                                 /                <H
                                 PD-1565-14




                              IN THE COURT OF
                                                              ORIGINAL
                              CRIMINAL APPEALS

                               AUSTIN, TEXAS


                                                                 RECEIVED IN
CLINT WELDON WILSON,                                      COURT OF CRIMINAL APPEALS
             Appellant Pro Se
Vs.                                                                APR 15 2015

THE STATE OF TEXAS,
             Appellee                                         Abel Acosta, Clerk




                           Appeal Ffdm                         FILED IN
           THE SIXTH COURT OF APPEALS, TEXARKANA, TEXASJu'RT OF CRIMINAL APPEALS
                        NO.   06-14-00021-CR
                                                                    APR 17 2015

                                                                 Mel Acosta, Clerk


                 PETITION FOR DISCRETIONARY REVIEW




                                                 CLINT WELDON WILSON
                                                 T.D.C.# 1891353
                                                 CLEMENTS UNIT
                                                 9601 Spur 591
                                                 AMARILLO, Texas 79107

                 ORAL ARGUMENT NOT REQUESTED
                           IDENTITY OF PARTIES




    Pursuant to Texas Rule of Appellate Procedure the following is
a   list of the Parties:



Appellant
Clint Weldon Wilson,
Pro   Se

                                                 Clint Weldon Wilson

                                                 T.D.C.* 1891353
                                                 Clements Unit

                                                 9601 Spur 591
                                                 Amarillo, Texas 79107


Appellee
THE STATE OF TEXAS
                                                 Will Ramsey
                                                 Hopkins County Dist.
                                                 Attorney
                                                 114 Main Street

                                                 Sulphur Springs, Tx.
                                                                   75482

                                                 903-885-0641




                                  i.
                         Table of Contents

Identity of Parties                             i.

Table    of   Contents                         ii.

Index of Authorities....,                     iii.

Statement of Case                            pg. 1

Statement of Procedural History              pg. 1

Grounds for Review                           pg. 2
Argument                                     pg. 2
Prayer                                       pg. 7

Certification                                pg. 7
Appendix                                     pg. 8




                                  ii
                       Index of Authorities

Texas Criminal Appeals Case Laws:
Williamson Vs. State, 672 Sw.2nd 484-86 (Tex.Crim.App.1984)
                                                     pg. 2,3,4,5,
Smith Vs. State, 965 Sw.2nd 509-13 (Tex.Crim.App. 1988)
                                                     Pg- 2




Texas Rules of Appellate Procedure
Rule 66.3 (c)                                        pg. 2
Rule 68.6                                            pg. 1




                               in.
                           PD-1565-14



                         In The Court of

                        Criminal Appeals
                          Austin, Texas


                       Clint Weldon Wilson,
                                  Appellant Pro Se,


                               Vs.



                        The State of Texas,
                                  Appellee



      Appeals From The Sixth. Court of Appeals, Texarkana,
          Texas In Court of Appeals No. 06-14-00021-CR



                Petition for Discretionary Review



                        Statement of Case

   Appellant was indicted for murder out of the 8th District •
Court of Franklin County, Texas in Cause No. F8775. A jury was
empaneled on November 19, 2013, and on November Ql^ 2013, that
jury rendered a verdict of guilty and sentenced to Life in prison
with a fine assesed of 10,000.00 dollars.

                 Statement of Procedural History

   On November 7, 2014, the Sixth Court of Appeals handed down
it's opinion to affirm the trial courts conviction in F8775.
Appellant filed a Motion for Extension of Time to file his Pe
tition For Discretionary Review on November 25, 2014 and was
granted by this court, making it due on February 6, 2015.
   This court issued an order on Marchl8, 2015 that Appellants
Petition violates Texas Rule of Appellate Procedure 68.6 be
cause the Petition exceeds the proper length. This Petition for
Discretionary Review is due on April .16, 2Q15.
                          Grounds   for Review

ONE:

   The Court of Appeals erred in it's disposition because it has
decided an important question of State Law that the evidence in
Appellants Trial wa sufficient to justify the trial courts charge
to the jury on the issue of Appellant having Provoked .the diffic-^
ulty " in a way that conflicts, with applicable decision of The
Court of Criminal Appeals", see Texas Rule of Appellate Proced
ure 66.3 (c).


                               Argument

Ground One:

   In the Court of Appeals Memorandum Opinion of Page 7, this
Court did erred in it's disposition_.f_o.r_.Lt_w.as in conflict with
William Vs. State, 672 Sw.2nd 484,486 (Tex.Crim.App. 1984) deci
sion made by the court, that the evidence presented at the App
ellants trial was sufficient to justify the trial Court's charge
to the jury on the issue of the Appellant having provoked the
difficulty.
   The question Appellant presents to this court was there suff
icient evidence to charge the jury on having provoked the diffi
culty in accordance with these facts and in this courts decesi-
on in Williamson Vs. State, 672 Sw.2nd 484?


              Jury Instruction on Provoking the Difficulty

   The governing law on instructing a jury on provoking the
jury in properly giving when: (1) Self-defense is an issue; (2)
These are facts in evidence which show that the deceased made
the first attack on the defendant; and (3) tyhe defendant did so
me act or used some words intended to and calculated to bring
on the difficulty in order to have a pretext for inflicting in
jury on the deceased, see Williamson id. at 485-86; also Smith
Vs. State, 965 Sw.2nd 509-513 (Tex.Crim.App. 1998).
   All elements are questions of fact. id. at 513. An instruc
tion on provocation should be given when there is evidence from
which a rational jury could find every element of provocation
beyond a Reasonable Doubt, id.
                                    2.
Element One:

      "Viewing the evidence in light most favorable to the given in

struction" ,id. , there was sufficient evidence that self-defense

was    the   issue.    See Entire Record.

Element Two:)

      "Viwing the evidence in the light most favorable to the given

instruction:id., there was sufficient evidence that the deceased

made the first attack on the Appellant, first by his prior numer

ous threats of death - for example,"to drag Appellant out of the

house, hang him from a tree and skin him like a fish," (vol. 6 pg.

147-48, L 8-17). Then by showing up at the residence and refusing

to leave despite::Eepeated:.:Eeqaests":byAAldis the owner of "the: res

idence, and then by the appellant.          Finally the deceased's lunge
toward appellant after        :._"wo- warning shots were fired was the

physical act that xeod:e_*_dr_hisec__d_ct--^

Element Three:

      Here, "viewing the evidence in the light most favorable to the

given instruction"id., there was [Njo sufficient evidence to cha

rge the jury on provoking the difficulty, that the Appellant, "
did    some act   or   used some words   intended   to   and calculated   to


bring on the difficulty in" order ~to: have7 a :pretext-foriittElict-

ing injury on the deceases", see Williamson Vs. State, 672 Sw.2nd
at 485-86, that a rational jury could have found beyond a reason

able Doubt. The facts of the case clearly show beyond a Reasonab

le Doubt that on the morning of the shooting: (1) Appellant was

engaged in a full relationship with Aldis, (the ex-girlfriend

of the deceased)(Vol. 4, pg. 172. L. 10-21), (2) the deceased was
a heavy drinker (vol. 4, pg. 82. L. 4; pg..40, L. 9-10; pg. 149,
L. 11-12, pg. 215, L. 1-2); (3) the deceased was very drunk at
the time of the shooting (0.296) (vol. 5 pg. 176-77, L. 24-31)
(4) the deceased came to the residence of Aldis & Appellant (
vol. 4 pg. 45-47); (5) the deceased was told by Aldis and her
mother not to come over, they had a restraining order against
the deceased and he was not allowed on the property (vol. 4 pg.
187. L. 5-14); and finally (6) the deceased unlawfully entered
the habitation of Aldis and Appellant without permission (vol.
4 pg. 155-56)

   That morning Aldis & Appellant were in thier bed asleep when
the deceased entered the trailor without any permission or with
out even knocking on the.door. The deceased woke up Aldis & App
ellant by yelling from the living room. Aldis jumped out of the
bed and ran to the living room to confront the deceased and to

make him leave. (Vol. 4 pg. 124, L 10)(vol. 4 pg. 124, L. 22-24)
Aldis repeatedly told the deceased to leave he refused and they
began to argue and then to fight. Appellant could hear the figh
ting from the bedroom (vol. 4 pg. 156-57, L. 19-5) Appellant then
heard Aldis scream Appellant heard panic in her voice (vol. 6 pg.
140, L. 4-8). Appellant then went to help Aldis. When Appellant
entered the room the deceased had Aldis by her arm (vol. 6 pg.
143, L. 4-6). Appellant told the deceased to let go of Aldis and
to leave ( vol. 6. 143-44, L. 24-2).

  ..The deceased le.t_go of.Aldis and she ran behind the Appellant

but the deceased refused to leave and the two began to exchange
heated words (vol. 4 pg. 131-32) said Aldis "Appellant continued
to ask the deceased to leave and refusing to do so deceased came




                                4.
towards the Appellant to start fighting". Appellant then fired

twoawarningo: shots, one in the wall and one in the floor. Pursu

ant to the testimony of Aldis, the warning shots just "pissed .. .....:"
off" the deceased (vol. 4 pg. 152. L. 22-23) the deceased stopped

and told the Appellant "you don't know who your fucking with bitch
" the deceased then lunged toward Appellant and after the repeats
ed threats—then—the—warning-shots-and finally the lunge toward

Appellant, the Appellant fired several shots that ended in the

killing of the deceased.

      From this evidence it. is perverse from a factual point of view

to have a provocation instruction, especially when before the sh

ooting, (1) Appellant repeatedly asked the deceased to leave (2)

Appellant then gave two warning shots (3) the deceased then told

the Appellant "you don't know who your fucking with bitch" and
then lunged toward him.

      In view of this evidence that is clearly in the record, a rea

sonable jury would have seen that the deceased provoked the diff

iculty unto:. Appellant. The Appellant sought to avoid a conflict

not    to   incite it.   This case mirror's      this courts decision   in

Williamson Vs.      State.

      In Williamson Vs.      State,   672 Sw.   2nd 484-86   (Tex.Crim.App.   19-

84), Williamson asked the deceased Jamison to leave his house and

Jamison began to argue with Williamson. Jamison reacted violently

by lunging toward Williamson's Machete to assault him and Willia-

son killed Jamison by shooting him in the head. This Court made

a judicial determination on the facts that the evidence did not

Raise the issue that it was Williamson's purpose to provoke and




                                          5.
attack from the deceased, in order that he might have a pretext

for killing Jamison. This Court Reversed and Remanded that cause

back   to   trial court .see id.   at   486.

   Therefore, here in this instant case, viewing the evidence in
light most favorable to the given istruction, the evidence is in

sufficient to show that it was the Appellant who provoked the att

ack from the decesed,      in order that he might have a pretext for

killing him.

   The Court of Appeals did err in its disposition for it is" in"

conflict with Williamson Vs.        State.     Based on   these facts and the

evidence, a Rational Jury could not have found every element of

provocation beyond...a Reasonable Doubt.
                               Prayer

   Wherefore, Premises Considered, Appellant prays this Honor
able Court of Criminal Appeals consider the facts of this peti
tion in accordance with this court's opinion in Williamson Vs.
State.

   So prayed on this V^\Kday of April, 2015


                                        Respectfully Submitted,



                                        Clint Weldon Wilson
                                        T.D.C. #1891353
                                        9601 Spur 591
                                        Amarillo, Texas 79107



                      Certificate of service

  I, Clint Weldon Wilson, state under the Penalty of Perjury
that these facts are true and correct. Also a true and correct
copy has been forwarded to the opposing party at the address
below.

  Executed on this day YXNK, April, 2015.

Will Ramsey
Hopkins County Dist. Attny.'                *^l\_ov-C \^_>&j^v-n
114 Main Street                           Cli^vtWeldon Wilson
Sulphur Springs, Texas 75482




                                7.
APPENDIX




APPENDIX




APPENDIX




APPENDIX




APPENDIX




APPENDIX




   8.
                                      MEMORANDUM OPINION

            In January 2013, Aldis Mendez1 stood between two men, her then boyfriend, Clint
'° Weldon Wilson, and her ex-boyfriend and father to her three children, Juvenal Gonzales, just

  before Wilson shot and killed Gonzales. Except for the central fact that Wilson shot Gonzales,

  Aldis' version of the events that ensued had little in common with Wilson's version. The jury

   believed Aldis and delivered a verdict that Wilson was guilty of murdering Gonzales.                         On

   appeal, Wilson complains about the jury charge, the lack of a mistrial, and the amendment of the

   indictment after trial began. We affirm the judgment of the trial court, because (1) the jury

   instruction on provocation was warranted by the evidence, (2) a jury instruction on threats by the

   victim was properly refused, (3) a jury instruction on necessity was properly refused, (4) mistrial

   was not mandated, (5) Wilson's complaint regarding the lack of a jury instruction onjustifiable

   force is inadequately briefed on appeal, and (6) we have no jurisdiction over the amendment of

   the indictment in a companion case not on appeal.

            We set out the basics of the two different versions of the facts surrounding the shooting.

            Wilson's version of the facts portrayed him as a disabled man seeking only to protect his

   girlfriend and himself from a drunken, violent ex-boyfriend. Wilson testified that he met Aldis
   in late August 2012 and had lived with her and her three children in her mobile home until late
   November ofthat year. He left her for another woman, but began seeing her again in December


   'Because we also refer herein to Aldis Mendez' mother, Supaya Mendez, we will refer to both women by their first
   names.



   2On the murder charge, appealed here, Wilson was sentenced to life in prison and assessed a $10,000.00 fine.
   Wilson was also found guilty of unlawful possession of a firearm by a felon and sentenced to ten years'
   confinement, to run concurrently, and assessed another $10,000.00 fine. He does not appeal the firearm conviction.
when the other relationship faltered. Around Christmas, his hands and a foot were" frostbitten

from exposure.3 Aldis picked him up from the hospital and took him to her home where he
stayed until the shooting. Several times during the period he lived with Aldis, she would receive
telephone calls late at night from Gonzalez. Aldis would give Wilson the telephone. He would
tell Gonzalez that she did not want to talk to him or get back together with him and to stop

calling. Gonzalez would call two orthree nights ina row, then stop and begin again two orthree
weeks later. During these conversations, Gonzalez would reportedly curse Wilson, threaten to

«f*** [Wilson] up," and threaten his life. About seven to ten days before the shooting, Gonzalez
told Wilson he was "going to come out there, drag [him] from the house, hang [him] on a tree,

and skin [him] like a fish."

         Wilson also testified that, on the morning of January 19, 2013, he and Aldis were

sleeping in bed when they were awakened by yelling in the living room. Aldis looked at him
with panic inher eyes and said, "It's [Gonzales]," and ran into the living room. Wilson did not
follow her because he thought she could handle the situation. But Aldis and Gonzales kept
arguing, and it was getting louder and louder. Wilson heard her scream, grabbed a pistol, and
proceeded to the kitchen. Wilson claimed he grabbed the pistol because he could not defend
 himself against Gonzalez. When Wilson got to the kitchen, Aldis was struggling to get away
 from Gonzalez. Wilson told him, "[L]et her go, motherf*****," then pointed the pistol at

 Gonzalez. Gonzalez let Aldis go, and she ran behind Wilson. Wilson kept telling Gonzalez to

 leave, but Gonzalez just said, "[Y]ou ain't going [to] do nothing, you little bitch." Wilson then

 3Wilson had been hanging out with his cousin, took methamphetamine, got lost, and passed out in afield in the snow
 for several hours.
                                                         3
fired a warning shot through the floor. He did not want to hurt Gonzalez, but he was afraid of

him and wanted him to leave. Instead, Gonzalez got more aggressive, and Wilsonfired a second

warning shot through the wall. Gonzalez bowed up, cursed him, and lunged at him. Wilson then

shot him four or five times "for [himself] and for ~ Aldis and Lexi (Aldis' daughter)." Wilson

said he was afraid for his life, as well as the lives of Aldis and Lexi, and claimed he had no

choice. Wilson then told the jury of a similar incident that occurred a year earlier in which he

hadto defend himself from the ex-boyfriend of his then girlfriend. Wilson ended up killing him,

also. Although denying he posted it, Wilson admitted opening a Facebook page in which he

bragged about having studied at the Harvard Law School of Self-Defense Class of 2011. He

claimed self-defense in that case, also, and charges were dismissed in August 2012. On

August 8,2012, a post appeared onhis Facebook inwhich he apparently bragged about it.
       Aldis' version was considerably different, andshe was the only other surviving witness to

the events inside the mobile home. She testified that Gonzalez was the father of her three

children and that they had broken up in March 2012. She said that she met and began dating
Wilson inSeptember and that he would stay every other day or so. She confirmed that Gonzalez
came over unannounced that morning and that she went out to talk with him. They began

 arguing "a little bit" and she told him to leave, then Wilson came out of the bedroom. Wilson
 was walking with his hand behind his back and she got scared because she thought he had a gun.
 Aldis told Wilson to go back to the bedroom and that she would handle it, not to worry about it.
 Wilson told Gonzalez to leave, and the two men began mouthing back and forth, cussing at each

 other. She kept telling Wilson that she would handle it and that she would make Gonzalez leave.
She was not afraid Gonzalez would hurt her. Then Wilson took a step forward and pulled out the

gun. She told him not to do anything. She picked up her daughter, Lexi, and lifted her out

through the back door because she did not want her to see whatever was going to happen. Then,

Wilson fired a shot through the floor. Next, Wilson shot through the wall. Right after that, he

shot Gonzalez the first time, then a second time. Gonzalez had only taken one step forward and

then he was shot. She closed her eyes and kept telling Wilson to stop. The shots came back to

back, and she opened her eyes after the third or. fourth shot, when Gonzalez was going out the

door. She was in shock.


       She also testified that she did not feel threatened by Gonzalez that day and did not think

he made any threat that deserved being shot. He never displayed a weapon and never threatened

to kill anyone that day. Aldis acknowledged that Gonzalez and Wilson had argued over the

telephone, but denied that Gonzalez ever threatened to come over and kill him. On cross-

examination, she admitted that Gonzalez was "pissed off at both she and Wilson that day. She

also admitted that Wilson could not make a fist that day because of his frostbite.

       Supaya Mendez, Aldis' mother, testified that Gonzalez was a fighter but never used

weapons. Supaya was never afraid of him killing anyone. She said that Aldis and Gonzalez

would argue a lot because he drank a lot. He would get violent when he drank, but not toward

her, just toward the walls.

        The medical examiner who performed the autopsy on Gonzalez testified that, based on

her examination, one shotentered the front of his body, one entered his left side, andtwo entered

at his lower back/buttocks. One or two other bullets grazed his back.
(1)      The Jury Instruction on Provocation Was Warranted by the Evidence

         Wilson complains of the trial court's inclusion of a charge on provocation, asserting there

was no evidence that would support its inclusion.4 We find there was sufficient evidence to
include the instruction and overrule this point of error.

         Our review of an alleged error in a jury charge involves a two-step inquiry. Abdnor v.

State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). First, we determine whether an error

occurred, and, if it did, then we "determine whether sufficient harm resulted from the error to

require reversal." Id. at 731-32; Almanza v. State, 686 S.W.2d 157, 172 (Tex. Crim. App. 1984)

(op. onreh'g), reaffdby Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003).

         The level of harm an appellant must demonstrate as having resulted from the erroneous

jury instruction depends on whether the appellant properly objected to the error. Abdnor, 871

S.W.2d at 732. When a proper objection is made at trial, reversal is required if the error is

"calculated to injure the rights of defendant"—the appellant need only demonstrate "some harm"

onappeal. Id.; see also Almanza, 686 S.W.2d at 171. In the case of unpreserved error, reversal
is required only when "the error is so egregious and created such harm that [the defendant] 'has

not had a fair and impartial trial' ~ in short 'egregious harm.'" Almanza, 686 S.W.2d at 171; see

Ruddv. State, 921 S.W.2d 370, 373 (Tex. App.—Texarkana 1996, pet. ref d). "Egregious harm"

results from errors affecting the very basis ofthe case orthat deprive the defendant ofa valuable

 4The Jury Instructions included a definition of"Provoking the Use or Attempted Use ofForce," an instruction on
 "Failure to Retreat," and an instruction on"Presumption," all of which are substantially the same asthose setforth
 in Sections B14.8 and B15.3 of the State Bar of Texas' TEXAS CRIMINAL PATTERN JURY CHARGES—DEFENSES §§
 (2013). The "Failure toRetreat" and "Presumption" instructions are based on Sections 9.32(b) and (c), respectively,
 ofthe Texas Penal Code. See TEX. PENAL CODE ANN. §9.32(b), (c) (West 2011). It is unclear from the record and
 Wilson's brief whether heis complaining ofthe definition only oralso the mentioning ofprovocation inthese other
 instructions.
                                                          6
right, vitally affect a defensive theory, ormake the case for conviction orpunishment clearly and
significantly more persuasive. Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991);
Smith v. State, 424 S.W.3d 588, 597 (Tex. App.—Texarkana 2013, no pet.).

       "[T]he jury is the exclusive judge ofthe facts, but it is bound to receive the law from the
court and be governed thereby." Tex. Code Crim. Proc. Ann. art. 36.13 (West 2007). A trial
court must submit a charge setting forth the "law applicable to thecase." Tex. CodeCrim. Proc.

Ann. art. 36.14 (West 2007); Reeves v. State, 420 S.W.3d 812 (Tex. Crim. App. 2013). "It is not
the function ofthe charge merely to avoid misleading or confusing the jury: it is the function of
the charge to lead and prevent confusion." Reeves, 420 S.W.3d at 818 (quoting Williams v.
State, 547 S.W.2d 18, 20 (Tex. Crim. App. 1977)).

        The trial court must give a charge on provocation

        when there is sufficient evidence (1) thatthe defendant did some act or used some
        words which provoked the attack on him, (2) that such act or words were
        reasonably calculated to provoke the attack, and (3) that the act was done or the
        words were used for the purpose and with the intent that the defendant would
        have a pretextfor inflicting harm on the other.

Smith v. State, 965 S.W.2d 509, 513 (Tex. 1998).

        Each of the three elements may be proved circumstantially. Id. at 515, 517-18. A

 provocation instruction should be submitted to the jury only "when there is evidence from which
 a rational jury could find every element ofprovocation beyond a reasonable doubt." Id. at 514.
 Our inquiry is whether "a rational jury could have found provocation beyond areasonable doubt,
 viewing the evidence in the light most favorable to giving the instruction." Id.
       There is ample evidence to support instructing the jury on provocation. From the above

relevant testimony, it could be reasonably inferred that Wilson purposefully inserted himselfinto

a domestic dispute and that threatening Gonzalez with a firearm and the words he used were

calculated to provoke the attack by Gonzalez. In his brief, Wilson focuses on the lack of direct

evidence of "words or acts" that prove the third element, i.e.,that Wilson intended to provoke the

difficulty as pretext for inflicting injury on the deceased. However, a jury does "notneed to be

able to put its hands on the particular act or words[;]" rather, "this finding canbe made through

inference relying on circumstantial evidence." Id. at 515.         From the medical examiner's

testimony, a jury could reasonably infer that Gonzalez stopped his advance after being shot once

and began turning to retreat. Wilson, however, kept shooting and shot Gonzales in the side, then

at least three times in the back. In addition, Wilson testifiedthat he had had several run-ins with

Gonzalez over thetelephone andthat a few days before this incident Gonzalez threatened to kill

him. A rational jury could have inferred his intent from this evidence, coupled with Wilson's

recent prior homicide in which he successfully claimed self-defense. Thus, there is evidence of

each element that supports the court's decision to include the instruction.

        Accordingly, we conclude that the trial court did not err in instructing the jury on

provocation.
(2)     AJury Instruction on Threats by the Victim Was Properly Refused
        Wilson also complains of the lack of an instruction on the prior threats made by
Gonzalez.5 Because the proposed instruction would have been animpermissible comment onthe

weightof the evidence, we overrule this point of error.

         Inasserting entitlement to an instruction on threats by Gonzalez, Wilson relies on Fielder
v. State, 756 S.W.2d 309 (Tex Crim. App. 1988). However, the complaint in Fielder was the
exclusion of evidence related to the defendant's past relationship with the deceased and the

reasonableness ofher fear of him. Id. at 318. Wilson makes no such complaint on appeal.6
Rather, this case is controlled by Walters v. State, 247 S.W.3d 204 (Tex. Crim. App. 2007).

         In Walters, the Texas Court of Criminal Appeals considered whether, in a murder case

where the jury is charged on self-defense, the defendant is entitled to an instruction on prior oral
threats bythe deceased.7 The court held that,
         generally speaking, neither the defendant nor the State is entitled to a special jury
         instruction relating to a statutory offense or defense if that instruction (1) is not
         grounded in the Penal Code, (2) is covered by the general charge to the jury, and
         (3) focuses the jury's attention on a specific type of evidence that may support an
         element of an offense or a defense. In such a case, the non-statutory instruction
         would constitute a prohibited comment on the weight of the evidence.


 5Wilson requested the following instruction:
          Where a defendant accused of murder seeks to justify himself onthe ground of threats against his
          own life, he is permitted to introduce evidence ofthe threats made, but the same shall not be
          regarded as affording justification for the offense unless itbe shown, at the time ofthe killing, the
          person killed by some acts then done, manifested in an intention to execute the threats so made,
          and provided that areasonable person in the defendant's situation would not have retreated.
 6Wilson testified attrial about the threats to his life made by Gonzalez, and his trial counsel emphasized these
 threats and Gonzalez' violent nature in his final argument.

 7The proffered instruction was identical tothe one inthis case.
                                                            9
Id. at 212. As in Walters, the proffered instruction meets all three criteria. First, the Texas Penal

Code does not recognize prior oral threats as a defense or justification. Second, the trial court

included the statutory definition of "reasonable belief," which would necessarily include threats

made before the incident. Id. at 213. Third, giving the instruction would unduly focus attention

on evidence in support of a finding of self-defense by "improperly tell[ing] the jury how to

consider certain evidence before it." Id. at 214.

        Accordingly, we conclude that the trial court did not err in denying Wilson's request for

an instruction on prior oral threats.

(3)     A Jury Instruction onNecessity Was Properly Refused
                                                                                                                 o


         Wilson complains that he was entitled to a jury instruction on the defense of necessity.

Since the trial court charged the jury on self-defense using deadly force, we find that the trial

court did not err in refusing to include an instruction on necessity.

         Under Section 9.22 of the Texas Penal Code, conduct is justified under necessity, if

            (1) the actor reasonably believes the conduct is immediately necessary to avoid
         imminent harm;
            (2) the desirability and urgency of avoiding the harm clearly outweigh, according to
         ordinary standards of reasonableness, the harm sought to be prevented by the law
         proscribing the conduct; and
             (3) a legislative purpose to exclude the justification claimed for the conduct does not
         otherwise plainly appear.

Tex. Penal Code Ann. § 9.22 (West 2011).



 8In his brief on this point oferror, Wilson merely quotes verbatim his trial counsel's argument made to the trial
 court. Since the argument below included appropriate legal authority and argument based on that authority, we will
 address the point of error. Our addressing this point of error should not be taken as approval of this very
 questionablepractice.

                                                        10
                                                                                                                VI




       Thus, if there is a plain legislative purpose to exclude the defense of necessity, then

subsection (3) precludes its application. This Court has previously held that a defendant is not

entitled to an instruction on necessity when self-defense using deadly force is an issue since

including an instruction on necessity "would undermine the Legislature's purpose in imposing

the duty to retreat" in Section 9.32 of the Texas Penal Code. Searcy v. State, 231 S.W.3d 539,

544 (Tex. App.—Texarkana 2007, pet. ref d); see Butler v. State, 663 S.W.2d 492, 496 (Tex.

App.—Dallas 1983), aff'don other grounds, 736 S.W.2d 668 (Tex. Crim. App. 1987).

        However, these cases were decided under the former version of Section 9.32 that

contained a "legislative purpose" to require retreat, if a reasonable person would, before using

deadly force.9 See Butler, 663 S.W.2d at 496. In 2007, the Legislature amended Section 9.32,

removing the retreat provisions and adding "provisions specifying when a person does not have a

duty to retreat." Morales v. State, 357 S.W.3d 1, 5 (Tex. Crim. App. 2011). Thus, a legislative

purpose to require retreat before using deadly force no longer "plainly appear(s)" in Section 9.32,

as required to preclude an instruction under Section 9.22.                         Nevertheless, we find that




9The former version of Section 9.32 of the Texas Penal Code provided,

  A person is justified in using deadly force against another:
        (1)          if he would bejustified inusing force against the other under Section 9.31 ofthis code;
        (2)          if a reasonable person intheactor's situation would not have retreated; and
        (3)          when and to thedegree hereasonably believes the deadly force is immediately necessary:
                     (A)       to protect himself 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,
         rape, aggravated rape, robbery, or aggravated robbery.

Act of May 27, 1995, 74th Leg., R.S., ch. 235, § 1, 1995 Tex. Gen. Laws 2141, 2141 (amended 2007)
(current version at TEX. PENAL CODE ANN. § 9.32(a) (West 2011)).
                                                           11
Section 9.32 still contains a plain legislative purpose that precludes the inclusion of an

instruction on necessity when a Section 9.32 defense is implicated.

       Section 9.32 provides, in pertinent part, as follows:

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

               (1)     if theactor would bejustified in using force against the other under
       Section 9.31; and
               (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.

Tex. Penal Code Ann. § 9.32(a) (West 2011).

        From a plain reading of the statute, it is clear that the Legislature intended to justify the
use of deadly force only when one's life is immediately threatened by another's use ofunlawful
deadly force orto prevent the commission ofspecific violent crimes. By contrast, the defense of
necessity has a much lower threshold before it can be asserted. Necessity requires only that the
conduct be necessary to "avoid imminent harm." Tex. Penal Code Ann. § 9.22(1). "Harm" is
defined as "anything reasonably regarded as loss, disadvantage, or injury, including harm to
another person in whose welfare the person affected is interested." TEX. PENAL CODE ANN.
 § 1.07(a)(25) (West Supp. 2014). Allowing an instruction on necessity when, as here, the
 evidence requires an instruction on self-defense using deadly force would undermine the




                                                  12
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.

        Accordingly, we conclude that the trial court did not err in denying Wilson's request for

an instruction on necessity.

(4)     Mistrial Was Not Mandated

        Wilson also complains about not being granted a mistrial after the State put on evidence

ofitems used for "distributing narcotics." We find thatthe trial court properly instructed thejury

and overrule this point of error.

        During the State's direct examination of Robert Zinn, an inspector for the Franklin

County Sheriffs Department, the following exchange took place:

                 Q.       Besides the items directly related to the shooting, were there other
         things found in the house that were of interest?
                 A.       Yes, sir.
                  Q.      And what was that?
                  A.      There was, I believe, some digital scales found, some
         methamphetamines found, and I believe that there was a price list ofhow much -
         for someone that was distributing narcotics, it broke down the price of how much
         each of those —
                           MR. LONG: May we approach the bench?
                           THE COURT: You may.

         Outside the presence ofthe jury, Wilson objected to any testimony regarding distributing
narcotics, and the court sustained the objection. When the jury returned, the court gave the

following instructions:

                           THE COURT:                Please be seated. Thank you.


 10Since we have found that Wilson was not entitled to an instruction onnecessity when self-defense using a deadly
 weapon is implicated, we do not reach the State's contention that the necessity defense was not available to Wilson
 since he didnot admit to theconduct. See Juarez v. State, 308 S.W.3d 398 (Tex. Crim. App. 2010).
                                                         13
                  Ladies and gentlemen, I have an instruction for you. It's one of those
          instructions that I told you you may very well be given. And what I'm going to
          tell you is that just before your break, you heard some testimony regarding digital
          scales, price lists, and some suggestion of distribution of narcotics. You are to
          disregard that testimony and consider it for no purpose whatsoever. All right?

Wilson then moved for a mistrial, which was denied. Thus, Wilson has properly preserved the

point for appeal. Hines v. State, 269 S.W.3d 209, 214 (Tex. App.—Texarkana 2008, pet.

refd).11
          Granting a mistrial is appropriate in "those cases in which an objection could not have
prevented, and an instruction to disregard could not cure, the prejudice stemming from an event
at trial—i.e., where an instruction would not leave the jury in an acceptable state to continue the

trial." Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004). However, a mistrial is not
required where prejudice is curable by an instruction to the jury to disregard. Ovalle v. State, 13
S.W.3d 774, 783 (Tex. Crim. App. 2000). "Atrial court's denial ofa mistrial is reviewed under
an abuse of discretion standard and must be upheld if within the zone of reasonable

disagreement." Brooks v. State, 420 S.W.3d 337, 340 (Tex. App.—Texarkana 2014, no pet.)
(citing Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010)).

           At the time this exchange occurred, there had already been unopposed testimony

regarding the presence of marihuana and methamphetamine in the mobile home and Wilson's
own drug use. Later, Wilson testified ofhis prior convictions for aggravated assault and felony

u"The proper method ofpreserving error in the admission of improperly offered evidence is for appellant's counsel
to: (1) state a timely specific objection, (2) obtain a ruling on the objection from the trial court, (3) move for an
instruction for the jury to disregard, (4) obtain a ruling on the instruction and ifsustained, have the jury instructed,
(5) move for amistrial, and (6) obtain aruling on the motion for mistrial. These steps must be taken in sequence,
and counsel cannot object and move for an instruction and mistrial without obtaining a ruling on the objection."
Hines, 269 S.W.3d at214 (quoting Hadden v. State, 829 S.W.2d 838, 841 (Tex. App.—Corpus Christi 1992, pet.
refd)).
                                                          14
possession ofmarihuana. In addition, the testimony and items mentioned were never mentioned
again. In a case such as this, in which thebulk of testimony centered around theviolent behavior

and the abuse of drugs and alcohol by bothWilson and Gonzalez, it is unlikely that any prejudice

caused by this one isolated comment could not be cured by the trial court's instruction to

disregard it.

        The trial court did not abuse its discretion in overruling Wilson's motion for mistrial.

(5)     Wilson's Complaint Regarding the Lack of a Jury Instruction on Justifiable Force Is
        Inadequately Briefedon Appeal

        Wilson also complains that the trial court erred by denying his request to include an

instruction on justifiable force. In his brief, Wilson merely sets forth verbatim the argument

made by his trial counsel to the trial court. The argument does not contain any citations to

statutory or caselaw, other thanone general reference to the "Penal Code."

        It is the duty of an appellant to cite specific legal authority and provide legal arguments

based on that authority. Bell v. State, 90 S.W.3d 301, 305 (Tex. Crim. App. 2002). Appellate
counsel is required to "cite specific, legal authority and to provide legal argument based on that
authority." Rhoades v. State 934 S.W.2d 113, 119 (Tex. Crim. App. 1996) (citing Vuong v.

State, 830 S.W.2d 929, 940 (Tex. Crim. App. 1992)); see Tex. R. App. P. 38.1(i); Ex parte

Granger, 850 S.W.2d 513, 515 n.6 (Tex. Crim. App. 1993). Where adequate briefing is not
provided, the contention can be overruled. Rhoades, 934 S.W.2d at 119. We overrule this
 contention of error.




                                                  15
(6)       We Have No Jurisdiction Over the Amendment of the Indictment in a Companion Case
          Not on Appeal

          In his final point of error, Wilson asserts that the trial court erred when it allowed the

State to amend the indictment on a related charge after trial began and over his objection. We

overrule this contention.

          Wilson was charged with two separate offenses that were triedtogether. The first, which

is the subject of this appeal and over which we have jurisdiction, was for murder (trial court

cause number F-8775). While the murder indictment was amended, that was done seventeen

days before trial and is not part of Wilson's complaint.

          The second charge was for the offense of unlawful possession of a firearm by a felon

(trial court cause number F-8776). On the third day oftrial, before introducing evidence ofthe
prior offense, the State moved to amend the firearm indictment. Wilson timely objected to the
amendment.

          Although these charges were tried together, Wilson has not appealed from his conviction
for unlawful possession of a firearm by a felon. Because no timely notice of appeal regarding
that conviction was filed, we have no jurisdiction over the firearm possession case. See Olivo v.

State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Accordingly, we overrule this point of

 error.




                                                   16
      We affirm the judgment of the trial court.



                                            Josh R. Morriss III
                                            Chief Justice


Date Submitted:      August 28, 2014
Date Decided:        November 7, 2014

Do Not Publish




                                               17
