Opinion issued July 22, 2014




                                     In The

                               Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                               NO. 01-13-00493-CR
                           ———————————
                 RYAN MATTHEW STAIRHIME, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 177th District Court
                           Harris County, Texas
                       Trial Court Case No. 1387371


                                  OPINION

      Appellant, Ryan Matthew Stairhime, was charged by indictment with

murder.1 Appellant pleaded not guilty. The jury found him guilty and assessed

punishment at forty-three years’ confinement. In four issues on appeal, Appellant


1
      See TEX. PENAL CODE ANN. § 19.02(b) (Vernon 2011).
challenges the trial court’s (1) permitting the State to impeach the testimony of a

witness to the incident, (2) excluding his impeaching evidence of the same witness,

(3) failure to include in the application portion of the jury charge a definition

present in the abstract portion of the jury charge, and (4) restriction of his voir dire

examination.

      We affirm.

                                     Background

      Appellant was out with his girlfriend, Kelsey Wright, on July 18, 2010.

After seeing texts on Wright’s phone that Appellant considered flirtatious, the two

got in an argument. The argument escalated and culminated in the parking lot of a

Wal-Mart. Wright called her close friend and former boyfriend, Stephen Babb, to

pick her up. She crossed the street and waited for Babb at a gas station.

      When Babb arrived, Wright got in his truck and explained to him what had

happened. While the two were talking, Appellant walked up to the truck. Babb

rolled down the window, and Appellant reached in, stabbing Babb in the side of

the chest. Appellant then fled. Babb got out of the truck and rested on the ground

beside the truck. Wright stayed next to him. Babb eventually lost consciousness.

He died shortly after arriving at a hospital.

      During voir dire at trial, Appellant’s counsel asked the jury some questions

about Appellant’s right to not testify at trial. The State objected to the form of


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some of these questions. The trial court sustained the objections and instructed

Appellant’s counsel to rephrase the questions. Once the jury was selected, the trial

court asked the parties, “Does either side have an objection to the panel or as to the

jury as selected?” Both Appellant and the State responded, “No, Your Honor.”

      During the State’s examination of Wright, the prosecutor questioned her

about a plan Appellant developed with her to falsify her statements about what

happened prior to the stabbing.       Under this plan, Wright agreed to tell the

investigator for Appellant that Babb had assaulted her while she was in his truck

and that Appellant’s actions were in response to this. Wright did tell this to

Appellant’s investigator, but later reverted back to reporting that Appellant had

assaulted her and that Babb never did.

      During the State’s examination of Wright about her agreement with

Appellant to change her account of events, Appellant objected. Appellant argued

that the testimony did not meet the requirements for introducing evidence of a prior

inconsistent statement and that the testimony was more prejudicial than probative.

The State argued that the conversations between Wright and Appellant about

changing her account of the events leading up to the stabbing were admissible as

an admission of a party opponent. It argued that any other testimony about her

prior inconsistent statement met the requirements for admission. The trial court

overruled Appellant’s objections.


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      During Appellant’s cross-examination of Wright, he attempted to question

her about three Facebook posts alleged to have been posted by Wright. The State

objected to the relevance of the posts, and the trial court sustained the objection.

Later, Appellant called Ashley O’Brien as a witness. O’Brien had been friends

with Wright on Facebook and had obtained the images of Wright’s alleged

Facebook posts. When Appellant offered the exhibits containing the images of the

posts, the State objected on hearsay grounds. The trial court sustained these

objections. Appellant later made an offer of proof for the exhibit and O’Brien’s

testimony concerning how she obtained the image on the exhibit.

      The first image is an alleged post from Wright announcing her intention to

be completely sober from “[a]lcohol, cigarettes, and any other bad habits I have

gotten myself into” for thirty days. The post was dated June 17, 2012. The

testimony that Appellant claims the post could have impeached was Wrights’

testimony that she had taken drugs the night of the incident (July 17, 2010) but

that, as of the time of her testimony at trial (May 29, 2013), she was no longer

taking drugs.

      The next image contains two posts. One post is a picture of Wright and

Babb together. The post also contains the following text: “I’m doing this for you

today. I will do my best to speak for you and let shit head get what he deserves. I

hope I don’t let you down. I love you and I hope you continue to watch over me.”


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The other post is an image of a tattoo of a pair of boots. Any text associated with

the post is not included in the image. Text to the right of the image, however,

states that the tattoo is in memory of Babb.

      During the charge conference, the State sought an instruction on the offense

of deadly conduct. Appellant’s theory of the case at trial was self-defense and

defense of a third person.     The State argued that the evidence showed that

Appellant was committing the offense of deadly conduct immediately before he

attacked Babb. Because he was committing a legal offense, the State argued, he

would have had the duty to retreat before he could claim self-defense or defense of

a third person.

      Appellant objected to the inclusion of an instruction on deadly conduct. The

trial court overruled the objection and granted the State’s request. The jury charge

includes a definition of deadly conduct in the abstract portion of the charge for the

offense of murder. The charge does not, however, apply the offense of deadly

conduct to any of the application portions of the charge.

                                   Impeachment

      In his first issue, Appellant argues the trial court abused its discretion by

overruling his objection to the State’s examination of a witness about a prior

inconsistent statement. In his second issue, Appellant argues the trial court abused

its discretion by excluding his proffered impeachment evidence.


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A.    Standard of Review

      We review the trial court’s evidentiary rulings for an abuse of discretion.

Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006); Walker v. State,

321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009, pet. dism’d). Unless the

trial judge’s decision was outside the “zone of reasonable disagreement,” we will

uphold the ruling. Oprean, 201 S.W.3d at 726; Walker, 321 S.W.3d at 22.

B.    State’s Examination

      During the State’s examination of Wright, the prosecutor questioned her

about a plan Appellant developed with her to falsify her statements about what

happened prior to the stabbing. Under this plan, Wright agreed to tell Appellant’s

investigator that Babb had assaulted her while she was in his truck and that

Appellant’s actions were in response to this. Wright did tell this to Appellant’s

investigator, but later reverted back to reporting that Appellant had assaulted her

and that Babb never did.

      During the State’s examination of Wright about her agreement with

Appellant to change her account of events, Appellant objected. Appellant argued

that the testimony did not meet the requirements for introducing evidence of a prior

inconsistent statement under rule 613 of the Texas Rules of Evidence. See TEX. R.

EVID. 613(a). Appellant also argued that the testimony was more prejudicial than

probative under rule 403. See TEX. R. EVID. 403.


                                         6
      The State argued that the conversations between Wright and Appellant about

changing her account of the events leading up to the stabbing were admissible as

an admission of a party opponent. See TEX. R. EVID. 801(e)(2). It argued that any

other testimony about her prior inconsistent statement met the requirements of rule

613. See TEX. R. EVID. 613(a). The trial court overruled Appellant’s objections.

      Rule 613(a) established the requirements admitting into evidence the

contents of a prior inconsistent statement made by the testifying witness. Id. It

specifically provides, however, that the “provision does not apply to admissions of

a party-opponent as defined in Rule 801(e)(2).” Id. As it applies to this case, a

statement is an admission of a party opponent if it is (1) offered against a party and

(2) the party’s own statement. TEX. R. EVID. 801(e)(2)(A). An admission of a

party opponent does not constitute hearsay. TEX. R. EVID. 801(e)(2).

      The State elicited testimony from Wright about conversations she had with

Appellant about changing her account of the events leading up to the stabbing.

Wright testified that Appellant was urging her to say that Babb assaulted her so

that he could assert the affirmative defense of defense of a third person. See TEX.

PENAL CODE ANN. § 9.32 (Vernon 2011).            These statements were made by

Appellant and offered against him. See TEX. R. EVID. 801(e)(2)(A). Accordingly,

they constitute an admission of a party opponent. See id. Because they are an




                                          7
admission of a party opponent, they do not implicate rule 613. See TEX. R. EVID.

613(a) (excepting rule’s application to admission of party opponent).

      The remainder of Wright’s testimony on the topic concerns her statements to

Appellant’s investigator.        Rule 613(a) prevents the admission of a prior

inconsistent statement unless certain criteria are met.       Id.   If the witness

unequivocally admits to making the prior inconsistent statement, extrinsic evidence

of the statement is inadmissible. Id. Here, the recording of Wright’s statement

was never offered, let alone admitted, into evidence. Accordingly, there is no

violation of rule 613. See id.

      Appellant also objected to Wright’s testimony about her conversation with

Appellant about changing her account of events based on rule 403. Rule 403

excludes the admission of evidence when the probative value of the evidence is

substantially outweighed by its prejudicial effect. TEX. R. EVID. 403. “The rule

gives the trial court considerable latitude to assess the courtroom dynamics, to

judge the tone and tenor of the witness[es]’ testimony and its impact upon the jury,

and to conduct the necessary balancing.” Winegarner v. State, 235 S.W.3d 787,

791 (Tex. Crim. App. 2007).

      Appellant argues the testimony was substantially more prejudicial than

probative because he asserts the State was attempting to “use the cover of




                                          8
impeachment to place before the jury otherwise inadmissible evidence.” Because

we have not held that the evidence was otherwise inadmissible, this argument fails.

      We overrule Appellant’s first issue.

C.    Appellant’s Impeachment Evidence

      During Appellant’s cross-examination of Wright, he attempted to question

her about three Facebook posts allegedly posted by her. The State objected to the

relevance of the posts, and the trial court sustained the objection. Later, Appellant

called O’Brien as a witness. O’Brien had been friends with Wright on Facebook

and had obtained the images of Wright’s alleged Facebook posts. When Appellant

offered the exhibits containing the images of the posts, the State objected on

hearsay grounds. The trial court sustained these objections. Appellant later made

an offer of proof for the exhibit and O’Brien’s testimony concerning how she

obtained the image on the exhibit.

      Appellant argues the exhibit should have been admitted as impeachment

evidence against Wright.      The first image is an alleged post from Wright

announcing her intention to be completely sober from “[a]lcohol, cigarettes, and

any other bad habits I have gotten myself into” for thirty days. The post was dated

June 17, 2012. Appellant alleges the post “could be used to attack Ms. Wright’s

credibility as a prior inconsistent statement when she claimed to no longer be using

drugs.” The testimony that Appellant claims the post could have impeached was


                                         9
Wright’s testimony that she had taken drugs the night of the incident (July 17,

2010) but that, as of the time of her testimony at trial (May 29, 2013), she was no

longer taking drugs.    Appellant argues the post constitutes proof of a prior

inconsistent statement. See TEX. R. EVID. 613(a).

      We agree with the State that there is no inconsistency between the post and

Wright’s testimony. Wright testified that she had taken drugs on July 17, 2010.

She also testified during trial on May 29, 2013 that she was no longer taking drugs.

There is no inconsistency between these statements and Wright’s alleged post on

June 17, 2012 announcing an intention to be completely sober for thirty days.

Accordingly, it was not admissible as a prior inconsistent statement.

      The next image contains two posts. One post is a picture of Wright and

Babb together. The post also contains the following text: “I’m doing this for you

today. I will do my best to speak for you and let shit head get what he deserves. I

hope I don’t let you down. I love you and I hope you continue to watch over me.”

The other post is an image of a tattoo of a pair of boots. Any text associated with

the post is not included in the image. Text to the right of the image, however,

states the tattoo is in memory of Babb.

      Appellant argues that the alleged post about Wright’s intent “to speak for”

Babb is evidence of bias and “could be viewed by the jury as a promise to the

memory of Stephen Babb to do whatever it took, even lying about the event of that


                                          10
night, to convict” Appellant. We disagree with Appellant that a declared intent to

“do [her] best to speak for” Babb and to “let [Appellant] get what he deserves”

evinces an intent to commit perjury. While we do agree that the post is some

evidence of bias, we hold there was no error in its exclusion.

      “The erroneous exclusion of evidence offered under the rules of evidence

generally constitutes non-constitutional error and is reviewed under Rule 44.2(b).”

Walters v. State, 247 S.W.3d 204, 219 (Tex. Crim. App. 2007). We must disregard

non-constitutional error that does not affect an appellant’s substantial rights. See

TEX. R. EVID. 103(a) (“Error may not be predicated upon a ruling which admits or

excludes evidence unless a substantial right of the party is affected . . .”); TEX. R.

APP. P. 44.2(b) (“Any other error, defect, irregularity, or variance that does not

affect substantial rights must be disregarded.”). 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) (footnotes omitted).     If the evidence is generally cumulative of other

evidence introduced in the case, no harm attaches. See Anderson v. State, 717

S.W.2d 622, 628 (Tex. Crim. App. 1986) (holding that to show harm, excluded

evidence must be controlling on material issue and not cumulative of other

evidence); see also Rangel v. State, 179 S.W.3d 64, 70 (Tex. App.—San Antonio


                                         11
2005, pet. ref’d) (holding no harm when complained-of excluded evidence was

admitted through other testimony).

      As the State points out, there was already ample evidence in the record of

bias. Wright testified that she had dated Babb for two years. Even after dating,

they remained friends. Wright testified that she and Babb continued to have a

strong relationship. She loved him and considered him one of her best friends.

She saw Appellant stab Babb.           She stayed with Babb as he slowly lost

consciousness and later died. We hold there was evidence of bias in the record

without the admission of the alleged Facebook post. Because the Facebook post

was cumulative, Appellant was not harmed by its exclusion. See Anderson, 717

S.W.2d at 628; see also TEX. R. EVID. 613(b) (“If the witness unequivocally admits

such bias or interest, extrinsic evidence of same shall not be admitted”).

      We overrule Appellant’s second issue

                                     Jury Charge

      In his third issue, Appellant argues the trial court committed fundamental

error by including the definition of “deadly conduct” in the abstract portion of the

jury charge but not using it in the application section of the charge.

A.    Standard of Review & Applicable Law

      Appellate courts undertake a two-step process in reviewing allegations of

jury charge error. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986)


                                          12
(citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984)). First we

determine whether error exists in the charge. Id. Second, we determine whether

the level of harm stemming from the error requires reversal. Id. When, as here,

there was no objection to the error, “the error must have been so harmful that the

defendant was denied ‘a fair and impartial trial,’” known as “actual ‘egregious’

harm.” Id. (quoting Almanza, 686 S.W.2d at 171).

B.    Analysis

      Appellant’s theory of the case at trial was self-defense and defense of a third

person. During the charge conference, the State sought an instruction on the

offense of deadly conduct. See TEX. PENAL CODE ANN. § 22.05 (Vernon 2011).

The State argued that the evidence showed that Appellant was committing the

offense of deadly conduct immediately before he attacked Babb. Because he was

committing a legal offense, the State argued, he would have had the duty to retreat

before he could claim self-defense or defense of a third person.

      Appellant objected to the inclusion of an instruction on deadly conduct. The

trial court overruled the objection and granted the State’s request. The jury charge

includes a definition of deadly conduct in the abstract portion of the charge for the

offense of murder. The charge does not, however, apply the offense of deadly

conduct to any of the application portions of the charge. On appeal, Appellant

argues that failure to apply deadly conduct in any of the application sections


                                         13
caused him egregious harm because “the charge effectively alleged an uncharged

offense with a lowered standard of intent and no instructions to the jury on how to

consider the defined charge.”

      “It is the application paragraph of the charge, not the abstract portion, that

authorizes a conviction.” Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim.

App. 2012). If a charge on a theory of law is present in the abstract portion of the

charge but not in the application portion, the jury is not authorized to convict upon

that theory. Id. We presume the jury understood and followed the application

portion of the court’s charge absent evidence to the contrary. Id. at 467. As a

result, “reversible error occurs in the giving of an abstract instruction only when

the instruction is an incorrect or misleading statement of a law that the jury must

understand in order to implement the commands of the application paragraph.” Id.

at 466.

      Deadly conduct was correctly defined in the abstract portion of the charge

concerning the offense of murder. As Appellant points out, however, the definition

of deadly conduct was never applied in any of the application sections in the

charge. It was also not necessary to understand in order to implement any of the

commands in any of the application paragraphs.            Accordingly, there is no

reversible error in its inclusion in the charge. See id. (holding reversible error for

instructions appearing only in abstract portion of charge only when instruction is


                                         14
incorrect or misleading and when jury needed to understand it in order to

implement instructions in application paragraph).

      Appellant argues the extraneous instruction “effectively impl[ied] to the jury

that they could find [Appellant] guilty of murder” with a lessened intent standard.

There is no support for this argument in the record. The jury was not authorized to

convict on a theory that was not present in the application portions of the charge,

and we presume the jury understood and followed the instructions in the

application portion. Id. at 466–67. Appellant has not presented any argument or

evidence to overcome this presumption. Accordingly, the presumption stands.

      Appellant’s reliance on Doyle is misplaced. See Doyle v. State, 631 S.W.2d

732, 737 (Tex. Crim. App. 1980). In Doyle, the Court held that, if an abstract

definition of the charge offense included alternative elements to the offense but

each of those alternative offenses were not included in the application paragraph,

“[i]t would truly be fundamental error if this Court were to permit a conviction to

stand.” Id. In the present case, however, we are not dealing with alternative

elements to a single charged offense. In fact, we are not dealing with another

charged offense or an offense that either party requested to be included as a lesser

included. Instead, the State had wanted to apply deadly conduct as a manner of

establishing that Appellant had a duty to retreat before he could assert a claim of

self-defense or defense of a third person. Because deadly conduct was never


                                        15
applied, the jury was never authorized to use it to determine that Appellant was

required to retreat first. Accordingly, the error benefitted Appellant instead of

harming him.

      We overrule Appellant’s third issue.

                                      Voir Dire

      In his fourth issue, Appellant argues the trial court abused its discretion by

preventing Appellant from asking the jury questions concerning his right to not

testify. The State argues Appellant waived any error. We agree.

      “[G]enerally, an affirmative statement of ‘no objection’ waives any error

relating to that matter.” Harrison v. State, 333 S.W.3d 810, 812 (Tex. App.—

Houston [1st Dist.] 2010, pet. ref’d).     As a result, any complaints about the

conduction of voir dire are waived if the appellant states he has no objection to the

seating of the jury. Id. at 812–13.

      Here, at the end of voir dire, the trial court asked, “Does either side have an

objection to the panel or as to the jury as selected?” Both Appellant and the State

responded, “No, Your Honor.” We hold Appellant has waived any error related to

the conduct of voir dire.

      We overrule Appellant’s fourth issue.




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                                     Conclusion

      We affirm the judgment of the trial court.




                                              Laura Carter Higley
                                              Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

Justice Brown, concurring in part.

Publish. TEX. R. APP. P. 47.2(b).




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