COURT OF CRIMINAL APPEALS

_________________________

CASE NO. 13-13-00416-CR

_________________________ MICHAEL PATRICK KENNEDY, Defendant-Appellant

v. STATE OF TEXAS, Plaintiff-Appellee.

________________________________ PETITION FOR DISCRETIONARY REVIEW FROM THE JUDGMENT OF THE TEXAS THIRTEENTH COURT OF APPEALS

________________________________ PETITION OF DEFENDANT-APPELLANT

________________________________

F. CLINTON BRODEN TX Bar No. 24001495 Broden, Mickelsen, Helms & Snipes 2600 State Street Dallas, Texas 75204 (214) 720-9552 (214) 720-9594(facsimile) Attorney for Defendant-Appellant Michael Patrick Kennedy PD-0803-15 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 7/1/2015 9:14:10 AM Accepted 7/1/2015 3:41:11 PM

ABEL ACOSTA CLERKIDE NTI TY OF PARTIE S AND COUNSEL

Pla in tif f-Appe ll ee: St at e o f Tex as Tri al Coun se l: Ch ari Kell y Lau ra B. Ba te s Co m al Co un ty D is tri ctAtt orne y ’s Offic e 15 0 N. Seg ui n Av enue , Sui te 30 7 New Brau nf

el s, Tex as 78 13 0 Appel la te Co uns el : Ch ari Kell y Co m al Co un ty D is tri ctAtt orne y ’s Offic e 15 0 N. Seg ui n Av enue , Sui te 30 7 New Brau nf

el s, Tex as 78 13 0 Tri al Ju dg e: Hon or ab le Jac k R ob is on Defen da nt-App el la nt: Mi ch ael Patric k Ken ne dy Tri al Coun se l: F. Cl in to n B ro de n Bro de n, M ic ke ls en , Helm s & Sn ip es LLP 26 00 Sta te Str eet Dall as , Texa s 7 52 04 Ant ho ny B Can tre ll 11 00 So le da d, Su it e 1 20 0 San Ant on io , Texa s 7 82 05 Pat ric k B . Mo ran 11 00 So le da d, Su it e 1 20 0 San Ant on io , Texa s 7 82 05 Appel la te Co uns el : F. Cl in to n B ro de n Bro de n, M ic ke ls en , Helm s & Sn ip es LLP 26 00 Sta te Str eet Dall as , Texa s 7 52 04

iiAppel la te J udg es : Ch ie f Ju st ic e Ro ge li o Val de z Ju st ic e Nel daV. Rodrig ue z Ju st ic e Dor i Co nt rera s Gar za

iiiTABLE OF CONTENT S Pag e

IDENTITY OF PARTIES AND COUNSEL......

....... ....... ....... ....... ....... ....... ....... ....... ii T A BL E OF CONTENTS....

....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ...iii IND EX OF AUTHORITIES.......

....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ..iv STATEMENT REGARDING ORAL ARGUMENT......

....... ....... ....... ....... ....... ....... .1 STATEMENT OF THE CASE.........

....... ....... ....... ....... ..... . . . . . . . . . . ....... ....... ....... ....... ....2 STATEMENT OF PROCEDURAL HISTORY.........

....... ....... ....... ....... ....... ....... ......4 QUESTIONS PRESENTED FOR REVIEW

....... ....... ....... ....... ....... ....... ....... ....... ......6 ARGUMENT......

....... ....... ....... ....... ....... ....... ....... ....... . . . . . . . . . ....... ....... ....... ....... ....... ....7 I. The Co urt o f A p p e a l s Erred in Hol di ng th at it was Harm le ss Erro r no t to Defi ne “ Pro v o c at io n” in th e Ju ry Ch arg e Whe re th e Ent ire Cas e Rev ol ve d Aro un d th e Que st io n of Whe th er Mr. Ken ne dy Pro vo ke d Offi cer Kun z in to Sh oo ti ng Him

so th athe Co ul d Clai m Sel f-Defe ns e fo r Fi rin g Back at Offi ce Kunz.

. . . . . . . . . . . . . . . . ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ....... ......7 A. Factua l Bac kg ro un d.............

....... ....... ....... ....... ....... ....... ....... ....... .....8 B. Arg um en t.......
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ....... ....... ....... ....... ....... ......11 1. Pro vo cat io n In st ru ct io n............. ....... ....... ....... .... . . . . . . . . . . . . . . . . . . ..11 2. Whe th er Mr. Ken ne dy Pro vo k ed th e Att ack was Wha t th is Ca se was All ab ou t............
....... ....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 II. Thi s Co urt Sh ou ld Res ol ve th e Co nf li ct Am on g th e App e a l C o urts as to Wh ethe r Hos pi ta l Rec or ds th at W ere Pro vi de d an d Obt ai ne d in Vio la ti on o f Law, to W it : th e Heal th In su ran ce Po rtabi li ty an d Acco un tabi li ty Act of 19 96
iv(“ HIPPA”) , Sh ou ld be Supp res se d.............

....... ....... ....... ....... ....... ....... ....... ...16

PR AY E R.

. . . . . . . . . . . . . . . . . . . . . . . ....... ....... ....... ....... ....... ....... ....... ..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 CERTIFI CATE OF SERVICE............

..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ....... ....... ....... ....... 21 CERTIFI CATE O F CO MP L IA N CE

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ....... ....... ....... ....... ....... ..22

vINDEX O F AUTHORI TI ES Pag e Cas es Alma nz a v. St at e, 686 S. W

. 2d 157 (T ex . Cri m . App

. 19 85 ).........

....... ....... ....... ....... ...14 Ch er ry v. Sta te , 20 14 W L 26 58 44 (Tex

. App

. Hou st on [1 ] 20 14 ).........

....... ....... ...... 13 s t H udso n v. Sta te, 17 9 S.W .3d 73 1 (Tex

. App

. - Hou st on [1 4 ] 20 09 ).........

....... ..... . . . . . 13 th H unter v. F ort W ort h Ca pi ta l Co rp ., 62 0 S.W .2d 54 7 (Tex

. 19 81 ).........

....... ... . . . . . . . . . . 19 Ken ne dy v. St at e, 33 8 S.W .3d 84 (Tex

. App

. - Aus ti n 20 11 ).........

....... ....... ....... ....... ...4 Ken ne dy v. St at e, 20 15 W L 36 37 91 7 (Tex

. App

. - Co rp us Ch ris ti Ju ne 11 , 20 15 ).......5 Ken ne mur v. St at e, 28 0 S.W .3d 30 5 (Tex

. App

. - Am ari ll o 20 08 ).....

. . . . . . . . . . . . . ....... .....17 M idd le ton v. Sta te

, 125 S. W

. 3d 450 (Tex

. Cri m . App

. 20 03 ).........

....... ....... ....... ....... . 13 Mur ra y v. St at e, 24 5 S.W .3d 37 (Tex

. A pp. - Aust in 20 07 ).........

....... ....... ....... ....... ...17 Smi th v. St at e, 95 6 S.W .2d 50 9 (Tex

. Cri m . App

. 19 98 ).........

....... ....... ....... ....... .12 , 13 St at e v. Hus e, 20 14 W L 93 12 65 (Tex

. App

. - Am arillo 20 14 ).........

....... ....... ....... ......17 St at e v. Jew el l, 20 13 W L 387800 (T ex . A pp. - W ac o 2013 ).

. . . . . . ....... ....... ....... ....... .....17 Uni te d St at es v. Za mor a, 40 8 F. Supp .2d 29 5 (S.D. Tex

. 20 06 )...

. . . . . . . . . . . . . . . . . . . . . . . . . . .....18 Othe r Autho ri tie s 45 CF R § 164. 512( F) (1 ).

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Heal th In su ran ce Po rtabi li ty an d Acco un tabi li ty Act of 19 96 (“ HIPPA”)

..... in pa ss im Tex

. R. Cri m . P. Art. 38 .23

....... ....... ....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ....... ....... ....... ....... ...17 , 19
viSTATE MENT REG ARDING ORAL ARGUMENT

Mr. Ken ne dy subm it s th at or al arg um en t wou ld be he lp fu l in al lo win g th e Co urt t o p ro pe rly app ly the law t o t he fact s o f th e cas e.

1STATE MENT OF TH E CASE

Thi s cas e in vo lv ed a sh oo ti ng in ci de nt be twee n Mi ch ael Ken ne dy an d Offi cer Ri ch ard Kun z th at oc cu rred aft er Offi cer K u n z st op pe d Mr. Ken ne dy fo r sp eed in g. (RR III: 37 -3 9)

. Offi cer Ku n z t e s t i fie d th at , whe n he ap pr oa ch ed Mr. Ken ne dy’ s
ve hi cl e, Mr. Ken ne dy po in te d a ba rrel of a gu n at hi m . (RR III: 49 -5 0) Acco rd in g to Offi cer Kunz , he t he n re tre at edto hi s v eh ic le an d M r. Ken ne dy fi red on hi m with a ha nd gu n as he was retreat in g. (RR III5 0- 51 ) Offi cer Kun z te st ifi ed th at it was on ly af te r be in g fir ed up on th at he returne d fir e on Mr. Ken ne dy a n d he fir ed ap pr ox im at el y

si xt een sh ot s atMr. Ken ne dy. (RR I II: 54 , 69 ) At tri al , th e de fen se pr es en te d ex pe rt te st im on y fro m th ree ex pe rt wit ne ss es . The fir st an d se co nd ex pe rt te st ifi ed in th e fie ld s of aco us ti cs , au di o, an d vi de o rev ie w
an d b ot h c on cl ud edth at , in fact , a vi de o o f th e in ci de ntrev eal edth atitwas Off ic er Kun z who fir edth e fi rs t s ho t. (RR IV:2 15 , 22 2- 26 ; RRV:3 6, 5 1) The th ird ex pe rt, Den n i s M c Kn i gh t, te st ifi ed as an ex pe rt in th e fie ld of la w
en fo rcem en t. He te st ifi ed th at , ev en as su m in g th at Mr. Ken ne dy ha d di sp la y ed a gu n whi le Offi cer Kun z was at Mr. Ken ne dy’ s dr iv er’s do or as Offi cer Kun z cl ai m ed ,
on ce Offi cer Ku n z r e t r eat ed th ere was no imm ed ia te th reat an d he sh ou ld no t ha ve fir ed hi s weap on at Mr. Kenne dy. (RR V:1 21 ) Mr. McKn ig ht al so te st ifi ed th at it is pe rm is si bl e fo r a citi zen to us e se lf- de fen se ag ai ns t a po li ce offi cer. (RRV: 14 3- 44 )
2He co nc lu de d th at , in hi s op in io n, Mr. Ken ne dy was act in g in se lf- de fen se in

returni ng Offic er Ku nz ’s fire . (RR V:1 57 )

3STATE MENT OF PROCEDURAL HI STO RY

On Ja nu ary 9, 20 06 , as pa rt of a pl ea ag reem en t, Mi ch ael Pat ric k Ken ne dy pl ead ed gu il ty to In fo rm at io n ch arg in g hi m wit h Agg rav at ed Ass au lt o f a Publ ic Serv an t in Tria l Co urt Cas e Num be r CR 20 06 -0 16

. (Supp . I CR(2 00 6- 01 6) :1 1- 18 ) 1 His co nv ic ti on was la te r rev ers ed on ap pe al

. Ken ne dy v. St at e , 33 8 S.W .3d 84 (Tex

. App .–Au st in 20 11 ). Upo n r e man d, th e pa rti es co nt in ue d to fil e pl ead in gs an d no ti ces in Cas e Num be r CR 20 06 -0 16

. Nev ert he le ss , on May 9, 20 12 , Mr. Kenne dy was ch arg ed by In di ct m en t in Tria l Co urt Cas e Num be r CR 20 12 -2 40 wit h Att em pt ed Cap it al Mu rd er
an d Agg rav at ed Ass au lt of a Publ ic Serv an t. (CR 6- 7) All pl ead in gs in CR 20 06 -0 16 were ad op te d i nt o C R 2 01 2- 24 0. (Supp I CR(2 01 2- 24 0) :8 ) (PT 8 /2 7/ 12 :2 3) A tri al was he ld in C R 2 0 1 2- 24 0 on Ju ne 10 , 20 13 -J un e 17 , 20 13

. The jury fo un d Mr. Ken ne dy gu il ty of Att em pt ed Cap it al Mu rd er. (CR 43 ) The jury im po se d

a se nt en ce of si xt y -fi ve y ears im pr is on m en t an d no fin e. (CR 49 ) The co urt im po se d

a se nt en ce i n a cco rd an ce wi th th e jury verd ic t. (CR 65 -6 7) On di rect ap pe al , th e Th i rte en th Co urt of App eal s up he ld th e jud gm en t an d

Refer ence s to the Clerk’s Recor d (“CR”) r efe r to the volume number:pa g e number

. 1 Refer ence s to the Supplemental Clerk’s Recor d (“CR”) r efe r to the volume number ( trial court case number):pa g e number . Refer ence s to the Reporter’ s Record ( “RR”) of the trial ref er to the volume number:pag e number . Refer ence s to the Reporters Rec ord for pretria l hear ings ( “PT”) ref er to the date:pag e number

. 4se nt en ce in th e cas e. Se e Ken ne dy v. St at e , 20 15 W L 36 37 91 7 ( Te x. App .-Co rp us

Ch ris ti Ju ne 11 , 20 15 ) (Att ach edhe ret o i n Ap pe nd ix ).

5QUEST IO NS PRESENTE D FOR REVIEW

I. Did th e Co urt of App eal s err in ho ld in g t h a t i t was ha rm le ss erro r no t to de fin e “pr ov oc at io n” i n th e jury ch arg e whe re th e en ti re cas e rev ol ve d aro un d th e qu es ti on of whe th er th e de fen da nt pr ov ok ed a po li ce of fic er in to sh oo ti ng hi m so th at he co ul d c la im

sel f-d efen se forfir in g b ackat t he po li ce o ffi cer? II. Sh o u l d th is Co urt res ol ve th e co nf li ct am on g th e ap pe al co urts as to whe th er ho sp it al reco rd s th at were pr ov id ed an d ob ta in ed in vi ol at io n of law, to wit : th e Heal th In su ran ce Po rtabi li ty an d Acco un tabi li ty Act of 19 96 (“ HIPAA”), sh ou ld be supp res se d?

6ARGUMENT

I . THE COURT OF APPEALS ERRED IN HOL DING THAT IT WA S H A RMLESS ERROR NOT TO DEFINE “PROVO CATIO N” IN THE JURY CHARGE WH ERE THE ENTI RE CASE REVOLVE D ARO U N D THE QUEST IO N OF WH ETH ER MR. KENNEDY PROVOKE D OFFICE R KUNZ IN TO SH OO TI NG HI M SO THAT HE COU LD C LA IM SE LF -D EF EN SE F OR FIRI NG BACK AT O FFICER KUNZ Thi s en ti re cas e fo cu se d on on e qu es ti on , di d Mr. Ken ne dy act in se lf- de fen se whe n he fir ed up on Offi cer Kun z or di d he do so m ethi ng to pr ov ok e Offi cer Kun z to fir e on hi m so th at he co ul d cl ai m se lf- de fen se fo r fir in g bac k at Offi cer Kun z? Mr. Ken ne dy arg ue d th at Offi cer Kun z fir ed on hi m fir st an d th at , whe n he returne d fir e, he was m erel y de fen di ng hi m se lf. (R R VI: 61 -6 5) The St at e rep eat ed ly arg ue d th at Mr. Ken ne dy p oi nt ed a gu n at Offi cer Kun z fi rs t an d t hu s i t was irr el ev an t wh ethe r Offi cer Kunz fir edfir stbe cau se Mr. Ken ne dy “pr ov ok ed ” th e at ta ck

. [ T]hi s m an pr ov ok ed th e si tu at io n, th at is he is th e on e who st art ed i t whe n h e p oi nt edth atgu n a t Offi cer Ku nz . * * * * [W] ho sh ot fir st in th is cas e is ab ou t as im po rta nt as wha t type of car th e de fen da nt was dr iv in g th at ni gh t. Oka y ? It is no t imp or ta nt be ca us e th e momen t th at th e de

fe nd an t pi cked up afi re arm an d po in te d it at a po li ce of fi cer , he f or fe it ed th e ri gh t t o c la im s el

f-def en se . * * * * Whe n y ou go ba ck t h e re, I as k th at y ou fin d th e de fen da nt gu il ty of at te m pt ed cap it al m

ur de r b e c a u s e wh en yo u pu ll a gu n on a po li ce

7of

fi cer , yo u do no t ge t t o c l a i m se lf -d ef en se . Y ou ha ve pr ov ok

ed th e even t
. (RR VI 5 5, 7 9, 9 5 e m

ph as is ad de d) A. Factua l Ba ckgr ou nd Offi cer Kun z st op pe d Mr. Ken ne dy fo r sp eed in g. (RRI II: 37 -3 9)

. Acco rd in g to Offi cer Kun z an d as co n f i rmed b y a vi de o of th e tra ffi c st op (St at e’s Exh ib it 1) , Offi cer K u n z ap pr oa ch ed Mr. Ken ne dy’ s car, in fo rm ed Mr. Ken ne dy why he ha d st op pe d hi m , an d as ke d Mr. Ken ne dy fo r hi s li cen se an d pr oo f of in su ran ce. (RR III: 4 7

- 4 9 ) Offi cer Kun z te st ifi ed th at , al th ou gh it ap pe ared th at Mr. Ken ne dy was
reac hi ng fo r hi s dr iv er’s li cen se an d in su ran ce, Mr. Ken ne dy in st ead po in te d a ba rrel of a gu n a t h im . (RR III :4 9- 50 ) Offi cer Kun z retreat ed to hi s v e h ic le an d, acco rd in g to Offi cer Kun z, Mr. Ken ne dy f

i r e d on hi m wit h a ha nd gu n as he was ret reat in g. (RR III5 0- 51 ) Offi cer Kun z th en rad io ed h is di sp at ch er th at th ere was a m an wit h a gu n an d or de red Mr. Ken ne dy to dr op hi s weap on . Offi c e r K u n z t es ti fie d th at Mr. Ken ne dy co nt in ue d 2 fir in g at hi m with th e ha nd gu n an d th en a rif le an d th at Mr. Ken ne dy fir ed nu m ero us sh ot s. (RRIII: 51 -5 3) 3 Curiously , althoug h Offic er K unz claimed Mr. Kenne dy fired upon him beforehe 2 radioe d his dispatcher, he never told the dispatcher that he was f ired upon. It was later

deter mined that Mr. Kenne dy

shot approxim ately

ten times with a nine 3 milli meter ha

ndgun and appr ox imately thirty times with an AK-47 rifle and that there w ere forty

8Acco rd in g to Offi cer Kun z, it was on ly aft er be in g fir ed up on th at he returne d

fir e on Mr. Ken ne dy an d he fir ed ap pr ox im at el y si xt een sh ot s at Mr. Ken ne dy. (RR III: 54 , 69 ) Offi cer Kun z was ad am an t th at he di d no t fir e on Mr. Ken ne dy un ti l Mr. Ken ne dy fir ed up on hi m . (RR III: 68 ) Upo n th e arri va l of as si st an ce, a wou nd ed Mr. Ken ne dy was pu ll ed fro m hi s ve hi cl e. (RR III: 56 ) Alt ho ug h Mr. Ken ne dy ha d acce ss to se ve ral weap on s at th e ti m e he was pu ll ed fro m hi s ve hi cl e by ot he r of fic ers , he di d

no t fir e on an y of th em . (RR IV:1 21 , 18 0) It was de te rm in ed th at Mr. Ken ne dy ha d be ensh otsev eral ti m es , all in th e b ack , by Offi cer Ku nz . (RRIV: 14 3- 44 ) Tha t s am e ni gh t, sho rtl y fo ll owi ng th e in ci de nt , Offi cer Ku nz co ns ul te d wi th

an at to rn ey . (RR III7 1) Offi cer Kun z ag reedto gi ve a writ te n st at em en t to of fic ers wit h th e Tex as Ran ge rs pr ov id ed th at hi s la wy er co ul d fir st rev ie w it

. (RR III: 72 ) Dur i n g t h e in te rv ie w with th e Ran ge rs , th e Ran ge rs ro ll pl ay ed th e in ci de nt wit h Offi cer Kun z to “ he lp [h im ] rec al l th e ev en ts .” (RR III: 74 -7 5 ) I n th e st at em en t he ga ve th e Ran ge rs , Offi cer Kun z cl ai m ed th at , aft er Mr. Ken ne dy al le ge dl y po in te d th e gu n at hi m , he ran an d di d no t st op un ti l he r e a c h e d t h e rear of hi s pa tro l car. (RR II I :7 6) In hi s st at em en t an d co ns is te nt wit h hi s tri al te st im on y , Of fic er Kun z al so 4

five bullet holes in Off

icer Kunz’s patrol ca

r. (RRI I I :233, 263) In fac t, the video of the inc ident showed Of fice r Kunz initi ally

firingat Mr. Ke nnedy 4 from an a rea betwee n the bac k of Mr. Ke nnedy ’s ca r and the front

of Off icer Kunz’s patrol ca

r. (State’s Exhibit1) 9cl ai m ed Mr. Ken ne dy fi red up on hi m be fo re he rad io ed hi s di sp at ch er ev en th ou gh he on ly t ol d hi s di sp at ch er th at th ere was a “ m an wit h a gu n.” (RR III: 7 7 ) O f f i cer Kun z al so cl ai m ed in th is st at em en t th at he di d no t ev en dr aw hi s gu n un ti l af te r Mr. Ken ne dy ha d fir ed up on hi m an d un ti l af te r he cal le d hi s di sp at ch er ev en th ou g h th es e cl ai m s wou ld la te r be sh own by th e vi de o of th e in ci de nt to be fal se . (RRI II: 77 ) The de fen se cas e pr im ari ly co ns is te d of th e te st im on y f r o m th ree ex pe rt wit ne ss es . The fir st ex pe rt was Dr. Al Yon ov it z who was qu al ifi ed as an expe rt in th e
area of aco us ti cs . (RR IV:2 03 ) Dr. Yon ov it z co nduc te d an au di o an al y si s of St at e’s Exh ib it 1- th e vi de o of th e ro ad si de st op an d sh oo ti ng . Bas ed up on a sp ect ro gr am
an al y si s of th e vi de o pe rfo rm ed by Dr. Yon ov it z, he te st ifi ed “ th at it is un equi vo cal ly cl ear th at Offi cer Kun z fir ed th e fir st sh ot ” an d th at Mr. Ken ne dy o n l y f ire d aft er be in g fir ed up on . (RR IV:2 15 , 22 2- 26 ) In ad di ti on , Dr. Yon ov it z was ab le to id en ti fy a po rti on of t he vi de o in whi ch a pe rs on ex cl ai m ed “ I go t hi t,” pr io r to Mr. Ken ne dy firi ng at Off

ic er Ku nz . (RR IV: 23 5- 36 ) The ne xt ex pe rt was Barry Dick ey . Mr. Dick ey was an ex pe rt in fo ren si c au di o
an d vi de o rev ie w. (RR V:3 0) Mr. Dick e y pr ep ared va rio us sl ow m ot io n se gm en ts

an d ex tra ct s of St at e’s Exh ib it 1. (RR V36 -3 7) Bas ed up on hi s revi ew of th e vi de o in th e cas e, Mr. Dick ey co nc lu de d th at “ [a]ll res ul t s su gg es t th e of fic er fir ed fir st .” (RR V: 36 , 51 )
10Den ni s McKn ig ht was of fere d as an ex pe rt in th e fie ld of la w en fo rcem en t an d te st ifi ed to an ex te ns iv e ba ck gr ou nd in th at fie ld

. (RR V10 5- 12 ) Mr. McKn ig ht te st ifi ed th at , al th ou gh a po li ce of fic er m ay us e reas on ab le fo rce to pr ot ect th em se lv es fro m se rio us in

jury or de ath, th e fu rth er th e of fic er is away fro m t h e t h r e a t th e le ss fo rce is jus ti fie d. (RR V:1 1 8

- 1 9 ) H e al so test if ie d th at , even as su min g th at Mr. Ken ne dy ha d disp la

yed a gu n wh il e Off

ic er Ku nz wa s at Mr. Ken ne dy ’s dr iv er ’s do or

as Off ic er Ku nz clai med

, on ce Off ic er Ku nz re tr ea te d th er e wa s no immed ia te th re at

a nd he sh ou ld no t ha ve fi re d his wea po n at Mr. Ken ne dy

. (RR V : 1 2 1 ) M r . McKn ig ht op in ed th at th e fir st sh ot by Offi cer Kun z tra ve le d th ro ug h Mr. Ken ne dy’ s ba ck win do w an d hi t hi m in th e ba ck an d, at th e ti m e Offi cer Kun z fir ed th at sh ot , th ere was no imm ed ia te ne ed to us e de ad ly fo rce ag ai ns t Mr. Ken ne dy. (RR V:1 37 ) Mr. McKn ig ht al so te st ifi ed th at it is p e rmi s s i b l e fo r a ci ti zen to us e se lf- de fen se ag ai ns t a po li ce of

fic er. (RR V:1 43 -4 4 ) H e co nc lu de d th at , in hi s op in io n, Mr. Ken ne dy was act in g i n s el f-d efen se in returni ng Offic er Ku nz ’s fire . (RR V:1 57 ) B. Argu m ent 1. Pro vo ca tio n In st ruct io n Inco nn ect io n wi thMr. Ken ne dy’ s re qu es t t ha t t he jury be in stru ct edon sel fde fen se , th e St at e reque st ed th at th e jury be g i v e n a “pr ov oc at io n” in st ru ct io n be cau se , in it s vi ew, Mr. Ken ne dy pr ov ok e d O f f i c er Kun z in to sh oo ti ng hi m
11reg ard le ss of wh o s ho t fi rs t. (RR VI:7 ) Mr. Ken ne dy th en reque st ed th at th e tri al co urt de fin e th e co nc ep t of pr ov oc at io n i n t he jury ch arg e an d reque st ed th at th e jury b e ch arg ed : Pro vo cat io n is de fin ed as , on e, th at th e de fen da nt di d so m e act or us ed so m e wor ds whi ch pr ov ok ed th e act on hi m ...Two, th at su ch act s or wor ds were reas on ab ly cal cu la te d to pr ov ok e th e at ta ck , an d, th ree, th at th e act was do ne or wor ds were us ed fo r pu rp os e an d wit h th e in te nt th at th e d efen dantwou ldha ve a pr et ex t fo r in fli ct in g h arm up on ot he rs . (RR VI: 20 -2 1) Mr. Ken ne dy ex pl ai ne d t ha t, wi th ou t t he de fin it io n, t he jury m ig ht 5 be li ev e th athe act ed reck le ss ly in al le ge dl y po in ti ng a gu n a t Offi cer Ku nz witho ut ha vi ng in te nd ed to cau se a pr et ex t fo r in fli ct in g ha rm on Offi cer Kun z or ot he rs an d st il l be requi red t o f

i n d hi m gu il ty un de r th e co urt’s in st ru ct io ns . (RR VI:1 2) The Co urt res po nd ed th at th e St at e co ul d arg ue th at Mr

. K e n n e d y a ll eg ed ly p oi nt ed th e gu n at Offi cer Kun z to crea te a “ su ic id e by co p” si tu at io n an d de ni ed Mr. Ken ne dy’ s reque st edin st ru ct io n. (R R VI: 12 , 21 ) Wi t h o u t a ctua ll y de ci di ng th e is su e, th e Co urt of App eal s ap pe ars to ha v e ag reed wit h Mr. Ken ne dy th at “pr ov oc at io n” sh ou ld ha v e b e e n d e f in ed in th e jury ch arg e. Se e Opi ni on at 13 -1 6. In th is reg ard th e Co urt of App eal s was co rrec t as th is Co urt ha s he ld th at te rm s whi c h h a v e a te ch ni cal le ga l m ean in g m ay ne ed to be de fin ed in th e jury ch arg e. Mid dl et on v. Stat e, 12 5 S.W .3d 45 0, 45 4 (Tex

. Cri m . App

.

Mr. Kenne dy

explained that he took the def inition of provocation direc tly from the Court 5 of Criminal Appea ls’ decision in Smith v. State , 965 S.W .2d 509 (Tex. Crim. App. 1998) (RR VI :19) 1220 03 ) “ Thi s is pa rt i c u l a r l y tru e whe n th ere is a ris k th at th e juro rs m ay arb it rari ly

ap pl y th ei r own pe rs on al de fin it io ns of t he term or where a de fin it io n o f th e te rm is requi red to as su re a fai r un de rs t an di ng of th e ev id en ce.” Id

. (ci ta ti on s om it te d)

. Lik ewis e , “ a tri al co urt's ch arg e sh ou ld co nt ai n a de fin it io n of an y le ga l ph ras e th at th e jury ne ces sa ril y wil l us e in pr op erl y res ol vi ng th a t i s s ue . Hud so n v. St at e , 17 9 S.W .3d73 1, 7 39 (Tex . App .–Ho us t [1 4 ] 20 09 ). th The di ct io na ry de fin it io n of th e wor d “pr ov ok e” is , in te r. al ia ., “ to pr ov id e th e
ne ed ed st im

ul us fo r.” Nev ert he le ss , “ [t]he ph ras e ‘pro vo ki ng th e di ffi cu l t y’ is a

6 le ga l te rm of ar t ,...” Smi th , 96 5 S.W .2d at 51 2 (em ph as is ad de d)

. The ru le of la w is th at if th e de fen da nt pr ov ok ed an ot he r to m ak e an at ta ck on hi m , so th at th e de fen da nt

wou ld ha ve a pr et ex t f

o r k i l l i ng th e ot he r un de r th e gu is e of se lf- de fen se , th e de fen da nt fo rfei ts hi s rig ht of se lf- de fen se .” Id

. In de ed , “ [e]ven if a de fen da nt act s
wro ng ly an d pr ov ok es an at ta ck by an ot he r, he wil l no t lo se hi s rig ht to se lf- de fen se if he di d ‘no[ t] in te n[ d] th at th e act wou ld ha ve su ch a n e f f e c t as a pa rt of a la rg er pl an ’ of ha rm in g th e vi ct im .” Ch erry v. St at e , 20 14 W L 26 58 44 *5 (Tex

. App

. Hou s. [1 ] 20 14 ) [u np ub li sh ed ], ci ti ng , Smi th , 96 5 S .W .2dat 5 18

. s t Giv en th is le ga l te rm of art , “ pr ov oc at io n” sh ou ld ha ve be en de fin ed fo r th e jury in th is cas e. Whe reas , a no n- le ga l , d i c t i on ary ap pl ic at io n of th e te rm

www.mer riam-we bster.com/dictionar y /provoke 6 13“pr ov oc at io n” co ul d le ad a juro r to si m pl y as k i n g w h e t he r Mr. Ken ne dy “pr ov id ed th e st im ul us fo r” Offi cer Kun z to fir e up on hi m fir st , th e “ le ga l te rm of art ” requi red

m uc h m or e. It requi red a jury to co nc lu de , beyon d areas on ab le do ub t, tha t, even if Mr. Ken ne dy di d po in t a gu n at Offi cer Kun z whe n Offi cer Kun z was be si de s hi s car win do w , Mr. Ken ne dy di d so wit h th e in te nt to ha ve a pr et ex t fo r ha rm in g Offi cer Kun z. 2. Whe ther Mr. Ken nedy Pro vo ked the Atta ck Wa s

Wha t Thi s Ca se Wa s Al l Abo ut. The Co urt of App eal s ackno wled ge d th at , un de r Alma nz a v. St at e , 68 6 S.W .2d 15 7, 17 1 (Tex

. Cri m . App

. 19 85 ), Mr. Ken ne dy m us t sh ow “ no m or e th an th at th ere [was ] so me ha rm ” to hi m fro m a jury ch arg e erro r. It al so no te d th at , be cau se of th e fau lt y ch arg e in th is cas e, “ th e jury’ s ab il it y to co nc lu de th at Ken ne dy’ s act io ns were jus ti fie d as se lf

- d e f e ns e was res tri ct ed .” Nev ert he le ss , th e Co urt of App eal s
co nc lu de d th at th ere was “ ov erwh el m in g” ev id en ce th at Mr. Ken ne dy “pr ov ok ed th e
en co un te r . ” Se e O p i ni on at 17

. At th e sa m e ti m e, th e Co urt of App eal s ap pe ars to

su gg es t th at th e ev id en ce wou ld no t be so “ ov erwh el m in g” if t h ere was ev id en ce

“ sp eci fic al ly supp orti ng a su ic id e-b y -co p th eo ry .” Id

. W it h du e res pe ct to th e Co urt of App eal s i t i s d iff

ic ul t t o fo ll ow t ha t l og ic gi ve n t he fact s o f th e cas e. Wha t was th e “ ov erwh el m in g” ev id en c e t h a t Mr. Ken ne dy to ok act io ns to

14p r o v o k e O f

fic er Kun z to fir e on hi m so th at he co uld clai m se lf -d ef en se fo r fi ri n g ba ck at Off

ic er Ku nz ? It was es tabl is he d fro m two un im pe ach ed ex pe rt witne ss es th at Offi cer Kun z fir ed th e fir st sh ot
. Ass umi n g t ha t to be th e cas e, th en th e on ly

“ ov erwh el m in g ev id en ce” th e Co urt of App eal s co ul d be po in ti n g t o wou ld be

ev id en ce th at Mr. Ken ne dy al le ge dl y po in te d a gu n at Offi cer Kun z in it ia ll y . Pu tt in g
as id e fo r th e m om en t th at th e on ly ev id en ce of th e gu n po in ti ng was Offi cer Kun z’s te s t i mo n y, th e Co urt of App eal s’ lo gi c is ex act ly th e pr ob le m wit h th e fau lt y jury in st ru ct io n. The jury co ul d ve ry well ha ve acce pt ed th e St at e’s rep eat ed arg um en ts th at , si m pl y be cau se th e ev id en ce al le ge dl y es tabl is he d th at Mr. Ken ne dy po in te d a gu n at Offi cer Kun z, Mr. Ken ne dy pr ov id ed th e “ st im ul us ” fo r Offi cer Kun z fir in g up on hi m . Nev ert he le ss , th is do es no t an swe r th e qu es ti on of whe th er Mr. Ken ne dy pu ll ed th e gu n in or de r to ha ve a “pr et ex t” of fir in g up on Offi cer Kun z whe n Offi cer Kun z fir edup on hi m . Ind eed , inli gh t o f th e St at e’s rep eat edarg um en t t ha t: (a) Mr. Ken ne dy “ is th e on e who pr ov ok ed th e si tu at io n, th at is he is th e on e who st ar te d

itwhen he po in te d t ha t g un at Off ic er Ku nz ,” an d; (b ) “ It is no t im

po rta nt [wh o sh ot fi r s t] be cau se th e m om en t th at th e de fen da nt pi ck ed up a fir earm an d po in te d it at a po li ce of fic er, he fo rfei te d t he rig htto cla im sel f-d efen se .” 7

(RR VI55, 79 emphasis adde d) 7 15jux tapo se d ag ai ns t Mr. Ken ne dy’ s arg um en t th at he on ly sh ot aft er be in g fir ed up on

by Offi cer Kun z, it is im po ss ib le to se e ho w th e tri al co urt’s f a i l u r e t o d efi ne

“pr ov oc at io n” di d n otcau se Mr. Ken ne dy “ so m e h arm .” Eve n m or e cu rio us is th at th e Co urt of App eal s ap pe ared to su gg es t th at Mr. Ken ne dy wo uld ha ve su ffer ed so m e ha rm if a reas on ab le juro r co ul d ha ve be li ev ed th is was a “ su ic id e by co p.” Nev ert he le ss , th e Co urt of App eal s co nc lu de d th at th ere
was no “ sp eci fic ” ev id en ce of th is

. Fi rs t, a rea s o n ab le juro r co ul d ha ve co nc lu de d th at it was “ su ic id e by co p” si m pl y by co nc lu di ng th at Mr. Ken ne dy di d po in t th e gu n atOffic er Ku nz fir stbu t t ha t Offi cer Kun z th en sh ot at Mr. Ken ne dy firs t. Sec on d, th e tri al jud ge (wh o is pr es um ab ly reas on ab le ) st at ed th at he hi m se lf be li ev ed th is was li ke ly a cas e of su ic id e by co p. (“ I th in k th ere is -- th at co ul d be a well -arg ue d th eo ry of th is cas e. (RR VI: 13 )) II . THI S COURT SHO ULD RESOL VE THE CONFLI CT A M O N G THE APPEAL COURTS AS TO WH ETH ER HOS PITAL RECORDS THAT WERE PROVIDED AND OBT A I NED IN VIO LATI ON OF LAW, TO WI T: THE HEAL TH INSURANCE PORTABI LI TY AND ACCOUNTABI LI TY ACT OF 19 96 (“H IPAA” ), SHO ULD BE SUPPRESSE D Ove r ob jecti on by th e de f

e n s e , t he St at e in tro du ced Mr. Ken ne dy’ s m ed ic al

reco rd s as St at e’s Exh ib it 77 whi ch it se cu red th ro ug h a tri al subp oe na . The de fen se ob jecte d th at th es e reco rd s were pr ov id ed an d ob ta in ed in vi ol at io n of HIPAA. (RR

16IV:1 35 ). The reco rd s were ob ta in ed by the Dis tri ct Att orne y ’s i n ve st ig at or fax in g 8

a subp oe na to San Ant on io Mi li ta ry Med ic al C e n t er (a.k .a. Bro ok e Arm y Med ic al Cen te r (“ BAMC ”)) on Apr il 18 , 20 13 an d reque st in g th at it fax hi m Mr. Ken ne dy’ s
m ed ic al reco rd s al on g wi tha cu st od ia n a ffi da vi t. (Supp . I CR(2 01 2- 24 0) :1 9- 23 ) The courts of ap pe al s are sp li t on whe th er m ed ic al reco rd s ob ta in ed in vi ol at io n of HIPAA are supp res si bl e. Co mpa re St at e v. Jew el l , 20 13 W L 38 78 00 (Tex

. App .–Waco 20 13 ) (uph ol di ng supp res si on ) wit h St at e v. Hus e , 20 14 W L 9 3 12 65 (Tex

. App –Am ari ll o 20 14 ) (HIPAA vi ol at io n do es no t supp ort s up p r e s si on ); Ken ne mur v. St at e , 2 80 S.W .3d 30 5 (Te x . App –Am ari ll o 20 08 ) (s am e); Mur ra y v. St at e , 24 5 S .W .3d37 , 41 -4 2 (Te x. Ap p.-Au st in20 07 ) (s am e). HIPAA pr ov id es th at a co ve red en ti ty m ay di sc lo se pr ot ect ed he al th in fo rm at io n: (i) As requi red by la w in cl ud in g laws th at r e q u i r e th e rep orti ng of cert ai n typ e s o f wou nd s or othe r ph y si cal in juri es , ex cep t fo r la ws
When questioned whethe r this was an e videntiary objection, def

ense c ounsel explained: 8 It is an evidentiary

objection in the sense, Y our Honor, no e vidence can be admitted that is obtained in violation of – and then wa s cut off by

the trial cour

t. (RR I V:135). I

n context, however, it is clea r that counsel wa s arg

uing that evidence produce d or obtained in violation of law is inadmissible as an evide ntiary matter unde r Tex. R. Crim . P. Art. 38.23. L ikewise, the trial court unde rstood that Mr. Kenne dy was a rguing that rec ords obtained in violation of HI PAA wer e inadmissible at trial.
17subjec t t o p arag rap h (b )(1 )(i i) o r (c)( 1) (i) of t hi s s ect io n; or

(ii ) Inco m

pl ia nc e wit h a ndas l im it edby the rel ev an t re qu ire m en ts of: (A) A co urt ord er or co urt-o rd ered warra nt , or a subp oe na orsu m m on s i ss ue d b y

a jud ic ia l o ffi cer; (B) A g ran d jury

subp oe na ; o r (C) An adm in is tra ti ve reque st , in cl ud in g an adm in is tra ti ve s ub po en a or su m

m on s, a ci vi l or an au th o r i z e d in ve st ig at iv e de m an d, or si m il ar pr oc es s au th or iz ed un de r la w, pro vi de d t ha t: (1 ) The in fo rm at io n so ug ht is rel ev a n t an d m at eri al to a le gi ti m at e la w en fo rcem en t in qu iry; (2 ) The reque st is sp eci fic an d li m it e d in sc op e to th e ex te nt reas on ab ly pr act ic ab le in li gh t of th e pu rp os e fo r whi ch th e in fo rm at io n is so ug ht ; an d (3 ) De-i de nt ifi ed in fo rm at io n co ul d no t reas on ab ly be u se d. 45 CFR § 16 4.5 12 (F)( 1)

. The Co urt of App eal s ap pe ared to ag ree t h a t S e c t i on (ii )(a) do es no t ap pl y be cau se t he tri al subp oe na in th is cas e was no t is su ed by a “ jud ic ia l of

fer” bu t a in st ead was is su ed by a co urt cl erk

. Se e U n i t ed St at es v. Za mor a, 40 8 F.Supp .2d 29 5, 29 8 (S.D. Tex

. 20 06 ). Lik ewis e, Sect io n (ii )(b ) do es no t ap pl y be cau se th e
r e c o r d s were no t ob ta in ed by a gr an d jury subp oe na . Nev ert he le ss , th e Co urt of
18App eal s to ok th e po si ti on th at Sect io n (i) or (ii )(c) ap pl y to al lo w th e rel eas e of Mr.

Ken ne dy’ s p ret ria l m ed ic al reco rd s. Se e Opi ni on at 7 -8

. The Co urt of App eal s’ in te rp ret at io n- th at Sect io n (i) al lo ws a subp oe na is su ed by a cl erk to pe rm it HIPAA di sc lo su res - wou ld ren de r Sect io n (ii )(A), whi ch requi res th at a HIPAA subp oe na actua ll y be is su ed by a “ jud i c i al of

fic er,” co m

pl et el y
m ean in gl es s. Mo reo ve r, it ap p e a r s Sect io n (ii )(c) is li m it ed to adm in is tra ti ve
subp oe na s an d, ag ai n, su ch a br oa d in t e rp r e t at io n of Sect io n (ii )(c) wou ld ren de r Sect io n (ii )(A) us el es s an d m ean in gl e s s . Si m pl y pu t, th e tri al subp oe na is su ed in 9 th is cas e co ul d no t supp ort th e rel eas e of Mr. Ken ne dy’ s pr iv a t e m ed ic al reco rd s
un de r HIPAA. In su m , th is Co urt sh ou ld de te rm in e whe th er ho sp it al reco rd s th at are ob ta in ed in vi ol a t io n of HIPAA are subjec t to supp res si on an d, at th e sa m e ti m e, res ol ve th e
co nf li ctam on g t he co urts of app eal s. 1 0

See, e .g., Hunter v. Fort W orth Capit al Corp ., 620 S.W .2d 547, 551 (Tex.1981) (A 9 car dinal rule of statutory

construction is that the leg islature is not presumed to have done a useless or mea

ningle ss act). Her e, the State maderepe ated use of Mr. Ke nnedy ’s medica l rec ords at both the guilt- 1 0 innocenc e phase and, espe cially , in the penalty phase of the trial. (RR V:233-34; VI :55, 155; VI I :26). This was espe cially the ca se whe n the State re peate dly pointed to the medical r ecor ds to claim that Mr. Ke nnedy

had a de sire to har

m others and, ther efor e, nee d to be incapa citated f or life. (RR VI I :18 (“We ask that you consider the fac t that even whe n he wa s in the hospital, he said he ha d the desire to harm others.” ); VI I :26) there fore , Mr. Kenne dy submits t hey

wer e inadmissible in evidence unde r Tex. R. Crim . P. 38.23. 19PRAYER

Fo r th e fo reg oi ng reas on s, th is Co urt sh ou ld grant the Pe tit ion for Dis cret io na ry Rev ie w an d rev ie w th e jud gm en t by th e Tex as Th i r t een th Co urt of App eal s in th is

cas e.

Res pe ct fu ll y subm it te d,

/s /F . Cli nt on Bro de n F. CLINTON BRODEN TX Bar No . 24 00 14 95 Bro de n, M ic ke ls en , Helm s & Sn ip es 26 00 Sta te Str eet Dall as , Texa s 7 52 04 (2 14 ) 72 0- 95 52 (2 14 ) 72 0- 95 94 (fac si m il e) Att orne y forDefen da nt -Ap pe ll an t Mi ch ael Patric k Ken ne dy

20CERTI FICATE OF SERVI CE

I, F. C l i n t on Bro de n, do he reb y cert ify th at , on th is 30 da y of Ju ne , 20 15 , I th

c a u s e d a co py of th e fo reg oi ng do cu m en t to be se rv ed by fir st cl as s m ai l, po st a g e pr ep ai d, on th e Ch ari Kell y , Co m al Co un ty Dis tri ct Att orne y ’s Offi ce, 15 0 N. Seg ui n Ave nu e, Su it e 3 07 , New Brau nf el s, Tex as 78 13 0

/s / F. Cl in to n B ro de n F. Cl in to n B ro de n

21CERTI FICATE OF COMPLI ANCE

Thi s br ie f co m

pl ie s wit h th e type-v o lu m e li m it at io n of Tex

. R. App

. P. 9.4 be cau se th is br ie f co nt ai ns 3,9 08 wor ds , ex cl ud in g th e pa rts of th e br ie f ex em pt ed by the rul e.

/s / F. Cl in to n B ro de n F. Cl in to n B ro de n Att orne y forApp el la nt

22

# APPENDIXNUMBER 13·13·00416·CR 

### COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

MICHAEL PATRICK KENNEDY,
v. THE STATE OF TEXAS,
On appeal from the 207th District Court of Comal County, Texas. 

### MEMORANDUM OPINION Appellant,

Appellee.

Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion by Justice Garza Appellant, Michael Patrick Kennedy, was convicted of attempted capital murder, a first-degree felony, and was sentenced to sixty-five years' imprisonment. See TEX. PENAL CODE ANN. §§ 15.01, 19

. 03(a)(1) (West, Westlaw through 2013 3d C.S.). On appeal, he contends: (1) the trial court erred by admitting hospital records; (2) his trial counsel provided ineffective assistance by failing to properly object to the admission of the hospitalrecords; (3) the trial court erred in instructing the jury that only the jury foreperson could prepare and submit notes to the court ; and (4) the trial court erred in failing to define

" provocation " in the jury charge

. We affirm. 1 I. BACKGROUND On the night of March 3, 2005 , police officer Richard Kunz was patrolling Interstate 35 in Schertz , Texas , when he observed Kennedy ' s vehicle speeding

. Kunz activated his emergency lights and pursued Kennedy. Kennedy eventually pulled over to the left shoulder in between the concrete median barrier and the left travel lane. Kunz exited his patrol unit and approached Kennedy. Kunz testified: [W]hen I asked him for his driver ' s license and proof of insurance , I remember seeing his body kind of tilt a little bit to the left and his hand-or a motion that gave me an indication that his hand was going back there to the right , and typical of somebody who would be reaching for the i r driver ' s license and insurance and the wallet in the right backhand pocket. While waiting for that documentation is when I saw coming directly from the blackness the barrel of t he gun pointed right at me . Kunz clarified that the gun was pointed at his " upper body ." He stated that he thought he
was going to die at that point. He " ran for [his] life " back to the patrol unit and called for backup. Kennedy opened his driver ' s side door and fired at the officer " numerous ti mes " with what Kunz thought was a handgun. Kunz took cover behind his patrol unit. There
was then a pause in the shooting , during which Kunz saw what appeared to be the barrel of a rifle " coming out of' Kennedy ' s driver ' s side door

. He then heard gunshots and glass shattering around him as he crouched behind the patrol unit. He stated that the shots
were " definitely [from a] machine gun because they were very rapid and they sounded a

1 Th i s appeal was transferred from the Third Court of Appeals pursuant to an order issued by the Texas Supreme Court

. See TE X

. GOV ' T CODE AN N

. § 73

. 001 (West , Westlaw through 2013 3d C

. S

. )

. 2lot louder than just a handgun. " Kunz, having already twice ordered Kennedy to drop his weapon, returned fire. He shot at Kennedy a total of sixteen times , firing until his service weapon was empty. Kunz testified : At that point I stayed behind my vehicle, not firing and waiting for cover . did not know where [Kennedy] was. I did not know if he was still in the vehicle

. I did not know if I hit him

. I did not know if he was coming around on the side concrete barrier wall and was going to pop up on the side and shoot me. I didn ' t even really know

.. . if he was on the right side of my vehicle and was approaching. And I remained there until the first responding officer arrived

. Police closed off the portion of highway where the incident was occurring and approached Kennedy ' s vehicle from the opposite side of the concrete median barrier. The officers removed Kennedy , who had multiple gunshot wounds , from h i s vehicle and placed him under arrest. Subsequent investigation showed that there were forty
- five bullet holes in Kunz ' s patrol unit; Kennedy had fired at least ten rounds from a nine-millimeter handgun and at least thirty rounds from an AK-47 assault rifle

. The handgun and rifle , along with other weapons and ammunition, were recovered from Kennedy ' s vehicle. A video recording taken from a camera in Kunz's patrol unit was entered into evidence and played for the jury. On cross-examination , Kunz conceded that he did not tell dispatch or the backup officers that Kennedy had fired at him first. He did not recall Kennedy say i ng on the video " I have been hit " prior to the time he took cover behind his patrol unit. Kunz agreed that , according to the video recording, he had actually fired on Kennedy from the front of his patrol unit , prio r to taking cover and calling for backup, but he did not mention this fact in a six-page written statement he prepared the day after the incident. Kunz agreed that a portion of his written statement was therefore "inaccurate. " When asked by defense counsel what he did to correct this " inaccuracy, " Kunz replied: " I 3did not alter my statement or change my report. I let them stand and let the evidence stand for those who wish to look at both and interpret what they believe to be accurate and true." An acoustics expert and a forensic audio expert each testified on Kennedy's behalf that, according to their analyses of the video recording, Kunz fired the first shot. Dennis McKnight, who testified for the defense as an expert witness in the field of law enforcement, testified that, even if Kennedy displayed a gun when Kunz approached him, Kennedy presented no immediate threat to Kunz at the time Kunz took cover behind his patrol unit. McKnight opined that Kennedy ' s shooting at Kunz was justified as selfdefense. Kennedy was convicted of attempted capital murder and this appeal followed. 2 II. DISCUSSION A. Admission of Medical Records By his first issue, Kennedy contends that the trial court erred by admitting medical records into evidence over his counsel's objection. By his second issue , he argues that, to the extent his trial counsel failed to preserve the objection, he provided ineffective assistance.

2 In 2006 , Kennedy pleaded guilty to aggravated assault of a peace officer with a deadly weapon , a first-degree felony, as a result of the events described above

. See TEX

. PENAL CODE ANN. § 22

. 02(a)(2), (b)(2)(A) (West , Westlaw through 2013 3d C

. S

. )

. The trial court accepted the plea , adjudicated Kennedy guilty, and sentenced him to seventy - five years ' imprisonment. Kennedy appealed , contending that the trial court erred in denying a pre-trial motion to suppress evidence obtained from a police search of his residence. The Austin Court of Appeals held that Kennedy waived error by pleading guilty , but the court of criminal appeals reversed. Kennedy v . State, 297 SW

. 3d 338 , 342 (Tex

. Crim

. App

. 2009) (holding that the evidentiary issue was preserved under Texas Rule of Appellate Procedure 25

. 2(a)(2) because the State and Kennedy entered into a " charge-bargain agreement " under which the State agreed not to pursue certain charges in exchange for the guilty plea)

. On remand , the Austin court held that the police search was unconstitutional and ordered a new trial. Kennedy v . State , 338 S.w.3d 84 , 100-103 (Tex

. App.
- Austin 2011 , no pet.). The new trial , which gave rise to this appeal , took place in June 2013 before a Comal County jury

. 4We review a trial court's evidentiary rulings for abuse of discretion. Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012). We will uphold the ruling unless it lies outside the zone of reasonable disagreement. Id. To obtain a reversal of a conviction for ineffective assistance of counsel, a defendant must show that (1) counsel ' s performance fell below an objective standard of reasonableness and (2) counsel's deficient performance prejudiced the defense, resulting in an unreliable or fundamentally unfair outcome of the proceeding. Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). At the conclusion of its case-in-chief, the State sought to admit its Exhibit 77, constituting 107 pages of hospital records documenting Kennedy ' s injuries resulting from the May 3, 2005 shootout. Defense counsel argued that the records were obtained in violation of the federal Health Insurance Portability and Accountability Act of 1996 ("HIPAA") and were therefore inadmissible. See TEX. CODE CRIM

. PROC. ANN. art. 38.23 (West, Westlaw through 2013 3d C.S.) (providing that evidence obtained in violation of law is not admissible). The trial court denied the objection.3 The State contends that the evidence was admissible, that Kennedy failed to preserve error,4 and that any error in admitting the evidence would be harmless.

3 Defense counsel also argued that the records were inadmissible because they were not properly authenticated as business records under Texas Rule of Evidence 903. The trial court sustained that objection in part and directed the prosecutor to remove copies of the subpoena and business records affidavit that were erroneously included in the proffered exhibit. The trial court overruled the objection as to the actual medical records themselves. Defense counsel also objected to two pages of the exhibit on grounds that they were protected by the clergy-communicant privilege under Texas Rule of Evidence 505 , and to another portion of the exhibit on grounds that they contained statements made by police. The trial court sustained those objections but admitted the remainder of the exhibit. On appeal , Kennedy asserts only that the admitted records were inadmissible because they were obtained in violation of HIPAA

. 4 In particular , the State argues that defense counsel failed to specifically reference the statutory exclusionary rule prior to having his objection overruled

. See TEX. CODE CRIM

. PROC. ANN

. art

. 38

. 23 (West , Westlaw through 2013 3d C.S.). 5Assuming that the issue has been preserved , we find no abuse of discretion in the trial court ' s ruling

. Regulations promulgated under HIPAA provide that " covered en ti ties " such as hospitals generally may not disclose patients ' " protected health informat i on " except under certain delineated circumstances. 45 C.F.R. § 164

. 502(a) (West, Westlaw through 80 FR 26430). Under this " Privacy Rule ," one of the circumstances under which protected information may be disclosed w i thout authorization of the patient is when disclosure is " for a law enforcement purpose . . . [p]ursuant to process and as otherwise requ i red by law ." Id. § 164.512(f) (West , Westlaw through 80 FR 26430). The applicable subsection of the HIPAA Privacy Rule provides as follows: A covered entity may disclose protected health information: (i) As requ i red by law including laws that require the reporting of certain types of wounds or other physical injuries, except for laws subject to paragraph (b)(1 )(ii) or (c)(1 )(i) of this section; or ( ii ) In compliance with and as limited by the relevant requirements of: (A) A court order or court-ordered warrant , or a subpoena or summons issued by a judicial officer ; (8) A grand jury subpoena; or (C) An administrative request , including an administrative subpoena or summons, a civil or an authorized investigative demand , or sim i lar process authorized under law , provided that:

Id

. § 164

. 512(f)(1). (1) The information sought is relevant and material to a legitimate law enforcement inquiry; (2) The request is specific and limited in scope to the extent reasonably practicable in light of the purpose for which the information is sought ; and ( 3) De-identified i nformation could not reasonably be used.

6The documents at issue here were supplied pursuant to a subpoena duces tecum applied for by the State and issued by a Comal County deputy district clerk. Kennedy argues that court clerks are not considered " judicial officers " for purposes of this regulation, and that subparagraph (ii)(A) of subsection 164.512(f)(1) therefore does not apply. See United States v. Zamora, 408 F. Supp. 2d 295, 298 (S.D. Tex. 2006) (holding that , because " there is no support for the government's position that a court clerk is a judicial officer, the government did not properly comply with § 164.512(f)(1 )(ii)(A) in its issuance of the subpoena " ). Kennedy further cites State v. Jewell , wherein it was held that , under HIPAA, the appellant had " a reasonable expectation of privacy " in his medical records, other than his blood-test results , and therefore had " standing to contest how the State obtained them. " No. 10-11-00166-CR , 2013 WL 387800, at *4 (Tex. App.-Waco Jan

. 31, 2013 , no pet.) (mem. op. , not designated for publication). Even though the Comal County district clerk may not be a " judicia l officer" for HIPAA purposes , Kennedy does not address whether the records at issue were properly disclosed under paragraph (i) or subparagraph (ii)(C) of the regulation. 5 We find that the records were , indeed , disclosable under these provisions. First , it is undisputed that the

5 In addition to his argument regarding subparagraph (i i ) (A), Kennedy principally argues on appeal that subsection (e) of the regulat i on , which concerns " [d]isclosures fo r jud i cial and admin i strative proceedings ," does not apply

. See 45 C.F.R. § 164

. 512(e ) (West, Westlaw th r ough 80 FR 26430 )

. The State does not dispute that t he records at issue were not disclosable under this subsection

. See id. (providing that , in order for i nformation to be disclosable in the course of a judic i al or administrative proceed i ng , the covered entity must " receive[] satisfactory assurance " that " reasonable efforts have been made " by the party seeking the information (1 ) to ensure that the individual who is the subjec t of the requested i nformation " has been given notice of the request " and (2) to obtain a protective order prohibiting the part i es from using the informat i on for other purposes and requiring the information to be returned or destroyed at the end of the proceeding)

. But the fact that the records were not disclosable under subsection (e ) does not mean that t he records could not have been disclosed under another subsection. See id

. § 1 64

. 512(a ) ( " A covered ent i ty may use or disclose protected health information to the extent that such use or d i sclosure is required by law and the use or disclosure complies with and is limited to the r elevant requirements of such law

.. .. A covered ent i ty must meet the requ i rements described i n paragraph (c) , (e) , or (f) of this section for uses or disclosures required by law

. " (emphasis added))

. 7subpoena duces tecum was properly issued by the county clerk at the request of the prosecutor and that it possessed the force of law. See TEX. CODE CRIM. PROC. ANN. arts. 24.01, 24.05 (West, Westlaw through 2013 3d C.S.). The hospital was therefore authorized to disclose the records at issue because the disclosure was "required by law." 45 C.F.R. § 164

. 512(f)(1)(i)6; see Kennemurv. State, 280 S.W.3d 305, 313 (Tex. App.- Amarillo 2008, pet. ref'd) (finding that the HIPAA Privacy Rule was not violated when medical records were disclosed pursuant to a lawfully-issued subpoena duces tecum). Second , the subpoena duces tecum appears to meet the requirements of an

" administrative subpoena" under subparagraph (ii)(c) in that the information sought was relevant to a legitimate law enforcement inquiry, the request made was reasonably specific and limited in scope ,7 and de-identified information could not have been reasonably used under the circumstances. See id. § 164.512(f)(1 )(ii)(c). Jewell is distinguishable because, in that case, the trial court found and the State conceded that the subpoena used to obtain the documents was invalid due to the fact that it did not comply with applicable statutory requirements. See 2013 WL 387800, at *4 (citing TEX. CODE CRIM. PROC. ANN. art. 20.11 (West, Westlaw through 2013 3d C.S.)). Because disclosure of Kennedy ' s hospital records pursuant to the subpoena duces tecum was authorized under the HIPAA Privacy Rule, the trial court did not abuse its discretion by admitting the records into evidence. For the same reason , Kennedy ' s

6 As noted, subparagraph (i) of subsection (f)(1) allows a covered entity to disclose protected health information "[als required by law

. .. except for laws subject to paragraph (b )(1 )(ii) or (c)(1 )(i) of this section ." Id

. § 164

. 512(f)(1 )(i). The cited paragraphs, which concern disclosures for " public health activities" and disclosures "about victims of abuse , neglect, or domestic violence " respectively , are not applicable here

. See id. § 164.512(b)(1 )(ii), (c)(1 )(i).
7 The subpoena requested " copies and [sic] any and all medical records relating to Michael Patrick Kennedy , DOB 6/12/1956

... admitted on or about 3/412005 ." 8ineffective assistance of counsel claim is without merit. See Ex parte White, 160 S

. W.3d 46, 53 (Tex. Crim

. App. 2004) (holding that, when claiming ineffective assistance for failing to object, a party must demonstrate that if trial counsel had objected, the trial judge would have committed error in refusing to sustain the objection). We overrule Kennedy ' s first two issues. B. Instruction Regarding Jury Notes Kennedy's next two issues argue that the trial court erred by instructing the jury that only the foreperson could write and prepare notes to the court during its deliberations, and by refusing Kennedy ' s requested instruction that any juror could do so. He complains by his third issue that the rulings violated his Sixth Amendment right to a jury trial and his Fifth Amendment right to due process, see U.S. CONST. amends. V, VI, and by his fourth issue that his corresponding rights under the Texas Constitution were violated by the rulings. See TEX. CONST. art. I, §§ 10, 19; id. art. V , § 13. The instruction about which Kennedy complains was contained within the guiltinnocence jury charge and states: "When the jury wishes to communicate with the Court, it shall notify the Bailiff, who shall inform the Court thereof. Any communications relative to the case must be written, prepared by the Foreperson and shall be submitted to the Court through the Bailiff

. " Defense counsel objected to this instruction during the charge conference and orally proposed that the jury instead be instructed that notes could be "prepared by one of your members and shall be submitted to the Court through the bailiff. " The trial court denied the objection and requested instruction. The record in this case does not contain any written communication to the trial court from the jury during its deliberations. Kennedy argues that this could have been

9because the foreperson refused a juror's request to submit a note , but that it i s not possible to determine whether this is so because the rules of evidence prohibit inquiries into the jury ' s deliberations. See TEX. R. EVID. 606(b)(1)

. He argues that the error should be considered " structural error, " and therefore presumed harmful , because "[t]he inability of the eleven other jurors to communicate with the court without essentially seeking the foreperson's permission denies a defendant his right to a unanimous, twelve person jury

. . . . " See Jordan v. State, 256 S.W.3d 286 , 290 (Tex. Crim

. App. 2008) (noting that
an error which " affect[s] the framework within which the trial proceeds , rather than simply
an error in the trial process itself ' and "render[s] a trial fundamentally unfa i r " is " structural
error " which is not amenable to a harm analysis). The trial court is required to give the jury a written charge " distinctly setting forth the law applicable to the case " and "not expressing any opinion as to the weight of the evidence , not summing up the testimony, discuss i ng the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury." TEX. CODE CRIM. PROC

. ANN. art. 36

. 14 (West, Westlaw through 2013 3d C.S.)

. Trial courts have "broad discretion " in submitting proper def i nitions and explanatory phrases t o aid the jury. Nava v. State, 379 S.W.3d 396,420 (Tex. App.-Houston [14th Dist.] 2012), aft ' d, 415 S.W.3d 289 (Tex. Crim. App. 2013); see Shipp v. State, 331 S

. W.3d 433, 444 (Tex. Crim

. App

. 2011) (Meyers, J., concurring)

. But a trial court has no discre t ion in determining what the law is or applying the law to the facts. State v. Kurtz, 152 S

. W.3d 72 , 81 (Tex

. Crim. App. 2004). Here , the tr i al court ' s instruction tracked article 36.27 of the code of criminal procedure , which provides:

10When the jury wishes to communicate with the court, i t shall so notify the sheriff, who shall inform the court thereof. Any communication relative to the cause must be written , prepared by the foreman and shall be submitted to the court through the bailiff. The court shall answer any such communication i n writing , and before giving such answer to the jury shall use reasonable diligence to secure the presence of the defendant and his counsel , and shall f i rst submit the question and also submit his answer to the same to the defendant or his counselor objections and exceptions , in the same manner as any other written i nstructions are submitted to such counsel, before the court gives such answer to the jury , but if he is unable to secure the presence of the defendant and his counsel, then he shall proceed to answer the same as he deems proper. The written instruction or answer to the communication shall be read i n open court unless expressly waived by the defendant.

. .. TEX. CODE CRIM. PROC. ANN. art. 36.27 (West , Westlaw through 2013 3d C

. S.) (emphasis added). Because the instruction tracked the statute , we conclude that the trial court did
not abuse its discretion in including the instruction and denying inclusion of Kennedy ' s requested instruction. Kennedy further appears to assert in his reply brief that the statute authorizing the instruction is itself unconstitutional. However, he does not cite any Texas or federal case law to support his position. Instead , he cites only a 1985 case in which the North Carolina Supreme Court held that it was error for the trial court to respond to an inquiry presented by the jury foreperson without requiring the presence of all jurors. State v. Ashe, 331 S.E.2d 652, 657 (N.C. 1985). That court held : Our jury system is designed to [e]nsure that a jury ' s decision is the result of evidence and argument offered by the contesting parties under the control and guidance of an impartial judge and in accord with the judge's instructions on the law. All these elements of the trial should be viewed and heard simultaneously by all twelve jurors

. To allow a jury foreman , another individual juror , or anyone else to communicate privately with the trial court regarding matters material to the case and then to relay the court ' s response to the full jury is inconsistent with this policy. The danger presented is that the person, even the jury foreman , having alone made the request of the court and heard the court ' s response firsthand , may through misunderstanding , inadvertent editorialization , or an intentional misrepresentation , inaccurately relay the jury ' s request or the court's 11response , or both, to the defendant's detriment. Then , each juror, rather than determining for himself or herself the import of the request and the court ' s response, must instead rely solely upon their spokesperson ' s secondhand rendition, however inaccurate it may be. Id

. Kennedy appears to contend that article 36.27 of the code of criminal procedure subjects defendants to a similar risk of " misunderstanding , inadvertent editorialization , or intent i onal misrepresentation" on t he part of the foreperson

. Defense counsel did not explicitly contend at trial that the statute is unconstitutional; in fact , no mention was made at all of the statute during the charge conference. See TEX

. R. ApP. P. 33.1; Fuller v. State, 253 S.W

. 3d 220 , 232 (Tex. Crim. App. 2008) (noting that "even constitutional error . . . may be forfeited if the appellant failed to object " ). Even assuming this issue was preserved by counsel's general objection to the constitutionality of the instruction, we do not find error in the trial court ' s decision. Ashe is not persuasive because that case involved a discussion between the trial court and the jury foreperson outside of the presence of the rest of the jury , not a s t atute requiring jury notes to be directed through the foreperson. See 331 S

. E

. 2d at 657. Moreover, the Ashe court found that a North Carolina statute was violated by the trial court ' s actions, but did not pass judgment on whether the appellant's constitutional rights were violated. See id. In the absence of any other authority supporting Kennedy ' s position , we do not find i t meritorious. Kennedy ' s third and fourth issues are overruled. C. Definition of "Provocation" By his fifth and final issue , Kennedy contends that the trial court erred in refusing his request to include a particular definition of " provocat i on" in the jury charge.

12Provocation is an exception to the justification of self-defense. B See TEX. PENAL CODE ANN

. § 9.31 (b)(4) (West, Westlaw through 2013 3d C

. S.) (providing that selfdefense generally does not justify the use of force "if the actor provoked the other's use
or attempted use of unlawful force"). During the charge conference, defense counsel proposed the following instruction: Provocation is defined as, one, that the defendant did some act or used some words which provoked the act on him

. .. Two, that such acts or words were reasonably calculated to provoke the attack, and, three, that the act was done or words were used for purpose and with the intent that the defendant would have a pretext for inflicting harm upon others. Counsel argued that the proposed instruction was necessary because the State's theory
was that it was irrelevant whether Kennedy fired first because, even if he did not, he provoked Kunz ' s actions. The proposed instruction is drawn from Smith v. State, in which the Texas Court of Criminal Appeals explained when "[a] charge on provocation is required." 965 S.W.2d 509, 513 (Tex. Crim. App. 1998) ("A charge on provocation is required when there is sufficient evidence (1) that the defendant did some act or used
some words which provoked the attack on him, (2) that such act or words were reasonably calculated to provoke the attack, and (3) that the act was done or the words were used

8 The jury was instructed as follows: If a person attempting to claim self-defense provoked the other's use of unlawful force or attempted use of unlawful force , then such person is not entitled to rely upon self
- defense, unless the person : a) abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter, and b) the other nevertheless continues or attempts to use unlawful force against the person. [Ilf you find from the evidence beyond a reasonable doubt that at the time and place in question that the Defendant provoked Richard Kunz ' s use or attempted use of unlawful deadly force if any by pointing a firearm at the said Richard Kunz, then you should find against the Defendant on the issue of self
- defense and say by your verdict "guilty." We assume, for purposes of this opinion, that these instructions were supported by the evidence and therefore properly included in the jury charge. 13for the purpose and with the intent that the defendant would have a pretext for inflicting harm upon the other. " ). The State contends in response that the trial court did not err in refusing the instruction because it would have constituted an impermissible comment on the weight of the evidence

. It cites Kirsch v. State , where the court of criminal appeals stated : Although an appellate court may articulate a definition of a statutorily undefined , common term in assessing the sufficiency of the evidence on appellate review, a tr i al court ' s inclusion of that definition in a jury charge may constitute an improper comment on the weight of the evidence

. .. . We have generally held that, if a jury-charge instruction is not derived from the penal code , it is not " applicable law " under [article] 36.14. With only limited exceptions , the trial court may not include an instruction that focuses the jury ' s attention on a specific type of evidence that may support a finding of an element of an offense. Juries are free to consider and evaluate the evidence in whatever way they consider it relevant to the statutory offenses , and special , non-statutory instructions, even when they relate to statutory offenses or defenses, generally have no place in the jury charge. 357 S.W.3d 645 , 651 (Tex. Crim

. App

. 2012) (citing Walters v. State , 247 S

. W

. 3d 204 , 211 , 212 , 214 (Tex. Crim. App. 2007)). In Kirsch, the Court held that an instruction on the definition of "operate " in a driving while intoxicated case was i mproper because , while

" the definition set forth in the charge i s an appropriate definition for an appellate court to apply in assessing the sufficiency of the evidence to support the 'operate ' elemen t," the jurors " should have been free to assign that term any meaning which is acceptable in
common parlance. " Id

. (quotation omitted)

. Kirsch relied on Walters, which held that: [G]enerally speaking , neither the defendant nor the State is entitled to a special jury instruction relating to a statutory offense or defense if t hat instruction (1) is not grounded in the Penal Code , (2) is covered by the general charge to the jury , and (3) focuses the jury ' s attention on a specific type of evidence that may support an element of an offense or a defense. 247 S.W.3d at 212.

14We note that the requested instruction is not grounded in the penal code, but the content of the instruction is not "covered by the general charge to the jury," see id., because the charge did not contain any general definition of "provoke" or "provocation." Further, the proposed instruction would not have "focuse[d] the jury ' s attention on a specific type of evidence that may support an element of an offense or a defense." See id. Instead, it would have merely incorporated existing case law, as elucidated in Smith, into the instruction regarding the self-defense justification. The State contends that '''provocation' is a term of common usage " and therefore did not require a precise definition. But the court of criminal appeals, in Smith, defined "provocation" in a specialized manner applicable only to assertions of the self-defense justification in criminal proceedings. See 965 S.W.2d at 513. Though jurors may "freely read [undefined] statutory language to have any meaning which is acceptable in common parlance ," terms "which have acquired a peculiar and appropriate meaning in the law" are "considered as having been used in their technical sense." Kirsch, 357 S.W.3d at 650 (citing Medford v. State, 13 S.W.3d 769, 771-72 (Tex. Crim. App. 2000); Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995)).9 Under Smith, a trial court need not instruct the jury on "provocation" at all unless there is evidence that the defendant's actions or words were "reasonably calculated to provoke the attack" and " were used for the purpose and with the intent that the defendant would have a pretext for inflicting harm upon another." Id. Kirsch is distinguishable because there was no controlling case law dictating

9 Statutorily undefined words and phrases are ordinarily "construed according to the rules of grammar and common usage. " Kirsch v . State , 357 S

. W.3d 645 , 650 (Tex. Crim. App. 2012) (quoting TEX. GOV'T CODE ANN. § 311.011 (a) (West, Westlaw through 2013 3d C

. S.) and citing TEX

. PENAL CODE ANN

. § 1.03(b) (West, Westlaw through 2013 3d C

. S

. ) (applying government code section 311

. 011 to the penal code)). But "[w]ords and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly ." TEX. GOV'T CODE ANN

. § 311

. 011 (b). 15any particular definition of "operate." See Kirsch, 357 S.W.3d at 648 (noting that the charged definition of "operate" was, according to defense counsel, "made up by the prosecutor himself'). In any event, assuming but not deciding that the trial court erred in refusing Kennedy ' s requested instruction, we find that Kennedy has not suffered harm as a result of the ruling. When the appellant has properly preserved charge error, as here, reversal is required if we find at least "some harm" to the appellant's rights. Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App

. 1985) (op. on reh'g)). This analysis requires a reviewing court to consider: (1) the jury charge as a whole, (2) the arguments of counsel, (3) the entirety of the evidence, and (4) other relevant factors present in the record

. Id. We first observe that, because the legal definition of "provocation" was omitted from the jury charge, the jury's ability to conclude that Kennedy's actions were justified as self-defense was restricted. That is because the legal, technical definition of provocation is far more restrictive than common, dictionary meaning. The dictionary defines "to provoke" as "to incite to anger" or "to stir up purposely." MERRIAM WEBSTER ONLINE DICTIONARY, http://www.merriam-webster.com/dictionary/provoke (last visited June 9, 2015). On the other hand, as noted, the legal definition of provocation requires acts or words on the part of the defendant that are "used for the purpose and with the intent that the defendant would have a pretext for inflicting harm upon another." Smith, 965 S.W.2d at 513. Kennedy points out that the State emphasized his alleged provocation of Kunz in its closing argument at the guilt-innocence phase of trial. In particular, the prosecutor

16argued that Kennedy "started it when he pointed that gun at Officer Kunz ." The prosecutor also stated: [W]ho shot first in this case is about as important as what type of car the defendant was driving that night. Okay? It is not important because the moment that the defendant picked up a firearm and pointed it at a police officer, he forfeited the right to claim self-defense. He forfeited the right to claim self-defense when he continuously fired 45 shots into that officer's police car , ladies and gentlemen. The prosecutor concluded her closing argument by stating: "When you go back there, I ask that you find the defendant guilty of attempted capital murder because when you pull
a gun on a police officer, you do not get to claim self-defense. You have provoked the event. Thank you." In response, the State contends that any error in the jury charge is harmless because "there was overwhelming evidence that [Kennedy] provoked the encounter. " We agree. We note that there was some discussion at the charge conference about a "suicide-by-cop" theory; i.e ., that Kennedy may have pulled his gun on the officer intending only to provoke the officer to fire at him. The trial court denied Kennedy's requested instruction in part because the court believed that suicide-by-cop "could be a well-argued theory of this case." The trial court was incorrect, however, in light of Smith. If Kennedy did indeed pull his gun on Kunz with only the intent to commit suicide-by-cop , then his actions would not constitute "provocation" as defined in Smith because he would not have possessed the intent to establish a pretext to attack the officer. See id. Nevertheless, Kennedy directs us to no evidence or argument specifically supporting a suicide-by-cop theory, and we find none. 10 Instead, the undisputed evidence showed that

1 0 According to the prosecutor , one of the medical records excluded on the basis of the clergy
communicant privilege stated that " [t]his incident was another attempt, according to the patient, to cause injury to himself ." But as noted, the trial court sustained defense counsel's objection to this evidence and 17Kennedy fired forty-five rounds at Kunz, which strongly supports a conclusion that, by brandishing his weapon, Kennedy intended to establish a pretext to attack Kunz. Accordingly, even if the jury had been instructed in accordance with Smith , it is overwhelmingly likely that it would have reached the same conclusion as to the selfdefense issue. Having reviewed the entire record , including the entire jury charge and arguments made by counsel, we conclude that Kennedy has not suffered any actual harm from the omission of his requested definition from the jury charge

. See Reeves, 420 S.W.3d at 816. Kennedy ' s fourth issue is therefore overruled. III. CONCLUSION We affirm the trial court ' s judgment.

Do not Publish. TEX. R. App

. P. 47.2(b). Delivered and filed the 11th day of June, 2015.

it was never before the jury. 18 DORI CONTRERAS GARZA , Justice