (holding, despite S tate’s confession of error, that defendant’s claim that State’s testimony imprope rly appealed to jurors’ racial prejudices in violation of Equal Protection Clause did not impl icate an “absolute, systemic requirement nor a right that is waivable only” and concluding f ailure to object forfeited claim);
Proenza v. State , 541 S.W.3d 786, 797 (Tex. Crim. App. 201 7) (explaining that t rial judge has no duty to exclude, for example, h earsay absent objection and “wou ld probably fall into error if he did”). Accordingly, none of these complaints are preserved for review. We overrule issues two through four.–8– Modifications to Judgment In a cross-issue, the State requests that we modify the judgme nt to reflect that Alicia Patterson, not Lakesha Smith, repr esented the State in this cas e. A review of the record shows the State is correct. After reviewing the judgment, this Court noted an additional e rror: the judgment shows that appellant pleaded true to two enhancement paragraphs and t he findings on both paragraphs were true. The record, however, shows that only one enhancemen t paragraph was alleged in this

case. We have the authority to correct a judgment below to make the record “speak the truth” when we have the necessary data and information to do so. Asberry v. State , 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref ’d). Accordingly, we modify th e trial court’s judgment to correct the prosecutor’s name and to reflect that no plea and no findin g was made on a second enhancement paragraph. As modified, we affirm the trial court’s judgment.

Do Not Publish T EX

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. P. 47.2(b) 180760F.U05 /Amanda L. Reichek/ AMANDA L. REICHEK JUSTICE–9– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT

MARCUS DEWAYNE WILLIAMS, Appellant

No. 05-18-00760-CR V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 2, Dallas County, Texas Trial Court Cause No. F-1675985-I. Opinion delivered by Justice Reichek; Justices Pederse n, III and Carlyle participating. Based on the Court’s opinion of t his date, the judgment of the trial court is MODIFIED as follows: (1) to reflect Alicia Patterson w as the Attorney for the State and (2) to delete the plea and findi ngs of True on the sections reg arding a 2nd Enhancement Paragraph and to show N/A to both sections.
As MODIFIED , the judgment is AFFIRMED

. Judgment entered October 7, 2019