Opinion issued March 24, 2020




                                       In The

                                Court of Appeals
                                       For The

                           First District of Texas
                              ————————————
                               NO. 01-19-00085-CR
                             ———————————
                         MIGUEL AREVALO, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee


          On Appeal from the County Criminal Court at Law No. 11
                           Harris County, Texas
                       Trial Court Case No. 2205480


                           MEMORANDUM OPINION

      Appellant, Miguel Arevalo, appeals from his jury conviction for the

misdemeanor assault of a family member. The trial court assessed his punishment

at 30 days in the Harris County Jail with 220 days of credit toward incarceration, a

fine, and costs. In two points of error, appellant argues that the trial court erred in
overruling (1) his objection to the omission of a self-defense instruction from the

jury charge and (2) his two objections to the State’s improper closing argument.

        We affirm.

                                      Background

        Harris County Sheriff’s Deputy P. Landaverde testified that on the night of

May 15, 2018, she was dispatched to a home in Harris County because of a family

disturbance. Upon arriving at the home, she first saw appellant, who informed

Deputy Landaverde that his wife had called the police and that she was inside the

home.     Once inside the home, Deputy Landaverde found the complainant, J.

Morales, who appeared to be in distress. They walked into the bedroom and

Deputy Landaverde noticed a closet door that had detached from its hinge. While

speaking with the complainant, Deputy Landaverde noticed that she had “swelling

and green, purplish pigmentation to her left eye.”

        After speaking with the complainant, Deputy Landaverde spoke with

appellant, who appeared intoxicated because he spoke with slurred speech and

smelled of alcohol.        At this point in the testimony, the State played the

complainant’s 911 call, which Deputy Landaverde testified was consistent with

what she saw when she arrived on scene.1                Deputy Landaverde described

appellant’s version of the events as not being consistent with her observations that

1
        According to the translation of the 911 call, the complainant stated that appellant
        was attacking her and had been drinking.
                                             2
night. Deputy Landaverde also testified that State’s exhibit 16, a photograph of the

complainant gesturing how appellant assaulted her, showed the manner and means

by which she believed appellant assaulted the complainant.

      On cross-examination, Deputy Landaverde testified that she only saw an

injury to the complainant’s eye.        After appellant’s attorney asked Deputy

Landaverde what she did to investigate any possible self-defense claims, Deputy

Landaverde answered, “When he advised that he was also scratched, I had

[appellant] lift his shirt up. We illuminated him with a flashlight. I did not see any

injuries at the time. And he advised that there [were] other injuries on his legs, that

he was being vague as to what had occurred. So we lifted them up. He said that

they were no longer there. So we did not continue to check higher on his legs.”

Deputy Landaverde testified that she did not take pictures of appellant because he

did not have any injuries, but she agreed that it would have been better to have

pictures to show to the jury. Deputy Landaverde later said that the parties were

arguing over a cell phone. Deputy Landaverde was asked a second time about

investigating self-defense to which she responded, “I spoke to the daughters. They

didn’t hear anything—they weren’t there either. I did not question as far as being

self-defense.”

      On re-direct, Deputy Landaverde stated that she did not see anything that

night that indicated that the complainant was the initial aggressor.           Deputy


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Landaverde believed, based on all of the evidence that she gathered that night, that

appellant assaulted the complainant by using a closed fist to the face. When asked

why she looked at appellant’s stomach, Deputy Landaverde answered, “During the

interview he was claiming that she came onto him and he gestured this

(Indicating). So I asked him to lift his shirt so that I could check if there were

injuries.   I needed to see because I didn’t want there to be anything that I

overlooked or I didn’t see.”

       On re-cross examination, Deputy Landaverde agreed that it is “possible to

not sustain any scratches if you are scratched over your clothes in a violent

manner” and that it could cause pain. Deputy Landaverde also agreed that State’s

exhibit 18, a photograph of appellant, was of poor quality and did not show

everything on appellant’s stomach.

       On further redirect, Deputy Landaverde agreed that the 911 call said that

appellant was not wearing a shirt, but when she arrived, appellant was wearing a

shirt. She agreed that any injuries he sustained would have occurred before she

arrived on the scene, which would have been when he was not wearing a shirt. On

further cross-examination, Deputy Landaverde agreed that she did not have any

personal knowledge as to whether appellant was attacked while he was wearing a

shirt or not.




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      The jury found appellant guilty of assault of a family member, and the trial

court sentenced appellant to 30 days in jail with credit for time served. Appellant

appeals from his conviction.

                               Self-Defense Instruction

      In his first point of error, appellant argues that the trial court erred by

overruling his objection to the omission of a self-defense instruction in the jury

charge. Appellant argues that the trial court mistakenly believed that in order to be

entitled to the instruction, appellant had to show fear or apprehension. Appellant

asserts that fear or apprehension is necessary if a person was acting “with deadly

force on reasonable apprehension of or apparent danger that the other person

would use deadly force against him.” The State responds that the trial court

properly denied the self-defense instruction because no evidence in the record

showed appellant’s state of mind when he struck his wife.

A.    Standard of Review and Applicable Law

      When reviewing an alleged jury-charge error, appellate courts first

determine whether error exists and then, if so, ascertain whether the resulting harm

is sufficient to warrant a reversal. See Price v. State, 457 S.W.3d 437, 440 (Tex.

Crim. App. 2015); Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).

The amount of harm needed for a reversal depends on whether a complaint

regarding “that error was preserved in the trial court.” Swearingen v. State, 270


                                          5
S.W.3d 804, 808 (Tex. App.—Austin 2008, pet. ref’d). If, as here, the defendant

made a timely objection, reversal is required if there has been “some harm.”

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g).

      A person is entitled to act in self-defense to an assault. See TEX. PENAL

CODE § 9.31(a) (“[A] person is justified in using force against another when and to

the degree the actor reasonably believes the force is immediately necessary to

protect the actor against the other’s use or attempted use of unlawful force.”).

      When determining whether a defensive instruction should have been

provided, appellate courts “view the evidence in the light most favorable to the

defendant’s requested” instruction. Bufkin v. State, 207 S.W.3d 779, 782 (Tex.

Crim. App. 2006). In general, a defendant is entitled to a jury instruction on a

defensive issue if the defensive issue “is raised by the evidence, regardless of the

strength or credibility of that evidence.” Farmer v. State, 411 S.W.3d 901, 906

(Tex. Crim. App. 2013). “A trial court errs in denying a self-defense instruction if

there is some evidence, from any source, when viewed in the light most favorable

to the defendant, that will support the elements of self defense.” Gamino v. State,

537 S.W.3d 507, 510 (Tex. Crim. App. 2017). “Whether a defense is supported by

the evidence is a sufficiency question reviewable on appeal as a question of law.”

Shaw v. State, 243 S.W.3d 647, 658 (Tex. Crim. App. 2007).




                                          6
      Chapter Nine of the Texas Penal Code (which contains the self-defense

statute found in section 9.31) is entitled “Justification Excluding Criminal

Responsibility.” TEX. PENAL CODE §§ 9.01–.63. It includes justifications such as

self-defense, necessity, and public duty, and explains the justification aspects of

protection of persons and property. Young v. State, 991 S.W.2d 835, 838 (Tex.

Crim. App. 1999).     If the conduct in question is justified under one of the

provisions of Chapter Nine, it is a defense to prosecution. TEX. PENAL CODE

§ 9.02; see Young, 991 S.W.2d at 838. However, a defendant is entitled to an

instruction involving one of the justification defenses “only . . . when the

defendant’s defensive evidence essentially admits to every element of the offense

including the culpable mental state, but interposes the justification to excuse the

otherwise criminal conduct.” Shaw, 243 S.W.3d at 659. The Court of Criminal

Appeals has since held that a defendant is not required to concede the State’s

version of events and admitting to the conduct does not necessarily mean admitting

to every element if the defendant “sufficiently admits” to the commission of the

offense. See Gamino v. State, 537 S.W.3d 507, 511–12 (Tex. Crim. App. 2017)

(holding defendant charged with aggravated assault with deadly weapon entitled to

self-defense instruction even though he denied pointing his gun at and verbally

threatening complainant but admitted displaying weapon because he felt




                                        7
threatened).   Thus, the issue this Court must decide is whether appellant

“sufficiently admitted” committing the offense.

      A defendant is not required to testify in order to raise the issue of self-

defense. Vasquez v. State, No. 01-17-00597-CR, 2018 WL 6216025, at *3 (Tex.

App.—Houston [1st Dist.] Nov. 29, 2018, pet. ref’d, untimely filed). The issue

“may be raised by the testimony of witnesses who testify to the defendant’s acts

and words at the time of the offense.” Reed v. State, 703 S.W.2d 380, 384–85

(Tex. App.—Dallas 1986, pet. ref’d) (citing Smith v. State, 676 S.W.2d 584, 587

(Tex. Crim. App. 1984)); see also VanBrackle v. State, 179 S.W.3d 708, 712 (Tex.

App.—Austin 2005, no pet.) (“Defensive issues may be raised by the testimony of

any witnesses, even those called by the State.”). The record must contain some

evidence or “observable manifestations” of the defendant’s state of mind at the

time of the alleged act of self-defense.     See VanBrackle, 179 S.W.3d at 713

(quoting Reed, 703 S.W.2d at 385). Examples of observable manifestations of a

defendant’s state of mind include evidence that the defendant called for help

during an altercation or told the complainant, “I don’t want to fight you . . . leave

me alone,” as they struggled. VanBrackle, 179 S.W.3d at 714; Smith, 676 S.W.2d

at 586.




                                         8
B.    Analysis

      Here, appellant did not testify at trial. See Lavern v. State, 48 S.W.3d 356,

360 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (en banc) (“While a non-

testifying defendant may be entitled to a charge on self-defense, it is rare for the

defense to be raised when the defendant fails to testify.”). The only witness

testimony about the assault came from Deputy Landaverde, and she did not

provide testimony on appellant’s subjective belief at the time of the assault.

Although some testimony was elicited that mentioned “self-defense,” none of the

testimony showed an observable manifestation of appellant’s subjective belief at

the time of the assault. Because no evidence showed appellant had a reasonable

belief that his use of force was immediately necessary to protect himself, the trial

court properly denied appellant’s instruction on self-defense. Reed, 703 S.W.2d at

385 (concluding that appellant not entitled to self-defense instruction because no

evidence of appellant’s state of mind or observable manifestations of appellant’s

state of mind); James v. State, No. 02-06-00373-CR, 2007 WL 1649916, at *4

(Tex. App.—Fort Worth June 7, 2007, pet. ref’d) (mem. op., not designated for

publication) (concluding issue of self defense not raised when no direct evidence

of state of mind nor evidence of observable manifestation of state of mind at time

appellant used force on complainant); see also Gonzales v. State, No. 03–12–

00620–CR, 2014 WL 6901181 (Tex. App.—Austin Dec. 4, 2014, pet. ref’d) (mem.


                                         9
op., not designated for publication) (concluding that evidence tending to show that

complainant injured defendant during altercation, without more, was insufficient to

raise issue of self-defense); Reynolds v. State, No. 07–11–00500–CR, 2012 WL

6621317 (Tex. App.—Amarillo Dec. 19, 2012, no pet.) (mem. op., not designated

for publication) (concluding that evidence tending to show that complainant kicked

defendant prior to defendant striking complainant was insufficient to raise issue of

self-defense because it did not establish that defendant had reasonable belief that

his force was immediately necessary to protect himself from complainant’s use of

force against him; observing that “[s]elf-defense is not to be confused with

retaliation”); Shepherd v. State, No. 14–08–00970–CR, 2011 WL 166893, at *7

(Tex. App.—Houston [14th Dist.] Jan. 11, 2011, pet. ref’d) (mem. op., not

designated for publication) (concluding that “the mere existence of” injury to

defendant caused by victim does not establish that defendant had reasonable belief

that use of force was immediately necessary to protect himself from victim).

      We overrule appellant’s first point of error.

                               Improper Argument

      In his second point of error, appellant argues that the State used improper

jury argument during its closing. Specifically, appellant argues that the State

attempted to explain why the Texas Penal Code differentiates between assault and

assault against a family member, which was done to “arouse the passion and


                                         10
prejudice of the jury.” The State responds that the complained-of argument is a

proper plea for law enforcement.

A.    Standard of Review and Applicable Law

      We review the trial court’s ruling on an objection to closing argument for an

abuse of discretion. See Davis v. State, 329 S.W.3d 798, 825 (Tex. Crim. App.

2010); Cantu v. State, 395 S.W.3d 202, 209 (Tex. App.—Houston [1st Dist.] 2012,

pet. ref’d). To constitute an abuse of discretion, the trial court’s ruling must fall

outside the zone of reasonable disagreement. See Wead v. State, 129 S.W.3d 126,

129 (Tex. Crim. App. 2004).

      Generally, to be permissible, jury argument must fall within one of the

following four areas: (1) summation of the evidence; (2) reasonable deduction

from the evidence; (3) an answer to opposing counsel’s argument; or (4) a plea for

law enforcement. Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011).

The trial court does not abuse its discretion by sustaining an objection to an

argument that is not supported by the evidence. See Riles v. State, 595 S.W.2d

858, 861 (Tex. Crim. App. 1980).

B.    Analysis

      Appellant complains of the following jury argument:

      [State]:     So I wanted to tell a little bit about why this charge is
                   called assault family member and not just assault.
                   Doesn’t matter. Like what, the second part it’s correct.
                   It’s specialized as an assault family member for a reason.
                                         11
            The punishment range is the same on both of these cases,
            assault, assault family member. But why is it labeled
            something different? When you—

[Appellant]: Objection, Judge. Improper argument. Not even a scope
             of testimony, not in evidence.

[Court]:    Overruled.

[State]:    This is a domestic violence case. And why does that
            make a difference? Why does that matter? The bond
            that you have with a family member is unlike a bond
            [that] you have with anybody else in the community, a
            stranger, colleague at work. A family is something
            important in this State, in this country, in the world. So
            when there’s an attack between one family member and
            another family member, there’s something there that
            can’t be taken back. There is a trust for you not to hurt
            me that you violated. I put all my trust that you and I—

[Appellant]: Objection, your Honor. I’m going to object again. This
             is not evidence. This is not a summary of the evidence
             that was presented at trial.

[Court]:    Your objection is noted but overruled.

[State]:    Until death do us part. We’re going to go to the end of
            the world together, and we’re going to support each other
            no matter what. For one little thing could change that.
            One big thing can change that.

            So you heard evidence over the last two days—you heard
            evidence yesterday actually. No evidence today. But,
            you know, this is very personal to people. No one wants
            to air out the skeletons in their closet.

            But in this case somebody forced somebody to have to do
            that. Maybe they didn’t have the courage to do it
            themselves. But the skeletons came out when [appellant]
                                 12
                   punched his wife in the face so hard that she flew through
                   the door and broke the door—

      [Appellant]: Objection, your honor. That was not in testimony.
                   That’s not testimony, your Honor.

      [Court]:     I’m going to sustain that.

      An issue on appeal must comport with the objection made at trial. Clark v.

State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). During the State’s closing

argument, appellant objected twice: first, he objected “not even a scope of

testimony, not in evidence” and second, he objected that “This is not evidence.

This is not a summary of the evidence that was presented at trial.” On appeal,

appellant argues that that the “prosecutor had no basis in fact or in the record for

his opinions as to why assault of a family member is a separate offense.”

Appellant then argues that a “prosecutor may not inject personal opinion in

statements to the jury.” Because his trial objection does not match his appellate

complaint, appellant has failed to preserve this issue for appellate review. See

Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009); TEX. R. APP.

33.1(a)(1)(A).

      Appellant next argues that the replaying of the 911 call during the State’s

closing argument

            was highly prejudicial and its probative value was outweighed
            by the bolstering effect replaying it would have on the jury.
            The jury had heard it the day before and would have it in the
            jury room—the only purpose in replaying it was so the
                                         13
            prosecutor could add his outside-the-record inflammatory
            comments and essentially put words in the mouth of the
            complainant, who had recanted.

      Appellant complains of the following discussion that occurred during the

State’s closing arguments:

      [State]:     So what happens if somebody doesn’t get on the stand
                   and say that story? What would happen in a case where
                   an animal was abused and the animal couldn’t get up on
                   the stand to tell what happened? Does the abuser get to
                   walk free because the person doesn’t have a voice or the
                   being doesn’t have a voice? No.

                   So although you didn’t get to hear from her on the stand,
                   you did get to hear from her on the 9-1-1 call. I know it’s
                   a long time ago. You heard it yesterday morning. You
                   guys have been back there for a little while. So if we
                   could play the 9-1-1 call for you, refresh your memory a
                   little bit. You’re going to hear—I want you to listen
                   specifically to the shaking in her voice, the fear in her
                   voice specifically when she says that he hit her.

      [Appellant]: Objection, your Honor. I’m objecting to this. The jury
                   can take this to the back and listen to it themselves, your
                   Honor.

      [State]:     What’s the objection, your Honor?

      [Court]:     Yeah, what—

      [Appellant]: 403, your Honor.

      [Court]:     Overruled.

      The State then played the video and continued its argument:

      [State]:     So we get to hear her while the swelling is still throbbing,
                   while the eye is still darkening and bruising, while the

                                         14
                   tears are still rolling down her face. And you hear her
                   talk about hurry, he’s attacking me. My daughters are
                   here and they’re crying. And they’re listening and
                   they’re watching and they’re seeing this.

      At trial, appellant objected to replaying the 911 call based on Rule 403.2 On

appeal, appellant argues that replaying the 911 call was “highly prejudicial and its

probative value was outweighed by the bolstering effect replaying it would have on

the jury—the only purpose in replaying it was so the prosecutor could add his

outside the record inflammatory comments and essentially put words in the mouth

of the complainant, who had recanted.” To the extent that appellant is arguing that

the trial court abused its discretion in overruling his rule 403 objection, appellant

does not cite any authority to support that argument, and therefore waives his rule

403 complaint. See Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App.

2000) (appellant waives issue on appeal if he does not adequately brief that issue

by presenting supporting arguments and authorities); TEX. R. APP. P. 38.1(i). And,

as appellant recognizes in his brief, trial counsel did not object to the State’s

further closing argument after the 911 call was played. Because appellant attempts

to raise a new argument that was not asserted to the trial court, such argument is

not preserved for appeal. See TEX. R. APP. P. 33.1.


2
      Texas Rule of Evidence 403 provides, “The court may exclude relevant evidence
      if its probative value is substantially outweighed by a danger of one or more of the
      following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
      or needlessly presenting cumulative evidence.” TEX. R. EVID. 403.
                                           15
      We overrule appellant’s second point of error.

                                   Conclusion


      We affirm the judgment of the trial court.




                                               Sherry Radack
                                               Chief Justice


Panel consists of Chief Justice Radack and Justices Goodman and Hightower.

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




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