                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-09-00069-CR

JASON BRENT BISHOP,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 40th District Court
                               Ellis County, Texas
                             Trial Court No. 32297CR


                          MEMORANDUM OPINION


      A jury convicted Jason Brent Bishop of murder and assessed his punishment at

life imprisonment. Bishop contends in six points that: (1) the evidence is legally and

factually insufficient to support the jury’s rejection of his self-defense claim; (two

points) (2) the court erred by denying his request for a charge on the lesser-included

offense of manslaughter; (3) the court’s sua sponte objections to defense counsel’s cross-

examination of witnesses was a comment on the evidence and was prejudicial; (4) the

prosecutor engaged in harmful misconduct by prompting a bailiff to remove several
weapons from the witness stand as Bishop testified and by making an improper

argument regarding parole law; and (5) the cumulative effect of these errors was so

great that reversal is required. We will affirm.

                               Sufficiency of the Evidence

        Bishop contends in his first and second points respectively that the evidence is

legally and factually insufficient to support the jury’s rejection of his self-defense claim.

        In reviewing a claim of legal insufficiency with regard to the rejection of a

defense, we do not look to whether the State has presented evidence refuting the

defense. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991); Dudzik v. State, 276

S.W.3d 554, 557 (Tex. App.—Waco 2008, pet. ref’d). Rather, we view all the evidence in

a light most favorable to the verdict and determine whether any rational trier of fact

could have found the essential elements beyond a reasonable doubt and also could have

found against the defendant on the defense beyond a reasonable doubt. Saxton, 804

S.W.2d at 914; Dudzik, 276 S.W.3d at 557.

        In reviewing a claim of factual insufficiency with regard to the rejection of a

defense, we review all of the evidence in a neutral light and ask whether the State’s

evidence taken alone is too weak to support the verdict or the proof of guilt, although

adequate if taken alone, is against the great weight and preponderance of the evidence.

Zuliani v. State, 97 S.W.3d 589, 594-95 (Tex. Crim. App. 2003); Dudzik, 276 S.W.3d at 557.

        Robert Willmon was driving Bishop from Missouri to Texas for Bishop to get a

copy of his birth certificate. Bishop testified that he was concerned about Willmon’s use

of methamphetamine during the drive and flushed the remaining methamphetamine


Bishop v. State                                                                         Page 2
down a toilet at an interstate rest stop. According to Bishop, Willmon became angry

when he told him what he had done. Bishop believed Willmon was reaching for a

handgun in the seat between them, so Bishop grabbed it first. When Willmon “grabbed

something with a blade” and lashed at Bishop, Bishop shot him. Bishop testified that he

shot Willmon “a few more times” because Willmon “kept coming” and because he

thought Willmon was trying to get a shotgun from behind the seat. Willmon got out of

the pickup and, according to Bishop, “leaned against the side of the truck.”

         The State called six eyewitnesses to testify. Five testified that they saw Bishop

shoot Willmon. The sixth, Princess Mills, testified that she heard shots fired then saw

Bishop throw the handgun in the pickup. Pedro Gonzales testified that Willmon had

nothing in his hand and made no gestures or threats before Bishop shot him. Viewed in

the light most favorable to the verdict, this evidence is legally sufficient to establish the

elements of murder and to support the jury’s rejection of the self-defense claim. See

Saxton, 804 S.W.2d at 914; Dudzik, 276 S.W.3d at 558-59. Thus, we overrule Bishop’s first

point.

         Bishop contends in his second point that discrepancies in the witnesses’

testimony cause the evidence to be factually insufficient with regard to the jury’s

rejection of his self-defense claim.

         It is not disputed that Willmon ultimately fell to the ground after getting out of

the pickup. According to Bishop, the primary discrepancy among the eyewitnesses is

whether Bishop walked around the pickup and shot Willmon again after Willmon got

out. Bishop denies doing so. Three of the witnesses testified that they saw Bishop


Bishop v. State                                                                        Page 3
shooting Willmon as he lay beside the pickup. Torivio Martinez testified that he saw

Bishop shoot Willmon through the cab of the pickup but did not see Bishop walk

around the pickup and shoot Willmon again because he ran to get a DPS trooper.

Melanie Francis saw Bishop shoot Willmon three or four times from the passenger side

of the pickup and then wander off, but her view of the other side of the pickup was

obstructed. Mills explained that she did not see Bishop fire any shots because she was

fleeing the scene as she did not know in which direction he was shooting.

        Bishop also notes discrepancies among these witnesses regarding whether he

was wearing jeans or shorts and whether he was holding a bottle. However, the

discrepancies in the witnesses’ testimony go to the credibility of the witnesses and the

weight to be given their testimony. See Ramon v. State, No. 04-06-00061-CR, 2007 Tex.

App. LEXIS 7547, at *15 (Tex. App.—San Antonio Sept. 19, 2007, no pet.); Denson v.

State, No. 02-03-00360-CR, 2005 Tex. App. LEXIS 3075, at *7 (Tex. App.—Fort Worth

Apr. 21, 2005, pet. ref’d). It is solely within the province of the jury to resolve credibility

issues and determine the weight to be given the testimony. See TEX. CODE CRIM. PROC.

ANN. art. 38.04 (Vernon 1979); Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App.

2008); Ramon, 2007 Tex. App. LEXIS 7546, at *15; Denson, 2005 Tex. App. LEXIS 3075, at

*7.

        In addition to discrepancies, Bishop highlights portions of the witnesses’

testimony and other evidence which support his self-defense claim. Three witnesses

testified that Bishop and Willmon were arguing or “hollering.” Many knives were

recovered from the pickup, and a shotgun was recovered from behind the seat. Bishop


Bishop v. State                                                                         Page 4
also relies on Martinez’s testimony that he saw something fall inside the pickup after

the initial shooting, suggesting that this testimony supports his own testimony that

Willmon threatened him with a bladed weapon. However, Martinez late clarified that

he did not see who dropped whatever the object was but believed that it was

“definitely” not Willmon because his hands were both “wide open before he got shot.”

        The autopsy revealed that Willmon had been consuming methamphetamine

which the medical examiner testified could definitely cause violent behavior.            The

medical examiner also testified that the trajectory for one of the gunshot wounds “could

be” consistent with Willmon reaching down to get something while sitting in the

driver’s seat and another was “possibly” consistent with him turning around and

reaching for something.

        Viewed in a neutral light, the evidence is factually sufficient to support the jury's

rejection of Bishop’s self-defense claim and its verdict of guilt. The evidence supporting

the verdict is not too weak to support the rejection of the self-defense claim and is not

against the great weight and preponderance of the evidence. See Dudzik, 276 S.W.3d at

559. Thus, we overrule Bishop’s second point.

                                 Lesser-Included Offense

        Bishop argues in his third point that the court erred by denying his request for a

charge on the lesser-included offense of manslaughter.

        To obtain a charge on a lesser-included offense, (1) the requested instruction

must be for a lesser-included offense of the charged offense under article 37.09 of the

Code of Criminal Procedure, and (2) there must be “some evidence” that, if the


Bishop v. State                                                                        Page 5
defendant is guilty, he is guilty of only the lesser-included offense. Flores v. State, 245

S.W.3d 432, 439 (Tex. Crim. App. 2008).

        Under article 37.09, manslaughter is a lesser-included offense of murder. See

TEX. CODE CRIM. PROC. ANN. art. 37.09(3) (Vernon 2006);1 Schroeder v. State, 123 S.W.3d

398, 400 (Tex. Crim. App. 2003); Nevarez v. State, 270 S.W.3d 691, 693 (Tex. App.—

Amarillo 2008, no pet.). Thus, our inquiry is limited to the issue of whether there is

evidence that Bishop is guilty of only manslaughter, i.e., that he acted recklessly rather

than intentionally or knowingly.

        Texas courts have uniformly concluded that a defendant who claims to have

acted in self-defense cannot also claim to have acted recklessly. Nevarez, 270 S.W.3d at

695; Martinez, 16 S.W.3d 845, 848 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d); see

Kennedy, 193 S.W.3d 645, 652 (Tex. App.—Fort Worth 2006, no pet.). Thus, we overrule

Bishop’s third point.

                                        Trial Court Misconduct

        Bishop claims in his fourth point that the trial court’s “multiple sua sponte

objections to defense counsel’s cross examination of State’s witnesses” were a comment

on the evidence and unfairly prejudiced him before the jury. Bishop did not object to

any of the four “objections” identified in his brief. Therefore, he did not preserve this

issue for appellate review. See TEX. R. APP. P. 33.1(a)(1); Sharpe v. State, 648 S.W.2d 705,




1
       Article 37.09(3) provides, “An offense is a lesser included offense if . . . it differs from the offense
charged only in the respect that a less culpable mental state suffices to establish its commission.” TEX.
CODE CRIM. PROC. ANN. art. 37.09(3) (Vernon 2006).


Bishop v. State                                                                                         Page 6
706 (Tex. Crim. App. 1983); Beltran v. State, 99 S.W.3d 807, 811 (Tex. App.—Houston

[14th Dist.] 2003, pet. ref’d). Accordingly, we overrule his fourth point.

                                Prosecutorial Misconduct

        Bishop avers in his fifth point that the prosecutor engaged in harmful

misconduct by prompting a bailiff to remove several weapons from the witness stand as

Bishop testified and by making an improper argument regarding parole law.

                                    Removal of Weapons

        Regarding the first allegation, Bishop complains that during his testimony the

bailiff was prompted by the prosecutor to remove from the witness stand “knives,

scissors and a gun” that had been admitted in evidence. When the bailiff removed the

items, the court granted Bishop’s request for an instruction to the jury that they “take no

inference” from the bailiff’s actions. After a brief discussion on the record, the court

permitted the prosecutor to make the following statement in response to Bishop’s

contention that he had instructed the bailiff to remove the items. “I simply brought to

the bailiff’s attention that there were knives on the desk so that he would be in a

heightened state of awareness. I did not ask him to remove the knives.” Bishop

objected to the prosecutor’s statement, and the court sustained the objection. The court

immediately instructed the jury, “The jury’s instructed to disregard everything to do

with the bailiff moving stuff, which he wasn’t supposed to do without getting my

permission.”

        With regard to this alleged instance of prosecutorial misconduct, the trial court

did everything that Bishop asked him to, sustaining his objections and instructing the


Bishop v. State                                                                      Page 7
jury twice on the matter. To preserve an issue for appellate review, an appellant must

secure an adverse ruling. See TEX. R. APP. P. 33.1(a)(2); Roberts v. State, 220 S.W.3d 521,

533 (Tex. Crim. App. 2007); Ashire v. State, 296 S.W.3d 331, 343 (Tex. App.—Houston

[1st Dist.] 2009, pet. ref’d). Bishop did not in this instance.

                               Argument Regarding Parole Law

        Bishop also claims that the prosecutor made an improper argument regarding

parole law during the punishment phase.

        In punishment argument, Bishop asked the jury to impose a sentence of fifteen

years so that he could avail himself of rehabilitation opportunities and “come out a

recovered alcoholic and a recovered addict.”           In response, the prosecutor noted

previous opportunities for rehabilitation which had been available to Bishop but which

he had not taken advantage of.            The prosecutor continued, “The only proper

punishment is to put this man away for the rest of his life. And if he truly rehabilitates

himself in some way, you leave that to the parole board.” The court sustained Bishop’s

objection to this argument, instructed the jury to disregard it, and overruled his motion

for mistrial.

        Article 37.07, section 4 of the Code of Criminal Procedure prohibits a jury from

considering how the parole law may apply to a defendant. Lane v. State, 303 S.W.3d 702,

718 (Tex. Crim. App. 2009); see TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4 (Vernon Supp.

2009). The statute provides in pertinent part that the jury must be instructed as follows

regarding parole law:




Bishop v. State                                                                      Page 8
               You may consider the existence of the parole law and good conduct
        time. However, you are not to consider the extent to which good conduct
        time may be awarded to or forfeited by this particular defendant. You are
        not to consider the manner in which the parole law may be applied to this
        particular defendant.

TEX. CODE CRIM. PROC. ANN. art. 37.07 § (4)(b).

        In Lane, the Court of Criminal Appeals rejected a complaint similar to Bishop’s.

In that case, the appellant complained that he received ineffective assistance of counsel

because of counsel’s failure to object to the following argument:

        I said we’re going to ask you to do something hard. We’re going to ask
        you to sentence them to life. Now, understand, as the judge’s instructions
        just explained to you, life doesn’t necessarily mean life. Both of these
        defendants will have the opportunity, while they are incarcerated, to earn
        good conduct time and the right to parole. You have no say in that. That,
        quite frankly, will be up to them. Whether or not they make the decision,
        at that point in their life, to earn it, to prove they deserve it; because they
        certainly haven’t proven they deserve it yet. They'll have that opportunity.
        It will not be denied them.

Lane, 303 S.W.3d at 718.

        The Court held that the argument was not improper.

               In this case, the prosecutors merely stated the law and how it could
        affect applicant. In Hawkins v. State, 135 S.W.3d 72, 84 (Tex. Crim. App.
        2004), the court held that it was neither improper for the prosecutor to
        accurately restate the law given in the jury charge nor was it improper for
        the prosecutor to ask the jury to take the existence of that law into account
        when assessing punishment. Thus, trial counsel’s performance was not
        deficient for failing to object to the prosecutors’ argument.

Id. at 719.

        The argument in Bishop’s case was likewise not improper. Accordingly, we

overrule his fifth point.




Bishop v. State                                                                           Page 9
                                    Cumulative Error

        Bishop contends in his sixth point that the cumulative effect of the errors

identified in his appellate points was so great that reversal is required. However, we

have concluded that the issues identified in Bishop’s points were either not preserved

for appellate review or did not constitute error. “[W]e are aware of no authority

holding that non-errors may in their cumulative effect cause error.” Chamberlain v.

State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999); see Burrus v. State, 266 S.W.3d 107, 115

(Tex. App.—Fort Worth 2008, no pet.). Thus, we overrule Bishop’s sixth point.

        We affirm the judgment.



                                                       FELIPE REYNA
                                                       Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed June 30, 2010
Do not publish
[CRPM]




Bishop v. State                                                                     Page 10
