                                                                                             ACCEPTED
                                                                                         13-14-00038-CR
                                                                         THIRTEENTH COURT OF APPEALS
                                                                                CORPUS CHRISTI, TEXAS
                                                                                    6/11/2015 9:13:45 AM
                                                                                  CECILE FOY GSANGER
          FILED                                                                                   CLERK
IN THE 13TH COURT OF APPEALS
  CORPUS CHRISTI - EDINBURG
                                 No. 13-14-00038-CR
       06/11/15
                                                            RECEIVED IN
CECILE FOY GSANGER, CLERK
                                      IN THE          13th COURT OF APPEALS
BY Delia S. Rodriguez        COURT OF APPEALS FOR THE
                                                  CORPUS CHRISTI/EDINBURG, TEXAS
                                                       6/11/2015 9:13:45 AM
                      THIRTEENTH SUPREME JUDICIAL DISTRICT
                                                        CECILE FOY GSANGER
                         SITTING AT CORPUS CHRISTI, TEXAS Clerk
                _________________________________________________
                                 ALLAN LATOI STORY,
                                                 APPELLANT
                                         V.
                               THE STATE OF TEXAS
                    ___________________________________________
                            AN APPEAL OF A CONVICTION FOR
                                       MURDER
                               CAUSE NO. 2011-2499-C1
                       FROM THE 19TH JUDICIAL DISTRICT COURT OF
                              MCLENNAN COUNTY, TEXAS
                    ____________________________________________

                               STATE'S AMENDED BRIEF
                    ____________________________________________

   ABELINO "ABEL" REYNA                       STERLING HARMON
   Criminal District Attorney                 Appellate Division Chief
   McLennan County, Texas                     State Bar No. 09019700

                                              219 North 6th Street, Suite 200
                                              Waco, Texas 76701
                                              [Tel.] (254) 757-5084
                                              [Fax] (254) 757-5021
                                              [Email]
                                       sterling.harmon@co.mclennan.tx.us


                                          i
                     Identity of Parties and Counsel

Appellant                                Allan Latoi Story

Appellant’s Attorney on Appeal           Mr. Doyle L. Young
                                         P.O. Box 2174
                                         Waco, Texas 76703

Appellant’s Trial Attorney               Mr. Sam Martinez
                                         1105 Wooded Acres, Suite 200
                                         Waco, Texas 76710

State’s Trial Attorneys                  Mr. J.R. Vicha
                                         Mr. Chris Bullajian
                                         Assistant Criminal District
                                         Attorneys
                                         219 North 6th Street, Suite 200
                                         Waco, Texas 76701

State’s Attorney on Appeal               Abelino ‘Abel’ Reyna
                                         Criminal District Attorney
                                         Sterling Harmon
                                         Appellate Division Chief
                                         219 North 6th Street, Suite 200
                                         Waco, Texas 76701




                                    ii
                                              Table of Contents


Table of Contents

Identity of Parties and Counsel............................................................................ ii

Table of Contents .................................................................................................. iii

TABLE OF AUTHORITIES .................................................................................. iv

Issue Presented ........................................................................................................1

Statement of Facts ...................................................................................................1

Summary of Argument ........................................................................................13

Argument ...............................................................................................................13

    Hearsay Statement of Appellant ………………………………………. 13

    Self-Defense Instruction ………………………………………………… 18

Prayer ……………………………………………………………………........ 21

Certificate of Compliance ....................................................................................21

Certificate of Service .............................................................................................22




                                                            iii
                                    TABLE OF AUTHORITIES

Texas State Opinions
Allridge v. State, 762 S.W.2d 146 (Tex. Crim. App. 1988) ......................... 15, 16
Crane v. State, 786 S.W.2d 338 (Tex. Crim. App. 1990) ................................... 15
Dinkins v. State, 894 S.W.2d 330 (Tex. Crim. App. 1995) ......................... 17, 18
Falade v. State, 2011 Tex. App. LEXIS (Tex. App.– Fort Worth 2011)
    (unpub. op.). ……............................................................................................ 18
Fuller v. State, 829 S.W.2d 191 (Tex. Crim. App. 1992) ................................... 15
Granger v. State, 3 S.W. 3d 36, 38 (Tex. Crim. App. 1999) … 19, 20
Hafdahl v. State, 805 S.W.2d 396 (Tex. Crim. App. 1990) ............................... 15
Harris v. State, 152 S.W.3d 786 (Tex. App.—Houston [1st Dist.] 2004) ....... 14
Hooper v. Chittaluru, 222 S.W.3d 103 (Tex. App.—Houston [14th
     Dist.] 2006) ................................................................................................. 14
Johnson v. State, 698 S.W.2d 154 (Tex. Crim. App. 1985) ............................... 13
Jones v. State, 843 S.W.2d 487 (Tex. Crim. App. 1992) .................................... 17
Kirsch v. State, 357 S.W. 3d 645 (Tex. Crim. App. 2012) ………………….. 18
McDonald v. State, 179 S.W.3d 571 (Tex. Crim. App. 2005) ..................... 13, 17
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) ................. 13, 14
Ngo v. State, 175 S.W. 3d 738 (Tex. Crim. App. 2005) ……………………. 18
Nored v. State, 875 S.W.2d 392 (Tex. App.—Dallas 1993) .............................. 14
Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35 (Tex. 1998) ........... 14
Romero v. State, 800 S.W.2d 539 (Tex. Crim. App. 1990) ................................ 14
Sauceda v. State, 129 S.W.3d 116 (Tex. Crim. App. 2004) ......................... 14, 16
Shaw v. State, 243 S.W 3d 647 (Tex. Crim. App. 2007) ………………….... 19
Singletary v. State, 509 S.W.2d 572 (Tex. Crim. App. 1974) ..................... 14, 16
Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992) ................................... 14


                                                          iv
Walters v. State, 247 S.W.3d 204 (Tex. Crim. App. 2007) .......................... 14, 18
Van Bruckle v. State, 179 S.W. 3d 708
   (Tex. App. – Austin 2005, no pet.) ……………………………………… 19
Villa v. State, 417 S.W. 3d 455 (Tex. Crim. App. 2013 …………………… 19
Young v. State, 991 S.W. 2d 835 (Tex. Crim. App. 1999) ………………… 19

Statutes
Tex. Code Crim. Proc. art. 36.14 …………………………………………….. 18
Tex. Penal Code §9.31 ……………………………………………………. 11, 19
Tex. Penal Code §19.02 ………………………………………………………… 1

Rules
Tex. R. App. P. 9.4(e) ............................................................................................ 21
Tex. R. App. P. 9.4(i) ............................................................................................. 21
Tex. R. App. P. 9.4(i)(1) ........................................................................................ 21
Tex. R. Evid. 107 ......................................................................................... 5, 15, 16
Tex. R. Evid. 613 ……………………………………………………………… 17
Tex. R. Evid. 803(24) ............................................................................................. 18




                                                          v
                               Issues Presented
Appellant’s Issue One:

  Did the trial court err in excluding from evidence an electronic
recording of an interview of Appellant by a police officer, that was made
three to four hours after the stabbing of the victim?
Appellant’s Issue Two:
    Did the trial court err in refusing Appellant’s requested jury
instruction on self-defense?

                               Statement of Facts
    Appellant was indicted on December 9, 2011 for the First Degree
felony offense of Murder, Tex. Penal Code §19.02. (CR I –7). Jury trial was
held on December 10-12, 2013 in the 19th Judicial District Court of
McLennan County, Texas, before the Honorable Ralph T. Strother.
    The State called six witnesses in its case in chief. Wanda Kendrick
testified that she was a long-time acquaintance of the victim, Zachary
Davis, and his sister, Rene Davis. (RR III – 15). She also knew the
Appellant through his relationship with Rene Davis. (RR III – 16). At the

time of the murder, however, she only knew Appellant by the name of “T.”
(RR III – 16). Kendrick had lived with Rene and Appellant for about a
month, prior to the murder. (RR III – 16). Kendrick described Appellant as
being “controlling” in his relationship with Rene, and described Rene as
“kind of slow,” and easily manipulated. (RR III – 17).



                                       1
       On the night of September 22, 2011, Kendrick went to Rene and
Appellant’s apartment. (RR III – 17). While walking to the apartment,

Kendrick saw Zachary Davis running out the gate of the apartment. (RR III
– 18). Kendrick could see that Zachary was bleeding. (RR III – 18). Shortly
thereafter, Zachary collapsed in front of another apartment and kept
repeating, “T,” referring to Appellant. (RR III – 19). Kendrick tried talking
to Zachary, trying to “keep him alive until the ambulance got there,” but
after about five minutes, Zachary “looked up and took his last breath.”

(RR III – 20).
       The State’s second witness was Venson Scott, the father of Rene and
Zachary Davis. (RR III – 23-24). Mr. Scott knew Appellant before the
murder only by the name of “T.” (RR III – 24). About two months prior to
the murder, Mr. Scott had let Appellant borrow a hunting knife. (RR III –
25). This knife had a blade of approximately four to five inches. (RR III –
26). Mr. Scott never got the knife back, and at the time of his testimony,
did not know where it had gone to. (RR III – 26).
       The State’s third witness was Joyce Akers. Ms. Akers was a friend of
Zachary and Rene Davis from childhood. (RR III – 29). She also knew
Appellant through his relationship with Rene Davis. (RR III – 30-31). Prior
to the murder, Ms. Akers knew Appellant only as “Memphis.” (RR III –
30).
       On the day of the murder, Ms. Akers went to visit Rene at the
apartment she shared with Appellant. (RR III – 33). Zachary was also

                                       2
present at the apartment. (RR III – 33). Rene and Appellant were arguing,
and Appellant told Rene that if she kept arguing, he was going to “put his

hands on her.” (RR III – 34). At that point, Zachary told Appellant that as
long as Zachary was there, Appellant was not going to put his hands on
Rene. (RR III – 35). Appellant then told Zachary that if he interfered in his
conflict with Rene, that Appellant would kill him. (RR III – 35).
     After this exchange, Appellant went into a back room by himself and
returned a few moments later. (RR III – 35). When Appellant returned to

the living area, Zachary told him, “Whatever you went back there to get or
whatever you call yourself doing, you’re going to have to use it. “ (RR III –
36). Appellant then started to leave through the back door of the
apartment. (RR III -- 36). As Appellant was attempting to leave, Rene was
“right there on his back, started yakking at him, fussing at him.” (RR III –
36). Appellant turned on Rene, grabbing her by the throat and pushing her
against the wall. (RR III – 36-37). Zachary then told Appellant, “I told you
not to put your hands on my sister,” and the two men started fighting on
the back porch. (RR III – 37). Rene joined in, hitting Appellant as well.
(RR III – 37). Appellant fell to the ground, and the fighting stopped. (RR
III – 37-38).
     After the fighting stopped, Zachary walked over to the yard area,
away from Appellant, while Rene stood off to the side. (RR III – 38).
Appellant walked over to the back door, where a knife fell from his person.
(RR III – 38). Appellant then approached Zachary with the knife. (RR III –

                                      3
38). Ms. Akers saw Zachary fall back, with Appellant on top of him,
stabbing him. (RR III – 38-39). Ms. Akers estimated that Appellant stabbed

Zachary four or five times. (RR III – 39). While this was going on, Ms.
Akers pleaded with Appellant to “please stop stabbing him.” (RR III – 39).
Meanwhile, Rene was looking around, trying to find something with which
to hit Appellant. (RR III – 39). Unable to find anything, Rene ran inside the
apartment and returned with a hammer. (RR III – 39).
    When Rene returned, Appellant got up off of Zachary and went inside

the apartment, locking the door behind him. (RR III – 40). Zachary got off
the ground, “like Superman,” and ran off. (RR III – 40). Ms. Akers testified
that Rene did not strike Appellant with the hammer, and that no weapons
other than Appellant’s knife were present during the attack. (RR III – 40).
Ms. Akers clarified that the initial altercation between Zachary and
Appellant was a fistfight, with no weapons being present or used. (RR III –
40-41).
    The fourth State’s witness was Waco Police Officer Jason Ireland. A
patrol officer, Ireland was dispatched to the scene of the stabbing the night
of September 11, 2011. (RR III – 60). On arrival, Officer Ireland found two
other officers administering first aid to Zachary Davis. (RR III – 61). Mr.
Davis was gasping for breath and there appeared to be a stab wound to his
abdomen. (RR III – 62). Zachary Davis died a few minutes after officer
Ireland’s arrival. (RR III – 62).



                                      4
    The initial investigation at the scene revealed Appellant as the suspect
in the stabbing, and also led to the discovery of Appellant’s cell phone

number. (RR III – 63). Using GPS, investigators were able to determine a
location for Appellant’s cell phone at a nearby address. (RR III – 64). After
searching for three to four hours, Appellant was found inside a residence.
(RR III – 66). Appellant did not voluntarily surrender to officers at first.
(RR III – 66). Only when he was advised that a canine unit would be used,
did Appellant agree to surrender. (RR III – 67). Appellant had no apparent

injuries at the time of arrest, nor did he complain of such or request any
medical treatment. (RR III – 67-68).
    At a bench conference after Officer Ireland’s direct testimony,
Appellant moved to admit into evidence a recorded interview between
Appellant and Officer Ireland. (RR III – 68). This recording had been made
shortly after arrest, while Appellant was seated in the back of Ireland’s
patrol vehicle. (RR III – 69). Appellant argued that the recording was
admissible under Tex. R. Evid. 107, the Rule of Optional Completeness. (RR
III – 69). The State responded that the recording was hearsay, and would
circumvent the requirement of direct testimony by Appellant. (RR III – 69).
After argument by counsel, the Court sustained the State’s hearsay
objection. (RR III – 70). Appellant then made an offer of proof, admitting a
copy of the recording as Defense Exhibit 1 for the purpose of record. (RR
III – 72). The State further objected to the recording’s relevance, which was
also sustained. (RR III – 75).

                                       5
    The State then called Angelika McCallister, a Crime Scene Technician
for the Waco Police Department. (RR III – 87). Ms. McCallister sponsored

the State’s photographic and documentary evidence from the crime scene,
and the parties involved in the stabbing. Referring to photos of Appellant
taken shortly after arrest, Ms. McCallister testified that he had a number of
superficial and non-life threatening injuries. (RR III – 102-105). On cross-
examination, Ms. McCallister testified that she had also taken photos of
Rene Davis, but she did not observe any injuries to her person. (RR III –

105).
    The State’s final witness was Dr. Janice Townsend-Parchman, who
performed Zachary Davis’ autopsy. Mr. Davis suffered three stab wounds.
(RR IV – 12). The first stab wound was to Zachary’s front left shoulder.
(RR IV – 14). It penetrated 4 ¾ inches, perforating the left subclavian vein
and left lung. (RR IV – 15-16). The second also penetrated to a depth of 4
¾ inches, into Zachary’s liver (RR IV – 18-19). The third stab wound
penetrated three inches into the subcutaneous tissue of Zachary’s right
thigh. (RR IV – 20). Toxicology results showed the presence of low levels
of over-the-counter antihistamine and THC. (RR IV—22-23). The only
other injury observed was a scrape on the right knee. (RR IV—24). In Dr.
Townsend-Parchman’s opinion, Zachary Davis’ death was caused by the
three stab wounds. (RR IV—24).
        Appellant’s first witness was Rene Davis. She testified that Appellant
lived with her, although she did not then know him by his true name. (RR

                                        6
IV – 30). On the night of the murder, she, Appellant, Zachary and Joyce
were at Rene’s apartment. (RR IV – 31). An argument took place inside the

apartment, and then Rene and Zachary went outside. (RR IV – 31).
Appellant followed them outside, where the argument continued. (RR IV –
32). Rene denied that any physical contact occurred between her and
Appellant. (RR IV – 32). According to Rene, Zachary started the fight
when he punched Appellant. (RR IV – 33). Zachary threw the first punch
because it appeared that Appellant was about to assault Rene. (RR IV –

33). Rene’s specific testimony was “I know he punched him first because
he was acting like he was going to come do something to me.” (RR VI –
33). The situation then became a physical fight with Zachary and Rene on
one side and Appellant on the other. (RR IV – 34). The altercation
devolved to the point where Appellant ended up on the ground. (RR IV –
34). Rene claimed that during the fight she was hitting Appellant with a
stick. (RR IV – 34). Rene said that the fighting continued between Zachary
and Appellant uninterrupted, while she went inside to get a hammer. (RR
IV—36). Rene believed that when she came back outside, she hit Appellant
with the hammer. (RR IV – 36). At some point, Rene saw something shiny
which she took to be a knife. (RR IV – 35). Shortly after Rene got the
hammer, the fight stopped because Zachary was bleeding. (RR IV – 36).
She and Zachary let Appellant up at that point and Appellant ran inside
the apartment and locked the door. (RR IV – 36). Zachary ran out the back
yard toward the parking lot, while Rene called the police. (RR IV – 37).

                                     7
    On cross-examination, Rene testified that Appellant was from
Tennessee and she had met him over the internet. (RR IV – 38). She said

she fell in love with Appellant and invited him to come live with her. (RR
IV – 39). At that time, Rene knew Appellant by the name of William
Harris. (RR IV – 39). On the night of the murder, Rene gave a statement to
the police. (RR IV – 41). Rene explained that she had not mentioned
anything that night about a stick or a hammer because she was scared. (RR
IV – 43). Rene also recalled visiting Appellant at the jail. (RR IV – 44). The

State’s counsel questioned Rene regarding specifics of her conversations
with Appellant during the jail visits. Rene told Appellant she loved him
and wanted to be with him, and Appellant asked her to marry him. (RR IV
– 44). Appellant told Rene they could be together, but she needed to help
him out of the situation he was in. (RR IV – 45). Appellant told Rene what
the truth needed to be was that he was acting in self-defense, and that if
she told the truth, “I can get out of here on a self-defense claim.” (RR IV –
46). Rene agreed that Appellant was trying to manipulate her. (RR IV –
49). Rene also testified that she reported the use of the stick and the
hammer only after meeting with Appellant at the jail. (RR – 50-51).
However, Rene still held the opinion that Zachary had punched Appellant
in order to protect her. (RR IV – 68).
    Appellant then called his defense investigator, Edward McElyea, who
testified that Rene Davis had given him a hammer from her apartment on
March 7, 2012. (RR IV – 69-70).

                                         8
    Appellant then called Steve January on voir dire, regarding the State’s
Motion in Limine on statements made by Appellant. (CR I – 110). Mr.

January was a Waco Police Officer at the time of the offense, and had
subsequently become an investigator for the Criminal District Attorney’s
Office. (RR IV -- 75, 80). Mr. January addressed his role in the murder
investigation generally, and advised specifically that he had interviewed
Appellant the night of the murder. (RR IV – 78). Upon completion of the
voir dire examination, Appellant’s counsel advised the court that he

intended to question Mr. January regarding his role in the investigation,
including the fact that he had interviewed Appellant. (RR IV – 82). The
State’s counsel objected to anything beyond the fact of the interview,
including such details as what was said in the interview, the length of the
interview, or whether or not the interview was recorded, as those matters
were not relevant. (RR IV – 82). The court expressed agreement with the
State’s position, whereupon Appellant’s counsel advised the court that he
did not intend to explore those specific details. (RR IV – 82-83). The Court
admonished Appellant’s counsel of the limitations imposed regarding Mr.
January’s testimony, whereupon Appellant’s counsel reiterated his position
that Appellant’s prior out-of-court statements were relevant to the issue of
impeachment. (RR IV – 83).
    Mr. January then testified before the jury. Describing his role
generally in the investigation of the murder, January’s testimony did not
touch on any interview he had conducted with Appellant. (RR IV – 85-91).

                                      9
Appellant then rested. (RR IV – 91). The court then allowed Appellant
additional voir dire of Mr. January, for the purpose of developing the

record. (RR IV – 93). In this second voir dire, January testified that he
interviewed Appellant on the night of the murder. (RR IV – 93). During
the initial investigation, January developed no evidence to indicate that
Appellant had acted in self-defense. (RR IV – 93-94). On further
questioning, January clarified that the issue of self-defense did arise during
his interview with Appellant. (RR IV – 94).

    On completion of the voir dire examination, the court asked
Appellant’s counsel for clarification of Appellant’s grounds for
admissibility of the interview with Mr. January. (RR IV – 96). Advised that
the information went to impeachment, the court inquired, “Impeachment
of whom?” (RR IV – 96). Appellant’s counsel referred to the cross-
examination testimony of Rene Davis and the implication that self-defense
was a recent fabrication between her and Appellant. (RR IV – 96). The
court then brought up the recording of the interview between Appellant
and Jason Ireland. (RR IV – 96). Appellant’s counsel reiterated the position
that that recording rebutted the impression that Appellant had been
uncooperative with law enforcement. (RR IV – 96). The court denied the
admission of Appellant’s prior out-of-court statements, ruling that they
were hearsay. (RR IV – 97).
    After the parties rested, a bench conference was held wherein the issue
of self-defense was discussed. (RR IV 104-123). The court asked

                                      10
Appellant’s counsel, “what evidence has actually raised your client having
the right to use deadly force against the victim in this case? (RR IV – 104).

Appellant’s counsel referred to Rene Davis’ testimony that she had hit
Appellant with a stick. (RR IV – 105). The State reminded the court of the
provocation provisions of Tex. Penal Code §9.31. (RR IV – 106-106). The
court advised the parties that the self-defense instruction would be given,
but instruction on multiple assailants and provocation would also need to
be submitted. (RR IV – 107-108).

    After a lunch break, the court expressed concerns about the propriety
of a self-defense instruction. (RR IV – 108). The court pointed out that
before a self-defense instruction could be given, there had to be evidence
that unlawful deadly force was being used against the defendant and that
he reasonably believed that he had to use deadly force to protect himself
from the unlawful use of deadly force. (RR IV – 109). The court conceded
the point that Rene Davis had testified “that she had a stick or a club and
that later she went in and got a hammer.” However, the court did not see
how this raised the issue that Appellant reasonably believed that he had to
use deadly force to protect himself from deadly force. (RR IV – 109). The
court rejected the “bootstrapping” argument that, since the Appellant had
used deadly force, he must have believed it was necessary. (RR IV – 112).
The court pointed out that Joyce Akers testified that the victim hit
Appellant when Appellant started choking Rene. Rene testified that the
victim hit Appellant when Appellant was about to put his hands on Rene.

                                      11
(RR IV – 117). The State’s counsel argued that under either version of
events, the victim was justified in acting to defend his sister, and therefore

Appellant’s reaction was not a lawful use of force. (RR IV – 118-119, 122-
123). For these reasons, the court denied the self-defense instruction. (RR
IV – 123).
    Upon the completion of the evidence, the jury was charged and final
arguments presented. The jury returned a verdict of “guilty.” (RR IV –
163). At the completion of the punishment phase, the jury found the

enhancement allegations to be true and assessed punishment at life in
prison. (RR VI – 64).




                                      12
                           Summary of Argument
Appellant’s Issue One:

    The trial court did not err in excluding as hearsay an electronic
recording of an interview of Appellant by a police officer, that was made
three to four hours after the stabbing of the victim.
Appellant’s Issue Two:
    The trial court did not err in refusing Appellant’s requested jury
instruction on self-defense, as such an instruction was not supported by the

evidence.
                                  Argument
Hearsay Statement of Appellant
      The trial court did not abuse its discretion in excluding Appellant’s
recorded statement as inadmissible hearsay. Because the trial court did not
abuse its discretion, Appellant’s sole point should be denied.
      A trial court's decision to admit or exclude evidence is reviewed
under an abuse of discretion standard. McDonald v. State, 179 S.W.3d 571,
576 (Tex. Crim. App. 2005). When evidence is excluded, the burden is on
the proponent of the evidence to show that the court abused its discretion.
Johnson v. State, 698 S.W.2d 154, 160 (Tex. Crim. App. 1985). A trial court
abuses its discretion if its decision is arbitrary, unreasonable, and without
reference to guiding principles. Montgomery v. State, 810 S.W.2d 372, 391
(Tex. Crim. App. 1990). An abuse of discretion does not occur merely



                                      13
because the appellate court would have decided a discretionary matter in a
different way than the trial court. Id.

      A trial court must be given wide latitude in its decision to admit or
exclude evidence. Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App.
1992). As long as the trial court’s evidentiary ruling is at least within the
zone of reasonable disagreement, an appellate court may not disturb it.
Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007). There should
be “reluctance on the part of an appellate court to reverse trial court

decisions which admit or exclude evidence.” Montgomery at 378; Harris v.
State, 152 S.W.3d 786, 793 (Tex. App.—Houston [1st Dist.] 2004).
      An appellate court must uphold the trial court’s evidentiary ruling if
there is any legitimate basis for doing so. Owens-Corning Fiberglas Corp. v.
Malone, 972 S.W.2d 35, 43 (Tex. 1998); Hooper v. Chittaluru, 222 S.W.3d 103,
107 (Tex. App.—Houston [14th Dist.] 2006). An appellate court must
uphold the trial court's ruling if it can be upheld on any valid theory,
regardless of whether the theory was argued in the trial court or on appeal.
Nored v. State, 875 S.W.2d 392, 395 (Tex. App.—Dallas 1993). This principle
is especially countenanced with regard to the admission of evidence, and
even holds true where the trial judge gave an improper reason for the
ruling. Romero v. State, 800 S.W.2d 539, 543-44 (Tex. Crim. App. 1990).
      The Court of Criminal Appeals has noted that "every rule of evidence
works a hardship on some litigants part of the time, and it is easy to
sympathize with the frustration of any party whose most promising

                                          14
strategy turns out to be objectionable under the law." Fuller v. State, 829
S.W.2d 191, 207 (Tex. Crim. App. 1992). Nevertheless, the court held that it

is "not at liberty to relieve every such disappointment with an ad hoc
suspension of the Rules." Id.
    Defense Exhibit 1 is the audiovisual recording of Appellant’s
conversation with Waco Police Officer Jason Ireland. At trial, Appellant
moved for admission of this evidence under the rule of Optional
Completeness, Tex. R. Evid. 107, and under the theory of impeachment.

The trial court denied admission of the evidence finding it to be hearsay,
and not relevant.
    It is the rule in Texas that self-serving declarations are hearsay and not
admissible in evidence as proof of the matters asserted. Hafdahl v. State, 805
S.W.2d 396, 402 (Tex. Crim. App. 1990), cert. denied, 500 U.S. 948, 111 S. Ct.
2250, 114 L. Ed. 2d 491 (1991); Crane v. State, 786 S.W.2d 338, 353-54 (Tex.
Crim. App. 1990); Allridge v. State, 762 S.W.2d 146, 152 (Tex. Crim. App.
1988), cert. denied, 489 U.S. 1040, 109 S. Ct. 1176, 103 L. Ed. 2d 238 (1989).
    There are exceptions to the rule against the admission of self-serving
hearsay declarations. Appellant urges that an exception be recognized in
the instant case under the theory of Optional Completeness or
Impeachment.
    The Rule of Optional Completeness, Tex. R. Evid. 107, provides that
when part of an act, declaration, conversation, writing or recorded
statement is given in evidence by a party, the other party may inquire into

                                        15
the whole on the same subject, and any other act, declaration, writing or
recorded statement which is necessary to provide a full understanding or

explanation of the topic. Admission of an accused’s self-serving
declaration must come under some exception to the hearsay rule, such as
being part of a res gestae statement, being part of a statement already
proved by the State, or being necessary to explain or contradict acts or
declarations first offered by the State. Singletary v. State, 509 S.W.2d 572,
576 (Tex. Crim. App. 1974); Allridge at 152. Admissibility under Rule 107

requires that the statement be on the same subject of inquiry and necessary
for a full understanding of the topic. Sauceda v. State, 129 S.W.3d 116, 123
(Tex. Crim. App. 2004). Appellant urged the admission of the recording at
the conclusion of Officer Ireland’s testimony. The record shows that
Officer Ireland did not in any way refer to his conversation with Appellant
or any statements made by Appellant. There being no inquiry by the State
into any statement by Appellant, the condition precedent to admitting the
“whole” of such a statement by the Appellant was never satisfied. As no
partial statement of Appellant had been offered or admitted, there was no
basis for entering optional completeness evidence, nor was such evidence
needed for a full understanding of the topic.
    After the examinations of Steve January, Appellant proposed
“impeachment” as a basis for admitting the Appellant’s recorded
statement. (RR III – 96). The trial court was compelled to ask,
“Impeachment of whom?” (RR III – 96). Appellant’s counsel made

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reference to the cross-examination of Rene Davis and the implication that
Appellant’s claim of self-defense was a recent fabrication, and the

testimony of Officer Ireland and the implication that Appellant had not
been cooperative with law enforcement. (RR III – 96). While witnesses
may be impeached by their own prior inconsistent statements, Tex. R. Evid.
613, Appellant made no showing as to how his own previously recorded
statement could constitute impeachment of Rene Davis or Officer Ireland.
On such a tenuous showing for admissibility, it cannot be shown that the

trial court’s denial fell outside the zone of reasonable disagreement, or
constituted an abuse of discretion. McDonald at 576.
    Appellant cites to two cases in support of admission of his recorded
statement, Dinkins v. State, 894 S.W.2d 330 (Tex. Crim. App. 1995); and Jones
v. State, 843 S.W.2d 487 (Tex. Crim. App. 1992). These cases stand for the
proposition that certain out-of-court statements may be admitted if not
offered as proof of the matter asserted. In those cases, otherwise hearsay
statements were properly admitted to show how law enforcement came to
suspect the defendant of having committed a crime.
    These cases are inapt to an analysis of Appellant’s self-serving
declaration in the instant case. There is no suggestion that the fact of
Appellant’s recorded statement was what led to his being a suspect in
Zachary Davis’ murder. If such had been the case, the State itself would
have offered the statement as a statement against Appellant’s penal
interest. Tex. R. Evid. 803(24). As has already been addressed, the proposed

                                      17
bases for admissibility proffered by the Appellant at trial are also
inapplicable. The Court should note however that on those bases,

admissibility would be predicated on a hearsay exception bearing indicia
of truthfulness. Stating the matter more simply, optional completeness and
impeachment evidence are admissible for the very reason that they are
offered to get at the truth.
    Appellant’s recorded interview is simply a classic self-serving hearsay
statement and the trial court correctly excluded its admission. See, Falade v.

State, 2011 Tex. App. LEXIS 9408 (Tex. App.– Fort Worth 2011) (unpub. op.).
Appellant’s first point of error should be denied.
Self-Defense Instruction
    Appellant complains that the trial court erred in denying his requested
jury charge on self-defense. Review of alleged jury charge error is a two-
step process. First, it must be determined whether error exists; if so, the
error must be evaluated to determine whether sufficient harm has resulted
so as to require reversal. Kirsch v. State, 357 S.W. 3d 645, 649 (Tex. Crim.
App. 2012); Ngo v. State, 175 S.W. 3d 738, 743-744 (Tex. Crim. App. 2005).
The trial court must charge the jury on the law applicable to the case,
which requires that the jury be instructed on every element of the offense
charged. Tex. Code Crim. Proc. art. 36.14; Dinkins at 339. The trial court is
further required to instruct the jury on statutory defenses, affirmative
defenses, and justifications when they are raised by the evidence and
requested by the defendant. Walters at 208-209.

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       Self-defense is defined in Tex. Penal Code §9.31, which provides that a
person is justified in using force against another when and to the degree

the actor reasonably believes the force is immediately necessary to protect
the actor against the other’s use or attempted use of unlawful force. Self-
defense is a type of justification defense; that is, a defense of “confession
and avoidance.” Shaw v. State, 243 S.W 3d 647, 659 (Tex. Crim. App. 2007).
To avail himself of the defense, the accused must ‘admit’ the violation and
offer a statutory justification for his otherwise criminal conduct. Young v.

State, 991 S.W. 2d 835, 838 (Tex. Crim. App. 1999); Van Bruckle v. State, 179
S.W. 3d 708, 715 (Tex. App. – Austin 2005, no pet.). To merit instruction on
a confession-and-avoidance defense, the defendant must admit to each
element of the offense, including both the act and the requisite mental state.
Villa v. State, 417 S.W. 3d 455, 462 (Tex. Crim. App. 2013). If the defensive
evidence does no more than attempt to negate an element of the offense,
the defendant is not entitled to the defensive instruction. Id. A defendant
is not entitled to a defensive instruction if, through his own testimony or
the testimony of others, he claims that he did not perform the act alleged,
or that he did not have the requisite mental state, or both. Van Bruckle at
715.
       A defendant is entitled to an instruction on any defensive issue raised
by the evidence, whether that evidence is weak or strong, unimpeached or
contradicted, and regardless of the trial court’s opinion about the
credibility of the defense. Granger v. State, 3 S.W. 3d 36, 38 (Tex. Crim.

                                        19
App. 1999). In deciding whether a defensive issue is raised, the evidence is
viewed in the light most favorable to the defense. Id.

    Two witness accounts were given at the trial of the instant case, those
of Rene Davis and Joyce Akers. Rene Davis’ account would appear to be
most favorable to Appellant. Ms. Davis testified that Zachary Davis started
the fight when he punched Appellant. (RR IV – 33). Zachary threw the
first punch because it appeared that Appellant was about to assault Rene.
(RR IV – 33). Rene’s specific testimony was “I know he punched him first

because he was acting like he [Appellant] was going to come do something
to me.” (RR VI – 33). Joyce Akers’ account of events was that Appellant
had actually turned on Rene, grabbing her by the throat and pushing her
against the wall. (RR III – 36-37). According to Rene Davis’ account, the
version most favorable to the defense, it is clear that Appellant was in the
process of assaulting Rene when Zachary struck him. Zachary’s action was
taken to defend Rene from Appellant. Zachary’s use of force against
Appellant was thus justified and lawful. There was no evidence that
Appellant’s retaliatory use of deadly force against Zachary Davis was
lawful or a legitimate act of self-defense.
    Appellant second point of error is without merit and should be denied.
                                    Prayer
      For the foregoing reasons, the State of Texas prays that this
Honorable Court affirm the conviction and punishment of ALLAN LATOI



                                       20
STORY for the offense of MURDER, and prays for such other and further
relief as may be provided by law.


                                           Respectfully Submitted:
                                           ABELINO ‘ABEL’ REYNA
                                           Criminal District Attorney
                                           McLennan County, Texas

                                           /s/ Sterling Harmon_________
                                           STERLING HARMON
                                           Appellate Division Chief
                                           219 North 6th Street, Suite 200
                                           Waco, Texas 76701
                                           [Tel.] (254) 757-5084
                                           [Fax] (254) 757-5021
                                           [Email]
                                           sterling.harmon@
                                           co.mclennan.tx.us
                                           State Bar No. 09019700


                           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), if
applicable, because it contains 4,912 words, excluding any parts exempted
by Tex. R. App. P. 9.4(i)(1).




                                      21
                           Certificate of Service
     I certify that I caused to be served a true and correct copy of this

State’s Brief by E-Filing Service on Appellant’s attorney of record, Doyle
Young at dyounglaw.waco@gmail.com.


DATE: 6/11/15                             /S/ STERLING HARMON__________
                                          STERLING HARMON




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