                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                               FORT WORTH

                             NO. 02-11-00010-CR


CHRISTIE OSBORNE                                                    APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE

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      FROM COUNTY CRIMINAL COURT NO. 6 OF TARRANT COUNTY

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                        MEMORANDUM OPINION1
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      Appellant Christie Osborne appeals her conviction for assault causing

bodily injury,2 contending in three points that the evidence is insufficient to

disprove her self-defense claim, that the evidence is insufficient to support the

trial court’s restitution order, and that numerous alleged violations of evidence




      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Penal Code Ann. § 22.01(a)(1) (West 2011).
rules, which appellant did not raise at trial, cumulatively prejudiced her defense.

We affirm.

                               Background Facts3

      Appellant and Joey Sansom dated each other for several years. More

than a year after appellant and Sansom broke up, Sansom began dating Kristina

Aaron. Appellant and Sansom, however, remained close because of Sansom’s

interactions with appellant’s daughters, whom Sansom had helped raise.

In 2008, according to Aaron, appellant sent her a scolding text message stating

that Aaron was selfish and manipulative. Aaron testified that appellant also sent

Sansom a text message stating that she was going to ―beat [Aaron’s] ass.‖

According to Aaron, appellant was upset because Sansom began refusing to see

appellant’s daughters.

      In December 2009, appellant and her daughters went to Sansom’s

mother’s house, where Sansom was staying. Sansom was planning to spend

time with the girls that day, but he had expected appellant to arrive later in the

afternoon instead of about 11:30 in the morning.       While Aaron watched the

children play a computer game, appellant became agitated; according to Aaron,

appellant was ―mad that [Aaron] was coming between the girls and [Sansom].‖

Sansom told appellant to leave, but appellant moved closer to Aaron, called her a


      3
       The facts recited in this section comprise the collective testimony of the
State’s witnesses. Appellant provided countervailing facts through her testimony,
and we will discuss those facts below in our discussion of appellant’s first issue.

                                        2
―bitch,‖ and grabbed her left arm, which did not cause Aaron pain but ―felt, like, a

force.‖ Aaron then grabbed appellant’s hair; Aaron says that she did so in self-

defense. Appellant, who is larger than Aaron, reciprocated by grabbing Aaron’s

hair, pulling her to the ground on a hard floor (which hurt Aaron’s left shoulder),

and hitting her in the face with a closed fist several times.4 Sansom eventually

separated appellant and Aaron, and appellant said, ―She started it.‖

        Sansom and Aaron asserted that appellant was the aggressor in the fight.

When asked at trial to describe what appellant did physically to Aaron, Sansom

said,

        Mainly just grab her by the hair and swing with her fist and try and hit
        her in the head, about the shoulders, that kind of stuff. A whole lot
        of hair pulling. I mean, they basically held on, you know, each party.
        And I tried to come in and break it up physically, you know, put my
        arms between the two of them and pry them apart. And I walked
        around and tried to pull [appellant] off of [Aaron] and I guess that
        wasn’t working too well, I just couldn’t pull both of them at the same
        time. I went back to trying to split them apart. At that time all three
        of us fell to the ground and [appellant] was kind of in a kneeling
        position over the top of [Aaron] so I kept trying to pry them apart, get
        them apart and use some physical activity to get them apart.

        Aaron called the police.    An ambulance arrived and took Aaron to the

hospital, where medical personnel diagnosed her with a dislocated shoulder.

Aaron’s injury required her to have surgery and to attend physical therapy for

approximately six months.



        4
        Sansom testified that appellant and Aaron each threw punches. Aaron
testified that she did not punch appellant in the face.

                                           3
      Appellant eventually turned herself in to the police and stated that she had

been assaulted first. The State charged appellant with assault. Appellant pled

not guilty and waived her right to a jury trial. After hearing testimony from four

witnesses, the trial court found appellant guilty. The court sentenced appellant to

ninety days’ confinement, suspended that sentence, placed her on community

supervision, and ordered her to pay restitution for Aaron’s medical expenses.

Appellant filed notice of this appeal.

          Sufficiency of the Evidence to Disprove Appellant’s Defense

      In her first issue, appellant argues that the evidence is insufficient to

disprove her self-defense claim.5        First, appellant contends that Aaron’s

testimony and version of the altercation supports, rather than precludes,

appellant’s self-defense theory because Aaron testified that appellant had only

grabbed her left arm, and had not caused pain, when Aaron grabbed appellant’s

hair. Appellant seems to contend, therefore, that her response to having her hair

pulled under Aaron’s version of the facts (pulling Aaron’s hair, forcing Aaron to



      5
        In the title of her first issue, appellant purports to raise legal and factual
insufficiency. As explained below, the State bears the burden to disprove self-
defense beyond a reasonable doubt. The legal sufficiency standard ―is the only
standard that a reviewing court should apply in determining whether the evidence
is sufficient to support each element of a criminal offense that the State is
required to prove beyond a reasonable doubt.‖ Brooks v. State, 323 S.W.3d 893,
895 (Tex. Crim. App. 2010); see Smith v. State, No. 01-09-00634-CR, 2011 WL
1233367, at *4 (Tex. App.—Houston [1st Dist.] Mar. 31, 2011, pet. ref’d)
(applying legal sufficiency principles to a defendant’s post-Brooks challenge to a
jury’s rejection of the defendant’s self-defense claim).

                                          4
the ground, and hitting Aaron in the face several times with a closed fist) was

justified as self-defense.

      A person commits assault by intentionally, knowingly, or recklessly causing

bodily injury to another.    Tex. Penal Code Ann. § 22.01(a)(1).        It is well

established, however, that a person is justified in using force against another

when and to the degree the person reasonably believes the force is immediately

necessary to protect against the other’s use or attempted use of unlawful force.

Clifton v. State, 21 S.W.3d 906, 907 (Tex. App.—Fort Worth 2000, pet. ref’d);

see Tex. Penal Code Ann. § 9.31(a) (West 2011).

      After the defendant introduces some evidence supporting a self-defense

theory, the State bears the burden of persuasion to disprove it. Zuliani v. State,

97 S.W.3d 589, 594 (Tex. Crim. App. 2003) (explaining that a conviction

produces an implicit finding against the defensive theory); Saxton v. State, 804

S.W.2d 910, 913–14 (Tex. Crim. App. 1991); Smith v. State, No. 02-09-00394-

CR, 2011 WL 2436774, at *5 (Tex. App.—Fort Worth June 16, 2011, no pet.).

This burden does not require the State to introduce evidence disproving the

defense; rather, it requires the State to prove its case beyond a reasonable

doubt. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913; Smith, 2011 WL

2436774, at *5. To determine the sufficiency of the evidence to disprove self-

defense, we ask whether, after viewing all the evidence in the light most

favorable to the prosecution, ―any rational trier of fact could have found the

essential elements of the charged offense beyond a reasonable doubt and also

                                        5
could have found against the appellant on the self-defense issue beyond a

reasonable doubt.‖ Smith, 2011 WL 2436774, at *5 (citing Saxton, 804 S.W.2d

at 914). We must resolve any conflicting inferences in favor of the prosecution.

Id. at *4. We are not permitted to re-evaluate the trial court’s resolution of the

weight and credibility of the witnesses. See id. (citing Williams v. State, 235

S.W.3d 742, 750 (Tex. Crim. App. 2007)).

      Appellant’s first argument about self-defense hinges on her contention that

under Aaron’s version of the facts, Aaron’s pulling appellant’s hair was the first

unlawful force, and that, therefore, appellant’s pulling Aaron’s hair and punching

appellant was justifiable self-defense.       But even if we were to assume that

Aaron’s pulling appellant’s hair in response to appellant’s grabbing Aaron’s arm

was unlawful, the penal code provides that the use of force against another is not

justified if ―the actor provoked the other’s use or attempted use of unlawful force.‖

Tex. Penal Code Ann. § 9.31(b)(4). As the court of criminal appeals explained in

Smith v. State,

             Provoking the difficulty, as the doctrine of provocation is
      commonly referred to in our jurisprudence, is a concept in criminal
      law which acts as a limitation or total bar on a defendant’s right to
      self-defense. The phrase ―provoking the difficulty‖ is a legal term of
      art, and more accurately translates in modern usage to ―provoked
      the attack.‖ The rule of law is that if the defendant provoked another
      to make an attack on him, . . . the defendant forfeits his right of self-
      defense.

965 S.W.2d 509, 512 (Tex. Crim. App. 1998).           In other words, one cannot

―willingly and knowingly bring upon himself the very necessity which he sets up


                                          6
for his own defense.‖ Id. at 513–14. The doctrine of provocation, codified by

section 9.31(b)(4), eliminates appellant’s alleged justification of self-defense if

she did some act or used some words which provoked the attack on her, such

act or words were reasonably calculated to provoke the attack, and the act was

done or the words were used for the purpose and with the intent that appellant

would have a pretext for inflicting harm upon Aaron. See id. at 513.

      We conclude that the trial court could have found, beyond a reasonable

doubt, that the doctrine of provocation precluded appellant’s self-defense claim

under Aaron’s version of the facts. Aaron testified that while she was standing

near a chair in a room away from appellant, appellant’s

      voice got closer, and then she came around the corner and she got
      about a foot in front of me and she yelled, bitch. And she yelled
      more things, but I didn’t want a confrontation and I didn’t have any
      interest in what she had to say to me so I was screaming over her,
      get out, get out, get out, and I just kept repeating myself.

According to Aaron, appellant then grabbed Aaron’s left arm with ―force.‖ Only

then did Aaron respond by grabbing appellant’s hair. The trial court could have

rationally found from these facts that appellant used words and acts that

provoked Aaron’s attack on her. See id. at 514 (―[I]f a rational jury could find

beyond a reasonable doubt that some act or words of the defendant actually

caused the attack on him, then this part of the inquiry is satisfied.‖). Further, the

trial court could have rationally found that appellant’s words and acts

(approaching Aaron, calling her a ―bitch‖ and yelling ―more things,‖ and grabbing

her arm with ―force‖) were reasonably calculated to provoke Aaron’s attack.

                                         7
See id. at 517 (―An act is reasonably calculated to cause an attack if it is

reasonably capable of causing an attack, or if it has a reasonable tendency to

cause an attack.‖).    Finally, the trial court could have rationally found that

appellant’s words and acts were done with the intent that she would have a

pretext for assaulting Aaron. The trial court could have inferred this intent from

(1) appellant’s calling Aaron a ―bitch‖ and grabbing her arm, therefore initiating

the physical contact; (2) appellant’s text message that she was going to ―beat

[Aaron’s] ass‖; and (3) the severity of appellant’s attack and of Aaron’s injuries

after Aaron pulled appellant’s hair. See id. at 518 (explaining that a defendant’s

acts prior to and after the provocation are relevant to the defendant’s intent at the

time of the provocation and stating that some ―provoking acts may be of such a

character as to carry the inference of intent with them‖). The issue of appellant’s

intent may be best answered with a question:         if appellant did not intend to

provoke Aaron’s attack by calling Aaron a ―bitch‖ and grabbing Aaron with force,

what was the intent?

      In sum, viewing the evidence in the light most favorable to the prosecution,

because the trial court could have rationally found beyond a reasonable doubt

that appellant provoked Aaron’s use of lawful or unlawful force, it could have also

determined that appellant’s use of force was not justified. See Tex. Penal Code

Ann. § 9.31(b)(4); Smith, 965 S.W.2d at 513–20; Matthews v. State, 708 S.W.2d

835, 838 (Tex. Crim. App. 1986); Kennedy v. State, 193 S.W.3d 645, 655 (Tex.

App.—Fort Worth 2006, pet. ref’d) (en banc) (op. on reh’g).

                                         8
            Appellant also argues that the evidence is insufficient to disprove her self-

defense claim because she produced a version of the events that differs from

Aaron’s. Contrary to the facts described above, appellant testified that after she

went to Sansom’s mother’s house on the morning of the fight, Sansom asked if

appellant could bring the girls back later, and when appellant declined to do so,

Sansom became upset. Appellant said that she then approached Aaron only to

inform her that her treatment of appellant’s kids was unfair,6 at which time Aaron

got in her face and told her that she was ―white trash.‖ According to appellant,

after appellant loudly called Aaron a ―bitch,‖ Aaron hit appellant on the side of her

head.        Thus, according to appellant, the fight that then resulted between

appellant, Aaron, and Sansom was caused by Aaron’s aggression rather than

appellant’s aggression.7

        Appellant also denied sending threatening text messages. But appellant

admitted that after Aaron had changed her cell phone number, appellant found

Aaron’s new number on Sansom’s cell phone bill and sent Aaron a message

stating that Aaron was manipulative and selfish.           Appellant testified that she

regretted not calling the police after the fight but that she had feared that

        6
      According to appellant, Sansom wanted to maintain contact with her
daughters, but Aaron was not comfortable with his relationship with them, and
Sansom had therefore planned to end his relationship with Aaron on the
weekend that the fight occurred.
        7
       Appellant admitted grabbing Aaron’s hair and punching Aaron in the face
several times, and appellant conceded that Aaron fell on the floor and dislocated
her shoulder.

                                             9
Sansom’s mother would lose her job with the federal government if the police

had been called. Appellant said that as a result of the fight, she had migraines

and damage to ligaments, muscles, and tendons, which required her to receive

injections and participate in physical therapy. Appellant presented pictures of

injuries she sustained from the fight.

      Clearly, the trial court heard competing versions of the facts concerning

appellant’s fight with Aaron. Aaron and appellant portrayed the other as the

aggressor and themselves as the victim who turned to self-defense as a reaction

to the other person’s assault. Thus, the trial court was compelled to evaluate the

credibility of appellant’s self-defense testimony.   See Dotson v. State, 146

S.W.3d 285, 295 (Tex. App.—Fort Worth 2004, pet. ref’d). By its conviction, the

court resolved the credibility issue against appellant and in favor of Aaron, and

we must defer to the court’s determination of the weight to be given to

contradictory testimony. Saxton, 804 S.W.2d at 914; Dotson, 146 S.W.3d at 295.

Like we said in Smith,

             This case is similar to Denman v. State, 193 S.W.3d 129 (Tex.
      App.—Houston [1st Dist.] 2006, pet. ref’d). There, a jury found
      Denman guilty of aggravated assault, and Denman argued on
      appeal that the evidence was legally insufficient to support the
      conviction. Denman testified at trial that he had ―kicked [the]
      complainant in the head in self-defense after a struggle that began
      when she poked his foot with a knife and pointed a loaded shot-gun
      at him.‖ Denman also called six witnesses who testified that the
      complainant had assaulted or threatened him with weapons in the
      past. The complainant did not testify at the trial because she was in
      a persistent vegetative state. Holding that the evidence was legally
      sufficient to support the conviction, the court pointed to the jury’s
      entitlement to ―choose to believe all, some, or none of the testimony

                                         10
      presented by the parties‖ and noted that ―a defendant's own
      statement regarding his intent is not enough to render the evidence,
      without more, insufficient.‖ The court also stated, ―Because the jury,
      by finding [Denman] guilty, implicitly rejected his self-defense theory,
      it necessarily chose not to believe the testimony concerning such.‖

2011 WL 2436774, at *6 (some citations omitted).

      Accordingly, like in Smith, a rational trier of fact could have found beyond a

reasonable doubt that appellant was guilty of assault ―by choosing to believe the

evidence favoring conviction and by choosing to disbelieve the evidence favoring

self-defense.‖ Id.; see Spearman v. State, 307 S.W.3d 463, 469 (Tex. App.—

Beaumont 2010, pet. ref’d) (affirming the jury’s rejection of the defendant’s self-

defense theory because the jury could ―reasonably reject some or all of the

defendant’s testimony, and accept the testimony of those witnesses called by the

State‖).

      For all of these reasons, we overrule appellant’s first issue.

              The Propriety of the Trial Court’s Restitution Order

      In appellant’s second issue, she argues that the evidence is insufficient to

support the trial court’s restitution order because the case ―revolves around a

contested set of facts‖ and the court ―failed to draw reasonable conclusions.‖

We review restitution orders for an abuse of discretion. Sanders v. State, 346

S.W.3d 26, 35 (Tex. App.—Fort Worth 2011, pet. ref’d); Burris v. State, 172

S.W.3d 75, 77 (Tex. App.—Fort Worth 2005, no pet.). ―An abuse of discretion

occurs if the trial court acts without reference to any guiding rules or principles or

acts arbitrarily or unreasonably.‖ Sanders, 346 S.W.3d at 35. The amount of

                                         11
restitution must be just and be supported factually. Burris, 172 S.W.3d at 77.

Next, the restitution must be for the offense for which the defendant is criminally

liable. Id. at 77–78. Finally, the restitution must be proper only for the victim of

the offense. Id. at 78.

      Appellant contends that the evidence is insufficient to prove that she was

―responsible for [Aaron’s] dislocated shoulder.‖ Thus, she does not contend that

the amount of restitution or person to whom the restitution was ordered were

improper. Aaron testified that when appellant grabbed her hair, she was ―all the

sudden on [her] back.‖ Aaron said that appellant’s weight came down on Aaron’s

left arm, which caused Aaron pain. Aaron then testified that she was not able to

use her left arm to defend herself because she ―couldn’t move it.‖ After Sansom

separated appellant from Aaron, Aaron noticed that her ―left arm was stuck out to

the side [at] about a 90 degree angle. [She] had tried to put it down and it

wouldn’t move.‖ Later, Sansom noticed that Aaron’s arm ―definitely looked like it

wasn’t in the right place. In fact, . . . her left shoulder was lower than it should

have been by two inches.‖ The trial court admitted medical records establishing

Aaron’s January 2010 surgery and subsequent physical therapy on her left

shoulder.

      Based on this evidence, we conclude that the trial court did not abuse its

discretion by ordering restitution on the basis that appellant’s crime caused the

injury to appellant’s left arm. See Sanders, 346 S.W.3d at 35; see also Garcia v.

State, 57 S.W.3d 436, 441 (Tex. Crim. App. 2001) (noting that the factfinder may

                                        12
draw reasonable inferences from the evidence). We overrule appellant’s second

issue.8

                    Alleged Violations of Evidentiary Rules

      In her third issue, appellant argues that reversible error was caused by the

State’s asking ―a series of leading questions and questions which called for

speculation.‖   But appellant acknowledges that she did not object to these

questions or to the testimony that resulted from them.

      To preserve a complaint for our review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds

for the desired ruling if they are not apparent from the context of the request,

objection, or motion. Tex. R. App. P. 33.1(a)(1); Layton v. State, 280 S.W.3d

235, 238–39 (Tex. Crim. App. 2009); see also Tex. R. Evid. 103(a)(1) (stating

that error may not be predicated upon a ruling which admits or excludes

evidence unless a substantial right of the party is affected and a timely objection

or motion to strike appears of record, stating the specific ground of the objection).

Further, the trial court must have ruled on the request, objection, or motion, either

expressly or implicitly, or the complaining party must have objected to the trial

court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d

334, 341 (Tex. Crim. App. 2004).       A reviewing court should not address the

      8
       To the extent that appellant challenges the trial court’s restitution order
based on a contention that the evidence is insufficient to disprove that she acted
in self-defense rather than as the aggressor, we refer to the analysis on
appellant’s first issue.

                                         13
merits of an issue that has not been preserved for appeal. Ford v. State, 305

S.W.3d 530, 532 (Tex. Crim. App. 2009).           ―Except for complaints involving

systemic (or absolute) requirements, or rights that are waivable only, . . . all other

complaints, whether constitutional, statutory, or otherwise, are forfeited by failure

to comply with Rule 33.1(a).‖ Mendez, 138 S.W.3d at 342.

      Appellant has not presented authority establishing that the introduction of

speculative testimony or evidence that results from leading questions affects a

systemic requirement or violates a waivable-only right.       The court of criminal

appeals has consistently held that evidentiary complaints are forfeited for lack of

a timely objection, even when those complaints concern the defendant’s

constitutional rights. See Saldano v. State, 70 S.W.3d 873, 889–90 (Tex. Crim.

App. 2002); see also Lucio v. State, No. AP-76,020, 2011 WL 4347044, at *28

(Tex. Crim. App. Sept. 14, 2011) (holding that by failing to object on constitutional

grounds, a defendant forfeited her claim that the admission of evidence violated

her Sixth Amendment right to confront witnesses); Lopez v. State, 482 S.W.2d

179, 182 (Tex. Crim. App. 1972) (―[T]here must be a timely objection to preserve

error of illegally obtained evidence.‖). And various courts have applied this rule

to complaints about leading questions and the speculative nature of testimony.

See Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App.), cert. denied, 516

U.S. 832 (1995); Stevens v. State, 671 S.W.2d 517, 521 (Tex. Crim. App. 1984);

Wise v. State, 223 S.W.3d 548, 558 (Tex. App.—Amarillo 2007, pet. ref’d).



                                         14
      Appellant argues that her evidentiary contentions are cumulative and

fundamental and may be reviewed under the authority of Texas Rule of Evidence

103(d). See Tex. R. Evid. 103(d) (―In a criminal case, nothing in these rules

precludes taking notice of fundamental errors affecting substantial rights although

they were not brought to the attention of the court.‖). But rule 103(d) has been

applied frugally and only when the admission of evidence renders the

defendant’s trial fundamentally unfair. Smith v. State, 961 S.W.2d 501, 505–06

(Tex. App.—San Antonio 1997, no pet.). Appellant does not cite authority that

classifies complaints about the speculative nature of evidence or the leading

quality of questions as fundamental under rule 103(d), and we have found none.

Cf. Garner v. State, 939 S.W.2d 802, 807 (Tex. App.—Fort Worth 1997, pet.

ref’d) (holding that error was not preserved concerning a stream of leading

questions and rejecting the defendant’s argument that the trial court’s failure to

declare a mistrial sua sponte because of leading questions was fundamental

error); Demmings v. State, No. 05-94-00663-CR, 1996 WL 403999, at *2 (Tex.

App.—Dallas July 18, 1996, no pet.) (not designated for publication) (holding that

a prosecutor’s asking questions that called for speculation did not comprise

fundamental error); see also Moore v. State, 935 S.W.2d 124, 130 (Tex. Crim.

App. 1996) (holding that the admission of hearsay is not fundamental error that

may be raised for the first time on appeal), cert. denied, 520 U.S. 1219 (1997).

      Because appellant forfeited her complaint under rule of appellate

procedure 33.1(a) and because we conclude that the evidentiary complaints

                                        15
made by appellant are not fundamental under rule of evidence 103(d), we

overrule her third issue.

                                   Conclusion

      Having overruled appellant’s issues, we affirm the trial court’s judgment.




                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 23, 2011




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