                              Fourth Court of Appeals
                                     San Antonio, Texas

                                 MEMORANDUM OPINION
                                        No. 04-12-00126-CR

                                      Bernadette PERUSQUIA,
                                             Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                      From the 49th Judicial District Court, Webb County, Texas
                                Trial Court No. 2009CRN000882-D1
                             Honorable Jose A. Lopez, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: June 12, 2013

AFFIRMED

           Bernadette Perusquia was convicted by a jury of murder. On appeal, Bernadette contends

the trial court erred by: (1) excluding evidence of specific prior acts of violence committed by

the victim, Juan Perusquia, because Bernadette raised the issue of self-defense and claimed Juan

was the first aggressor; and (2) erroneously reading the written jury charge on self-defense. We

affirm the trial court’s judgment.
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                                   SPECIFIC ACTS OF VIOLENCE

        Bernadette’s defense at trial was that she shot Juan, her husband, in self-defense because

he was close enough to lunge at her and was going to kill her. Bernadette testified that she

pulled a gun from her waistband thinking that the gun would stop Juan from continuing to

advance towards her. Bernadette had hidden the gun in her waistband to prevent Juan from

obtaining the gun during an argument in which Juan had already knocked her over a recliner,

pulled her down on the bed, and grabbed her breasts and genital area. When Juan continued to

advance towards her, she shot him. Bernadette testified that she was instructed during her

training for a concealed handgun license to show the gun to the attacker in an attempt to frighten

him, but to shoot if the effort to frighten the attacker did not work.

        To support her defensive theory, Bernadette sought to introduce testimony from Juan’s

first wife of his specific violent acts towards her. Although the trial court permitted Juan’s first

wife to testify regarding Juan’s character for violence, the trial court excluded the testimony of

the specific violent acts.

        “A trial court’s decision to admit or exclude evidence is reviewed under an abuse of

discretion standard.” Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). We may not

reverse a trial court’s ruling “unless that ruling falls outside the zone of reasonable

disagreement.” Id.

        “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.” Ex parte Miller, 330 S.W.3d 610, 618 (Tex. Crim. App. 2009). “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 the defendant’s claim of apprehension of

danger’ from the victim.” Id. “Second, a defendant may offer evidence of the victim’s character
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trait for violence to demonstrate that the victim was, in fact, the first aggressor.” Id. at 619.

Bernadette relies only on this second theory in arguing the trial court improperly excluded the

evidence in the instant case.

       When a defendant offers evidence of the victim’s character for violence to demonstrate

the victim was the first aggressor, “he may do so only through reputation and opinion testimony

under Rule 405(a).” Id. (emphasis in the original). “[T]he defendant may not offer evidence of

the victim’s prior specific acts of violence to prove the victim’s violent character and hence that

the victim acted in conformity with that character trait at the time of the assault.” Id. (emphasis

in original). “In the context of proving the deceased was the first aggressor,” specific acts of

violence may be relevant apart from character conformity to demonstrate the deceased’s intent,

motive, or state of mind. Torres, 71 S.W.3d at 760-61; see also Ex parte Miller, 330 S.W.3d at

620. “Before a specific, violent act is introduced, however, there must be some evidence of a

violent or aggressive act by the deceased that tends to raise the issue of self-defense and that the

specific act may explain.” Torres, 71 S.W.3d at 761. “[A] trial court is within its discretion to

exclude prior violent acts if the victim’s conduct was plainly aggressive.” Smith v. State, 355

S.W.3d 138, 150-51 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). Stated differently, when

the victim’s alleged conduct unambiguously shows that the victim was the first aggressor,

evidence of prior violent acts may not be relevant apart from their tendency to show character

conformity for which the prior violent acts would not be admissible. See London v. State, 325

S.W.3d 197, 206 (Tex. App.—Dallas 2008, pet. ref’d); Reyna v. State, 99 S.W.3d 344, 347 (Tex.

App.—Fort Worth 2003, pet. ref’d).         Accordingly, “two conditions must exist before a

complainant’s extraneous act will be admissible to support a claim of self-defense: (1) some

ambiguous or uncertain evidence of a violent or aggressive act by the victim must exist that tends

to show the victim was the first aggressor; and (2) the proffered evidence must tend to dispel the
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ambiguity or explain the victim’s conduct.” James v. State, 335 S.W.3d 719, 728 (Tex. App.—

Fort Worth 2011, no pet.).

       In this case, the evidence unambiguously established that Juan was the first aggressor.

Apart from establishing that Juan was the first aggressor, Bernadette does not suggest that the

evidence in question is otherwise admissible for a non-character purpose such as motive, intent,

or state of mind. Accordingly, we hold the trial court did not abuse its discretion in excluding

the evidence.

                                          JURY CHARGE

       In her brief, Bernadette raises a second issue based on the manner in which the trial

court’s reading of the jury charge was initially transcribed in the reporter’s record. Bernadette

argues that the trial court erroneously read the portion of the jury charge setting forth the burden

of proof on self-defense.

       In response to a motion by the State to supplement the reporter’s record, this court

ordered the trial court to conduct a hearing regarding the initial transcription cited by Bernadette

in her brief. After the hearing, the trial court found that the initial transcription was erroneous,

and that the written charge was accurately read. Bernadette does not complain on appeal about

the instructions in the written jury charge, nor did she file an amended or supplemental brief

raising any issue regarding the correction of the record. Therefore, based on the corrected

record, we overrule Bernadette’s second issue.

                                          CONCLUSION

       The trial court’s judgment is affirmed.

                                                       Catherine Stone, Chief Justice

DO NOT PUBLISH



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