


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-08-00319-CR
 
Stephen Allen Evans,
                                                                                    Appellant
 v.
 
The State of Texas,
                                                                                    Appellee
 
 
 

From the 413th District
Court
Johnson County, Texas
Trial Court No. F42076
 

MEMORANDUM  Opinion

 




            A
jury convicted Stephen Allen Evans of two counts of aggravated assault.  The
jury assessed his punishment at five years’ confinement on one count and
recommended that imposition of this sentence be suspended.  The jury assessed
his punishment at ten years’ imprisonment for the other count.  Evans contends
in four points that: (1) the two convictions are for the same offense and thus
violate the Double Jeopardy Clause; (2) the court abused its discretion by
overruling his objections to the prosecutor’s alleged misstatements of law regarding
self-defense; and (3) the court abused its discretion by excluding evidence of
the complainant’s prior history of drug use and a prior assault (two points). 
We will modify the judgment by vacating one of Evans’s convictions and affirm
the judgment as modified.
Double Jeopardy
            Evans
contends in his first point that his two convictions are for the same offense
and thus violate the Fifth Amendment’s Double Jeopardy Clause.  The State
concedes that a double jeopardy violation has occurred.  The parties dispute
which conviction should be vacated.
            “When
[as here] a defendant is subjected to multiple punishments for the same
conduct, the remedy is to affirm the conviction for the most serious offense
and vacate the other convictions.”  Bigon v. State, 252 S.W.3d 360, 372
(Tex. Crim. App. 2008).  The “most serious offense” is “the offense in which
the greatest sentence was assessed.”  Id. at 373 (citing Ex parte Cavazos,
203 S.W.3d 333, 338 (Tex. Crim. App. 2006)).
            The
jury assessed the greatest sentence against Evans under Count Three, sentencing
him to ten years’ imprisonment.  Therefore, we vacate his conviction under
Count One.[1] 
Evans’s first point is sustained.
Misstatements of Law
            Evans
contends in his second point that the court abused its discretion by overruling
his objections to the prosecutor’s alleged misstatements of law during voir
dire and closing argument regarding self-defense.  Specifically, Evans argues
that the prosecutor misstated the applicable law regarding a person’s right to
use deadly force in self-defense.
            Section
9.32(a)(2)(A) of the Penal Code provides that a person is justified in using
deadly force against another “when and to the degree the actor reasonably
believes the deadly force is immediately necessary . . . to protect the actor
against the other’s use or attempted use of unlawful deadly force.”  Tex. Pen. Code Ann. § 9.32(a)(2)(A)
(Vernon Supp. 2009)).
            By
contrast, section 9.31(a) 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.”  Id. § 9.31(a) (Vernon Supp. 2009).
[I]t is not necessary that a jury find
that the [complainant] was using or attempting to use unlawful deadly force
against a defendant in order for the defendant’s right of self-defense to
exist.  A person has the right to defend himself from apparent danger to the
same extent as he would if the danger were real.
 
Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App.
1996); see Carmen v. State, 276 S.W.3d 538, 545 (Tex.
App.—Houston [1st Dist.] 2008, pet. ref’d) (“there is no additional requirement
that the jury find that the complainant was actually using or attempting to use
unlawful deadly force against appellant”).
            Evans
complains that the prosecutor misstated the applicable law by stating that he
“could not use deadly force unless deadly force was in fact used against him
first.”  Such a statement would appear to be contrary to applicable law.  See
id.  However, Evans’s paraphrase of the complained-of statements is not
entirely accurate and appears to be taken out of context.
            It
is improper for a prosecutor to misstate the law.  See Whiting v. State,
797 S.W.2d 45, 48 (Tex. Crim. App. 1990); Abbott v. State, 196 S.W.3d 334,
343 (Tex. App.—Waco 2006, pet. ref’d).  However, when evaluating the propriety
of the challenged statement, we must consider the context in which it was
made.  See Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997); Davis
v. State, 268 S.W.3d 683, 694 (Tex. App.—Fort Worth 2008, pet. ref’d); see
also Gardner v. State, No. AP-75,582, 2009 WL 3365652, at *17 (Tex. Crim.
App. Oct. 21, 2009) (“Although it is possible to construe this argument as
being improper when taken out of its full context, the prosecutor’s argument is
more naturally interpreted as a permissible one.”).
            Evans
first complains of the prosecutor’s explanation of the law concerning the use
of deadly force during voir dire.  He cites as examples the following:
·                    
“You can only
respond to force with force”
 
·                    
“the law
specifically says the use of deadly force is not justified if all that is
threatened is force”
 
·                    
“the law says if a
person is under attack by the use of force, not deadly force, you can respond
with force, but not deadly force.  Okay.  In other words, there’s a
proportionate, proportionality, I don’t know what the right word would be, but
you can’t use deadly force to repel an attack that’s only force”
 
At first blush,
these statements might be construed as assertions that a person may act in
self-defense only when actual force is used against him (and can use deadly
force in self-defense only when deadly force is actually used against him).
            However,
when read in context, it appears that the prosecutor was attempting to explain
the difference between the justified use of deadly force in self-defense and
the justified use of force less than deadly in self-defense.  Regardless of
whether a person faces an actual or apparent threat, sections 9.31 and 9.32
contain a proportionality requirement with regard to the magnitude of force
which the person is legally justified to employ.  See Tidmore v.
State, 976 S.W.2d 724, 728-29 (Tex. App.—Tyler 1998, pet. ref’d) (“The
amount of force used must be in proportion to the force encountered.”); accord
McBride v. State, No. 13-04-00575-CR, 2006 WL 1965822, at *5 (Tex. App.—Corpus Christi July 13,
2006, pet. ref’d) (not designated for publication); Seibert v. State,
No. 05-03-01131-CR, 2004 WL 2804795, at *6 (Tex. App.—Dallas Nov. 30, 2004,
pet. ref’d) (not designated for publication).  “Deadly force is not immediately necessary if a
reasonable person in the position of the defendant would use some available
nondeadly method of self-defense.  In such circumstances, a defendant's use of
deadly force would not be justified.”  Tidmore, 976 S.W.2d at 729; accord
McBride, 2006 WL 1965822, at *5; Seibert, 2004 WL 2804795, at *6.
            Later
in voir dire after the statutory definitions had been read to the venire panel
and discussed further, a veniremember commented (apparently in his own effort
to explain Evans’s objection):
This is the reason for his objection. 
That’s why he keeps standing up and saying he keeps leaving out the word
perceived attempted force or some such, because if you perceive you’re going to
be met with force, he’s probably going to argue that his client has the right
to stop that force from happening.
 
The prosecutor
agreed that the issue of self-defense must be viewed from “the defendant’s
standpoint” but re-emphasized that his focus was on the magnitude of force a
person is justified in using in self-defense.  The prosecutor later commented
that “if a defendant reasonably believes he or she is being attacked with
deadly force, then you [sic] can respond with deadly force.”  But the
prosecutor also reiterated that his point was that there is a proportionality
requirement regarding the magnitude of force which may be used in self-defense.
            The
prosecutor correctly stated that there is a proportionality element
incorporated within the law of self-defense.  See McBride, 2006 WL
1965822, at *5; Seibert, 2004
WL 2804795, at *6.Tidmore,
976 S.W.2d at 728-29.  He acknowledged in voir dire that the issue of
self-defense must be viewed from the defendant’s perspective and what he
reasonably believed.  Thus, we cannot say that the challenged statements, when
viewed in context, were affirmatively incorrect.
            Evans
also complains of a similar remark made during closing argument.  The
prosecutor stated, “And it says you can use deadly force in this scenario. 
When you’re under attack or attempted attack by someone using or attempting to
use deadly force.  That is the scenario that talks about deadly force.”
            As
with the challenged voir dire statements, this argument standing alone could be
construed as an assertion that there must be an actual use or attempted use of
deadly force before a person is justified in using deadly force in
self-defense.  However, when the argument is read in context with the prosecutor’s
entire closing argument, we conclude that the prosecutor’s focus on the
proportionality issue was not affirmatively incorrect.
            Just
before making the challenged statement, the prosecutor reminded the jury that a
person is justified in using force “to the degree [he] believes is immediately
necessary viewed from his standpoint.”  The charge accurately stated the
applicable law.  The prosecutor correctly stated that there is a
proportionality element incorporated within the law of self-defense.  Id.
            Accordingly,
we cannot say that the court abused its discretion by overruling Evans’s
objections to the complained-of voir dire statements and closing argument. 
Evans’s second point is overruled.
Extraneous Misconduct
            Evans
contends in his third and fourth points respectively that the court abused its
discretion by excluding evidence of the complainant’s prior history of drug use
and a prior assault he committed.
            At
the beginning of trial, the trial court granted the State’s motion in limine
regarding evidence of the complainant Timothy Carter’s prior violent acts and
any prior possession or use of illegal drugs by Carter.  During Evans’s
cross-examination of Carter, he sought to establish that Carter had “committed
assaults” and “was in possession of drugs” in Granbury.  Outside the presence
of the jury, Evans’s counsel explained that these prior acts were relevant to
self-defense because Evans was aware of them when he assaulted Carter.  Evans
sought to make an offer of proof at this juncture in the trial “about the
assaults that occurred there and his drug use there.”  After further discussion
regarding the relevance of the extraneous misconduct evidence, Evans’s counsel
agreed to make an offer of proof later in the trial after establishing
relevance (i.e., by showing that Evans was aware of the extraneous
misconduct when he assaulted Carter).  However, Evans did not thereafter
attempt to make an offer of proof.
            The rules of evidence permit
the defendant to offer evidence concerning the victim’s character for violence
or aggression on two separate theories when the defendant is charged with an
assaultive offense, as applicant was in this case.
 
            First, the defendant may
offer reputation or opinion testimony or evidence of specific prior acts of
violence by the victim to show the “reasonableness of defendant’s claim of
apprehension of danger” from the victim.  This is called “communicated
character” because the defendant is aware of the victim’s violent tendencies
and perceives a danger posed by the victim, regardless of whether the danger is
real or not.  This theory does not invoke Rule 404(a)(2) because Rule 404 bars
character evidence only when offered to prove conduct in conformity, i.e.,
that the victim acted in conformity with his violent character.  Here, the
defendant is not trying to prove that the victim actually is violent; rather,
he is proving his own self-defensive state of mind and the reasonableness of
that state of mind.
 
            .  .  .  .
 
            Second, a defendant may
offer evidence of the victim’s character trait for violence to demonstrate that
the victim was, in fact, the first aggressor.  Rule 404(a)(2) is directly
applicable to this theory and this use is called “uncommunicated character”
evidence because it does not matter if the defendant was aware of the victim’s
violent character.  The chain of logic is as follows: a witness testifies that
the victim made an aggressive move against the defendant; another witness then
testifies about the victim’s character for violence, but he may do so only through
reputation and opinion testimony under Rule 405(a).
 
Ex parte
Miller, No. AP-76,167,
2009 WL 3446468, at * 4-5 (Tex. Crim. App. Oct. 28, 2009) (quoting Dempsey
v. State, 159 Tex. Crim. 602, 266 S.W.2d 875, 877 (1954)) (footnotes
omitted).
            To
preserve error with regard to the exclusion of evidence, a party must make an
offer of proof setting forth the substance of the excluded evidence unless the
substance of the evidence was apparent from the context.  Tex. R. Evid. 103(a)(2); Mays v.
State, 285 S.W.3d 884, 889-90 (Tex. Crim. App. 2009).  Evans’s counsel plainly
informed the trial court that he wanted to offer evidence of a prior assault
committed by Carter for which he was placed on deferred adjudication community
supervision.  Thus, we conclude that Evans adequately preserved error with
regard to the court’s exclusion of this evidence.  See Mai v. State, 189
S.W.3d 316, 322 (Tex. App.—Fort Worth 2006, pet. ref’d).
            Because
Evans claimed to be aware of this prior assault and because Evans sought to prove
it through Carter’s own testimony, it appears that Evans sought to introduce
this evidence as “communicated character” evidence to show the “reasonableness
of [his] claim of apprehension of danger.”  See Miller, 2009 WL 3446468,
at * 4.  However, Evans never established that he was aware of this specific
assault.
            Evans
testified that Carter told him “he’s been in a lot of fights and that he’s been
in trouble for fighting.”  This general statement is not sufficient to
establish that Evans was aware that Carter had committed an assault in Granbury
for which he was placed on deferred adjudication community supervision. 
Accordingly, the court did not abuse its discretion by excluding this
evidence.  See Hayes v. State, 124 S.W.3d 781, 785-86 (Tex. App.—Houston
[1st Dist.] 2003) (evidence of victim’s prior assault with wrench admissible to
show reasonableness of defendant’s fear because defendant personally knew of
incident, but evidence of victim’s prior assault with gun inadmissible because
defendant had no knowledge of it), aff’d, 161 S.W.3d 507 (Tex. Crim. App.
2005).
            With
regard to evidence of Carter’s alleged prior drug use, we construe Evans’s
complaint as having two parts: (1) exclusion of evidence regarding Carter’s
alleged possession of drugs in Granbury; and (2) permitting the State’s witness
to “minimize” the presence of Valium in Carter’s system on the day of the
assault.
            Evans’s
father testified that Carter told them “he had done a lot of drugs in the
past.”  This general statement is not sufficient to establish that Evans was
aware that Carter had possessed drugs in Granbury on a particular occasion. 
Accordingly, the court did not abuse its discretion by excluding this
evidence.  Id.
            The
State called Dr. Arthur Raines to establish that Carter suffered serious bodily
injury and that Evans’s feet and the pavement against which he was “jamming,
cramming, slamming”[2]
Carter’s head both constituted deadly weapons in the manner of their use.  On
cross-examination, Evans’s counsel reviewed Carter’s medical records with Dr.
Raines and sought to establish from blood tests that Carter was under the
influence of a combination of alcohol, valium and marihuana at the time of the
assault.  Regarding valium, Dr. Raines opined that the amount indicated was a
therapeutic amount.  Evans objected that this opinion was speculative, but the
court overruled the objection.  On redirect, Dr. Raines explained that a
sedative like valium is often used in an emergency room as a sedative to assist
with a patient’s intubation.
            Evans
did not call any experts of his own to try to refute Dr. Raines’s
interpretation of Carter’s medical records.  Dr. Raines explained the basis for
his opinion that the amount of valium in Carter’s system was therapeutic.  We
cannot say that the court abused its discretion by overruling Evans’s objection
to this testimony.  See DeLarue v. State, 102 S.W.3d 388, 396
(Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (“Expert testimony cannot be
based upon mere guess or speculation, but must have proper factual basis”).
            Evans’s
third and fourth points are overruled.
We
modify the judgment by vacating Evans’s conviction for aggravated assault under
Count One of the indictment and affirm the judgment as modified.  See
Caballero v. State, 292 S.W.3d 152, 156 (Tex. App.—San Antonio 2009, pet. ref’d).
 
FELIPE REYNA
Justice
Before Chief
Justice Gray,
Justice
Reyna, and
Justice
Davis
Modified and affirmed
Opinion
delivered and filed February 3, 2010
Do not publish
[CR25]
 
 




[1]
              The jury acquitted
Evans of the aggravated assault allegation contained in Count Two of the
indictment.


[2]
              These are the words
of an eyewitness to the assault.


