                                                                                PD-1277-15
                              PD-1277-15                      COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
                                                              Transmitted 9/25/2015 2:48:37 PM
                                                               Accepted 9/30/2015 12:09:18 PM
                                                                                ABEL ACOSTA
                 IN THE COURT OF CRIMINAL APPEALS                                       CLERK
                          OF AUSTIN, TEXAS


  ALCIDES LARRINAGA
  a.k.a. ALCIDES LARRINGA,               §
              Appellant                  §
                                         §       NO.
  VS.                                    §
                                         §
  THE STATE OF TEXAS,                    §
           Appellee                      §


   ON PETITION FOR DISCRETIONARY REVIEW FROM THE DECISION
                 OF THE COURT OF APPEALS FOR
     THE SECOND DISTRICT OF TEXAS, AT FORT WORTH, TEXAS
                      IN CAUSE NO. 02-14-00199-CR
       AFFIRMING APPELLANT'S CONVICTION AND SENTENCE
                      IN CAUSE NO. 1328386D
           HONORABLE GEORGE GALLAGHER, PRESIDING
               FROM THE 396TH DISTRICT COURT OF
                    TARRANT COUNTY, TEXAS



    APPELLANT'S PETITION FOR DISCRETIONARY REVIEW


September 30, 2015
                              Richard A. Henderson
                              State Bar No. 09427100
                         RICHARD A. HENDERSON, P.C.
                         100 Throckmorton Street, Suite 540
                               Fort Worth, Texas 76102
                              817-332-9602 - Telephone
                               817-335-3940 - Facsimile
                              rich ard(ãrahenderson. corn

        ATTORNEY FOR APPELLANT, ALCIDES LARRINAGA A.K.A. ALCIDES LARRINGA
                                            SUBJECT INDEX

IDENTITY OF PARTIES AND COUNSEL .......................................................ii,iii
TABLE OF AUTHORITIES ................................................................................. iv,v
STATEMENT REGARDING ORAL ARGUMENT ............................................... 1
STATEMENTOF THE CASE ................................................................................. 1
STATEMENT OF PROCEDURAL HISTORY ....................................................... 1
GROUNDSFOR REVIEW ...................................................................................1 ,2
REASONSFOR REVIEW .......................................................................................2
      GROUNDONE.................................................................................................2
      GROUNDTWO .............................................................................................. 10
CONCLUSION AND PRAYER.............................................................................14
CERTIFICATE OF COMPLIANCE ......................................................................15
CERTIFICATE OF SERVICE................................................................................15
APPENDICES.........................................................................................................16
        Appendix "A"
         (Opinion of the Court of Appeals Second District of Texas,
         Fort Worth, Texas)

        Appendix "B"
         (Motion for Rehearing)

        Appendix "C"
         (Order denying appellant's motion for rehearing)
                     IDENTITY OF PARTIES AND COUNSEL
         The following is a complete list of all parties pursuant to Texas Rules of
Appellate Procedure 6 8.4(a):

   1. Alcides Larrinaga aka Alcides Larringa
      TDCJ #01929143
      Eastham Unit
      2665 Prison Rd #1
      Lovelady, Texas 75851
      Defendant/Appellant

   2. Kimberly Knapp
      5719 Airport Freeway
      Fort Worth, Texas 76117
      Richard A. Henderson
      Richard A.Henderson, P.C.
      100 Throckmorton Street, Suite 540
      Fort Worth, Texas 76102
      Trial Attorneys for Defendant

   3. THE STATE OF TEXAS
      Steven W.Conder
      Jacob Mitchell
      William Vassar
      Assistant Criminal District Attorneys
      District Attorney's Office
      401 West Belknap
      Fort Worth, Texas 76196-0201

      Ms. Debra Windsor, Chief, Post-Conviction
      Assistant Criminal District Attorney
      Tarrant County, Texas
      401 W. Belknap Street
      Fort Worth, Texas 76196



                                              11
  Ms. Sharen Wilson,
  Criminal District Attorney
  Tarrant County, Texas
  401 W. Belknap Street
  Fort Worth, Texas 76196
  Plaintiff/Appellee

4. Honorable George Gallagher
   Judge, 396th District Court
   Tim Curry Criminal Justice Center
   401 W. Belknap Street
   Fort Worth, Texas 76196
   Trial Judge

5. Richard A. Henderson
   Richard A.Henderson, P.C.
   Two City Place
   100 Throckmorton Street
   Suite 540
   Fort Worth, Texas 76102
   Attorney for Appellant




                                   111
                                  TABLE OF AUTHORITIES


CASES:

Almanza vs. State, 686 S.W.2d 157 (Tex. Crim. App. 1984)                                                . 10

Elizondo vs. State, Number 13-12-00028-CR
      (Tex.App.—Corpus Christi 2013 unpublished).............................................. 9

Hernandez vs. State, (726 S.W.2d 53 (Tex.Crim.App. 1986)...................................9

Jackson v. State, 17 S.W.3d 664, 670 (Tex.Crim.App.2000).................................12

Kelly vs. State, 824 S.W.2d 568, 573 ......................................................................12

Ngo vs. State, 175 S.W.3d 738 (Tex.Crim. App. 2005)......................................... 10

Russeau v. State, 171 S.W.3d 871, 881
   (Tex. Crim. App. 2005) cert denied 548 U.S. 926 2006.............................11,13

Walters vs. State, 247 S.W.3d 204 (Tex. Crim. App. 2007).....................................9

Weatherredv. State, 15 S.W.3d 540, 542, (Tex.Crirn.App.2000) ......................... 12

Webber vs. State, 29 S.W.3d 226 (Tex. App.—Houston 14th District 2000)..........9

Willis vs. State, 790 S.W.2d 307 (Tex.Crim. App. 1990).........................................0




                                                     iv
RULES, CODES:

Tex. Penal Code Sec.9.32(b)..................................................................................1,2

Tex. Penal Code Sec. 9.31 ................................................................................. 4,7,10

Tex. Penal Code Sec.9.32.......................................................................................4,7

Tex. Penal Code Sec. 2.05(b).................................................................................... 5

Tex. Penal Code Sec. 9.32(b)(3) .............................................................................4

Tex. Rule ofEvid.701 .............................................................................................11

Tex. Rule of Evid.702-704 ...................................................................................... 11

Tex. Rule of Evid. 702 .......................................................................................11,12




                                                         Op
              STATEMENT REGARDING ORAL ARGUMENT


      Petitioner believes that oral argument would aid the court in deciding the

critical issues presented.

                             STATEMENT OF THE CASE

      Appellant was convicted of murder after a jury trial and was assessed fifty

(50) years in the Institutional Division of the Texas Department of Criminal Justice

by the trial court after Appellant pleaded true to being a habitual criminal.



                    STATEMENT OF PROCEDURAL HISTORY

      The Court of Appeals issued its Opinion affirming the conviction on August

6, 2015. A Motion for Rehearing was electronically filed by Appellant on August

21, 2015. The Motion for Rehearing was overruled by the Second Court of

Appeals on August 27, 2015. This Petition for Discretionary Review is timely if

filed on or before September 28, 2015.


                              GROUNDS FOR REVIEW

GROUND ONE: Is being a felon in possession of a firearm the kind of criminal
             activity such that it is not error to deny Appellant's requested
             jury charge under Tex. Penal Code Sec.9.32(b) which states
             that the use of deadly force is presumed if the actor believes the
             use of deadly force was immediately necessary to prevent
             robbery or repel the use of deadly force?

                                           1
GROUND TWO: Is it an abuse of discretion by a trial court to admit a police
             detective's legal opinion that this was not a case of self-defense
             based upon the detective's interpretation of wounds in autopsy
             photos?


                           REASONS FOR REVIEW

Reason For Review Ground One:

      Is being a felon in possession of a firearm the kind of criminal activity such
      that it is not error to deny Appellant's requested jury charge under Tex.
      Penal Code Sec.9.32(b) which states that the use of deadly force is presumed
      if the actor believes the use of deadly force was immediately necessary to
      prevent robbery or repel the use of deadly force?

      On May 26, 2013, a group of mostly Cuban immigrants were having a quiet

Sunday afternoon in east Fort Worth, Texas at 3809 Radford Street, known as

Mamacita's house. Mamacita's name is Annie Sneed. Appellant, Alcides

Larrinaga aka Alcides Larringa lived in a travel trailer behind the main house. A

man named Joel Gil, known as Cuban Joe, the decedent in this case, was also there

with his son, Germain.

      Appellant and Cuban Joe had differences in the past and these differences

became sadly and violently apparent on this day. Appellant was leaving the house

to walk his dog when a confrontation with Cuban Joe began as a verbal argument.
Appellant walked the dog and returned a few minutes later. Cuban Joe and

Appellant began arguing. A struggle ensued witnessed by Germain, a neighbor,

Sheila Johnson, and Maritza Hernandez, a family friend. The witnesses had

varying accounts of the struggle and ensuing shooting of Cuban Joe.

      Germain testified that his father, Cuban Joe, after a heated verbal exchange

in Spanish, grabbed Appellant and a struggle ensued. Appellant then began

shooting Cuban Joe several times. Germain testified that the first bullets were in

the chest. As Cuban Joe was kneeling in the street, he was shot again in the face

and then as Cuban Joe was lying down, he was shot again in the back. Germain

also stated that Appellant pointed the gun at him and pulled the trigger but there

were no more bullets.

      Witness, Maritza Hernandez said she believed Cuban Joe was the aggressor

and Appellant had to shoot to protect himself, although she denied seeing the

actual shooting.

      Appellant took the stand and testified that Cuban Joe threatened to kill him

that day if Appellant did not give him his money. Appellant testified that

Appellant feared for his life when Cuban Joe attacked him.




                                        3
        The trial court included a charge on self-defense to the jury under Tex. Penal

Code Sec. 9.31 but denied a requested instruction under Tex. Penal Code Sec.9.32

that there was a presumption that Appellant reasonably believed that deadly force

was necessary to prevent his being murdered or robbed by the decedent. The Trial

Court refused the instruction of presumption on the basis that Appellant by

possessing the gun he used to defend himself made him a felon in possession of a

firearm. Tex. Penal Code Sec. 9.32(b)(3) precludes the presumption to anyone

who is engaged in criminal activity at the time of the event. (RR5:4-6), (CR100-

114).

        The Court of Appeals affirmed stating that being a felon in possession of a

firearm at the time a person is defending himself precludes the instruction that the

use of deadly force is presumed to be reasonable.

        Appellant would show this is entirely illogical in that if a felon is under

attack and must use deadly force, he is precluded from defending himself and is

denied the statutory presumptions of self-defense issues simply because he is a

felon and happens to possess a firearm that he reasonably believes is necessary to

defend himself.



                                           11,
       There is a somewhat complicated three step process in order to receive the

presumption instruction to a jury. Tex. Penal Code Sec. 2.05(b) states how

presumptions are to be applied generally:

      (a) Except as provided by Subsection (b), when this code or another penal

law establishes a presumption with respect to any fact, it has the following

consequences:

            (1) if there is sufficient evidence of the facts that give rise to the

      presumption, the issue of the existence of the presumed fact must be

      submitted to the jury, unless the court is satisfied that the evidence as a

      whole clearly precludes a finding beyond a reasonable doubt of the

      presumed fact; and

            (2) if the existence of the presumed fact is submitted to the jury, the

      court shall charge the jury, in terms of the presumption and the specific

      element to which it applies, as follows:

                   (A) that the facts giving rise to the presumption must be proven

             beyond a reasonable doubt;

                   (B) that if such facts are proven beyond a reasonable doubt the

             jury may find that the element of the offense sought to be presumed

             exists, but it is not bound to so find;
                     (C) that even though the jury may find the existence of such

            element, the state must prove beyond a reasonable doubt each of the

            other elements of the offense charged; and

                     (D) if the jury has a reasonable doubt as to the existence of a

            fact or facts giving rise to the presumption, the presumption fails and

            the jury shall not consider the presumption for any purpose.

      (b) When this code or another penal law establishes a presumption in favor

of the defendant with respect to any fact, it has the following consequences:

            (1) if there is sufficient evidence of the facts that give rise to the

      presumption, the issue of the existence of the presumed fact must be

      submitted to the jury unless the court is satisfied that the evidence as a whole

      clearly precludes a finding beyond a reasonable doubt of the presumed fact;

      and

            (2) if the existence of the presumed fact is submitted to the jury, the

      court shall charge the jury, in terms of the presumption, that:

                     (A) the presumption applies unless the state proves beyond a

            reasonable doubt that the facts giving rise to the presumption do not

            exist;
                   (B) if the state fails to prove beyond a reasonable doubt that the

            facts giving rise to the presumption do not exist, the jury must find

            that the presumed fact exists;

                   (C) even though the jury may find that the presumed fact does

            not exist, the state must prove beyond a reasonable doubt each of the

             elements of the offense charged; and

                   (D)    if the jury has a reasonable doubt as to whether the

             presumed fact exists, the presumption applies and the jury must

             consider the presumed fact to exist.

       Tex. Penal Code Sec. 9.31 gives a statutory definition of when deadly force

can be used in self-defense. This is the second step and Tex. Penal Code Sec. 9.32

restates those elements but gives a presumption that the force is justified unless

precluded under certain conditions. That is the third step.

       Tex. Penal Code Sec. 9.32. DEADLY FORCE IN DEFENSE OF

PERSON.

       (a) A person is justified in using deadly force against another:

                (1) if the actor would be justified in using force against the other

      under Tex. Penal Code Section 9.31; and



                                          7
                (2) when and to the degree the actor reasonably believes the

      deadly force is immediately necessary:

                           (A) to protect the actor against the other's use or attempted

             use of unlawful deadly force; or

                           (B)   to prevent the other's imminent commission of

             aggravated kidnapping, murder, sexual assault, aggravated sexual

             assault, robbery, or aggravated robbery.

       (b) The actor's belief under Subsection (a)(2) that the deadly force was

immediately necessary as described by that subdivision is presumed to be

reasonable if the actor:

              (1) knew or had reason to believe that the person against whom the

       deadly force was used:

                     (A) unlawfully and with force entered, or was attempting to

                 enter unlawfully and with force, the actor's occupied habitation,

                 vehicle, or place of business or employment;

                     (B) unlawfully and with force removed, or was attempting to

                 remove unlawfully and with force, the actor from the actor's

                 habitation, vehicle, or place of business or employment; or



                                            8
                    (C) was committing or attempting to commit an offense

                described by Subsection (a)(2)(B);

             (2) did not provoke the person against whom the force was used; and

             (3) was not otherwise engaged in criminal activity, other than a

       Class C misdemeanor that is a violation of a law or ordinance regulating

       traffic at the time the force was used.

       (c) A person who has a right to be present at the location where the deadly

force is used, who has not provoked the person against whom the deadly force is

used, and who is not engaged in criminal activity at the time the deadly force is

used is not required to retreat before using deadly force as described by this

section.

       Webber vs. State, 29 S.W.3d 226 (Tex. App.—Houston 14 District 2000);

Elizondo vs. State, Number 13-12-00028-CR (Tex.App.—Corpus Christi 2013

unpublished);    Willis vs. State, 790 S.W.2d 307 (Tex.Crim. App. 1990);

Hernandez vs. State, (726 S.W.2d 53 (Tex.Crim.App. 1986); Walters vs. State, 247

S.W.3d 204 (Tex. Crim. App. 2007).
      If a defendant raises a defensive issue it must be included in the charge Ngo

vs. State, 175 S.W.3d 738 (Tex.Crim. App. 2005), Almanza vs. State, 686 S.W.2d

157 (Tex. Crim. App. 1985).

      Here, Appellant was in front of his own house and believed the deceased

was going to do serious harm and / or was trying to rob him of his money.

Appellant was not otherwise engaged in criminal activity other than being a felon

in passion of a firearm. Appellant thus testified that he believed that the force was

reasonably necessary. This was certainly enough evidence to obtain the self-

defense charge under Tex. Penal Code Sec. 9.31. The fact that he happened to be a

felon should not preclude his receiving the presumption instruction in the charge

to the jury.

Reason for Review Ground Two:

       Is it an abuse of discretion by a trial court to admit a police detective's legal
       opinion that this was not a case of self-defense based upon the detective's
       interpretation of wounds in autopsy photos?

       One justice in the court of appeals wrote a concurring opinion that the police

detective cannot be an expert as to whether this is a case of self-defense based

upon the wounds the detective observed in autopsy photos. This justice rather than

dissenting, ruled that it was harmless error. The majority of the court ruled that the

detective could be an expert on this topic.

                                           10
      Appellant would show that the concurring opinion is correct except that,

self-defense was the very core of Appellant's defense and the error was harmful.

An opinion by the detective that these wounds showed the detective that this was

not a self-defense case is extremely harmful to Appellant.

      Tex. Rule of Evid.701 pertains to the admission of lay opinions. Tex. Rule

of Evid. 702-704 pertain to scientific, technical or specialized knowledge. The

investigating detective, Danny Paine, was asked whether based upon the autopsy

photos and the injures depicted if he felt that this was a case of self-defense.

Appellant objected that there was no expertise produced to base such an opinion.

      Appellant asserts that this could not be a lay opinion since the witness is

relying upon some expertise based upon viewing an autopsy photograph. The trial

court should have required the witness to prove he had such expertise that he could

give an ultimate opinion in self-defense based upon such knowledge, if any.

       In Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim. App. 2005) cert

denied 548 U.S. 926 2006, the Texas Court of Criminal Appeals said:

           'Tex. Rule of Evid. 702 provides: "If scientific, technical, or

          other specialized knowledge will assist the trier of fact to

          understand the evidence or to determine a fact in issue, a



                                         Ii
           witness qualified as an expert by knowledge, skill, experience,

           training, or education may testify thereto in the form of an

           opinion or otherwise."

       Under Tex. Rule of Evid.702, it is the trial court's responsibility to

determine whether proffered scientific evidence is sufficiently reliable and relevant

to assist the jury. Jackson v. State, 17 S.W.3d 664, 670 (Tex.Crim.App.2000). A

trial court's ruling on the admissibility of scientific expert testimony is reviewed

under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542

(Tex.Crim.App.2000).

     The proponent of scientific evidence must demonstrate to the trial court, by

clear and convincing evidence, that the scientific evidence is reliable. Id. The

proponent of "hard" scientific evidence must satisfy three criteria to demonstrate

reliability:

        (1) the underlying scientific theory is valid;

        (2) the technique applying the theory is valid; and,

        (3) the technique was properly applied on the occasion in question. Kelly vs.

State, 824 S.W.2d 568,573.



                                           12
      Other non-exclusive factors that could affect a trial court's determination of

reliability include:

      (1) the extent to which the underlying scientific theory and technique are

accepted as valid by the relevant scientific community, if such a community can be

ascertained;

       (2) the qualifications of the expert testifying;

       (3) the existence of literature supporting or rejecting the underlying

scientific theory and technique;

       (4) the potential rate of error of the technique;

       (5) the availability of other experts to test and evaluate the technique;

       (6) the clarity with which the underlying scientific theory and technique can

be explained to the court; and

       (7) the experience and skill of the person who applied the technique on the

occasion in question. Russeau, 881.

       Here, there was no proof that the detective had any expertise to determine if

a case was one of self-defense based upon his observations of an autopsy

photograph. There was no qualifying the detective to see if he had expertise in

determining self-defense by looking at autopsy photos. There was no proof that

there was any body of science, rate of error nor any other criteria for qualifying an

                                            13
expert. This was pure speculation on the detective's part and the testimony should

have been excluded by the trial court. The Court of Appeals should have ruled that

the trial court abused its discretion by overruling Appellant's trial objection and

admitting this testimony.


                         CONCLUSION AND PRAYER

      WHEREFORE, Appellant respectfully prays that this Court reverse the

decision of the Court of Appeals and the Trial Court and remand this cause to the

court of Appeals and to order the trial court to conduct a new trial.

                                       Respectfully Submitted,

                                       RICHARD A. HENDERSON, P.C.
                                       Two City Place
                                       100 Throckmorton Street, Suite 540
                                       Fort Worth, Texas 76102
                                       (Telephone) 817-332-9602
                                       (Teleconier) Xl 7-335-3940
                                       E-mai




                                              State Bar No. 09427100

                                        ATTORNEY FOR APPELLANT




                                        14
                     CERTIFICATE OF COMPLIANCE

      This document complies with the typeface requirements of TEx.R.APP. P.

9.4(e) because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document also complies with the

word-count limitations of TEx.R.APP. P. 9.4(i) because it contains 3,343 words,

excluding any parts exempted by TEx.R.APP.P. 9.4(i)(1), as computed by the

word-count feature of Microsoft Office Word 2010, the computer software used to

prepare the document.


                                             Richard A.

                         CERTIFICATE OF SERVICE

      A true copy of the Appellant's Petition For Discretionary Review has been

electronically served on opposing counsel, Ms. Debra Windsor, Assistant Criminal

District Attorney, Chief, Post-Conviction, Tarrant County District Attorney's

Office, 401 W. Belknap Street, Fort Worth, Texas 76196 and mailed U.S. Regular

Mail to Appellant, Mr. Alcides Larrinaga aka Alcides Larringa, TDCJ #01929143,

Eastham Unit, 2665 Prison Rd #1, Lovelady, Texas 75851,        this the 25th day of

September 2015.




                                        15
APPENDICES




    16
     APPENDIX "A"

      OPINION OF
   COURT OF APPEALS
SECOND DISTRICT OF TEXAS
      Fort Worth
                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-14-00199-CR


ALCIDES LARRINAGA A.K.A.                                           APPELLANT
ALCIDES LARRINGA

                                        yi

THE STATE OF TEXAS                                                       STATE




        FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. 1328386D



                        MEMORANDUM OPINION'



      Appellant Alcides Larrinaga a.k.a Alcides Larringa appeals his conviction

for murder and his fifty-year sentence. We affirm.

                               Background Facts

      On the evening of May 27, 2013, Joel Gil was visiting a friend's house with

his son, Germain Gil. Joel and Germain were outside talking with friends when

      'See Tex. R. App. P. 47.4.
Joel and Appellant got into an argument. Appellant then left the house to walk

his dog.

      When Appellant returned, Joel and Germain were standing in the street

looking at Germain's new car. Joel and Appellant got into another heated

argument, and Joel grabbed at Appellant. Appellant shot Joel in the stomach.

Joel took a few steps, and Appellant shot him again in the back. Joel fell to the

ground, and Appellant shot him in the head.

      A number of witnesses called 911, and medics arrived and treated Joel's

injuries, but he died of his wounds on the way to the hospital. Appellant was

charged by indictment for murder The indictment also included a habitual

offender notice.

      At trial, the State showed Germain one of Joel's autopsy photos and

asked, "Germain, when you look at this picture, is that how you want to

remember your dad?" Appellant objected, and the State withdrew the question.

      Appellant admitted that he had shot Joel but claimed that he had done so

in self-defense. He said,

      [Joel] grabbed me and he said, give me all your money or I'm going
      to kill you. And hitting—hitting me. So then when he was hitting me,
      I pulled the gun out and I went pow pow. And then when he—when
      he went down, then I just—I gave him three shots. I shot him twice
      when he had grabbed me and one when he was on the floor.

Appellant testified that when he had been walking his dog, a stranger

approached him and offered to sell him a gun. He said he did not check to see if

it was loaded or if it worked, but he agreed to buy it for $100. Appellant admitted
he was on parole for a felony driving-while-intoxicated conviction. When asked if

he knew it was a violation of his parole to possess a firearm, he said, "Yeah, but I

bought it."

      Because Appellant had admitted that he knew he was violating the law by

possessing the gun, the trial court denied Appellant's request for an instruction in

the jury charge that his belief that deadly force was immediately necessary was

presumed to be reasonable. See Tex. Penal Code Ann. § 9.32(b)(3) (West

2011) (stating that actor is entitled to presumption of reasonableness when he

"was not otherwise engaged in criminal activity"). A jury found Appellant guilty of

murder. The trial court assessed punishment at fifty years' confinement and

sentenced Appellant accordingly. Appellant then appealed.

                                   Discussion

1. The jury charge

      In his first issue, Appellant argues that the trial court erred by denying his

request for an instruction in the jury charge that Appellant's use of deadly force

was justified. "[A]II alleged jury-charge error[s] must be considered on appellate

review regardless of preservation in the trial court." Kirsch v. State, 357 S.W.3d

645, 649 (Tex. Crim. App. 2012). In our review of a jury charge, we first

determine whether error occurred; if error did not occur, our analysis ends. Id.

      The jury charge in this case provided a self-defense instruction that stated,

             Upon the law of self-defense, you are instructed that a person
      is justified in using force against another when and to the degree
      that the actor reasonably believes the force is immediately
      necessary to protect oneself against the other person's use or
      attempted use of unlawful force. The use of force is not justified in
      response to verbal provocation alone.

           A person is justified in using deadly force against another if he
      would be justified in using force against another as set out above
      and when he reasonably believes that such force is immediately
      necessary to protect himself against the other person's use or
      attempted use of unlawful deadly force or to prevent the other's
      imminent commission of robbery.

Appellant also requested an instruction under section 9.32(b) that his belief was

reasonable as a matter of law. See Tex. Penal Code Ann. § 9.32(b). That

section states that an actor's belief that deadly force was immediately necessary

is presumed to be reasonable if the actor:

      (1) knew or had reason to believe that the person against whom the
      deadly force was used:

             (A) unlawfully and with force entered, or was attempting to
             enter unlawfully and with force, the actor's occupied
             habitation, vehicle, or place of business or employment;

             (B) unlawfully and with force removed, or was attempting to
             remove unlawfully and with force, the actor from the actor's
             habitation, vehicle, or place of business or employment; or

             (C) was committing or attempting to commit an offense
             described by Subsection (a)(2)(B);

      (2) did not provoke the person against whom the force was used;
      and

      (3) was not otherwise engaged in criminal activity, other than a Class
      C misdemeanor that is a violation of a law or ordinance regulating
      traffic at the time the force was used.

Id. In denying Appellant's request for the instruction, the trial court said,




                                          4
           The Court believes that based upon the testimony of the
      defendant where he acknowledged on cross-examination that by
      purchasing the firearm before the alleged shooting and his
      admission that he knew that he was violating the law for unlawful
      possession of a firearm by a felon, that that makes this instruction
      not necessary because he's not entitled to it under the three
      presumptions as set out in the code.

      Appellant argues on appeal that the illegal possession of a firearm by a

felon is not the kind of unlawful activity that the legislature contemplated in

enacting the statute. The plain meaning of statutory language is "the best

indicator of legislative intent." Shipp v. State, 331 S.W.3d 433, 437 (Tex. Crim.

App. 2011). The statute specifically excludes only Class C misdemeanors and

traffic ordinance violations from the type of criminal activity that precludes the

reasonableness presumption. Tex. Penal Code Ann. §9.32(b)(3). "Thus,

criminal activity can be broadly construed to comport with the generally

understood concept that it would encompass any activity that constitutes a

crime." Barrios v. State, 389 S.W.3d 382, 393 (Tex. App.—Texarkana 2012, pet.

ref'd) (upholding trial court's finding that appellant's illegal immigrant status

precluded the reasonableness presumption instruction).

      Possession of a firearm by a convicted felon is a third degree felony. Tex.

Penal Code Ann. § 46.04(e) (West 2011). Felonies fall within the type of criminal

activity prohibited by subsection (b). See McCurdy v. State, No. 06-12-00206-

CR, 2013 WL 5433478, at *4 (Tex. App.—Texarkana Sept. 26, 2013, pet ref'd)

(mem. op., not designated for publication) (stating that appellant was engaged in

criminal activity by being a felon in unlawful possession of firearms), cert. denied,


                                         5
135 S. Ct. 439 (2014); Davis v. State, No. 05-10-00732-CR, 2011 WL 3528256,

at *11 (Tex. App.—Dallas Aug. 12, 2011, pet. ref'd) (not designated for

publication) (holding defendant was not entitled to presumption because he was

a felon in unlawful possession of a firearm); Hall v. State, No. 05-09-01368-CR,

2011 WL 1348635, at *4 (Tex. App.—Dallas Apr. 11, 2011, pet. ref d) (mem. op.,

not designated for publication) (same). The trial court did not err by refusing the

instruction on the reasonableness presumption.            We therefore overrule

Appellant's first issue. See Kirsch, 357 S.W.3d at 649.

2. Prejudicial evidence

      In his second issue, Appellant argues that the trial court erred by admitting

into evidence an autopsy photograph. An appellate court reviews a trial court's

decision to admit evidence for an abuse of discretion. Sauceda v. State, 129

S.W.3d 116, 120 (Tex. Crim. App. 2004). A trial court abuses its discretion in

admitting evidence if that decision falls outside the wide zone of reasonable

disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.

1990) (op. on reh'g).

      Evidence may be excluded under Texas Rule of Evidence 403 if its

probative value is substantially outweighed by the danger of unfair prejudice.

See Tex. R. Evid. 403. In a rule 403 analysis, a trial court must balance (1) the

inherent probative force of the proffered item of evidence along with (2) the

proponent's need for that evidence against (3) any tendency of the evidence to

suggest decision on an improper basis, (4) any tendency of the evidence to


                                        .
                                        N
confuse or distract the jury from the main issues, (5) any tendency of the

evidence to be given undue weight by a jury that has not been equipped to

evaluate the probative force of the evidence, and (6) the likelihood that

presentation of the evidence will consume an inordinate amount of time or merely

repeat evidence already admitted. See Gigliobianco v. State, 210 S.W.3d 637,

641-42 (Tex. Crim. App. 2006). "Autopsy photographs are generally admissible

unless they depict mutilation of the victim caused by the autopsy itself." Williams

v. State, 301 S.W.3d 675, 690 (Tex. Crim. App. 2009), cert. denied, 560 U.S. 966

(2010). A photograph is also "generally admissible if verbal testimony about the

matters depicted in the photograph is also admissible." Paredes v. State, 129

S.W.3d 530, 539 (Tex. Crim. App. 2004).

      The photograph was introduced as State's Exhibit 33 while the State was

questioning Germain. The following exchange took place:

             [THE STATE:] Germain, I'm sorry to show you this picture,
      but I need you to turn over State's Exhibit 33, if you would.

            The person in State's Exhibit 33, Germain, who is that?

            [GERMAIN]: That's my dad.

            [THE STATE]: We'll offer State's 33, Your Honor.

             [APPELLANT]: Your Honor, we object that the prejudicial
      effect outweighs the probative value.

            THE COURT: May I see it[?] That objection's overruled.
      State's Exhibit 33 is admitted.

            [THE STATE]: Permission to publish to the jury, Your Honor?



                                         7
            THE COURT: Yes, sir.

            [THE STATE]: Actually, you know what, Judge, I'm going to
      publish it by showing the photo.

            THE COURT: That's fine.

           [THE STATE:] Germain, when you look at this picture, is that
      how you want to remember your dad?

            [APPELLANT]: I'm going to object that, Your Honor, it has no
      value whatsoever.

            [GERMAIN:] No, sir.

            [THE STATE]: I'll withdraw the question.

            THE COURT: Okay.

Appellant argues that the "sole reason to introduce such a photo was not merely

to prejudice the jurors but to intentionally inflame their minds in an unfair

manner." See Tex. R. Evid. 403.

      The photograph shows Joel from the shoulders up. The small bullet

wound in his cheek is visible, and he has blood on his face and chest. He is in a

neck brace and has a breathing apparatus over his mouth. The photograph is no

more gruesome than would be expected given the nature of the injuries. Seven

more autopsy photos, arguably more gruesome than State's Exhibit 33, were

used by the medical examiner during his testimony regarding Joel's wounds and

were admitted into evidence. Appellant objected to their admission at trial, but he

does not complain about them on appeal.
      It is clear from Appellant's argument on appeal that his complaint is really

regarding the State's question asking Germain if the photograph is "how [he]

wants to remember [his] dad." The State withdrew the question, however, and

Appellant neither requested an instruction to disregard the question or the

answer nor asked for a mistrial after Germain responded. See Ladd v. State,

3 S.W.3d 547, 567 (Tex. Crim. App. 1999) ("The asking of an improper question

will seldom call for a mistrial, because, in most cases, any harm can be cured by

an instruction to disregard."); Napier v. State, 887 S.W.2d 265, 266-67 (Tex.

App.—Beaumont 1994, no pet.) (holding error was not preserved because

counsel withdrew question before trial court sustained objection). We therefore

overrule Appellant's second issue.

3. Police detective's opinion

      In his third issue, Appellant argues that the trial court erred by allowing a

police detective to opine whether this was a case of self-defense. At trial, the

detective was asked:

            Q. Detective, you did a narrative in this case, correct?

            A. Yes.

            Q. And I assume, do the crime scene officers do a narrative or
      a report?

            A. Yes.

            Q. Okay. You look over that?

            A. I have in the past, yes.
             Q. Look at the crime scene photos?

             A. Oh, yes.

             Q. Look at the autopsy report?

             A. Yes.

             Q. Okay. Detective, based upon your investigation, and
      especially looking at the injuries from the autopsy report, do you feel
      that this is a case of self-defense?

             A. No.

Appellant objected that the detective had not been established as an expert. The

trial court overruled the objection.

      A person may offer an opinion as a lay witness if it is based on the

perception of that person and helpful to a clear understanding of his testimony or

determination of a fact in issue. Tex. R. Evid. 701. Personal knowledge of the

underlying facts satisfies rule 701's perception requirement. Solomon v. State,

49 S.W.3d 356, 364 (Tex. Crim. App. 2001) (quoting Fairow V. State, 943 S.W.2d

895, 899 (Tex. Crim. App. 1997)). "The personal experience and knowledge of a

lay witness may establish that he or she is capable, without qualification as an

expert, of expressing an opinion on a subject outside the realm of common

knowledge." Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002)

(citing United States v. James Earl Paiva, 892 F.2d 148, 157 (1st Cir. 1989)). A

police officer's personal knowledge may come from his past experience.

See Roberson v. State, 100 S.W.3d 36, 39 (Tex. App.—Waco 2002, pet. ref'd)

(collecting cases). Whether an opinion meets the fundamental requirements of


                                        10
rule 701 is within the sound discretion of the trial court. Fairow, 943 S.W.2d at

901.

       The detective testified that he had been with the Fort Worth Police

Department for nineteen years and that he had been in the homicide unit since

2011. He had been lead detective on twenty homicide cases and had assisted

on an additional twenty or thirty cases. This past experience and his personal

investigation of the case meet the perception requirement of rule 701.

See Roberson, 100 S.W.3d at 39. The detective's testimony was helpful in

determining whether Appellant shot Joel in self-defense, thus satisfying the

second prong of rule 701. The trial court therefore did not abuse its discretion by

admitting the testimony. See James v. State, 335 S.W.3d 719, 726 (Tex. App.—

Fort Worth 2011, no pet.) (holding that trial court did not abuse its discretion by

permitting police officer to testify whether appellant's assertion of self-defense

made sense in light of what the officer perceived in her investigation).

       Even if the detective's testimony was admitted in error, the error was

harmless. See Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Grim. App. 2011)

(stating that the appellate court will not overturn a criminal conviction for non-

constitutional error if, after examining the record as a whole, we have fair

assurance that the error did not influence the jury or had but a slight effect).

Considering the testimony from the other witnesses regarding the disputes

between Joel and Appellant that day, the detective's testimony did not have a

substantial or injurious effect on the jury's verdict and did not affect Appellant's


                                         11
substantial rights. See Petriciolet v. State, 442 S.W.3d 643, 653-54 (Tex. App.—

Houston [1st Dist.] 2014, pet. ref'd) (holding that erroneous admission of

testimony was harmless when ample evidence supported the jury's punishment

assessment); Derichsweiler v. State, 359 S.W.3d 342, 347 (Tex. App.—Fort

Worth 2012, pet. ref d) (holding that admission of toxicology report over hearsay

objection was harmless "in the context of the entire case against Derichsweiler").

We overrule Appellant's third issue.

                                   Conclusion

      Having overruled Appellant's three issues, we affirm the trial court's
judgment.


                                                  1st Lee Gabriel

                                                  LEE GABRIEL
                                                  JUSTICE

PANEL: WALKER, GABRIEL, and SUDDERTH, JJ.

SUDDERTH, J. filed a concurring opinion

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

DELIVERED: August 6, 2015




                                        12
                           COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-14-00199-CR

Alcides Larrinaga a.k.a. Alcides           §   From the 396th District Court
Larringa
                                           § of Tarrant County (1 328386D)

                                           § August 6,2015
V.
                                           § Opinion by Justice Gabriel

                                           § Concurrence by Justice Sudderth

The State of Texas                         § (nfp)

                                     JUDGMENT

      This court has considered the record on appeal in this case and holds that

there was no error in the trial court's judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS




                                       By /5/ Lee Gabriel
                                           Justice Lee Gabriel
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-14-00199-CR

ALCIDES LARRINAGA A.K.A.                                             APPELLANT
ALCIDES LARRINGA

                                       In

THE STATE OF TEXAS                                                         STATE



        FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. 1328386D



               CONCURRING MEMORANDUM OPINION'



      Appellant argues that the trial court erred by allowing a police detective to

opine whether this was a case of self-defense over his objection that the

detective had not been established as an expert. The majority concludes that the

testimony was admissible under rule of evidence 701 and that, regardless of its

admissibility, the testimony was harmless in light of the testimony from the other

witnesses about Appellant and Joel's disputes. While I agree that the testimony

      'See Tex. R. App. P. 47.4.
was ultimately harmless, I disagree with the majority's application of rule 701

because, although rule 701 provides a relaxed standard for the admissibility of

opinion testimony, it does not permit admission of an expert opinion in lay

opinion's clothing.

      To meet the lay opinion admissibility standard, the witness must have

personal knowledge of the facts underlying the opinion, and the opinion must be

rationally based on the witness's perception of those facts. See Solomon v.

State, 49 S.W.3d 356, 360-61, 364 (Tex. Crim. App. 2001) (holding that

accomplice was qualified to opine that defendant, who had goaded and

encouraged others to rob and kill stranded motorist, was the person among the

group "responsible" for the robbery); Thomas v. State, 916 S.W.2d 578, 580-81

(Tex. App.—San Antonio 1996, no pet.) (holding that police officer was permitted

to provide lay-witness testimony as to how "crack" houses are usually run);

Reece V. State, 878 S.W.2d 320, 325 (Tex. App.—Houston [1st 01st.] 1994, no

pet.) (holding that police officer's testimony that defendant's actions were

consistent with someone selling cocaine was admissible under rule 701);

Williams v. State, 826 S.W.2d 783, 785 (Tex. App.—Houston [14th Dist.] 1992,

pet. ref d) (stating that police officer was permitted to testify as a lay witness that

he had interpreted the defendant's actions to be a drug transaction); Austin v.

State, 794 S.W.2d 408, 409-11 (Tex. App.—Austin 1990, pet. ref'd) (holding that

police officer could provide his opinion that "Swedish deep muscle rub" was a

code for prostitution).


                                          2
      Here, however, the detective was asked to look at the injuries from an

autopsy report and to opine as to whether "this [was] a case of self-defense."

The record does not demonstrate that he had personal knowledge of the

underlying facts. Further, while he had experience in investigating homicide

cases, there was no evidence in the record to indicate that he had experience in

interpreting autopsy results such that he would be qualified to testify as to

whether the autopsy results indicated that the appellant in this case had shot a

man in self-defense.2 Therefore, I would hold that the trial court abused its

discretion by admitting the testimony over objection. I nonetheless concur that,

considering the evidence in the record as a whole, the error was harmless.


                                                   Is/ Bonnie Sudderth

                                                   BONNIE SUDDERTH
                                                   JUSTICE

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

DELIVERED: August 6, 2015


      20ur   opinion in James v. State may appear to hold to the contrary, but in
James, the officer was permitted to opine that a claim of self-defense made no
sense in the context of personal observation of the physical condition of the
defendant and the complainant the second time the officer responded to the
scene of one of their domestic disturbances. 335 S.W.3d 719, 725-26 (Tex.
App.—Fort Worth 2011, no pet.) (noting that the officer testified that the claim of
self-defense was not consistent with the fact that the boyfriend had no new
injuries on him while the girlfriend had a black eye, a cut nose, blood all over her
face, bruises on her legs; the officer added that "he did a heck of a job defending
himself, if that was the case").


                                         41
    APPENDIX "B"

MOTION FOR REHEARING
                          IN THE COURT OF APPEALS
                      FOR THE SECOND DISTRICT OF TEXAS
                             FORT WORTH, TEXAS

                                   NO. 02-14-001 99-CR

ALCIDES LARRINAGA A.K.A.
ALCIDES LARRINGA,
      APPELLANT                                   From the 396TH District Court

                                                  of Tarrant County
VS.                                        JL
                                           ]I:    Trial Court Case No.1 3283860
                                           ]I:
THE STATE OF TEXAS,
     APPELLEE


                   APPELLANT'S MOTION FOR REHEARING
TO THE HONORABLE COURT OF APPEALS:
         COMES NOW, Alcides Larrinaga a.k.a. Alcides Larringa, Appellant in the

above-styled and numbered appeal, and, pursuant to Rule 49.5(c) of the Texas Rules of

Appellate Procedure, hereby files this Motion for Rehearing, and asks the Court to

reconsider and withdraw its opinion of August 6, 2015 and shows as follows:


      1. Appellant respectfully requests the court to reconsider its opinion ruling against
         Appellant and withdraw its opinion and issue a new opinion granting him relief.




Appellant's Motion for Rehearing                                                    Page 1
      WHEREFORE, PREMISES CONSIDERED, Appellant respectfully requests the

court to reconsider its opinion of and prays the court to withdraw its opinion and submit a

new opinion in favor of Appellant.

                                          Respectfully submitted,

                                          RICHARD A. HENDERSON P.C.
                                          100 Throckmorton Street, Suite 540
                                          Fort Worth, Texas 76102
                                          Telephone: 817-332-9602
                                          Facsimile: 817-335-3940




                                                  fL. I X11U'...L

                                          State Bar No. 09427100

                                          ATTORNEY FOR APPELLANT



                            CERTIFICATE OF SERVICE

       A true copy of the Appellant's Motion for Rehearing has been electronically served
on opposing counsel, Ms. Debra A. Windsor, Assistant Criminal District Attorney,
Post-Conviction, Tarrant County District Attorney's Office, 401 W. Belknap Street, Fort
Worth, Texas 76196, via the State's e-mail address, coappellatealerts@tarrantcounty.com
and mailed, U.S. Regular Mail to Appellant, Alcides Larrinaga a.k.a. #1des Larringa,
TDCJ #01929143, Eastham Unit, 2665 Pri7p, d # , Lovelady e as 75851 on
this 21st day of August 2015.


                                                  A. Henderson




Appellant's Motion for Rehearing                                                    Page 2
         APPENDIX "C"
ORDER ON MOTION FOR REHEARING
                                                                         1, 11- L (( )1' 'i'




                         COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                              NO. 02-14-00199-CR


ALC IDES LARRINAGA A.K.A.                                            APPELLANT
ALCIDES LARRINGA

                                         V.

THE STATE OF TEXAS                                                          STATE




        FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. 1328386D



                                    ORDER



      We have considered "Appellant's Motion for Rehearing."

      It is the opinion of the court that the motion for rehearing should be and is

hereby denied and that the opinion and judgment of August 6, 2015, stand

unchanged.

      The clerk of this court is directed to transmit a copy of this order to the

attorneys of record.
                                                         F IL F. ( Oily




    SIGNED August 27, 2015.


                                       Is! Lee Gabriel

                                       LEE GABRIEL
                                       JUSTICE

PANEL: WALKER, GABRIEL, and SUDDERTH, JJ.




                               2
