                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-12-00271-CR

RICHARD BLAKE RAY,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                          From the 54th District Court
                           McLennan County, Texas
                          Trial Court No. 2011-2087-C2


                                      ORDER


      We affirmed Richard Blake Ray’s conviction for attempted capital murder on

April 18, 2013. He has now filed a motion for rehearing contending that we failed to

address his argument that he was entitled to an instruction on necessity because he

admitted to the culpable mental state for the lesser included offense of aggravated

assault, that being, recklessness. We did fail to address that argument and will address
it now; however, that failure does not change the result of our opinion. Ray’s argument

was not preserved.

        At the preliminary discussion regarding the trial court’s charge to the jury, Ray

requested an instruction on 1) self-defense with the use of deadly force, 2) the lesser

included offense of attempted murder, 3) the lesser included offense of deadly conduct,

and 4) the defense of necessity. At that time, Ray did not request an instruction on the

lesser included offense of aggravated assault. A discussion was then held off the

record.

        After the charge was prepared, Ray objected to the failure of the charge to

include the defense of necessity because he asserted there was evidence that he

reasonably believed his conduct was immediately necessary to avoid imminent harm.

Ray requested he be allowed to make a bill to put on evidence to explain why he felt his

conduct was necessary, that being he had been told something by his grandson about

something going on between Andy Hobbs and the grandson. The trial court denied

Ray’s request to make a bill and request for the necessity instruction.

        Later, Ray noted on the record that the defense and State agreed that Ray would

withdraw his request for a lesser offense instruction on deadly conduct in exchange for

a lesser offense instruction on aggravated assault.

        A trial court is not required to sua sponte instruct the jury on a "defensive issue"

unless the defendant timely requests the issue or objects to the omission of the issue in


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the jury charge. Tolbert v. State, 306 S.W.3d 776, 779-780 (Tex. Crim. App. 2010). This is

intended to discourage a defendant from retrying the case on appeal under a new

defensive theory, effectively giving the defendant "two bites at the apple." Id. n. 6; Posey

v. State, 966 S.W.2d 57, 63 (Tex. Crim. App. 1998). Further, a defendant must specify

what facts or legal theory would support the requested defense or risk forfeiture of his

complaint on appeal. Mays v. State, 318 S.W.3d 368, 384 (Tex. Crim. App. 2010). See

Starks v. State, 127 S.W.3d 127, 133 (Tex. App.—Houston [1st Dist.] 2003, pet. dism'd) (to

preserve a complaint about the trial court's failure to instruct on self-defense, a

defendant must make a timely objection that specifically states the legal basis for the

objection). Generally, a party's complaint is adequately specific if the party lets the trial

judge know what he wants, why he is entitled to it, and to do so clearly enough for the

judge to understand him at a time when the trial court is in a proper position to do

something about it.    Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006);

Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992).

        Ray’s argument on appeal, while interesting, is not preserved. Although Ray

objected to the trial court’s failure to include an instruction on necessity, he failed to

make it clear to the judge that, in addition to wanting that instruction on the primary

charge, he also wanted a necessity instruction as to the lesser offense of aggravated

assault and why he would be entitled to that instruction. Raising the issue now on

appeal would effectively give Ray a second bite at the apple.


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        Accordingly, Ray’s entitlement to an instruction on necessity on the theory he

admitted to the culpable mental state for the lesser included offense of aggravated

assault was not preserved. His motion for rehearing is denied.




                                        PER CURIAM

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Rehearing denied
Order issued and filed May 16, 2013




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