AFFIRM; Opinion Filed April 16, 2013.




                                          S In The
                                      Court of Appeals
                               Fifth District of Texas at Dallas

                                      No. 05-11-01334-CR

                            PAUL THOMAS GILLAM, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                       On Appeal from the 291st Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F10-47328-U

                                          OPINION
                            Before Justices Francis, Lang, and Evans
                                    Opinion by Justice Lang

       Following a plea of not guilty, appellant Paul Thomas Gillam was convicted by a jury of

murder. Punishment was assessed by the jury at sixty-five years’ imprisonment. On appeal,

appellant asserts six issues. Appellant contends the evidence is (1) insufficient to support the

conviction for murder and (2) not legally or factually sufficient to support the jury’s negative

answer to the “special issue” that inquired whether appellant acted under the influence of sudden

passion arising from an adequate cause. Additionally, appellant argues the trial court erred by

(1) excluding certain evidence “relative to the relationship of the parties,” (2) excluding relevant

expert witness testimony during the guilt/innocence phase of trial, and (3) refusing to instruct the

jury on the affirmative defenses of self-defense and defense of a third party.

       We decide appellant’s six issues against him. The trial court’s judgment is affirmed.
                    I. FACTUAL AND PROCEDURAL BACKGROUND

       Melanee Knouse testified during the guilt/innocence phase of trial that at the time of the

events giving rise to this action, she and the complainant, Dana Swindle, had been involved in a

romantic relationship for approximately five months. According to Knouse, Swindle had two

sons and a three-year-old daughter, Jaelyn.       Jaelyn lived with Patricia Gant, her paternal

grandmother, who was married to appellant.

       Knouse testified that in the week prior to the events in question, a Dallas court had

awarded custody of Jaelyn to Swindle. According to Knouse, the Dallas court that had made that

custody determination believed Gant and appellant were living in Missouri. However, Knouse

testified, Swindle learned they were living on Amherst Drive in Rowlett, Texas. Knouse stated

that Swindle contacted authorities and provided that information, but “there was nothing they

could do.” A few days before the events in question, Knouse accompanied Swindle to the

Rowlett police station, where Swindle filed a report alleging interference with a custody

agreement.

       Knouse testified that on April 22, 2010, she and Swindle visited the address where Gant

and appellant were living “in order to take pictures to prove that they did not live in Missouri and

that they lived here in Texas.” On that day, Knouse said, they drove slowly down Amherst in

her truck while Swindle took photographs of the house with her cell phone from the front

passenger seat. Knouse and Swindle “asked a gentleman if a lady and a man and child lived in

there,” but the person they questioned “didn’t say yes or no.” Then, Knouse began turning

around because the road dead-ended. At that point, appellant pulled up in his truck and parked in

the driveway of the house. Knouse testified Swindle continued taking photographs from the

passenger seat. The man Knouse and Swindle had questioned spoke with appellant. Then,

Knouse testified, appellant “came at us while we was in the truck.” According to Knouse,

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appellant told them they had no right to take photographs of the house. Knouse testified

appellant “reached through the window and him and [Swindle] had a scuffle and he took the cell

phone that we was taking pictures with.” Then, appellant “walked away” and went into the

house.

         Knouse testified that as appellant walked away, Swindle got out of the truck and asked

two men standing nearby if she could have use of a cell phone to call 911. Knouse could not

recall whether Swindle said anything to appellant after getting out of the truck, other than telling

him she was calling 911. Knouse stated Swindle stood in the yard of the house next door to

appellant’s and placed a 911 call. Knouse testified Swindle was not standing on appellant’s

property. While Swindle was talking on the phone, appellant came out the front door of his

house and headed toward Swindle. According to Knouse, appellant was “just kind of walking.”

Knouse testified Swindle “turned around and told him to stop that she was on the phone with

911.” Then, Knouse stated, Swindle “turned back around and was fixing to talk.” Knouse stated

that at that point, appellant pulled a gun from behind his back and shot Swindle several times.

According to Knouse, Swindle was not facing appellant at the time she was shot. Knouse

testified that after the second or third shot, Swindle fell to the ground face-first. Knouse stated

that appellant shot Swindle two or three more times while she was on the ground. Then,

appellant turned and went back toward his front door. Knouse stated Swindle did not threaten

anyone and did not have a gun.

         Over objections by appellant, an audio recording of Swindle’s 911 call was admitted into

evidence and played for the jury. Additionally, photographs taken at the scene before and after

the shooting were admitted into evidence, including a photograph of appellant’s residence and

several photographs of the yard of the house next door to appellant’s where Swindle was

standing when she was shot. Knouse described what was shown in each one.

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       On cross-examination, Knouse testified Gant and appellant took custody of Jaelyn when

Swindle went to prison for a drug charge. After Swindle was released from prison, she sought to

regain custody and was in the process of doing so when she and Knouse met. Knouse testified

that although Swindle had obtained an order on approximately April 14, 2010, that allowed her

custody of Jaelyn, a “change in the potential circumstance” respecting that custody order

occurred on the date of the events in question. Specifically, Knouse testified, prior to the time

she and Swindle went to appellant’s house on April 22, 2010, a Dallas court had put the order

awarding custody of Jaelyn to Swindle “on hold” until “an official hearing down the road.”

Knouse testified that, in retrospect, she put herself in a dangerous situation “by going in front of

a house that somebody was in a heated custody battle over a baby girl.”

       Phillip Parker testified that at the time of the events in question, he lived about two doors

down from appellant on Amherst Drive. He had seen appellant occasionally with a little girl.

Parker said that on April 22, 2010, he was asked by Swindle whether he knew anything about the

people living in appellant’s house. He answered that he had seen them a couple of times. Parker

stated that Swindle “left” and he went into his house. Then, Parker testified, he came back out

and saw Swindle and another woman “coming back.” He stated that Swindle was taking pictures

of appellant’s house.

       At that point, Parker stated, appellant came home. Parker told appellant about the two

women taking photographs. Parker testified appellant asked him what they were driving. Parker

pointed out the vehicle to appellant. According to Parker, appellant went over to the women, hit

Swindle, and took a phone from her. Parker did not hear appellant say anything to the women.

Parker testified Swindle asked appellant what he was doing and told him, “You can’t do that.”

Then, Parker testified, appellant walked into his house. Parker stated he heard Swindle tell

appellant she wanted her phone back. He did not hear Swindle say anything else.

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       Parker stated Swindle got out of the car, ran over to where he was standing with his

neighbor, Cory, and asked to use a cell phone. Parker testified Cory gave Swindle a cell phone

and she called police. Parker stated appellant came back outside and walked over to Swindle.

She was talking to police on the phone. According to Parker, appellant said “well, you ain’t got

to worry about it no more.” Then, Parker testified, appellant pulled out a gun and shot Swindle

in the arm. Parker stated appellant was “maybe four or five feet” away from Swindle. Parker

testified Swindle started to run away and appellant shot her again in the top of the back. Parker

testified Swindle fell down and appellant “walked over and shot her some more.” Parker stated

he asked appellant, “[W]hat are you doing?” Appellant looked at him, then walked back toward

his house. Parker testified it did not seem to him at any time that appellant was in danger of

being hurt by Swindle.

       Cory Gayford testified he lived on Amherst Drive in Rowlett at the time of the events in

question. Before the date of the shooting, Gayford had spoken to appellant a couple of times.

Gayford testified that in the afternoon on April 22, 2010, Parker told him about “some lady”

taking pictures of appellant’s house. Gayford and Parker saw appellant pull up and went over to

tell him somebody had been taking pictures. Then, Gayford testified, “the lady pulled up again.”

Gayford stated appellant “went down to the vehicle” and started arguing with Swindle.

According to Gayford, Swindle did not yell anything to appellant before appellant approached

the vehicle. Gayford testified appellant and Swindle “started fighting over a phone.” Gayford

stated appellant seemed angry. He testified appellant wrestled with Swindle and appeared to

strike her several times. Then, Gayford stated, appellant walked back toward his house with the

phone in his hand. Gayford testified that right after appellant started walking toward his house,

Swindle left the vehicle and approached him and Parker to request use of a cell phone. Gayford

gave Swindle his cell phone and she called police. While she was on the phone, appellant

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approached her from the direction of his house. Gayford testified Swindle told appellant, “I just

want my kid back” and appellant replied, “[Y]ou don’t have to worry about that no more.” Then,

according to Gayford, appellant “reached behind his back in his pants and pulled the gun out.”

Gayford testified appellant shot Swindle in the arm and then in the back. He stated Swindle fell

to the ground and appellant shot her several more times. Gayford testified it did not seem to him

that appellant was in danger from Swindle at the time he began shooting.

       On cross-examination, Gayford testified he did not hear anything said by appellant or

Swindle prior to the time Swindle left the vehicle.

       Guadalupe Christensen testified that on April 22, 2010, she was in the yard of her home

on Stanford Street in Rowlett, which intersects with Amherst. Christensen said she heard a

commotion “across the street.” She stated she heard loud voices, but could not make out the

words that were being said. She testified she saw her neighbor pull up in front of his house in his

truck at the same time a “white SUV” pulled up in front of a different house. She stated she saw

her neighbor go into his house, which she testified was the same house in the photograph

admitted into evidence earlier in the trial that was identified by Knouse as appellant’s house.

Christensen testified a woman passenger from the white SUV asked some people standing

nearby if she could borrow a cell phone. According to Christensen, her neighbor came back out

of his house a short time later with a gun. At that point, Christensen testified, the woman from

the white SUV was talking on the phone. Christensen stated her neighbor said something to the

woman, shot the woman about five times, and went back into his house. She stated she did not at

any point in time see the woman from the white SUV attack her neighbor or go toward him.

       Officer Shawn Fuller testified he was working as a patrol officer for the Rowlett Police

Department on April 22, 2010. He stated that at approximately 3:30 p.m., he responded to a

“disturbance possibly involving a weapon” on Amherst Drive. It took him about thirty to forty

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seconds to reach the scene. He testified he saw Swindle lying beneath a tree, bleeding. He

stated that “quite a few” people were standing nearby. Fuller stated that Knouse told him

Swindle had a pulse, but was not breathing, and Fuller told Knouse to start CPR, which she did.

Fuller testified he was told by a neighbor that the shooter had gone into his house at 7314

Amherst Drive. Additionally, Fuller stated he overheard “kids” nearby saying that the suspect

had gone into the alley and that he still had a gun in his hand.

       According to Fuller, several other officers arrived a few minutes later. At that point,

Fuller testified, he and a detective approached the front door of appellant’s house and announced

themselves. The door was opened by Gant. She gave them consent to enter and search the

house. Fuller stated he saw an empty holster and a cell phone on the floor in a bedroom. He

stated Gant and “her daughter” were the only people in the house.

       Fuller testified that later on, after appellant had been found in another location and was in

custody, he and other officers searched for evidence along the pathway they believed appellant

had taken after the shooting. Fuller stated that in some bushes near the lake at a nearby park,

they found a blue “scrub top,” which matched the description of what appellant had been

wearing.

       Rowlett Chief of Police Matt Walling testified that when he heard the report of a shooting

on Amherst on April 22, 2010, he and a lieutenant headed to the general location to see if they

could locate the suspect. Walling testified that “just probably southwest” of the scene, they saw

appellant walking toward them from the direction of a nearby lake. According to Walling,

appellant was wearing hospital scrub pants and a white t-shirt. Walling testified he asked

appellant if he knew why they were there, and appellant responded “yes.” Then, Walling asked

appellant where the gun was located. Walling testified appellant stated he was just out jogging.

Walling and the lieutenant detained and handcuffed appellant.

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       On cross-examination, Walling testified appellant was cooperative when they found him

and did not threaten them. Walling stated appellant was out of breath and limping.

       Sergeant Daniel Miller, a patrol sergeant with the Rowlett Police Department, testified he

was called out for a crime scene search after the shooting in question. Photographs of the crime

scene taken by Miller on the date of the shooting were admitted into evidence and he described

the items in those photographs. Miller testified a cell phone, a hearing aid, shell casings, and

pools of blood were found in the grass near a tree. Additionally, he stated that a leather holster,

cell phone, and cell phone backing were found inside appellant’s residence. Miller testified that

all shell casings found at the scene were from .45 caliber ammunition.

       Dr. Reade Quinton, a medical examiner for Dallas County, testified that he conducted an

autopsy on Swindle on April 23, 2010. The cause of death was multiple gunshot wounds.

Quinton stated there were five gunshot wounds on the body: one on the left shoulder, one on the

right side of the abdomen, one through the right side of the back and the right arm, and two on

the back. According to Quinton, the wound on the left shoulder was “front to back,” meaning it

originated from the front of the body, and the other four wounds were “back to front.” He stated

that two of the wounds went through Swindle’s heart and either one of those would have caused

death very quickly.    Additionally, Quinton testified Swindle tested negative for drugs and

alcohol. Photographs from the autopsy were admitted into evidence over appellant’s objection.

       David Waters, a detective with the Rowlett Police Department, was called to testify by

the defense. Waters stated that prior to April 22, 2010, he spoke with Swindle more than once

about custody issues involving Gant and appellant. He testified that approximately a year before

the incident in question, Swindle contacted him because she wanted to file charges based on an

altercation between her and Gant. No charges were filed respecting that altercation. Further,

Waters stated he did not proceed with charges respecting other custody complaints by Swindle

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because he was waiting for the family civil courts to resolve those custody issues.       Waters

testified that on April 22, 2010, he met with Swindle and recommended that Swindle not go to

appellant’s house in order to avoid any conflict.

       Gant testified she married appellant in 2000 and they moved to Texas in 2005. Gant

stated that Jaelyn is the daughter of her son John and Swindle, who never married. John and

Swindle lived with Gant and appellant intermittently until summer 2007. Gant testified she

received full custody of Jaelyn when Swindle was arrested in November 2008. According to

Gant, Swindle was released in April 2009, but Gant continued to raise Jaelyn. Swindle was

allowed supervised visits with Jaelyn. In March 2010, Gant testified, she discovered Swindle

was seeking custody of Jaelyn.

       During direct examination of Gant by appellant’s counsel, the State objected to Gant’s

testimony pertaining to her relationship and interactions with Swindle on the grounds of

relevance and hearsay. Outside the presence of the jury, appellant’s counsel asserted in part that

the testimony was admissible pursuant to (1) Texas Rule of Evidence 404, because it was

“evidence of a character trait of the victim of the crime offered by an accused” and (2) “3836” of

the code of criminal procedure because the testimony “described the family dynamics in the

situation” and “goes to the state of mind” of appellant. Additionally, appellant’s counsel argued

the “theory of self-defense” had been raised by the evidence. The trial court heard argument as

to the admissibility of the disputed evidence, which included Gant’s testimony respecting (1) a

2009 “pushing incident” involving Gant and Swindle, (2) a death threat made by Swindle to Gant

during a phone call in 2009, (3) drug use by Swindle reported to Gant by another person, (4)

Swindle “spending time with people of dangerous character,” and (5) Swindle driving down the

alley behind Gant’s house several times with a person who had a criminal history. The trial court

ruled, in part, that the 2009 “pushing incident” described by Gant was admissible. Additionally,

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the trial court sustained the State’s hearsay objection as to anything Gant “heard from other

folks” and ruled that the other disputed testimony was not admissible “at this point” because it

concerned the state of mind of Gant and not appellant. Further, the trial judge stated that self-

defense had not been raised by the evidence at that point, but “[i]f some other evidence comes

out, I will reconsider it.” Then, the jury returned to the courtroom and Gant’s testimony

resumed.

       Gant stated that in 2009, there was a physical confrontation between her and Swindle and

the police were called. Gant testified she felt “threatened” by Swindle at that time. In July 2009,

Gant and appellant moved to Missouri. Gant stated they moved back to Texas in February 2010

and lived on Amherst in Rowlett.

       Gant testified that in April 2010, she learned that a judge had awarded Swindle custody

of Jaelyn, who was still living with Gant and appellant. Gant stated she was surprised because

she had not received notice of any custody hearing. She contacted a lawyer and challenged the

custody order. According to Gant, she and appellant were “constantly worried” during that time

and could not eat or sleep well due to stress from the custody matter.

       Gant stated that on April 22, 2010, she called appellant at his work place and told him a

stay had been granted on the custody order. She testified she was upset because she thought the

stay meant that Swindle had custody of Jaelyn. Gant stated appellant’s tone indicated he was

upset. According to Gant, when appellant came in the house after work, he was “very upset.”

She stated he looked physically pale and “scared, crazy.” She testified she had never seen him

like that and knew something was wrong. Appellant was in the house for only seconds, went

into a room, and came out of the room with what she thought might be a gun. Then, Gant

testified, appellant ran out the door. Gant grabbed a cell phone and called 911. Gant stated she

was scared because she did not know what was going on.

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       Timothy Lucius testified he supervised appellant during the time appellant worked at

Mesquite Specialty Hospital. Lucius stated appellant was generally “very helpful” and “very

respectful” and was one of his best workers. According to Lucius, sometime after breakfast on

April 22, 2010, appellant appeared to be “very disturbed” and “very distraught.” Appellant was

breathing “very fast” and was “very clammy, sweating.” Lucius stated he had not seen appellant

that way before. He testified it appeared to him that appellant was “very anxious” to get home.

He told appellant he could not let him leave right away because he did not feel safe about letting

appellant on the road at that time due to appellant’s “behavior.”         Lucius gave appellant

something to drink and told him to rest a little bit. Lucius stated appellant left about fifteen

minutes later.

       Appellant testified that at the time of the events in question, he worked at Mesquite

Specialty Hospital assisting nurses with patient care. He stated that while Swindle lived with

him and Gant, there was contention between him and Swindle and between Gant and Swindle.

According to appellant, he and Gant took over the care and raising of Jaelyn in 2008 because

Swindle was incarcerated. He stated that after Swindle was released from incarceration, he was

worried about Swindle’s ability to care for Jaelyn based on Swindle’s history and behavior.

Additionally, appellant testified he feared violence by Swindle against Gant based on the 2009

altercation involving Gant and Swindle and on “information” given to him by Gant that the trial

court did not allow him to elaborate on. Appellant stated he felt there “was a likelihood of a

confrontation” between Gant and Swindle and “knew should such a confrontation take place,

[Gant] would be at the losing end.” He worried about Gant’s “well-being” and safety.

       According to appellant, Swindle was released from incarceration in 2009. In April 2010,

appellant and Gant discovered there had been a hearing and Swindle had been given “sole

managing custody.” Appellant stated he and Gant were in shock because they had received no

                                              –11–
notice of the hearing. He stated he felt the custody order had been obtained through fraudulent

means. He and Gant immediately contacted their attorney. Appellant testified that subsequent to

the issuance of the custody order, he spoke with Swindle by phone several times regarding

custody of Jaelyn and Swindle seemed “angry and belligerent.” Appellant testified he felt “lost,

powerless.” Additionally, he stated he felt a lot of anxiety and uncertainty and a “feeling of

hopelessness.” He stated he became unable to sleep, had terrible dreams, became “kind of

reclusive,” and constantly worried about Jaelyn’s well-being. Further, appellant testified he was

trying to quit smoking at that time and was taking an “antismoking” drug called Chantix.

       Appellant testified that while he was at work on April 22, 2010, he received a phone call

from Gant, who was crying. Appellant stated that after hanging up the phone, he believed he

was having an anxiety attack. He told his supervisor that he had an emergency at home and

needed to leave. When appellant pulled into the driveway at his home, he saw two young men

standing in his yard. Appellant testified he had a conversation with the two young men that

caused him concern and caused him to fear for his wife. One of the men pointed and appellant

turned around and saw an SUV parked by the mailbox in front of his house. Swindle was in the

SUV “doing something with her phone” and someone else was driving. Appellant stated he

“was in shock” and then felt anger and fear “for [Gant’s] safety and of losing the baby.” He

approached the SUV and yelled at Swindle to stop taking pictures and get “out of here.” Swindle

did not leave.   Appellant testified he and Swindle struggled over Swindle’s phone and he

discovered she had been taking photographs of him and his family.        After taking Swindle’s

phone, he walked away from the vehicle. According to appellant, Swindle stepped out of the

vehicle into his yard and said, “Give me my phone back you son-of-a-bitch.” Further, appellant

testified Swindle said, “I’m taking Jaelyn. I’m taking my daughter.” Appellant looked at the




                                              –12–
photographs of his vehicles and house on the cell phone as he walked toward his front door.

Appellant testified that “everything felt surreal” at that point and felt “like a dream.”

       Appellant stated he went into his house and grabbed “the weapon.” He stated he “felt

like a robot.” He went back outside. According to appellant, “[n]othing felt real.” He testified

he leveled the gun and “fired, and fired, and fired.” Appellant stated he felt he was protecting his

wife and the baby and was “just reacting.”

       On cross-examination, appellant testified he did not know whether he intended to kill

Swindle and did not know he fired five times. He stated he felt that “[Swindle] being on the

property or even near my house was a threat.” According to appellant, after shooting Swindle,

he walked through his house to his back yard. Then, he “just walked” and found himself at the

lake. He testified he was “pretty sure” he left the gun on a planter in his back yard before he

walked toward the lake. He stated he did not see his wife when he walked through the house.

       Following appellant’s testimony, the trial court held a hearing outside the presence of the

jury to determine the admissibility of the testimony offered by appellant of Dr. Ray McClung, a

clinical psychologist appointed by the trial court to evaluate appellant. Counsel for appellant

asserted McClung’s testimony was being offered under “3836, both (a) and (b) 2” of the code of

criminal procedure to “shed light on the condition of the defendant’s state of mind at the time of

the offense as related to his family and domestic issues that he had had and his wife had had with

[Swindle], the victim, in this case because of prior activities of [Swindle], threats of [Swindle],

that played into the condition of my client’s state of mind at the time of the event that took place,

and directly relates to his defensive mechanism to protect his wife and child.” After hearing a

summary of McClung’s proffered testimony, including, in part, his testimony that Chantix can

cause violent behavior in some users, the trial court ruled McClung’s testimony would not be

allowed during the guilt/innocence phase of trial. However, the trial court ruled that if appellant

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were found guilty, McClung’s testimony would be allowed during the punishment phase on the

issues of mitigation and sudden passion.

       At that point in the trial, counsel for appellant reoffered, over objection by the State,

Gant’s testimony that had been excluded earlier respecting the death threat made by Swindle to

Gant in 2009. The trial court overruled the State’s objection, and Gant was recalled as a witness

in the jury’s presence.

       On recall, Gant testified that in approximately May 2009, she had a “heated” phone

conversation with Swindle in which Swindle said Gant had no right to have Jaelyn and told Gant

she was going to get her daughter back. According to Gant, Swindle told Gant she would kill her

in order to get Jaelyn back. Gant testified she felt concern and fear and told appellant about the

conversation. On cross-examination, Gant stated she reported Swindle’s assault against her to

Swindle’s probation officer. Gant testified she did not tell Swindle’s probation officer about the

threatening phone call. Following this testimony by Gant, the defense rested its case.

       On rebuttal, the State called Myra Kirkwood, a United States probation officer in the

Eastern District of Texas, Plano Division. Kirkwood testified she met Swindle in 2005 when

Swindle commenced a term of supervised release and began reporting to Kirkwood’s office.

Kirkwood stated she has visited with Swindle in the probation office and during field contacts in

the community. According to Kirkwood, Swindle “never tested positive for any elicit [sic]

drug.” Kirkwood stated Gant called the probation office several times to report drug use by

Swindle, but Swindle tested negative each time. Further, Kirkwood testified she did not have

any concerns about issues of aggression or violence in Swindle’s behavior. Kirkwood stated that

in May 2009, the probation office received phone calls from both Gant and Swindle about “an

altercation between the two of them” that had been reported to Rowlett police. Kirkwood




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testified that other than that, she had not received any reports of Swindle being violent. She

stated Gant never told her that Swindle had threatened to kill her.

       According to Kirkwood, Swindle was assigned to a halfway house during her probation

because of her inability to maintain stable employment. An incident at the halfway house

involving “technical violations” was reported to a judge and Swindle was ordered to enter an in-

patient treatment program. Kirkwood testified Swindle “self-disclosed” some alcohol issues,

episodic use of cocaine with John Gant, and abuse of prescription medication. Additionally,

Kirkwood testified that during her probation, Swindle was arrested for public lewdness, for

which she received a county probation term. Kirkwood stated that in early April 2010, she had a

“very pleasant” conversation with Swindle in which Swindle stated that her number one priority

was that “she was trying to get all of her children together.”

       On cross-examination, Kirkwood testified Swindle was with a convicted felon when she

was arrested for public lewdness.         Further, Kirkwood testified she did not have any

documentation with her that showed how often Swindle had been tested for drugs.

       Outside the presence of the jury, appellant requested jury instructions on necessity and

defense of a third person. Appellant’s counsel argued that an instruction on defense of a third

person was proper because such defense had been raised by the following evidence: (1) Gant

testified Swindle had threatened to kill her in the past and appellant was aware of that threat, (2)

an “assault between [Gant] and [Swindle]” occurred, of which appellant was aware, (3) Swindle

went to appellant’s residence against Waters’s recommendation and took photographs and

questioned appellant’s neighbors about him, (4) Swindle refused to leave when appellant

demanded that she do so, and (5) appellant testified Swindle entered onto his property as he was

walking back to his house, called him a “son-of-a-bitch,” and stated she was “taking the baby.”

The State responded that a jury instruction on defense of a third person was inapplicable because

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appellant (1) “provoked it” when he struck Swindle in her car in a public area and (2) left the

scene and returned with a weapon.

       The trial court considered and denied appellant’s requested jury instructions on necessity

and defense of a third person. Then, following the jury’s return to the courtroom, both sides

presented closing argument and the case was submitted to the jury. Following the jury’s finding

of guilt, the punishment phase of trial commenced.

       The State called Swindle’s brother and mother as witnesses. Both testified as to the

effect Swindle’s death has had on them.

       The defense called McClung, who testified he had performed a mental health evaluation

on appellant following the event in question. McClung testified appellant was “very depressed”

and “has a history of someone who’s been depressed for years.” Additionally, McClung testified

appellant has a “generalized anxiety disorder.” According to McClung, appellant’s father was an

alcoholic who was abusive to appellant, appellant’s brother, and appellant’s mother. McClung

stated appellant felt he had to take on the role of a “protector.” He testified appellant “avoids

any kind of confrontation,” but “can be, when provoked, aggressive.” McClung stated that in his

opinion, the risk was low that appellant would be a danger to the community in the future.

       According to McClung, becoming a father to Jaelyn made a “tremendous difference” in

appellant’s life and gave his life purpose. McClung stated appellant “feared greatly that he and

[Gant] would lose the child to a situation in which there wouldn’t be a good outcome.”

       McClung testified that at the time of the incident in question, appellant had been using a

medication called Chantix to help him stop smoking. According to McClung, “one of the

outcomes that very often does happen when somebody takes this medication is they do get

violent.” McClung stated he believes Chantix played a role in appellant’s mental and emotional

state at the time of the shooting.

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       McClung testified that on the date of the shooting, appellant felt “violated” and

“terrified” as a result of Swindle’s actions and words and “could see nothing else to do other than

take some sort of action.” Further, McClung stated, “I think at that point, once he had the gun, I

think—I think any real clear thinking was just not part of him.” According to McClung,

appellant was unable to act rationally at that point and was “definitely acting on impulse.”

Additionally, McClung stated that in his opinion, appellant was sincerely remorseful.

       Several people who had worked with appellant prior to the events in question testified he

was a pleasant, caring, helpful person. Then, both sides closed and the trial court read the

punishment charge to the jury. The jury was instructed by the trial court, in part, “You will first

answer the special issue, which is do you the jury find by preponderance of the evidence that the

defendant caused the death of Dana Swindle under the immediate influence of sudden passion

arising from an adequate cause.”

       The jury answered “no” to the “special issue” on sudden passion and assessed

punishment as described above. This appeal timely followed.

                                   II. APPELLANT’S ISSUES

                                    A. Exclusion of Evidence

                                      1. Standard of Review

       We review the trial court’s exclusion of evidence, including expert testimony, under an

abuse of discretion standard. See, e.g., McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim.

App. 2005). This standard requires an appellate court to uphold a trial court’s admissibility

decision when that decision is within the zone of reasonable disagreement. See id.; Robbins v.

State, 88 S.W.3d 256, 260 (Tex. Crim. App. 2002).

                                        2. Applicable Law




                                              –17–
             Ordinarily, the defendant is the only permissible source of evidence of his or her state of

mind at the time an offense is committed. See Osby v. State, 939 S.W.2d 787, 791 (Tex. App.—

Fort Worth 1997, pet. ref’d). However, in the trial of a murder case in which self-defense is

raised, article 38.36(b)(2) of the Texas Code of Criminal Procedure authorizes admission of

“relevant expert testimony regarding the condition of the mind of the defendant at the time of the

offense” if the defendant had been a victim of family violence as defined in the family code

committed by the deceased. TEX. CODE CRIM. PROC. ANN. art. 38.36(b)(2) (West 2005); 1 see

Avila v. State, 954 S.W.2d 830, 840–41 (Tex. App.—El Paso 1997, pet. ref’d) (citing Osby, 939

S.W.2d at 790–91); Coleman v. State, No. 05-01-01662-CR, 2003 WL 1059641, at *2 (Tex.

App.—Dallas Mar. 12, 2003, pet. ref’d).

                                                     3. Application of Law to Facts

                                                       a. Expert Opinion Evidence

             We begin with appellant’s fifth issue, in which he contends the trial court erred by

excluding his proffered expert opinion evidence, i.e. the testimony of McClung, during the

guilt/innocence phase of trial. The State responds that “the trial court did not abuse its discretion

in excluding the expert’s opinion regarding Appellant’s state of mind at the time of the killing

     1
         Article 38.36 states in its entirety
             (a) In all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and
             circumstances surrounding the killing and the previous relationship existing between the accused and the deceased,
             together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the
             offense.

             (b) In a prosecution for murder, if a defendant raises as a defense a justification provided by Section 9.31, 9.32, or 9.33,
             Penal Code, the defendant, in order to establish the defendant's reasonable belief that use of force or deadly force was
             immediately necessary, shall be permitted to offer:

                         (1) relevant evidence that the defendant had been the victim of acts of family violence committed by the
                         deceased, as family violence is defined by Section 71.004, Family Code; and

                         (2) relevant expert testimony regarding the condition of the mind of the defendant at the time of the offense,
                         including those relevant facts and circumstances relating to family violence that are the basis of the expert's
                         opinion.

TEX. CODE CRIM. PROC. ANN. art. 38.36.




                                                                         –18–
because Appellant was not the victim of domestic violence by [Swindle], the victim, as required

by art. 38.36.”

          The record shows no evidence that appellant had been the victim of acts of family

violence committed by the deceased. Therefore, the expert testimony in question, which was

specifically offered by appellant to show his “state of mind” pursuant to article 38.36, is not

admissible. 2 See TEX. CODE CRIM. PROC. ANN. art. 38.36(b)(2); Avila, 954 S.W.2d at 840–41

(concluding article 38.36 was not intended to allow expert testimony concerning state of mind of

defendant unless such testimony related to previous domestic relationship between deceased and

accused); Coleman, 2003 WL 1059641, at *2 (article 38.36 inapplicable to expert testimony as to

mental state of defendant where no family violence by deceased against defendant).

          We decide against appellant on his fifth issue.

                    b. Evidence Relative to Relationship Between Appellant and Swindle

          In his fourth issue, appellant asserts “[t]he trial court erred in overruling appellant’s

proffer of evidence relative to the relationship of the parties pursuant to article 38.36 code of

criminal procedure.” Appellant cites generally to pages 64–87 of volume four of the reporter’s

record, which contain the proffered testimony of Gant described above respecting (1) a 2009

“pushing incident” involving Gant and Swindle, (2) a death threat made by Swindle to Gant

during a phone call in 2009, (3) drug use by Swindle reported to Gant by another person, (4)

Swindle “spending time with people of dangerous character,” and (5) Swindle driving down the

alley behind Gant’s house several times with a person who had a criminal history. However, in

his appellate argument, appellant specifically directs this Court to the proferred testimony of



     2
       To the extent appellant asserts arguments in his appellate brief respecting admission of expert testimony to show mental illness and
diminished capacity, such grounds for admissibility were not asserted in the trial court. See TEX. R. APP. P. 33.1. Further, appellant does not
explain, and the record does not show, how such arguments pertain to the evidence in question, which was offered specifically to show
appellant’s “state of mind.” See TEX. R. APP. P. 38.1(i).



                                                                   –19–
Gant “about [Swindle’s] conduct and statements that showed the victim’s previous violent acts

that [sic] she was the first aggressor.”

           The State asserts “[t]he trial court did not abuse its discretion in excluding the proffered

evidence of [Swindle’s] alleged violent nature since the proffered evidence was later admitted.”

           Appellant references article 38.36 in stating his fourth issue, but does not otherwise cite

or discuss article 38.36 in his appellate brief as to that issue. Rather, appellant quotes a lengthy

excerpt from a case involving a discussion of Texas Rule of Evidence 404, which provides in

part for admissibility of “evidence of a pertinent character trait of the victim of a crime offered

by an accused.” See TEX. R. EVID. 404(a)(2). Further, appellant does not identify the specific

testimony that was allegedly erroneously excluded.                                   However, regardless of the authority

appellant relies upon, we cannot agree the trial court erred by excluding testimony of Swindle’s

“previous violent acts.” The record shows the proffered testimony of Gant included two violent

acts: (1) a 2009 “pushing incident” involving Gant and Swindle and (2) a death threat made by

Swindle to Gant during a phone call in 2009. The trial court allowed Gant to testify as to the

“pushing incident” during her direct examination.                                   Additionally, while Gant’s testimony

pertaining to the death threat was initially excluded, the trial court later allowed Gant to testify

about that threat. As stated above, appellant does not describe, and the record does not show,

any other “violent acts” of Swindle as to which Gant’s testimony was excluded. 3

           We decide appellant’s fourth issue against him.




     3
       To the extent appellant’s issue can be construed to complain as to the exclusion of Gant’s testimony pertaining to Swindle’s drug use and
association with a criminal, (1) Knouse testified Swindle had been incarcerated on a drug charge and (2) Kirkwood testified Swindle “self-
disclosed” drug use while on probation and was with a convicted felon when she was arrested for public lewdness. Therefore, any error in the
exclusion of such testimony was harmless. See TEX. R. APP. P. 44.2.



                                                                    –20–
                                B. Sufficiency of the Evidence

                                     1. Standard of Review

       We review the sufficiency of the evidence establishing the elements of a criminal offense

for which the State has the burden of proof under the single sufficiency standard set out in

Jackson v. Virginia, 443 U.S. 307 (1979). Matlock v. State, No. PD-0308-12, 2013 WL 690854

at *2 (Tex. Crim. App. Feb. 27, 2013); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.

2010). Under that standard, we view the evidence in the light most favorable to the verdict and

determine whether any rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt. Matlock, 2013 WL 690854, at *2. We review all of the

evidence, whether it was properly or improperly admitted. See Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007). Direct and circumstantial evidence are equally probative, and

circumstantial evidence alone can be sufficient to establish guilt. Id.; Patrick v. State, 906

S.W.2d 481, 488 (Tex. Crim. App. 1995). The jury is the sole judge of credibility and weight to

be attached to the testimony of witnesses. Jackson, 443 U.S. at 319; Young v. State, 283 S.W.3d

854, 861 (Tex. Crim. App. 2009). When the record supports conflicting inferences, we presume

that the jury resolved the conflicts in favor of the verdict and defer to that determination.

Jackson, 443 U.S. at 319.

       In reviewing a jury’s rejection of an affirmative defense in a criminal case, we use the

traditional Texas civil burdens of proof and standards of review. Matlock, 2013 WL 690854, at

*3. When an appellant asserts that the evidence is legally insufficient to support an adverse

finding on an affirmative defense, we construe the issue as an assertion that the contrary was

established as a matter of law. Id. We first search the record for evidence favorable to the

finding, disregarding all contrary evidence unless a reasonable fact-finder could not. Id. If we

find no evidence supporting the finding, we then determine whether the contrary was established

                                             –21–
as a matter of law. Id. Only if the appealing party establishes that the evidence conclusively

proves his affirmative defense and “that no reasonable jury was free to think otherwise” may the

reviewing court conclude that the evidence is legally insufficient to support the jury’s rejection

of the defendant’s affirmative defense. Id. at *4. A defendant is entitled to an acquittal on

appeal despite the jury’s adverse finding on his affirmative defense only if the evidence

conclusively establishes his affirmative defense under the two-step test described above. Id.

       A defendant might also raise a factual-sufficiency challenge to the jury’s adverse finding

on his affirmative defense. Id. In making a factual-sufficiency claim, the defendant is asserting

that, considering the entire body of evidence, the jury’s adverse finding on his affirmative

defense was so “against the great weight and preponderance” of that evidence to be manifestly

unjust. Id. In the factual-sufficiency review of a rejected affirmative defense, an appellate court

views the entirety of the evidence in a neutral light, but it may not usurp the function of the jury

by substituting its judgment in place of the jury’s assessment of the weight and credibility of the

witnesses’ testimony. Id. Therefore, an appellate court may sustain a defendant’s factual-

sufficiency claim only if, after setting out the relevant evidence and explaining precisely how the

contrary evidence greatly outweighs the evidence supporting the verdict, the court clearly states

why the verdict is so much against the great weight of the evidence as to be manifestly unjust,

conscience-shocking, or clearly biased. Id. If an appellate court conducting a factual-sufficiency

review finds that the evidence supporting the affirmative defense so greatly outweighs the State’s

contrary evidence that the verdict is manifestly unjust, then the appellate court may reverse the

trial court’s judgment and remand the case for a new trial. Id. The remedy in both civil and

criminal cases for an appellate reversal based upon a factual-sufficiency claim that the jury’s

verdict is against the great weight of the evidence is a new trial, not an acquittal. Id.




                                                –22–
                                       2. Applicable Law

       A person commits murder by intentionally or knowingly causing the death of an

individual. TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011). Typically, murder is a first-

degree felony. Id. § 19.02(c). However, at the punishment stage of a trial, the defendant may

raise the issue as to whether he caused the death under the immediate influence of sudden

passion arising from an adequate cause. Id. § 19.02(d). If the defendant proves the issue in the

affirmative by a preponderance of the evidence, the offense is a felony of the second degree. Id.

§ 19.02(d).

       “Adequate cause” means a “cause that would commonly produce a degree of anger, rage,

resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of

cool reflection.” Id. § 19.02(a)(1). The accused may not rely upon a cause of his own making,

such as precipitating a confrontation. See Naasz v. State, 974 S.W.2d 418, 423 (Tex. App.—

Dallas 1998, pet. ref’d); Trevino v. State, 157 S.W.3d 818, 822 (Tex. App.—Fort Worth 2005, no

pet.). “Sudden passion” means “passion directly caused by and arising out of provocation by the

individual killed or another acting with the person killed which passion arises at the time of the

offense and is not solely the result of former provocation.” TEX. PENAL CODE ANN. §

19.02(a)(2); see also McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005) (stating

that a defendant raising sudden passion to mitigate a murder conviction must prove that there

was an adequate provocation, that a “passion or an emotion such as fear, terror, anger, rage, or

resentment existed[;] that the homicide occurred while the passion still existed and before there

was reasonable opportunity for the passion to cool; and that there was a causal connection

between the provocation, the passion, and the homicide”).




                                              –23–
                                            3. Analysis

                a. Sufficiency of the Evidence to Support Appellant’s Conviction

       In his first issue, appellant contends the evidence is insufficient to support his conviction

for murder. Appellant asserts that while he testified he shot the deceased, he “did not have any

intention of shooting her and killing her.” Further, according to appellant, he did not recall

shooting the deceased and “was acting under the duress of the threatening situation of having his

child taken from him compounded with the effects of the drug Chantix at the time of the

incident.” Appellant contends the record establishes, at best, a “mere modicum” of evidence of

his guilt and “no rational trier of fact could have found beyond a reasonable doubt that Appellant

was guilty of the murder.”

       The State responds that the evidence shows appellant intentionally shot and killed

Swindle and is thus sufficient to support appellant’s conviction.

       The record shows that at the time Swindle was shot by appellant, she was standing in the

yard of appellant’s neighbor talking to a 911 operator on a cell phone. Swindle did not have a

weapon. Additionally, Knouse, Parker, Gayford, and Christensen testified Swindle was not

attacking appellant at the time of the shooting. They testified appellant approached a vehicle in

which Swindle was sitting and wrestled with Swindle over a cell phone. Then, appellant walked

into his house. He came out a short time later, walked toward Swindle, and began shooting.

Appellant shot Swindle while she was standing, then shot her several more times after she fell to

the ground.

       Appellant argues that at the time of the shooting, there was a “perfect storm” of events

occurring in his life that led to the “unintentional shooting.” Appellant contends he “was fearful

for his wife, he was fearful that Jaelyn would be taken away from them and given to an unfit

mother, he was suffering from depression, unable to sleep, and most importantly under the

                                               –24–
influence of the drug Chantix which is documented to cause people to become violent.”

However, while appellant proffered testimony of McClung that Chantix can cause violent

behavior in some users, we concluded above that McClung’s testimony was properly excluded

during the guilt/innocence phase of trial. The record shows that the only evidence involving

Chantix that was before the jury during the guilt/innocence phase of trial was appellant’s

testimony that he was taking Chantix to help him stop smoking. See Caines v. State, Nos. 14-11-

00912-CR & 14-11-00913-CR, 2013 WL 176027, at *3 (Tex. App.—Houston [14th Dist.] Jan.

17, 2013, no pet.) (mem. op., not designated for publication) (“In our review of the sufficiency of

the evidence supporting appellant’s convictions, we consider only the evidence admitted in the

guilt/innocence phase of trial, and not the evidence presented in the punishment phase of trial.”)

(citing Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000)). On this record, viewing

the evidence in the light most favorable to the verdict, we conclude a rational jury could have

found the essential elements of murder beyond a reasonable doubt. See Jackson, 443 U.S. at

319; Matlock, 2013 WL 690854, at *2.

       We decide appellant’s first issue against him.

         b. Sufficiency of the Evidence to Support Negative Finding on Sudden Passion

                                       i. Legal Sufficiency

       In his second issue, appellant contends he “proved that he caused the death while he was

under the influence of sudden passion arising from an adequate cause and that the jury’s negative

answer to that special issue was against the legal sufficiency of the evidence presented by

appellant in the punishment stage of trial.” Appellant argues (1) there was no evidence of any

violence perpetrated on the victim by him prior to the killing, (2) there was no testimony or

evidence presented that he planned the murder of Swindle, and (3) after the incident, he was

“devastated by what had happened.”

                                              –25–
       The State responds that appellant did not prove sudden passion as a matter of law.

       As described above, the evidence showed Swindle had no weapon. Further, there was

testimony that (1) appellant approached a vehicle in which Swindle was sitting and wrestled with

Swindle over a cell phone; (2) appellant then walked into his house, came out a short time later,

walked toward Swindle, and began shooting; (3) Swindle was not attacking appellant and did not

appear to pose a threat to appellant at the time of the shooting; and (4) appellant shot Swindle

while she was standing, then shot her several more times after she fell to the ground. There is no

evidence in the record that Gant was outside the house at any time during the incident in

question.

       “Sudden passion” requires “provocation by the individual killed . . . which passion arises

at the time of the offense and is not solely the result of former provocation.” See TEX. PENAL

CODE ANN. § 19.02(a)(2). On this record, we cannot agree with appellant that there was no

evidence supporting the jury’s finding of no sudden passion and that the contrary was established

as a matter of law. See Matlock, 2013 WL 690854, at *3–4.

       We decide against appellant on his second issue.

                                      ii. Factual Sufficiency

       In his third issue, appellant contends the evidence was not factually sufficient to support

the jury’s negative finding on sudden passion arising from an adequate cause. Appellant states in

his appellate brief that he “incorporates herein the reasons and aforementioned factual discussion

of why the jury’s verdict of ‘no’ is clearly wrong and unjust applying the factual sufficient

standards of review.” The State responds that “the jury properly rejected Appellant’s claim of

sudden passion, as was its prerogative as fact-finder.”

       As described above, there is testimony in the record that Swindle did not have a weapon,

was not attacking appellant, and did not appear to pose a threat to appellant at the time of the

                                               –26–
shooting. Further, the record contains no evidence that Gant was outside the house at any time

during the incident in question.

       Appellant testified that as he was walking into his house after taking Swindle’s cell

phone, Swindle exited the vehicle in which she was sitting, stepped into his yard, and said (1)

“Give me my phone back you son-of-a-bitch” and (2) “I’m taking Jaelyn. I’m taking my

daughter.” However, Knouse testified Swindle did not threaten appellant. Further, the jury was

free to believe all, some, or none of the testimony presented. See Cain v. State, 958 S.W.2d 404,

408–09 (Tex. Crim. App. 1997); see also Matlock, 2013 WL 690854, at *4 (while appellate court

views entirety of evidence in neutral light during factual sufficiency review, “it may not usurp

the function of the jury by substituting its judgment in place of the jury’s assessment of the

weight and credibility of the witnesses’ testimony”).

       On this record, we cannot conclude the jury’s finding of no sudden passion is “so much

against the great weight of the evidence as to be manifestly unjust, conscience-shocking, or

clearly biased.” See Matlock, 2013 WL 690854, at *4.

       We decide appellant’s third issue against him.

              C. Appellant’s Requested Jury Instruction on Affirmative Defenses

                           1. Standard of Review and Applicable Law

       We review jury charge error under a two-step process. See Ngo v. State, 175 S.W.3d 738,

743 (Tex. Crim. App. 2005). First, we determine whether error exists in the charge. Id. If error

does exist, we review the record to determine whether the error caused sufficient harm to require

reversal of the conviction. Id.

       A trial court must submit a charge setting forth the “law applicable to the case.” TEX.

CODE CRIM. PROC. ANN. art. 36.14 (West 2007). It is well settled that a defendant has a right to

an instruction on any defensive issue raised by the evidence, whether that evidence is weak or

                                              –27–
strong, unimpeached or contradicted, and regardless of what the trial court may think about the

credibility of the evidence. Cocke v. State, 201 S.W.3d 744, 747 (Tex. Crim. App. 2006) (citing

Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App.1999)). “[A] defense is supported (or raised)

by the evidence if there is some evidence, from any source, on each element of the defense that,

if believed by the jury, would support a rational inference that that element is true.” Shaw v.

State, 243 S.W.3d 647, 657–58 (Tex. Crim. App. 2007); see TEX. PENAL CODE ANN. § 2.03(c)

(West 2011) (defensive jury instruction not submitted to jury unless “evidence is admitted

supporting the defense”); Krajcovic v. State, No. PD-1632-11, 2013 WL 811536 (Tex. Crim.

App. Mar. 6, 2013) (remanding case because court of appeals “did not consider whether there

was affirmative evidence to support a jury finding regarding the defense”). A trial court may

refuse an instruction on a defensive theory if the issue was not raised by the evidence. See Shaw,

243 S.W.3d at 657–58; Garza v. State, 829 S.W.2d 291, 294 (Tex. App.—Dallas 1992, pet.

ref’d).

          Under section 9.31(a) of the Texas Penal Code, a person is justified in using force against

another when and to the degree he reasonably believes the force is immediately necessary to

protect himself against the other’s use or attempted use of unlawful force. TEX. PENAL CODE

ANN. § 9.31(a).       The use of force against another is not justified in response to verbal

provocation alone. Id. § 9.31(b). Further, section 9.32(a) of the penal code provides

          (a) A person is justified in using deadly force against another:

                 (1) if the actor would be justified in using force against the other under
                     Section 9.31; and

                 (2) when and to the degree the actor reasonably believes the deadly force
                     is immediately necessary:

                         (A) to protect the actor against the other’s use or attempted use
                         of unlawful deadly force; or


                                                 –28–
                       (B) to prevent the other’s imminent commission of aggravated
                       kidnapping, murder, sexual assault, aggravated sexual assault,
                       robbery, or aggravated robbery.

       Id. § 9.32(a); see also id. § 9.01(3) (“deadly force” means “force that is intended or

known by the actor to cause, or in the manner of its use or intended use is capable of causing,

death or serious bodily injury”). The actor’s belief that the deadly force was “immediately

necessary” is presumed to be reasonable if, inter alia, the actor (1) knew or had reason to believe

that the person against whom the deadly force was used unlawfully and with force entered, or

was attempting to enter unlawfully and with force, the actor’s occupied habitation, (2) did not

provoke the person against whom the force was used, and (3) was not otherwise engaged in

criminal activity. Id. § 9.32(b).

       A person is justified in using force or deadly force against another to protect a third

person if (1) “under the circumstances as the actor reasonably believes them to be, the actor

would be justified under section 9.31 or 9.32 in using force or deadly force to protect himself

against the unlawful force or unlawful deadly force he reasonably believes to be threatening the

third person he seeks to protect,” and (2) “the actor reasonably believes that his intervention is

immediately necessary to protect the third person.” Id. § 9.33.

                                           2. Analysis

       In his sixth issue, appellant contends the trial court erred by overruling his requested jury

instruction on the affirmative defenses of self-defense and defense of a third party in the

guilt/innocence phase of trial. The record shows appellant’s counsel stated to the trial court that

appellant was not asking for a jury charge on both self-defense and defense of a third person, but

rather just on defense of a third person. Therefore, appellant’s contentions respecting self-

defense have not been properly preserved for this Court’s review. See TEX. R. APP. P. 33.1(a).




                                               –29–
       According to appellant, defense of a third party was raised by the following evidence: (1)

Gant testified Swindle had threatened and assaulted Gant in the past, (2) appellant testified he

thought there was a “likelihood of a confrontation” between Gant and Swindle, and (3) appellant

testified he worried about Gant’s safety and thought if there was a “confrontation,” Gant would

be “on the losing end.” Further, appellant argues “[t]he trial court’s exclusion of Dr. Ray

McClung’s expert testimony directly affected the court’s decision not to charge the jury on the

justification defenses.”

       The State responds that the trial court correctly refused to give the requested instructions

because appellant was not entitled to them. Specifically, the State asserts Swindle “was not

using force or attempting to use force, much less deadly force, against Appellant or [Gant] or

Jaelyn at the time of the shooting.”

       We concluded above that the trial court did not err by excluding McClung’s testimony

during the guilt/innocence phase of trial. The record shows Gant testified that during a phone

conversation in 2009, Swindle threatened to kill her and appellant was aware of that threat.

Appellant testified that after he took Swindle’s cell phone and walked away from the vehicle in

which Swindle was sitting, Swindle stepped out of the vehicle into his yard and said, “Give me

my phone back you son-of-a-bitch” and “I’m taking Jaelyn. I’m taking my daughter.” Then,

appellant walked into his house, came out a short time later, walked toward Swindle, and began

shooting. At the time of the shooting, Swindle was standing in the yard of appellant’s neighbor

talking to a 911 operator on a cell phone. Appellant shot Swindle as she was standing, then shot

her several more times after she fell to the ground.

        The record does not show Swindle was on appellant’s property at the time she was shot

or was using any type of force against anyone at that time. Further, the record contains no

evidence that Swindle had a weapon or that Gant was outside the house at any time during the

                                               –30–
incident in question. Additionally, Gant testified the threats against her were made by Swindle

during the previous year. See Cooper v. State, 910 S.W.2d 605, 606 (Tex. App.—Tyler 1995, no

pet.) (threats made at earlier instances too remote to create immediate danger); Hart v. State, No.

05-09-01058-CR, 2011 WL 2028216, at *10 (Tex. App.—Dallas May 25, 2011, no pet.) (not

designated for publication) (same); see also TEX. PENAL CODE ANN. § 9.31(b) (use of force

against another is not justified in response to verbal provocation alone). On this record, we

conclude there is no evidence appellant “reasonably believe[d] that his intervention [was]

immediately necessary” to protect Gant. See TEX. PENAL CODE ANN. § 9.33. Therefore, we

conclude the trial court did not err by denying appellant’s request for a jury instruction on

defense of a third party.

       We decide against appellant on his sixth issue.

                                      III. CONCLUSION

       We decide appellant’s six issues against him. The trial court’s judgment is affirmed.




                                                            /Douglas S. Lang/
                                                            DOUGLAS S. LANG
                                                            JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2
111334F.U05




                                              –31–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

PAUL THOMAS GILLAM, Appellant                       On Appeal from the 291st Judicial District
                                                    Court, Dallas County, Texas
No. 05-11-01334-CR         V.                       Trial Court Cause No. F10-47328-U.
                                                    Opinion delivered by Justice Lang, Justices
THE STATE OF TEXAS, Appellee                        Francis and Evans participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 16th day of April, 2013.




                                                 /Douglas S. Lang/
                                                 DOUGLAS S. LANG
                                                 JUSTICE




                                             –32–
