                             NUMBER 13-13-00416-CR

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG

MICHAEL PATRICK KENNEDY,                                                        Appellant,

                                             v.

THE STATE OF TEXAS,                                                              Appellee.


                    On appeal from the 207th District Court
                          of Comal County, Texas.


                          MEMORANDUM OPINION
     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 hospital
records; (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 their 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 the 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 times”

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 This appeal was transferred from the Third Court of Appeals pursuant to an order issued by the

Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through 2013 3d C.S.).

                                                  2
lot 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. I
       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 his 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 saying 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, prior 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
                                             3
did 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 self-

defense.

        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 S.W.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.

                                                    4
        We 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.
        4In 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.).

                                                     5
       Assuming 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 entities”

such as hospitals generally may not disclose patients’ “protected health information”

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 without authorization of the patient is when

disclosure is “for a law enforcement purpose . . . [p]ursuant to process and as otherwise

required 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 required 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;

              (B)      A grand jury subpoena; or

              (C)      An administrative request, including an administrative
                       subpoena or summons, a civil or an authorized investigative
                       demand, or similar process authorized under law, provided
                       that:

                       (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 information could not reasonably be
                             used.

Id. § 164.512(f)(1).


                                              6
        The 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 “judicial 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 (ii)(A), Kennedy principally argues on appeal
that subsection (e) of the regulation, which concerns “[d]isclosures for judicial and administrative
proceedings,” does not apply. See 45 C.F.R. § 164.512(e) (West, Westlaw through 80 FR 26430). The
State does not dispute that the records at issue were not disclosable under this subsection. See id.
(providing that, in order for information to be disclosable in the course of a judicial or administrative
proceeding, 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 subject of the
requested information “has been given notice of the request” and (2) to obtain a protective order prohibiting
the parties from using the information 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 the records could not have been disclosed under another subsection. See id.
§ 164.512(a) (“A covered entity may use or disclose protected health information to the extent that such
use or disclosure is required by law and the use or disclosure complies with and is limited to the relevant
requirements of such law. . . . A covered entity must meet the requirements described in paragraph (c),
(e), or (f) of this section for uses or disclosures required by law.” (emphasis added)).

                                                     7
subpoena 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 Kennemur v. 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



         6As noted, subparagraph (i) of subsection (f)(1) allows a covered entity to disclose protected health
information “[a]s 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 3/4/2005.”

                                                          8
ineffective 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 guilt-

innocence 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



                                              9
because the foreperson refused a juror’s request to submit a note, but that it is 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 unfair” 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, discussing 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 definitions and explanatory phrases to aid

the jury. Nava v. State, 379 S.W.3d 396, 420 (Tex. App.—Houston [14th Dist.] 2012),

aff’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 discretion 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 trial court’s instruction tracked article 36.27 of the code of criminal

procedure, which provides:



                                               10
       When the jury wishes to communicate with the court, it 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 in 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 first submit the question and also submit his answer to
       the same to the defendant or his counsel or objections and exceptions, in
       the same manner as any other written instructions 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 in 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
                                             11
       response, 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

intentional misrepresentation” on the 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 statute

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 it 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 “provocation” in the jury charge.




                                              12
       Provocation is an exception to the justification of self-defense.8 See TEX. PENAL

CODE ANN. § 9.31(b)(4) (West, Westlaw through 2013 3d C.S.) (providing that self-

defense 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.
                 ....
       [I]f 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.

                                                   13
for 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 trial 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 improper because, while

“the definition set forth in the charge is an appropriate definition for an appellate court to

apply in assessing the sufficiency of the evidence to support the ‘operate’ element,” 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 that
       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.



                                             14
       We 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).

                                                  15
any 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 W EBSTER 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




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argued 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


        10  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

                                                    17
Kennedy 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 self-

defense 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.

                                                     DORI CONTRERAS GARZA,
                                                     Justice

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.

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