Opinion filed April 28, 2017




                                                In The


            Eleventh Court of Appeals
                                            __________

                                     No. 11-15-00320-CR
                                         __________

                    RODERICK LAMON SNEED, Appellant
                                                    V.
                          THE STATE OF TEXAS, Appellee

                         On Appeal from the 350th District Court
                                 Taylor County, Texas
                             Trial Court Cause No. 11482-D


                          MEMORANDUM OPINION
        The grand jury alleged in its indictment that Roderick Lamon Sneed
committed the offense of aggravated assault with a deadly weapon, a second-degree
felony, by intentionally, knowingly, and recklessly causing bodily injury to Ricardo
Daniel Bordayo by shooting him in the torso.1 The grand jury also alleged that

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          The original indictment alleged shot in the “chest,” but the State amended it to read “torso.” The
trial court approved that amendment.
Appellant exhibited or used a deadly weapon, a handgun, during the offense.
Appellant pleaded not guilty, but the jury found him guilty of the charged offense.
The jury assessed punishment at confinement for thirteen years. The trial court
sentenced Appellant accordingly.
      After the trial court denied Appellant’s motion for new trial, Appellant
brought this appeal. On appeal, Appellant first claims that the trial court should have
compelled Isaac Olvera to testify about the conspiracy between Bordayo and Isaac’s
mother, Cindy Olvera, to rob Appellant. In his second issue, Appellant asserts that
the trial court erred when it did not provide the jury with a necessity instruction and
that the error harmed him. We affirm.
                                 I. Evidence at Trial
      Because Appellant does not assert a sufficiency challenge on appeal, we
outline only those facts pertinent to his issues on appeal. At trial, Bordayo testified
that Appellant ran toward him and that, as Bordayo ran away, Appellant shot him.
Bordayo testified that, earlier in the day, he had sold “fake dope” to his ex-girlfriend,
Jessica Olvera, for $120 and that, when she found out, she came looking for him
with her mother, Cindy Olvera. Bordayo explained that he went to get a gun at his
friend Jackie’s house. As Bordayo stood outside Jackie’s house, Jessica and Cindy
arrived and demanded Jessica’s money back from him because of the “fake drugs.”
At that time, Appellant, who had arrived with Jessica and Cindy, appeared and ran
toward Bordayo. Appellant had a pistol in his hand as he approached Bordayo.
Bordayo began to run away, but Appellant caught Bordayo and shot him in the torso.
      While incarcerated before trial, Appellant wrote a letter to the court and
apologized to the victim. At trial, Appellant testified in his own defense and thought
that Bordayo was with Cindy and Jessica when Bordayo robbed Appellant.
Appellant claimed that Cindy called him to make a drug buy, so they arranged a
meeting. Once they met, Bordayo approached Appellant, brandished a gun at him,
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took his money, and then “trotted off.” He testified that he fired four warning shots
to stop Bordayo and then chased Bordayo and that, when Bordayo pointed a gun at
him, Appellant shot Bordayo in self-defense.
      As part of his defense, Appellant called Isaac Olvera to the stand as a witness.
Isaac answered a couple of questions and denied that he had seen Jessica and
Bordayo at the Howard Johnson. Isaac then invoked his Fifth Amendment right not
to incriminate himself. Defense counsel objected and claimed that Isaac knew about
Cindy’s and Bordayo’s plans to rob Appellant; Appellant wanted to compel Isaac to
testify about that knowledge. The trial court wanted Isaac’s lawyer to come to the
courtroom and advise Isaac. The trial court had Isaac, with his lawyer present, take
the stand again; Isaac again invoked his Fifth Amendment right against self-
incrimination. Over Appellant’s similar objections as before, the trial court did not
compel Isaac to testify.
                              II. Standards of Review
      We review complaints of improper limitations on the right to compulsory
process under an abuse-of-discretion standard. Lawal v. State, 368 S.W.3d 876, 886
(Tex. App.—Houston [14th Dist.] 2012, no pet.) (citing Drew v. State, 743 S.W.2d
207, 225 n.11 (Tex. Crim. App. 1987); Emenhiser v. State, 196 S.W.3d 915, 921
(Tex. App.—Fort Worth 2006, pet. ref’d)).         The Sixth Amendment does not
guarantee the right to secure the attendance and testimony of any and all witnesses;
rather, it guarantees only compulsory process for obtaining witnesses whose
testimony would be both material and favorable to the defense. Coleman v. State,
966 S.W.2d 525, 527–28 (Tex. Crim. App. 1998). With respect to Appellant’s first
issue, he must have made a plausible showing to the trial court, by sworn evidence
or agreed facts, that the witness’s testimony would be both material and favorable to
the defense. Id. at 528; see United States v. Valenzuela–Bernal, 458 U.S. 858, 867
(1982) (explaining that a defendant seeking to establish a violation of his
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constitutional right to compulsory process must at least make “some plausible
showing” of how the evidence sought would be both material and favorable to his
defense).
      We review a trial court’s decision to exclude a requested instruction on a
defensive issue for an abuse of discretion. See Wesbrook v. State, 29 S.W.3d 103,
122 (Tex. Crim. App. 2000); Reynolds v. State, 371 S.W.3d 511, 521 (Tex. App.—
Houston [1st Dist.] 2012, pet. ref’d). As to Appellant’s second issue of alleged jury
charge error, we use a two-step process. Ngo v. State, 175 S.W.3d 738, 743 (Tex.
Crim. App. 2005). First, we determine whether error exists in the charge. Id. If
error does exist, we review the record to determine whether the error caused
sufficient harm to require reversal of the conviction. Id. We review the evidence in
a light most favorable to the Appellant. See Guilbeau v. State, 193 S.W.3d 156, 159
(Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (citing Dyson v. State, 672 S.W.2d
460, 463 (Tex. Crim. App. 1984)).
                                    III. Analysis
      We will address Appellant’s first issue on his Sixth Amendment right to
compulsory process. We will then address his second issue regarding a necessity
instruction.
      A. Issue One: The trial court correctly determined that Isaac invoked,
         and did not waive, his Fifth Amendment right against self-
         incrimination.
      Appellant asserts that once Isaac testified about his knowledge of Appellant,
his conversations with Bordayo, and his conversations with Appellant’s counsel, he
waived his Fifth Amendment privilege. Isaac pleaded his Fifth Amendment right
against self-incrimination when asked questions about what he knew about the
planned robbery of Appellant. The court ruled that it was an appropriate use of the
privilege. Appellant disagreed, objected, and argued that he should have been


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allowed to question Isaac on these matters. The State asserts that Isaac properly
invoked his Fifth Amendment right against self-incrimination. The State argues that
a general discussion about his acquaintance and knowledge of Bordayo does not
require him to recount specific conversations at the hotel or recount what he knew
about Bordayo’s plans to rob Appellant when, in fact, Isaac denied that any such
meetings or conversations occurred. As we explain below, we agree with the State.
      A “defendant has no right to have a witness assert or invoke his Fifth
Amendment privilege against self-incrimination in the presence of the jury.”
Bridge v. State, 726 S.W.2d 558, 567 (Tex. Crim. App. 1986) (citing Ellis v. State,
683 S.W.2d 379, 382 (Tex. Crim. App. 1984); Mendoza v. State, 552 S.W.2d 444
(Tex. Crim. App. 1977); Victoria v. State, 522 S.W.2d 919, 922 (Tex. Crim. App.
1975); Rodriguez v. State, 513 S.W.2d 594, 596 (Tex. Crim. App. 1974)). An
individual’s right to invoke his privilege against self-incrimination overrides the
defendant’s right to compel witnesses to appear and testify. Id. “[O]ne’s privilege
against self-incrimination trumps an accused’s rights under the Sixth Amendment.”
Huddleston v. State, No. 11-05-00198-CR, 2007 WL 1644062, at *2 (Tex. App.—
Eastland June 7, 2007, pet. ref’d) (not designated for publication). However, if a
witness “voluntarily states a part of the testimony, he waives his right, and cannot
afterwards stand on his [Fifth Amendment] privilege.” Stephens v. State, 59 S.W.3d
377, 380 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d) (alteration in original)
(quoting Draper v. State, 596 S.W.2d 855, 857 (Tex. Crim. App. 1980)).
      On the other hand, testimony given as to one transaction does not waive the
Fifth Amendment right as to all subjects or transactions. Id. In this case, Isaac
denied that a meeting and conversation took place between Bordayo and him, and
when questioned further by defense counsel, he invoked his Fifth Amendment right
against self-incrimination. Isaac did not waive this privilege when he denied that he
had a meeting and conversation with Bordayo a few days before the aggravated
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assault on Bordayo. Isaac’s Fifth Amendment right trumped Appellant’s right to
compel process for Isaac to testify. Bridge, 726 S.W.2d at 567; Huddleston, 2007
WL 1644062, at *2. Because Isaac invoked his privilege and did not waive it, we
hold that the trial court did not abuse its discretion when it refused to compel Isaac
to testify after he had invoked his Fifth Amendment right against self-incrimination.
We overrule Appellant’s first issue.
      B. Issue Two: Appellant was not entitled to a necessity instruction.
      Appellant asserts that, after he was robbed at gunpoint by Bordayo, he fired
warning shots with his own gun, pursued Bordayo, and then shot Bordayo when
Bordayo pointed a gun at Appellant. Appellant claimed that this evidence mandated
the inclusion of a necessity instruction under Section 9.22 of the Penal Code. TEX.
PENAL CODE ANN. § 9.22 (West 2011). The State asserts that Appellant may not
raise a necessity defense because he presented evidence on the use of deadly force
in self-defense and the court gave a self-defense instruction in the jury charge. We
agree with the State.
      When deadly force in self-defense is the conduct that is allegedly
“immediately necessary” under the first element of the necessity defense found in
Section 9.22(1), the defense of necessity does not apply. Kelley v. State, No. 05-15-
00545-CR, 2016 WL 1446147, at *7 (Tex. App.—Dallas Apr. 12, 2016, pet. ref’d)
(mem. op., not designated for publication); Wilson v. State, No. 06-14-00021-CR,
2014 WL 8332264, at *4–5 (Tex. App.—Texarkana Nov. 7, 2014, pet. ref’d) (mem.
op., not designated for publication). The self-defense statute, Section 9.32 of the
Penal Code, contains a plain legislative purpose precluding a necessity instruction
when self-defense is implicated. Kelley, 2016 WL 1446147, at *7; Wilson, 2014
WL 8332264, at *4–5. In this case, Appellant adduced evidence of his theory of
self-defense, and the trial court included a self-defense instruction in the jury charge.
Having done that, the trial court did not err when it refused to include a necessity
                                           6
instruction because an instruction on necessity under the circumstances in this
case—where the trial court properly instructed the jury on self-defense—would have
undermined the legislative purpose of only allowing deadly force to be used to
prevent the immediate threat to one’s life or to prevent the commission of specific
violent crimes. See Kelley, 2016 WL 1446147, at *7. Because Appellant received
a self-defense instruction in the jury charge, the trial court did not err when it refused
to include a necessity instruction. Having found that the trial court did not err in
refusing to give the requested jury instruction, we need not address harm. We
overrule Appellant’s second issue.
                               IV. This Court’s Ruling
      We affirm the judgment of the trial court.




                                                MIKE WILLSON
                                                JUSTICE


April 28, 2017
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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