                             NUMBER 13-14-00038-CR

                                 COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


ALLEN LATOI STORY,                                                                    Appellant,

                                                 v.

THE STATE OF TEXAS,                                                                   Appellee.


                       On appeal from the 19th District Court
                           of McLennan County, Texas.


                             MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Rodriguez and Perkes
              Memorandum Opinion by Justice Perkes1
       Appellant Allan Latoi Story appeals his conviction for murder, a first-degree felony,

enhanced by prior convictions. See TEX. PENAL CODE ANN. §§ 12.42(c), 19.02(b)(1), (c)



       1
          Pursuant to a docket-equalization order issued by the Supreme Court of Texas, the appeal has
been transferred to this Court from the Tenth Court of Appeals in Waco, Texas. See TEX. GOV'T CODE
ANN. § 73.001 (West, Westlaw through 2015 R.S.).
(West, Westlaw through 2015 R.S.).        A jury found appellant guilty and assessed

punishment at life imprisonment. By two issues, appellant argues the trial court erred:

(1) by excluding evidence of a recorded interview between appellant and a police officer;

and (2) by refusing to give a jury instruction on self-defense. We affirm.

                                     I. BACKGROUND

      Appellant was indicted for murder relating to the stabbing death of Zachary Davis.

Joyce Akers testified that she was a longtime friend of Rene Davis, Zachary’s sister.

Akers was at Rene’s apartment with Zachary, Rene, and appellant on the night of the

altercation. She recalled that Rene and appellant were arguing, when appellant said “if

you keep at it, I’m going to put my hands on you.” Zachary responded “as long as I’m

here, you’re not going to put hands on her.” Appellant told Zachary that if he interfered,

he would kill him. Akers testified that appellant then left the room, and when he returned,

Zachary told him “whatever you went back there to get or whatever you call yourself doing,

you’re going to have to use it.” Appellant then walked out the back door, and Rene

followed as the two continued arguing. Akers testified that appellant then grabbed Rene

and lifted her up by her throat. At that time, Zachary intervened and struck appellant with

his fist, which resulted in a physical altercation between Zachary and appellant. Akers

recalled that, as Zachary and appellant were punching each other, appellant fell to the

ground and Rene started hitting appellant. Akers testified that the fighting stopped and

appellant stood up and walked toward the back door, while Zachary walked away from

the back porch and into the yard. As appellant was walking away, he dropped a knife

and picked it up. Akers stated appellant then approached Zachary who fell to the ground


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on his back. Akers testified appellant got on top of Zachary and stabbed him several

times, while she yelled “please stop stabbing him.” After the stabbing, Rene ran into the

house and came back outside with a hammer. Appellant stood up and entered the

apartment, while Zachary ran away from the apartment.           Akers stated that neither

Zachary nor Rene had a weapon when they were fighting appellant.

       Officer Jason Ireland with the Waco Police Department testified that he responded

to the scene and observed Zachary on the ground gasping for breath. Zachary died

shortly after his arrival. Officer Ireland learned that appellant was suspected of stabbing

Zachary and obtained his cell phone number. He attempted to locate appellant’s cell

phone by determining its GPS location. For three to four hours, Officer Ireland and other

law enforcement officials searched for appellant using “pings” from appellant’s cell phone.

Officer Ireland narrowed appellant’s location to a residence within four to five blocks of

the crime scene. After confirming appellant was located in the house, an officer with a

canine called for him to come out. After two commands from the officer, appellant exited

the residence. Officer Ireland did not observe any physical injuries, and appellant did

not request medical treatment. Appellant was arrested and taken to the county jail.

       Appellant’s counsel questioned Officer Ireland outside the presence of the jury

concerning his interview with appellant. Officer Ireland testified he talked to appellant in

his patrol car shortly after his arrest, and the interview was recorded.        During the

interview, appellant stated “[Rene and Zachary] were jumping me and I defended myself.”

Appellant claimed that he saw a hammer and some knives. Appellant stated he was on




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the ground and “they hit me first.” Appellant explained that “[Zachary] hit me and I fell to

the ground and [Rene] came over and kicked me.”

       Appellant’s counsel moved to admit the recorded interview as impeachment of

Officer Ireland’s testimony “about [appellant’s] voluntariness of coming out of the house

and also about injuries and so forth.” Appellant’s counsel also argued the recording was

admissible under “Texas Rules of Evidence 107, the Rule of Optional Completeness.”

The State objected that the video was hearsay and irrelevant. The trial court sustained

the State’s objections.

       Angelika McCallister, a crime scene technician for the Waco Police Department,

testified concerning photographs of the crime scene and the parties involved in the

altercation. McCallister explained that appellant had a number of superficial and non-life

threatening injuries, but that Rene did not exhibit any injuries.

       Dr. Janice Townsend-Parchman, the Dallas County medical examiner, performed

Zachary’s autopsy. She testified that Zachary suffered three stab wounds to the: (1)

front left shoulder, penetrating 4¾ inches; (2) liver, penetrating 4¾ inches; and (3) right

thigh, penetrating 3 inches. Dr. Townsend-Parchman concluded the three stab wounds

caused Zachary’s death.

       Rene testified during appellant’s case-in-chief. Rene stated that after arguing

with appellant, she went outside with Zachary.         Appellant followed them, and they

continued to argue.       Rene testified Zachary punched appellant “because [appellant]

acted like he was going to choke me.” Rene denied that appellant picked her up by her

throat. During the altercation between appellant and Zachary, appellant ended up on the


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ground, and she began hitting appellant with a stick. Rene estimated that the stick was

two to three feet long and less than four inches in diameter. After she saw appellant stab

Zachary, she went inside the apartment to get a hammer. Rene was not sure if she hit

appellant with the hammer or not.      Following the altercation, appellant ran into the

apartment and locked the door, while Zachary ran toward the parking lot.

      On cross-examination, Rene testified that she gave a statement to police on the

night of Zachary’s death, but did not mention the stick or the hammer because she was

scared. Rene acknowledged she visited appellant in the jail on four occasions following

Zachary’s death. She admitted appellant asked her to marry him during one of the visits

and discussed his upcoming trial with her.

      The jury found appellant guilty and assessed punishment at life imprisonment.

This appeal followed.

                                      II. HEARSAY

      By his first issue, appellant argues “the trial court erred in excluding from evidence

an audio recording of an interview of appellant by a police officer that was made 3–4

hours after the stabbing of the victim.”     Specifically, appellant maintains the video

recording was not hearsay because it was not offered to prove the truth of the matter

asserted. We disagree.

A.    Preservation

      We must first address whether the issue raised on appeal comports with the

objection made at trial.   To have evidence admitted over a hearsay objection, the

proponent of the evidence must specify which exception he is relying upon or how the


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evidence was not hearsay. Willover v. State, 70 S.W.3d 841, 845–46 (Tex. Crim. App.

2002); see also Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005) (“So it is

not enough to tell the judge that evidence is admissible. The proponent, if he is the losing

party on appeal, must have told the judge why the evidence was admissible.”).

Additionally, to complain about a trial court's evidentiary ruling, a party must have first

made his complaint to the trial court in a manner that states the grounds for the desired

ruling with sufficient specificity to make the trial court aware of the complaint. See TEX.

R. APP. P. 33.1(a)(1)(A). If the trial court never has the opportunity to rule upon the

proponent's appellate rationale, the argument cannot be raised on appeal. See Reyna,

168 S.W.3d at 178.

        At trial, appellant’s counsel argued that the recorded interview was admissible over

the State’s hearsay objection to impeach Officer Ireland’s testimony “about [appellant’s]

voluntariness of coming out of the house and also about injuries and so forth.”2 On

appeal, appellant argues two theories for the admissibility of his statements to Officer

Ireland.   First, appellant maintains that the statements are admissible to show that

“appellant began to say he was defending himself far earlier than the State had

deliberately misled the jury to think.” Appellant did not make this argument to the trial

court with respect to his statements to Officer Ireland. Rather, the argument was made

with respect to appellant’s later interview with Detective Steve January.3 Appellant does




         2 Appellant’s counsel also argued, at trial, that the recording was admissible under “Texas Rules

of Evidence 107, the Rule of Optional Completeness,” but he does not raise that argument on appeal.
         3 Story’s counsel argued to the trial court that the statements made to Detective January were

admissible as impeachment of Rene’s testimony “that they were getting their plan together and so forth as
far as this case.”
                                                    6
not challenge the trial court’s ruling concerning the admissibility of his statements to

Detective January. Therefore, this argument is not preserved for appeal. See Reyna,

168 S.W.3d at 178.

       Second, appellant maintains on appeal his statements to Officer Ireland were not

hearsay because they were offered “to show that Officer Ireland’s testimony that appellant

was uncooperative . . . was not correct.” We will address this argument to the extent it

comports with the argument actually raised in the trial court. See Willover, 70 S.W.3d at

845–46.

B.     Standard of Review and Applicable Law

       We review the trial court's decision to admit or exclude evidence under an abuse

of discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010);

Whipple v. State, 281 S.W.3d 482, 499 (Tex. App.—El Paso 2008, pet. ref'd). The trial

court does not abuse its discretion unless its determination lies outside the zone of

reasonable disagreement. Martinez, 327 S.W.3d at 736; Whipple, 281 S.W.3d at 499–

500. We will uphold a trial court's decision so long as it is supported by the record and

is correct under any theory of applicable law. De LaPaz v. State, 279 S.W.3d 336, 344

(Tex. Crim. App. 2009); Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005).

       Hearsay is defined by the rules of evidence as “a statement, other than one made

by the declarant while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted.” TEX. R. EVID. 801(d). It is well-settled that when the

accused does not take the stand, self-serving statements are generally not admissible.

Hafdahl v. State, 805 S.W.2d 396, 402 (Tex. Crim. App. 1990), disavowed on other


                                            7
grounds by Cook v. State, 858 S.W.2d 467, 469–470 (Tex. Crim. App. 1993); see Reado

v. State, 690 S.W.2d 15, 17 (Tex. App.—Beaumont 1984, pet. ref'd).

        [S]elf-serving declarations of the accused are ordinarily inadmissible in his
        behalf, unless they come under some exception, such as: being part of the
        res gestae of the offense or arrest, or part of the statement or conversation
        previously proved by the State, or being necessary to explain or contradict
        acts or declarations first offered by the State.

Singletary v. State, 509 S.W.2d 572, 576 (Tex. Crim. App. 1974); see Allridge v. State,

762 S.W.2d 146, 152 (Tex. Crim. App. 1988); Davis v. State, 970 S.W.2d 758, 761 (Tex.

App.—Austin 1998, no pet.). “The theory behind the third exception is to prevent the fact

finder from being misled or perceiving a false, incorrect impression when hearing only a

part of an act, declaration, conversation or, especially, a writing.” Reado, 690 S.W.2d at

17. Under this exception, the proffered testimony may be admitted only if necessary to

prevent the jury from being misled or mistaken. Id.

C.      Analysis

        Appellant does not argue that his self-serving statements were admissible as being

part of the res gestae of the offense or arrest or that his statements were part of a

statement or conversation previously proved by the State. Rather, appellant maintains

that his statements to Officer Ireland were admissible “to show that Officer Ireland’s

testimony that appellant was uncooperative . . . was not correct.” To determine whether

appellant’s self-serving declaration would be admissible under this theory, we must

decide whether such statements “were necessary to explain or contradict acts or

declarations first offered by the State.”4 See Singletary, 509 S.W.2d at 576.


        4 While appellant argued at trial that the statements were admissible under Texas Rule of Evidence
613, he does not raise this argument on appeal. Further, rule 613 would have no application here, because
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        Appellant contends Officer Ireland’s testimony that he was uncooperative

necessitated admission of his entire recorded statement. Officer Ireland testified that it

took officers three to four hours to locate appellant and that appellant did not exit the

residence until an officer with a canine issued commands for appellant to come out.

Appellant’s statements to Officer Ireland focused on his assertions that he acted in self-

defense. Officer Ireland offered no testimony concerning his conversation with appellant

or whether he acted in self-defense.

        In reviewing the record, we find no portion of Officer Ireland’s testimony that

created a false impression or misled the jury.               Therefore, we cannot conclude that

appellant’s recorded statement was necessary to explain or contradict acts or

declarations first offered by the State. See Reado, 690 S.W.2d at 17; see also Allridge,

762 S.W.2d at 153 (explaining that “to adopt appellant's position would mean that all self-

serving statements by an accused would be admissible”).                     Accordingly, appellant’s

statements to Officer Ireland constitute inadmissible self-serving hearsay, and the trial

court did not abuse its discretion in excluding those statements. See Martinez, 327

S.W.3d at 736; Hafdahl, 805 S.W.2d at 402. We overrule appellant’s first issue.




appellant’s statements do not constitute a prior inconsistent statement made by Officer Ireland. See
Willover v. State, 70 S.W.3d 841, 846 n. 8 (Tex. Crim. App. 2002) (“Texas Rule of Evidence 613 allows into
evidence (for impeachment purposes) proof of a witness's prior inconsistent statements (provided the
proper predicate is established). Such prior inconsistent statements are considered hearsay and, unless
they fall within some hearsay exception, they are admissible for impeachment purposes only (as opposed
to substantive purposes).”).
                                                    9
                                 III. JURY INSTRUCTION

      By his second issue, appellant argues the trial court erred by “den[ying] his request

for a jury instruction on self-defense because the issue was raised by the evidence.” We

disagree.

A.    Standard of Review

      Appellate review of alleged jury charge error generally involves a two-step process.

Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012); Ngo v. State, 175 S.W.3d

738, 743 (Tex. Crim. App. 2005). First, we must determine whether error occurred.

Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013). If there is error in the

charge, we must then analyze whether sufficient harm resulted from the error to require

reversal. Id.; Ngo, 175 S.W.3d at 744. If error has been properly preserved, as in this

case, reversal is required if the error is “calculated to injure the rights of defendant,”

meaning there must be some harm. See TEX. CODE CRIM. PROC. ANN. art. 36.19 (West,

Westlaw through 2015 R.S.); Sakil v. State, 287 S.W.3d 23, 25–26 (Tex. Crim. App.

2009). The defendant must have suffered some actual, rather than merely theoretical,

harm from the error. Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013).

We consider “‘the entire jury charge, the state of the evidence, including the contested

issues and weight of probative evidence, the argument of counsel and any other relevant

information revealed by the record of the trial as a whole.’” Barron v. State, 353 S.W.3d

879, 883 (Tex. Crim. App. 2011) (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1984)).




                                           10
B.     Applicable Law

       The trial court is required to instruct the jury on statutory defenses, affirmative

defenses, and justifications whenever they are raised by the evidence. TEX. PENAL CODE

ANN. §§ 2.03(d), 2.04(d) (West, Westlaw through 2015 R.S.); Walters v. State, 247

S.W.3d 204, 208–09 (Tex. Crim. App. 2007). A defendant is entitled to an instruction on

every defensive issue raised by the evidence, regardless of whether the evidence is

strong, feeble, unimpeached, or contradicted, and even when the trial court thinks the

testimony is not worthy of belief. Walters, 247 S.W.3d at 209.          A defensive issue is

raised by the evidence if there is some evidence, regardless of its source, on each

element of a defense that, if believed by the jury, would support a rational inference that

the element is true. See Shaw v. State, 243 S.W.3d 647, 657–58 (Tex. Crim. App. 2007).

In determining whether a defensive instruction should have been given, “we view the

evidence in the light most favorable to the defendant's requested submission.” Bufkin v.

State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006). The question of whether a defense

is raised by the evidence is a sufficiency question, which we review as a question of law.

Shaw, 243 S.W.3d at 658.

       In order for a trial court to submit a self-defense instruction to the jury, a defendant

must produce sufficient evidence on each element to raise the issue. TEX. PENAL CODE

ANN. § 2.03 (West, Westlaw through 2015 R.S.). Sections 9.31 and 9.32 of the Texas

Penal Code provide in relevant part that a person is justified in using deadly force against

another “when and to the degree the actor reasonably believes the force is immediately

necessary . . . to protect the actor against the other's use or attempted use of unlawful


                                             11
deadly force.” Id. §§ 9.31(a), 9.32(a). “Deadly force” means force that is intended or

known by the actor to cause, or in the manner of its use or intended use is capable of

causing, death or serious bodily injury.” Id. § 9.01(3). “Serious bodily injury” means

bodily injury that creates a substantial risk of death or that causes death, serious

permanent disfigurement, or protracted loss or impairment of the function of a bodily

member or organ. Id. § 1.07(a)(46).

C.    Analysis

      Appellant did not testify. However, he argues he was entitled to a self-defense

instruction on the use of deadly force because he “was on the ground, being assaulted

by two adults, one of whom was hitting him with a stick that was 2–3 feet long and as

thick as a female’s wrist, immediately before he stabbed [Zachary].” The trial court

denied the requested instruction, concluding there was “no evidence or testimony that

[appellant] reasonably believed that deadly force was necessary to protect himself against

somebody else's use of deadly—of unlawful deadly force.”

      The evidence, viewed in the light most favorable to the requested instruction,

reflects that appellant threatened Rene by saying “if you keep at it, I’m going to put my

hands on you.”    When appellant “acted like he was going to choke [Rene,]” Zachary hit

appellant with his fist, and the two began punching each other. Zachary and Rene were

both hitting appellant while he was on the ground, but at some point appellant was able

to get up and Zachary walked away from him. It was at this time appellant approached

the unarmed Zachary and stabbed him with a knife and Zachary fell to the ground. While




                                           12
Rene testified she previously struck appellant with a stick, the evidence shows the three

had already separated when appellant approached Zachary and stabbed him.

       Assuming appellant was initially justified in using non-deadly force in response to

being hit by Zachary, there is no evidence that he reasonably believed the use of deadly

force was immediately necessary to protect himself at the time he stabbed Zachary. See

Bennett v. State, 726 S.W.2d 32, 37–38 (Tex. Crim. App. 1986) (holding that

reasonableness of fear for a self-defense claim must be judged from the standpoint of the

accused at the “instant he responds to the attack”); Trammell v. State, 287 S.W.3d 336,

341 (Tex. App.—Fort Worth 2009, no pet.) (concluding that the defendant was not entitled

to self-defense instruction in absence of immediacy of threat from victim); Oestrick v.

State, 939 S.W.2d 232, 238 (Tex. App.—Austin 1997, pet. ref'd) (determining that the

defendant was not entitled to a self-defense instruction when victim had a baseball bat

but was walking away from defendant when defendant shot the victim).

       We conclude appellant was not entitled to a self-defense instruction, and the trial

court did not commit error in denying the requested instruction.       See Wooten, 400

S.W.3de at 606. We overrule appellant’s second issue.

                                     IV. CONCLUSION

       We affirm the judgment of the trial court.

                                                    GREGORY T. PERKES
                                                    Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
19th day of November, 2015.

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