Opinion issued July 7, 2016




                                    In The

                              Court of Appeals
                                   For The

                        First District of Texas
                          ————————————
                              NO. 01-15-00457-CR
                         ———————————
                  CHARLES BRANDON CASE, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 178th District Court
                          Harris County, Texas
                      Trial Court Case No. 1377988


                        MEMORANDUM OPINION

     This is an appeal from a murder conviction. We affirm.
                             TRIAL PROCEEDINGS

A.     State’s case

       Deputy T. Wright with the Harris County Sheriff’s Office testified that he

was one of two officers dispatched to a family disturbance at an apartment on West

Road on February 18, 2013, about 5:30 or 6:00 in the evening. Deputy O’Neil,

who was already on the scene, reported to Wright that he had just sent a stabbing

victim to the hospital, and that he had a suspect in the apartment.

       Wright testified that the apartment was in disarray, with a large amount of

blood on the floor. Appellant was sitting on the floor in boxer shorts with blood on

his legs and hands. Appellant was “somewhat excited, like he was, like, breathing

heavily sweating a little bit, like he’d just had a – someone who just had a physical

altercation.”

       Wright asked appellant what had happened, and appellant responded “I

stabbed her in self-defense after she stabbed me.” Wright asked, “Well, where are

your injuries? Where did you get stabbed?” Appellant “pointed to the inside of his

forearm.” Wright testified that, from “about 5 to 10 feet [away], somewhere in that

distance, [he] saw a little mark on the inside of [appellant’s] forearm, which isn’t

really consistent with being stabbed in a self-defense manner from what I’m used

to.”




                                          2
      Appellant then began complaining of chest pains, and Wright called an

ambulance for him. Paramedics assessed appellant and determined he did not need

any treatment. Wright’s opinion was that all the blood on appellant was the

complainant’s, not appellant’s, because appellant “had no injuries to sustain the

amount of blood that was inside the apartment and on his arms.”

      N. Blue, an EMT with the Cy Fair Fire Department, testified that he and a

partner were the first ones dispatched to appellant’s apartment. They found the

complainant lying on the floor in the doorway of the apartment, covered in blood,

with appellant leaning over her holding a cloth up to her neck. Blue explained that,

normally, if members of his department walked into what has obviously been the

scene of a violent crime, they would retreat until police officers arrived. In light of

the complainant’s condition, however, they assessed and began treating her. While

they were doing so, appellant told them that they got in an argument and that he

stabbed her in the neck. Appellant made no mention of having stabbed her in self-

defense. At one point, he did say, “she went crazy this time.” Blue described the

apartment as clean, but in a complete state of disarray.

      Blue testified that appellant appeared concerned that he had seriously injured

the complainant, but he was not distraught or crying. The EMTs did not assess or

treat appellant because the complainant was in serious condition and would die if

not immediately treated.     He further opined that the type of blood loss she


                                          3
experienced would be the result of a punctured artery and multiple stab wounds.

The complainant was unconscious and unresponsive, taking “agonal respirations”

i.e., those breaths that are slow and long, meaning that she is not able to bring in

enough air into the body to sustain oxygen to the brain and to the vital organs.” In

response to being asked to describe the complainant’s injuries, Blue explained

what they observed:

               She had — well, she had a towel or shirt wrapped around her
       neck. So we saw a large amount of blood coming from her neck, the
       left side of her neck. Once we exposed that area, she had a large gash
       and several punctures on the left side of the neck . . . . Well, when you
       have a carotid artery that supplies blood to the brain, from the heart to
       the brain, and you have your jugular vein, if those are cut, what we
       call bleeding out, because your body is pipes, pipes and containers,
       right? . . . She had — she had wounds to her torso, her abdomen, and
       her back. . . . I think there were — we counted six wounds, we did,
       and then the hospital counted a couple more.

       Despite all their attempts at stopping the complainant’s excessive bleeding

and rushing her to the hospital, Blue testified that she died from her injuries shortly

after arriving at the hospital.

       Blue has experience responding to domestic disputes, but he did not observe

any defensive wounds on the complainant’s body.

       J. Roberts, another Cy Fair EMT, testified that he and a partner were

dispatched to the apartment in an ambulance to examine appellant, who had

complained of a headache and chest pains. Following a head-to-toe examination,

they reached the conclusion that appellant was okay, but offered to transport him to

                                          4
the hospital for more tests. Appellant declined. Robert’s examination revealed an

abrasion on appellant’s forearm.       No other injuries were apparent, although

Roberts testified that bruises can take time to appear after a trauma. Appellant was

covered in much more dried blood than the abrasion on his forearm could have

caused. Roberts observed no injuries on appellant’s hands. Initially, appellant’s

heart rate was elevated, as is expected when someone is upset, but it had gone back

down by the time Roberts left. Roberts described appellant as coherent and sober,

and noted that appellant stated he only had one sip of the complainant’s alcoholic

drink earlier.

      Deputy C. Reece, with the Harris County Sheriff’s Office, testified that he

was the crime scene investigator supervisor at the scene. He described for the jury

the items from the apartment shown in pictures admitted as State’s exhibits. The

pictures reflected the apartment in disarray, with debris scattered, a desk chair

turned over, and a broken aquarium. There was a vacuum cleaner lacking blood

transfer or splatter laying in a pool of dried blood, which indicated to Reece that

the bleeder laid in place for a while before the vacuum fell there.

      Because the dispatch call indicated a stabbing had taken place, Reece set

about identifying any sharp objects that could have been the weapon, examined

them for blood, and dusted them for fingerprints to determine who handled them.

He collected a hammer, two sets of needle-nose pliers, and three knives.


                                          5
      Because appellate claimed to have suffered injuries, Reece also

photographed him as documentation. Appellant did have scratches on his arms,

but Reece explained why they were not consistent with typical defensive wounds.

If they were defensive wounds, Reece opined that they were “very minor.”

Appellant also had some scratches on his face. He also had significant amounts of

blood splatter and transfer on his body that were not from his own scratches.

Finally, Reece testified that appellant did show evidence of recent bruising on

various parts of his body.

      After Reece finished processing the apartment, he went to the hospital to

examine the complainant’s body and document her wounds, which he described

and compared with appellant’s with the following testimony:

             [Reece]:     That’s her right hand. A couple of photos that —
      on the gentleman of his hands. I took them — we always take them to
      show any defensive wounds or any kind of cuts or scrapes on either
      side of the hands. And that’s basically what I’m doing. She’s
      deceased, so somebody is holding her hand open, but you can see a
      cut right here, which is indicative of a defensive wound when they’re
      trying to grab a blade coming at them or even this direction
      (indicating), depending on how the assailant is holding it, with the
      sharp edge one way or the other.
             ....
            A      That’s her left hand, same thing. Definitive wound right
      here as if you’re trying to grab the knife.
           Q.     How is State’s Exhibit 24 different than the injuries that
      we saw on the defendant?
            A.     Well, the picture — I took photographs of the inside of
      his hands, and he has none on his hands.

                                        6
      Q.     He has no defensive wounds?
      A.     No.
      ....
       That’s her, I think — yeah, that’s her left shoulder. This is — I
started documenting the bruising on her first, which is here
(indicating).
      Q.     And is that consistent with a handprint or pressure being
applied?
      A.    It’s — yeah, that’s what bruise — causes a bruise, yes,
on him and her.
      ....
      A.     That’s her right arm. Again, just showing bruising first.
      Q.     And Officer, do these appear to be consistent with
fingerprint pattern, pressure being applied by a hand?
      A.     They could be. I can’t say for sure.
      ....
       A.     That’s the back side of her hand. Like I said, I’m
documenting the body on both sides, the outside of the hands and the
inside of the hands. That was the one that -- the outside of the hand
just prior to taking the other one that shows the defensive wound
inside. And her hands that had paper bags on them and taped here,
which then they were replaced so that the -- the autopsy, they can
collect fingernail scrapings.
      ....
      Q.     And what’s significant [on her legs]?
      A.     And bruising, bruising around the knees inside of the
calves.
      ....
      A.     That’s the lady’s — the complainant’s abdomen.
      Q.     And how many wounds are we looking at here?
      A.   I didn’t count them because of the fact that, before this
person was deceased, when they’re cleaned up and autopsied, then


                                   7
they can get an accurate count. There were numerous, as you can see
in the photographs.
      ....
      Q.     What are we looking at in State’s Exhibit No. 90?
      A.    It’s a slicing type of evisceration wound. It’s on the left-
hand side towards the back. There’s two of them.
      Q.     And Officer, what are we looking at in State’s Exhibit
No. 23?
     A.     This is her rolled onto her right side with multiple stab
wounds to the back.
      Q.      And, Officer, is it fair to say that the photos I’m showing
are not all the injuries that you photographed that day, these are just
some?
      A.     Correct.
      ....
      Q.     And, Officer, the injuries that we just saw, are those
consistent with a stab wound?
      A.     Yes.
      Q.     Are these wounds serious bodily injury?
      A.     She’s dead, yes.
      ....
      Q.    Officer, based on your training and experience, how
much force would be required to create the injuries that we observed
on the defendant[?].
      A.     The size and the depthness of it as far as kinetic injury, I
can’t — I’m not an expert witness in that. All I can say is they were
shallow scratches.
       Q.    And what is — what can you tell us about the
significance of the injuries that we observed [on the complainant]?
       A.     Even though I’m not a medical examiner, from those that
I took, they are deep wounds. That’s all I can say.
      Q.     Okay. Would you describe these injuries as comparable?
      A.     No. One is quite deep and one is quite superficial.
                                   8
            Q.     What was the difference in the number of wounds to the
      victim and the scratches to the defendant, if you know?
             A.     Just from my viewing and not adding hearsay, there were
      multiple deep wounds on the victim and relatively few — I tried to
      point all of them out on the defendant.
               Q.     Was it greatly disparate?
               ....
      A.       Yes.

      On cross examination, Reece testified there were two adult beverage cans in

the kitchen sink, and the bottom of a broken highball glass. He was unable to lift

fingerprints off either one. In fact, he was not able to develop any identifiable

fingerprints in the apartment.

      Sergeant C. Clopton with the Harris County Sheriff’s Office, a homicide

investigator, testified that—when he arrived at the scene—he canvassed for

witnesses to the altercation, but was unable to locate any.           He described the

apartment as the violent scene with much blood everywhere.

          He then returned to his office, watched the initial interview of appellant, and

then interviewed appellant himself.              Clopton was surprised by appellant’s

demeanor, as he did not appear upset.             Clopton observed some scratches on

appellant, but no stab wounds. In his opinion, the scratches were not defensive in

nature:

             [Clopton]: Looking at the scratches that were on the forearms
      of the defendant, specifically one scratch that went almost completely
      around the arm, could not be — could not have been obtained from a

                                             9
defensive posturing, that the force of a knife or a object, sharp object,
swinging would not continue around the forearm.
      Q.     And why is that significant?
     A.     Because that shows that that’s not a defensive injury,
which it was claimed to be.
      Q. And what about the significance of her wounds?

      A.    Her wounds were definitely indicative of stab wounds
and slash wounds.
      Q.   Was there anything — do you recall in the evidence that
you observed — any defensive wounds that you observed on the
victim?
      A.     Yes, I did.
      Q.     Where were those defensive wounds?
     A.     In the hands and the webbing of the — between the
thumb and the forefinger and on the inside of the fingers.
     Q.      And why would you characterize those as defensive
wounds?
      A.     Well, when you’re defending yourself, it’s typically what
you would put up as a shield or as a blocking mechanism to ward off
whatever object is coming toward you. You typically put up your
hands or your forearms and — or even a motion to try to grab the
object to get it away from the stabbing your inner body, you then
receive injuries to your hand.
      ....
      Q.    Knowing that the defendant was claiming self-defense,
what was the significance of the wounds to her back?
      THE WITNESS: They were — they were inconsistent of his
description of how they — they would have occurred. The injuries in
the back would have had to have been done from — from the back.
      ....
       Q.    Do you know, based on your observations, whether or
not the victim was on the ground at some point?
      A.     Yes.
                                   10
            Q.     Did you observe any blood on the defendant that
      indicated he may have been next to the victim or on the victim?
            A There was blood on the defendant. I mean, I can say he had
      to have been in close proximity to her at some point, yes.
            Q.    What is it about her stab wounds, and you mentioned that
      she had been weakened and incapacitated, that stand out to you when
      someone’s claiming self-defense?
            ....
            A.    That there were so many wounds that the aggressor —
      had the deceased been the aggressor would have given up, if she had
      been the aggressor, long before she received that many stab wounds.

      Clopton also testified about the 911 call appellant made in which the

complainant can be heard screaming to be let go. He opined that is inconsistent

with the complainant being the aggressor.

      Elizabeth Gilbert, the complainant’s mother, also testified. She explained

that the appellant and complainant were in a relationship and lived together. The

complainant had six children and was on social security disability because she had

twice fractured her hip, which caused her pain.     She also took medication for

ADHD and depression.

      Deputy J. Perez with the Harris County Sheriff’s Office testified that he

responded to an earlier domestic assault call made by the complainant on January

20, 2013. When he pulled into the complainant’s apartment complex on that day,

Perez saw the complainant on the phone in the parking lot waving him down. She

was very upset and crying while she tried to talk to Perez. Perez noticed light

bruising on her arms as she pointed repeatedly up to her apartment, saying “he”
                                       11
was still inside. Ultimately, the complainant was embarrassed and refused medical

assistance.

      Perez went up to the complainant’s apartment, where he found the door

open, and some items broken on the floor. There was a hole in the bedroom door,

and the bathroom sink had been pushed down so hard it was damaged. Perez

found appellant in the complainant’s apartment and talked to him briefly before

other officers escorted appellant out.    Perez described appellant as calm and

evasive. He did not see any physical injuries on appellant. Appellant told Perez

that the complainant was insecure because appellant was younger than her, and he

denied hitting her. Appellant said the argument that day was also about the

complainant not timely taking her medication.

      Appellant also told Perez that this was not the first time the police had been

called to their apartment, but that the police usually just made him leave each time.

Perez said that both appellant and the complainant had been the callers on previous

occasions. Appellant told Perez that they always got back together after the police

leave. Perez said the district attorney’s office declined to accept charges, but that

the case was nonetheless turned over to the Sheriff’s Department’s assault

investigation division for follow-up.




                                         12
       Deputy S. Mills with the Harris County Sheriff’s Department, domestic

violence division, next testified.   She was referred the complainant’s case in

January, 2013, but closed it because the complainant was not willing to prosecute.

       Finally, Dr. A. Lopez, an assistant medical examiner testified about the

complainant’s injuries and autopsy. The autopsy revealed “multiple sharp-force

injuries and then multiple blunt-force injuries” in detail. The complainant had

been stabbed a total of thirty times, puncturing several major organs (including her

lungs and liver) and her jugular vein. From the front, where she suffered sixteen of

the stab wounds, she was also stabbed in the jaw multiple times, the breast, the

abdomen, diaphragm, and peritoneum. The rest were on her back, which included

three stab wounds that punctured her right lung, diaphragm, and liver, and another

cluster of six stab sounds in the middle of her back that caused additional

significant blood loss. Her toxicocology screen reflected a blood-alcohol level of

.04.

       The State rested, and appellant’s motion for directed verdict was denied.

B.     Appellant’s case

       R. Ethridge, appellant’s brother, testified that appellant’s mother and step-

father lived in the same apartment complex as the complainant, and that was how

the appellant and complainant met. He also testified appellant and the complainant

had lived together for about a year before her death.


                                         13
      Appellant testified that he met the complainant around his apartment

complex, and that they began dating about three months after meeting, and then he

moved into her apartment about three months later. He testified that sometimes

during the time they lived together, he would stay at his grandmother’s house (that

was closer to his office) if he “either worked late at work or got off — got off late

or had to get up early or [the complainant] had been drinking.”

      After appellant moved in, he learned about some of her medical issues.

Appellant would drive her to her doctors’ appointments and to pick up her

prescriptions, and said she was on many medications. He also testified that the

prescription medications she took affected her and her behavior while they lived

together.

      According to appellant, recently before the complainant’s death, she had

been to the doctor and received a new prescription medication that changed her

behavior, describing it as “very, very angry behavior. Very lopsided, up and

down.” Appellant testified that when the complainant would take “the medication,

her behavior would become very erratic. She would be very up one second and

happy, you know, talkative, interactive, very sweet, and then she would change

sometimes. She would be very — very down and depressed.” He said these

changes would occur within 15 to 30 minutes of her taking her medication.




                                         14
      When specifically asked about the day before the complainant died, he

testified that she was very depressed and upset about her daughter getting kicked

out of her grandparent’s house and her brother’s recent overdose and suicide.

According to appellant, the complainant acted very strangely all evening. She was

going back and forth between the bathroom and kitchen, and “[s]he would cry and

be depressed and kind of scream and bang on the walls.” He tried to go to sleep,

but woke up throughout the night as she paced and banged on walls.

      On February 18, the day he killed the complainant, appellant said the day

started fairly routinely; he made some breakfast and she took her medications.

They ran errands, got some lunch, and then stopped by the pharmacy, finally

arriving back at the apartment about 1:00 in the afternoon. Appellant said the

complainant was sad and depressed the entire time they were out.

      Appellant got on his computer to do some work and chat with friends, while

the complainant continued to behave erratically, pacing back and forth and making

herself an alcoholic drink. He described her as very standoffish, and claimed that

when he would try and interact or engage with her, and she “say a few words and

just kind of go back about her business.”

      Appellant claimed he had not been drinking that day, other than taking a sip

of one of the complainant’s drinks because she asked him to. He estimated she had

4 drinks between that day and the previous night. He estimated that she had at


                                            15
least ten different medications that were prescribed to her, and said that her

behavior changed after she took some of her medication that evening, i.e., that her

depression and anger multiplied. Finally, he gave his version of the altercation

leading to his killing her:

            A.    Well, I actually hear her. She’s in the bathroom again.
      And normally she was in there kind of screaming and, you know,
      hashing out her issues and hitting the wall, but she’s hitting it even
      harder now . . . . It really gets my attention.
              Q.     Was she screaming at you?
              A.     No, sir.
              Q.     Just screaming, making a lot of noise?
              A.     Yes, sir [and] I hear her hitting the walls abnormally
      hard.
            Q.  All right. And at some point does she come out of the
      bathroom?
             A.     Yes, she . . . comes out of the bathroom. I just about to
      stand up and go, you know, see what was the matter because she was
      hitting it, you now, harder than I ever heard her hit it before, and she
      comes into the kitchen and she sits on the washer and dryer.
              ....
             A.      She sat on the dryer, and they’re both across from each
      other. . . . . She started kind of sobbing and moaning. She wasn’t
      exactly crying and — but she started kicking her feet, you know, back
      and forth, and she was kicking the washer and dryer very hard.
              ....
             Q.     All right. What do you do when you hear this noise and
      see this activity?
           A.    I stand up, and I walk over to her and I ask her, you
      know, what’s — what’s the matter? Can you tell me what’s going on?
              ....


                                          16
       Q.     Did she do anything to you or take any physical action to
you?
      A.     She did. She kind of stared at me in a trance, like she was
looking past me. And then she — I turned to walk away. And then as I
was about to walk away because she wasn’t answering me, she
jumped off the washer and dryer and came toward me.
      Q.      After she jumps off the washer and dryer, did you notice
or sense that she jumped off the machine?
      A.    Yes, sir. Yes, sir. I was spinning to walk away and I
heard her jump off the washer and dryer and she ran up to me and
gave me a big hug.
       Q.     Did you turn back to her?
       A.     Yes, sir.
       Q.     All right. And what did Ms. Dossey do then?
      A.    She ran up and gave me a big hug and a big kiss, and she
was happy and she — and then immediately kind of looked down at
my chest, and I just saw, you know, grief and depression fall over her
face.
      Q.   All right. After you see this, do you say anything to her at
that moment?
      A.     I’m — I’m speaking, I’m like what’s the matter and she
pivots, and she turns to walk back towards the washer and dryer.
       Q.     Okay. Does she say anything to you?
       ....
       A Yes.
       ....
       Q.     What do you say?
       ....
       A.    I told her, let’s — you know, let’s look for your daughter,
see if you can get your daughter on the phone.
       ....
      Q.    Did she ever actually make a connection and get ahold of
[her daughter]?

                                   17
         A.     No, sir.
         ....
      Q.    All right. After she realized she wasn’t going to get in
touch, what did she do with the phone? What did she do?
       A.     She — she put the phone on the counter. She started —
she started to become aggressive, because I didn’t want her to —
      Q.     Describe — when you say she became aggressive, what
did she do that makes you say that? What did you see?
      A.    She became verbally aggressive towards me and had
grabbed ahold of me.
         Q.     How does she grab ahold of you?
         A.     She put her arm on me, grabbed my shirt.
         Q.     Okay. What did she do after she grabbed you by the
shirt?
       A.      She started pushing me. . . . . when I was turning out of
the aisleway of the kitchen into the living room, she tried to push me
as I was turning. Our feet tangled and we both fell into the wall and
then rolled into the fish tanks. . . . . We fell into — there’s an aisleway
in between the — between the living room and the kitchen — and
there’s a little doorway and the closet, and as you see in the pictures,
there’s a fish tank right next to it. . . . She — when she was pushing
me, our feet got tangled and I grabbed her arm not to fall, and we both
fell. She fell basically headfirst into the doorway, and I fell and hit the
side of my head and my shoulder. . . . . After we did that, I kind of
rolled sideways, and I hit the fish tank and broke the fish tank. . . . . In
response to that, I see that the water is leaking everywhere, so I run
and grabbed a jug to start emptying the water, because the crack is at
the bottom of the tank, and all the water is leaking off to the
electronics, and I’m afraid it’s going to start an electrical fire.
         ....
      Q.    All right. Do you, at some point, finish what the water?
Are you through getting water out of your aquarium, the tank?
       A.     Yes, sir. I didn’t complete – completely finish emptying
the water. . . . . As I making one of my trips back and forth between
the tank, she punched me twice in the back of the head.

                                    18
        ....
      Q.       What did you do in response to getting hit in the back of
the head?
      A.     I turned around and asked her, you know, why would you
do that, what’s going on, what’s the matter?
        Q.     Did she respond to that?
        ....
        A.     It was a physical response. It was immediate.
      Q.       What did she do after you asked her what that was all
about?
       A.     She punched at me one more time. It was towards my
face, and I leaned back and it hit me in the chest.
        Q.     And do you do anything in response to this?
       A.     As she swung, I caught her arm after it hit me in the
chest, and I trapped that arm, and then bear-hugged her with my other
arm and pulled her in close to me and told her to calm down and, you
know, I asked her what’s going on.
      Q.    So when this bearhug — y’all are both — you’re
standing up at this time? . . . . Does she physically react to your bear
hug?
      A.    Yes, she does. . . . She bites at me. She bites at my hand
and then she bites my finger. And then I start to loosen my grip on
her.
        Q.     All right. And does she say anything to you at this time?
      A.    She — she still doesn’t say anything to me. She’s just —
she’s upset and she’s kind — kind of halfway screaming. But I
couldn’t make out what she was saying entirely.
        ....
        Q.     All right. Does she do anything physically to respond to
this?
      A.     As I started to loosen my grip, she starts to push me. And
she pushes me up against the wall that we just previously hit. . . . .We
both run into the wall. She pushes me up against the wall, right in the
corner, right — the corner of the wall hit me directly in my spine
                                    19
where I had back surgery. And we both fall over sideways. We’re
stumbling sideways. And we run into basically the wall over there by
the front door and knock over a bunch of items.
      Q.        What was knocked over when the two of you go towards
the wall?
       A.       There was bunch of things by the wall. There was a rack
full of tools and little items on it. A vacuum cleaner, a chair. I think
like a little foot stool, ottoman, and a few other things, and a bicycle.
         ....
       Q.      When y’all knock the stuff over, the tools and all, do
y’all fall to the floor.
         A.     Yes, sir. . . . . I started to stand up, and she’s doing the
same.
         ....
         Q.     After the two of you get up, what do you do?
     A.      I get up, and I fell kind of a little further away from her.
And she fell right by the front door where everything fell.
         Q.     Do y’all get up together or does one get up before the
other?
      A.   She gets up before me. . . . . She picks up a hammer that
was knocked over.
         ....
         Q.     And what do you do when you see this?
        A.    I get up — I get up slowly, and I basically ask her — my
first reaction is to run out the door, because I see that she’s angry.
         ....
         Q.     What does she do with this hammer?
        A.    She starts swinging it over her head and cussing at me. . .
. . I pick up the phone on the counter, and I tell her I’m going to call
the police unless she puts it down.
         ....
         Q.     All right. Which cell phone did you grab?
         A.     I grabbed her cell phone first that’s on the counter. . . . .
                                       20
      I attempt to dial 911.
      Q.     Are -- are you successful in that attempt to dial 911?
      A.    No, sir, I was not. . . . . Because as I was starting to dial
911, she was approaching me with the hammer, swinging at my head.
      Q.     All right. What did you do in response to that?
     A.    I dropped the phone, and I ducked to my left, and the
hammer grazed my head and hit me in the back shoulder, and I fell to
my knees.
      Q.     It hit you on your shoulder, in the back of your shoulder?
       A.   Yes, sir. It hits me on the shoulder and I fall. And as
she’s approaching me, I fall into her legs and she falls down and drops
the hammer.
      Q.     And she falls where?
      A.     She falls backwards as — because as I’m falling, I’m
ducking. My momentum carries me forward into her and basically
tackled her. And she falls backwards and I fall forward, and she drops
the hammer.
      Q.     Okay. Do you know at that moment where the cell phone
is?
      A.     I see it soon after, immediately, yes, sir.
      Q.     Okay. And where was it?
      A.     I was dialing with my right hand and it fell to the right of
us.
      ....
     Q.      All right. Now, you’re both on the floor; . . . . Where —
where is her body located in relationship to your body?
     A.   She is — I crawl on top of her, and she’s head to toe.
We’re — we’re laying head to toe right by the front door.
        Q.  Okay. Do either one of you have anything in your hands
at this moment as you recall?
      A.     I picked up the cell phone. . . . . I started to try and dial
the police again.


                                    21
      Q.     All right. What does [the complainant] do after you pick
up the cell phone?
     A.     She pulls out a knife on the side of her hip, and it catches
my eye as I’m dialing the cell phone.
      ....
      Q.    After [the complainant] pulled out her Colt knife, what
did you do?
      ....
      A.     I blocked — I grabbed her hand right before it hit me in
the chest.
      Q.     Describe how she was moving the knife?
       A.    She was moving the knife, she had it in an overhand-type
fashion, and she was moving it directly towards my chest, towards my
heart.
       Q.     Are you on top of her or how — what is y’all’s relation
to y’all’s body when you see this?
       A.    Yes, sir. She’s — she’s on her back, and I’m on my
knees kind of straddled over her. And she’s underneath thrusting the
knife at my chest.
      Q.     And you grab her right hand — what hand did you grab
her hand in?
     A.     I grabbed her hand with my right hand because the cell
phone was in my left hand.
      Q.     Okay. And after you grab it, what happens next?
       A.    I stopped the 911 call. I grab it with my right hand. I’m
barely able to stop it. So I drop the phone, and I grab her other arm --
or I grab her arm with my other hand. And I’m trying to wrestle the
knife loose. And we kind of roll around, and she’s throwing elbows
and I'm throwing elbows. And I finally get the knife loose.
       Q.    Are both of y’all on the floor when you describe this
rolling around?
      A.     Yes, sir.
      Q.     Do you remember if y’all are still – are y’all hitting other
objects, knocking more stuff over?
                                   22
      A.     Yes, sir.
      Q.   All right. Do you have any way of remembering with
accuracy how long this rolling around goes about — goes on?
      A.     No, sir. My head was hurting.
      Q.     At some point, do y’all stop rolling around?
      A.     Yes, sir.
      Q.     What happened to cause y’all to stop rolling around?
       A.     After I had shaken the knife loose out of her hand, I
tossed it pretty far to the side. I’m able to climb back on top of her and
I’m trying to hold her down and tell her to calm down.
      ....
       Q.      Is she saying anything to you during this time — during
this part of the struggle?
      A.     She’s saying, mother f’er, get off me.
      ....
      Q.     Is she screaming?
      A.     Yes, sir.
      Q.     Could you tell that she was angry?
      A.     Yes, I could.
      Q.     Were you scared at that moment?
      A.     I was terrified.
      Q.     Had you ever seen her act like that before?
      A.     No, sir.
      Q.     Had she ever come at you with a knife before?
      A.     No, sir.
      ....
    Q.      So after you’re on top of her, what — and you’re trying
— what else — are you trying to do anything else?
       A.    After I realized she wouldn’t calm down, I started
looking for my cell phone because I couldn’t find the original one to
dial 911 with?

                                   23
      Q.      Were you able to find your cell phone?
      A.      Yes, sir.
      Q.      And did you try and call 911 again?
      A.      Yes, I did.
      Q.      When you — do you get through to 911 this time?
      A.      No, sir.
      Q.      Why not?
       A.    As I’m dialing again, she was rummaging through
everything that was to the right of her tools and she hit me on the side
of the head with a pair of pliers.
      ....
      Q.      After that, what do you do?
      A.      As she hits me, I fall to the side on the tile. I’m dazed,
confused, seeing stars really. Waiting. Waiting so I can regain my
vision, trying to regain my composure.
      Q.      All right. Are you excited and upset now?
      A.      Yes, sir.
       Q.     All right. What does Ms — so you’re now on the tile; is
that right?
      A.      Yes, sir, I’m on my back.
      Q.    And where’s [the complainant] when you realize you’re
on your back on the tile?
      A.    When — when I realized and able to see more clearly, I
see her coming across the room and she has her knife in her hand, and
she jumps on top of me.
      Q.      Does she have the same knife, the one, the Colt knife?
      A.    Yes, sir. Silver knife. . . . Physically, she jumps on top of
me in the same fashion that I [am] straddling her. She straddles me
and she’s making an overhand thrusting motion right over to my head.
       Q.    All right. And so now y’all have — have y’all swapped
positions? You’re on the floor, she’s on top of you? . . . . And what do
you see her doing with the knife?

                                   24
      A.     She’s thrusting it towards my face.
      ....
      Q.     And what do you do when you see that?
      A.     When I see that, I immediately move my head to the side
and the knife travels to the side.
      Q.     So the knife missed you, you were not hit by the knife?
      A.     No, sir, it barely missed me.
      Q.     After that, what do you do?
       A.   After that, I go to grab her arm because she pulled her
arm back, and she was making another thrusting motion towards my
chest.
      Q.     Are you able to grab her arm?
      A.     Yes, sir. I stop it right before it hits my chest.
      Q.     And what happens then?
      A.      Then she starts putting her body weight. She put her
other hand over the top of the knife, and she’s leaning — she’s
leaning into the knife, trying to thrust the knife into my chest.
      Q.     What do you do in response to this?
      A.     I prayed.
      Q.     What do you physically do, Mr. Case?
       A.    I grabbed — I grabbed — I grab her arms, and I’m
realizing I’m not strong enough to stop her arm from continuing —
continuing the motion of the knife to my chest.
      Q.     All right.
      A.     And then I pull out my knife —
      Q.     How —
      A.     — because I realize —
      Q.     I’m sorry. How do you get your knife?
      A.     My knife is on my right hip pocket.
      Q.     Is it inside your pant’s pocket?
      A.     It’s got a clip that’s on the inside of my pant pocket.

                                    25
      Q.    So it’s inside your pocket, but the clip is sticking out?
      A.    Yes, sir.
      Q.    Is that how you carry it?
      A.    Yes, sir.
      Q.    And are you able to open that knife?
      A.    Yes, sir.
      Q.     Are you able to pull the knife out of your pocket and
open it one-handed?
      A.    Yes, sir.
      Q.    All right. After you open the knife, what do you do?
      A.    I reach around and stab her in the back one time.
      Q.    Okay. And why did you do that?
      A.    I was trying to get her to drop her knife.
      Q.    What was she doing with her knife when you stabbed her
with your knife?
      A.     She was — she was still leaning into the knife and she
showed — she showed no emotion and no physical reaction to getting
stabbed one time.
      Q.    What was she physically doing with her knife, Mr. Case?
      A.     She was physically thrusting it at my chest. She was
leaning on the knife, laying in on my chest.
      Q.     And is that when you stabbed her?
      A.    Yes, sir.
      Q.    How many times did you stab her?
      A.     I stabbed her one time. Then I realized it wasn’t having
any affect on her.
      Q.    All right. So after that, what do you do?
      A.    I believe I stabbed again.
      Q.    Okay. Did this time seem to have any affect on her?
      A.    It did.
      Q. What did she do after you stabbed her the second time?
                                  26
      A.     She moved her arm to try and block my arm from
stabbing her.
      Q.     Which arm did she move, her left or her right?
      A.     I believe it was her left arm.
       Q.   All right. And did — after she does that, do you respond
to that movement? What happens next physically?
       A.     Yes, sir. Physically, she moves to block my arm, and she
moves it out of the way, so I stabbed her in the side, the abdomen
area, trying to still get her off of me.
      Q.     All right. After that, did she respond or react to that?
       A.   She — she weakened a little bit, and she loosened her
grip. And we were rolling around, and I was finally able to role her off
of me.
      ....
      Q.     Tell us what part of the apartment all this takes place in.
       A.    By the front door of the apartment, by the tile. In the
living room.
      ....
      Q.     All right. After she moves to the side, she reacts to you
stabbing her several times, what do you do physically?
      A.    Physically, I get her to loosen her grip, and then I kind of
throw it and toss it to the side again, and I climb on top of her, and
I’m looking for the cell phone to call 911.
      Q.     Are you saying anything to her?
      A.     I’m telling her to stop, to be still and calm down.
      ....
      Q.     All right. Are you able to get a cell phone?
      A.     Yes, sir. . . . .it was my cell phone.
      Q.     All right. And do you call 911?
      A.     Yes, sir.
      Q.     Is this the call that does get through to 911?
      A.     Yes, it is.

                                    27
      ....
       Q.    All right. Is that the only time that day during all of this
that you actually talked to someone at 911?
      A.     Yes, sir, I believe so.
      Q.    Okay. So when you called 911, how many times had you
stabbed Ms. Dossey?
      ....
      A.     Two to three times, sir.
      Q.     All right. Did you terminate the 911 call?
       A.    No, sir. . . . . She hit me again on the side of the head
with the pliers. She hit the phone and the side of my head at the same
time and knocked the phone out of my hands. . . . .After that, I fall to
the side again. I’m laying on the tile. . . . .
      Q.     After [the complainant] hit you, what does she do then?
       A.     She starts trying to get up — . . . and reach for her knife
that’s to the side of her. . . . .
      Q.     What is your physical condition at this time?
      A.    My head is hurting. I'm seeing stars. Not able to see and
hear completely straight.
     Q      And what do you do in response to seeing [the
complainant] moving?
       A.     I try and hold her down as she’s pushing her arm on top
of me to lift herself up. . . . . She’s trying to get up and she’s pushing
me down with her left — left arm, and I’m holding her down with my
right arm. And I hear her rummaging around, trying to reach for the
knife. And I kind of — I peer up, and I can see her hands only like an
inch or two away from grasping the knife.
      Q.     What do you do when you see this?
       A.      When I see that, I knew I had no choice but to try and
stop her from getting the knife again. . . . . I still had my knife to the
side of me, and I had it, and I started swinging my knife over hand to
the right. I still was unable to see clearly or hear clearly.
     Q.     Did you know at that time if you were striking [the
complainant] with your knife?
                                       28
            A.     No, sir, I did not.
            Q.    All right. Do you have any way of knowing how long
      this — or do you know how long this went on?
            A.     No, sir I do not.
            ....
            Q.     And how do you realize the struggle is over?
           A.     I realize the struggle was over when she stops fighting
      me and she stops — she stops grabbing at my —
            Q.     Did she stop making noise or talking to you?
            A.     Yes, sir, she stopped screaming at me and yelling at me.
            Q.     And do you realize then that she was injured?
            A.     Yes, sir, I do. . . . . I immediately see that she has a
      wound to her neck, and I take my shirt off, and I start applying
      pressure to her neck.
      Appellant testified that shortly thereafter the EMTs and police arrived.

Appellant said that he told the police officers about the complainant’s medications

and how they affected her, and that she had been drinking that day.     He said he

also gave Sergeant Fisher his version of how the confrontation started and how the

fight took place, but did not think Fisher believed him. He conceded that he told

the police that he had only stabbed the complainant three or four times, but said it

was because those were the only times he was sure about. When the police told

him that in fact he had stabbed the complainant nineteen times, he did not believe

them. Appellant testified that after about four hours of interviews at the police

station, the officers informed him that he was being charged with murder.




                                         29
       Appellant also testified that he only stabbed the complainant because he “felt

that I was fear for my life, and I needed to survive, and I did it in self-defense.” He

also expressed that he felt remorse about killing her.

       On cross-examination, appellant stated that he did not believe the medical

examiner’s testimony that the complainant had been stabbed thirty times. He also

acknowledged telling the police that he only visited the complainant occasionally

at her apartment, despite the fact that he actually lived there.           On cross-

examination, appellant was also confronted with earlier statements that he had not

continued to stab the complainant after he reached 911, which contradicted his trial

testimony that all the fatal stabs were after the 911 calls. He also acknowledged

that the complainant was much older than him and had two hip replacements, and

that the early stabbings would have been painful, caused blood loss, and weakened

the complainant, but maintained that he still believed she would overpower and kill

him.

       In response to questions about the medications that the complainant had

allegedly taken the day she died, appellant testified that morning she took Vicodin,

Soma, Bupropion, Prozac, Lunesta, Vyvanse, Clonopin or valium, and vitamins.

He then testified that, later throughout the day, she took two Vyvanse, several

Clonopin, Soma, and an antidepressant. He acknowledged that he did not direct

the police to her medications when they arrived on the day she died, and that in an


                                          30
earlier interview, he did not name all the same medications from his trial

testimony. He also agreed that he was able to restrain the complainant for the 55-

second 911 call in which the complainant can be heard begging to be let go in the

background.

      T. Felder, an associate professor of pharmaceutical sciences also testified as

an expert in appellant’s defense. He testified that he never met the complainant,

but reviewed her Walgreens prescription records and her medical records from

Integra Behavioral Health Care.     He stated that there were sixteen prescribed

medications on her Walgreen’s records, but many were the same medications with

different doses prescribed at different times: Bupropion (antidepressant),

Clonazepam (anti-anxiety), Fluoxetine (anti-depressant), Vicodin (narcotic

analgesic), Intuniv (ADHD treatment); Lunesta (sedative hypnotic); and Vyvanse

(ADHD treatment).      He testified to possible side-effects of each of these

medications, including insomnia, anxiety, aggression, and hallucination. He also

testified that most of these medications carry warnings to not mix with alcoholic

beverages.

C.    The Jury’s Verdict and Trial Court’s Judgment

      The Jury was charged on the issues of murder and self-defense and found

appellant guilty of murder. Punishment was also held to the jury. After finding

against appellant on the special issue of “sudden passion arising from adequate


                                        31
cause,” the jury assessed punishment at 55 years’ confinement. The court entered

judgment on the jury’s verdict, and appellant timely appealed.

                               ISSUE ON APPEAL

      In a single issue, appellant argues:

      “The trial court erred by not admitting statements made by the
      complainant under the rule of optional completeness.”

                               APPLICABLE LAW

      “The standard of review for a trial court’s ruling under the Rules of

Evidence is abuse of discretion.” Tovar v. State, 221 S.W.3d 185, 190 (Tex.

App.—Houston [1st Dist.] 2006, no pet.) (citing Sauceda v. State, 129 S.W.3d 116,

120 (Tex. Crim. App. 2004)). The trial court abuses its discretion only when the

decision lies “outside the zone of reasonable disagreement.” Walters v. State, 247

S.W.3d 204, 218 (Tex. Crim. App. 2007). “Hearsay statements are generally not

admissible unless the statement falls within a recognized exception to the hearsay

rule. Id. Rule 107, the rule of optional completeness, is one such rule.” Id.

Unless the erroneous exclusion of evidence rises to the level of constitutional error

(i.e., “(1) a state evidentiary rule categorically and arbitrarily prohibits the

defendant from offering otherwise relevant, reliable evidence vital to his defense;

or (2) a trial court’s clearly erroneous ruling results in the exclusion of admissible

evidence that forms the vital core of a defendant's theory of defense and effectively

prevents him from presenting that defense”), any error is only reversible if it affect

                                             32
substantial rights, id. at 218–19, (i.e., “had a substantial and injurious effect or

influence on the jury’s verdict.” Schultz v. State, 457 S.W.3d 94, 99 (Tex. App.—

Houston [1st Dist.] 2014, no. pet)).

      Under the rule of optional completeness,

      If a party introduces part of an act, declaration, conversation, writing,
      or recorded statement, an adverse party may inquire into any other
      part on the same subject. An adverse party may also introduce any
      other act, declaration, conversation, writing, or recorded statement
      that is necessary to explain or allow the trier of fact to fully
      understand the part offered by the opponent. . . . .
TEX. R. EVID. 107. The purpose of the rule is to reduce the possibility of the jury’s

receiving a false impression from hearing only a part of some act, conversation, or

writing. Tovar, 221 S.W.3d at 190 (citing Credille v. State, 925 S.W.2d 112, 116

(Tex. App.—Houston [14th Dist.] 1996, pet. ref’d)). A party who opens a door to

an issue “cannot complain when the opposing party desires to go into the details of

that subject.” See Sherman v. State, 20 S.W.3d 96, 101 (Tex. App.—Texarkana

2000, no pet.). “Rule 107 does not permit the introduction of other similar, but

inadmissible, evidence unless it is necessary to explain properly admitted

evidence.” Walters, 247 S.W.3d at 217. “Further, the rule is not invoked by the

mere reference to a document, statement, or act.” Id. “And it is limited by Rule

403, which permits a trial judge to exclude otherwise relevant evidence if its unfair

prejudicial effect or its likelihood of confusing the issues substantially outweighs

its probative value.” Id.

                                         33
                                    ANALYSIS

      The State introduced evidence of an earlier domestic disturbance call by the

complainant one month before her murder. Sergeant Mills testified that she was

assigned to follow up on the investigation, and that the complainant stated that she

was not in pain at that time, did not show visible signs of injury, and did not want

to pursue charges.

      Outside the presence of the jury, the defense made an offer of proof about

additional information appellant wanted to elicit from Mills about her interview

with the complainant under the rule of optional completeness:

             Q.     Can you tell us, for the record, out of the presence of the
      jury, what she said to you about what medication she was taking on
      the date of this incident?
            ....
           A.     Yes, sir. She advised she was taking both depression
      medicine and sleep medicine prescribed.
            Q.       Go on. What else did she say?
           A.   She was saying and doing things that she didn’t even
      remember.
             Q.     Okay. So that was in the conversation that you have been
      testifying to, the one -- you only had one phone conversation with [the
      complainant]; is that correct?
            A.       Yes, sir.
             Q.     And that’s the one you’ve been testifying to here in front
      of the jury today?
            A.       Yes, sir.
            Q.     And so you told us earlier in front of the jury about why
      she did not want to pursue charges in this matter?

                                         34
            A.     Yes, sir.
            Q.     All right. But she also told you in that same conversation
      what you just testified to, that she explained that she was taking both
      depression medicine and sleep medicine, prescribed, and she was
      saying and doing things that she didn’t even remember. She said that
      to you in that exact same one phone conversation y’all had?
            A.     Yes, sir.
      The court excluded this additional hearsay testimony. Appellant argues here

that the jury was entitled to hear that the complainant said she was “taking both

depression medicine and sleep medicine, prescribed, and that she was saying and

doing things that she didn’t even remember” because otherwise “the jury was left

with the impression that the only reason the case was closed was that [the

complainant] said she was not in pain at the time.” Appellant additionally argues

that, because his case was “ predicated on his claim for self-defense and being able

to provide a logical and/or reasonable explanation for [the complainant’s] behavior

for the pertinent time period before and during the struggle that led to her death”

this “evidence would have clearly been more probative than prejudicial because it

would have substantiated the defensive theory especially given the absence of any

testing by the medical examiner’s office for prescription drugs in [the

complainant’s] system.”

      The State responds that Mill’s testimony that she investigated a potential

assault on the complainant by appellant weeks before the murder did not open the



                                        35
door to hearsay testimony that the complainant had memory problems related to

her medication.

      We conclude that, even assuming error in the trial court’s not admitting the

complainant’s hearsay statement about her medication’s effect on her memory

from a domestic assault call a month before the murder, a review of the entire

record reflects its exclusion was harmless. Substantial rights are not affected by

the erroneous exclusion of evidence “if the appellate court, after examining the

record as a whole, has fair assurance that the error did not influence the jury, or

had but a slight effect.” Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App.

2002). “In assessing the likelihood that the jury’s decision was adversely affected

by the error, the appellate court should consider everything in the record, including

any testimony or physical evidence admitted for the jury’s consideration, the

nature of the evidence supporting the verdict, and the character of the alleged error

and how it might be considered in connection with other evidence in the case.”

Delapaz v. State, 228 S.W.3d 183, 202 (Tex. App.—Dallas 2007, pet. ref’d) (citing

Motilla, 78 S.W.3d at 355).

      The trial court admitted, over the State’s objection, Deputy Perez’s

testimony about his responding to the same earlier domestic assault incident. Perez

was permitted to testify to appellant’s hearsay statements to him claiming that he




                                         36
had not hit the complainant and that they had been arguing about the complainant

not timely taking her medications.

       As the trial court noted, when Mills later testified that the State declined to

pursue charges, Mills’s comment that the complainant “advised she was not in pain

at the time” was not solicited by the State’s question—in fact, the State’s attorney

immediately told her to “stop” her answer.             Nothing indicated that the

complainant’s comments to Mills about the effects of her medication on her

memory contradicted or bolstered her claim that appellant had assaulted her on that

prior occasion.        And the State never later mentioned or emphasized Mills’s

statement that the complainant said she did not hurt anymore when she decided not

to pursue charges.

       Appellant’s self-defense theory was that the complainant’s medications

made her act violent towards him, and that he was thus forced to kill her. Relevant

to and in support of this theory, the jury heard Officer Blue’s testimony that

appellant said the complainant went “crazy this time,” testimony about the multiple

medications the complainant was taking, expert testimony about the effects those

medications could have had on her behavior, and appellant’s own version of how

the medications impacted the complainant on the day of the murder such that he

feared for his life.




                                          37
      Contradicting that theory, the jury heard evidence that the complainant was

smaller and older than appellant, and physically disabled from hip surgeries. It

heard evidence that appellant had no defensive wounds, but that the complainant

had numerous defensive wounds. It also heard evidence that appellant claimed to

have only stabbed the complainant 3 or 4 times in self-defense, but that he actually

stabbed her at least thirty times all over her body.

      In light of the totality of the evidence, we cannot say excluding the

complainant’s hearsay testimony about the impact of her medications on her

memory a month before adversely affected the jury’s decision in this case.

      We overrule appellant’s sole point of error.

                                   CONCLUSION

      We affirm the trial court’s judgment.




                                                Sherry Radack
                                                Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).

                                           38
