Opinion issued October 13, 2016




                                        In The

                                Court of Appeals
                                       For The

                           First District of Texas
                              ————————————
                                NO. 01-15-00864-CR
                             ———————————
                          MISYOSHI TIMMS, Appellant
                                          V.
                        THE STATE OF TEXAS, Appellee


                    On Appeal from the 412th District Court
                           Brazoria County, Texas
                         Trial Court Case No. 74415



                           MEMORANDUM OPINION

      A jury convicted appellant Misyoshi Timms of aggravated assault with a

deadly weapon and assessed punishment at two years’ imprisonment. See TEX.

PENAL CODE § 22.02(a). Timms raises three issues on appeal: (1) the evidence was

insufficient to support her conviction for aggravated assault; (2) the trial court erred
by excluding testimony regarding the content of photos that the complainant viewed;

and (3) the trial court erred by allowing testimony of Timms’s reputation for

violence.

      Finding no reversible error, we affirm the judgment of the trial court.

                                   Background

      Neal O’Neal and Misyoshi Timms have been married for 13 years. One

afternoon, Officer Adam Soto was called to a disturbance in progress at the couple’s

home. Officer Soto testified that when he arrived at the home he heard continuous

“irate” screaming from Timms. When Officer Soto entered the house, he saw Timms

at one end of the kitchen holding a knife, yelling at O’Neal, who was sitting in a

chair. Officer Soto observed that O’Neal had cuts on his head and ears, as well as

blood dripping from his face and dried on his nose, while Timms had no injuries.

Officer Soto demanded that Timms put down the knife. Timms complied with the

request and was arrested. In court, Officer Soto testified that the knife Timms was

wielding was a deadly weapon, and the knife was admitted into evidence.

      According to O’Neal, he and Timms argued over photos he was viewing on

an Instagram social media account, because she thought the “girls look[ed] young.”

Timms’s daughter had been molested previously, and the images “raised a red flag”

for her as a result. The argument quickly became physical. While O’Neal was still

sitting, Timms hit him with her phone and punched him, then went to the kitchen to



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grab a knife. He attempted to exit the house several times, but Timms physically

prevented him from leaving. He testified that he did not fight back out of fear of

being blamed for the altercation. After being recalled as a witness, O’Neal testified

that Timms had hit him with a metal strip from the bottom of a door and a pot or

pan. O’Neal could not remember whether he was cut by the knife.

      Timms testified in her own defense. She asserted that while the argument

began over photos viewed by O’Neal, using an Instagram application on a tablet, it

became physical after she called him a “perv.” She stated that O’Neal “jumped

towards” her, and she hit him in order to keep him away. She ran to the bedroom

where O’Neal attempted to suffocate her by laying on top of her. She hit him with a

pot several times to try to force him to move. When that didn’t work, she took the

knife from the nightstand, which she had left there for use in arts and crafts. She

claimed that after she took the knife, they stopped fighting and returned to the

kitchen to talk through the issue calmly.

      Outside the jury’s presence, Timms testified that the pictures O’Neal had

viewed were of “underage girls,” the same age as her daughters. The State objected

that the testimony was not relevant, and that any probative value was outweighed by

the potential prejudice of a suggestion that he was “somehow involved in the

possession of child pornography.” The court sustained the objection, noting that the




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content of the images was not relevant, and Timms already had testified to the reason

for her distress at the images.

      During her testimony, Timms admitted to three prior theft and two prior

assault convictions. Her most recent assault conviction came in 2013 as a result of

an incident involving her oldest daughter. After this testimony, the State called

Officer Lisa Jefferson to discuss the 2013 incident involving Timms and her

daughter. Officer Jefferson opined that Timms was the more aggressive party during

that altercation. Officer Jefferson also was asked if she had an opinion about

Timms’s “propensity for violence.” Defense counsel objected, but the opinion

testimony was admitted. She stated that she had “dealt with” Timms “a few times

and she was the aggressor each time.” Officer Jefferson did not go into any more

detail regarding her other interactions with Timms.

      The jury found Timms guilty of aggravated assault and assessed punishment

at two years in prison. Timms appealed.

                                     Analysis

I.    Sufficiency of evidence

      We review the legal sufficiency of the evidence to support a conviction by

viewing the evidence in the light most favorable to the verdict to determine whether

any rational trier of fact could have found the essential elements of the offense

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,



                                          4
2789 (1979); Brooks v. State, 323 S.W.3d 893, 898-99 (Tex. Crim. App. 2010). The

standard is the same for both direct and circumstantial evidence cases. Carrizales v.

State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013). The trier of fact is the sole judge

of the weight and credibility of the evidence. Lancon v. State, 253 S.W.3d 699, 707

(Tex. Crim. App. 2008). We do not resolve any conflict of fact, weigh any evidence,

or evaluate the credibility of any witnesses, as this is the function of the trier of fact.

Merritt v. State, 368 S.W.3d 516, 525–26 (Tex. Crim. App. 2012). We must resolve

any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d

394, 406 (Tex. Crim. App. 2000).

      A person commits assault if she “intentionally, knowingly, or recklessly

causes bodily injury to another, including the person’s spouse.” TEX. PENAL

CODE § 22.01. A person commits aggravated assault if she “uses or exhibits a deadly

weapon during the commission of the assault.” Id. § 22.02. An object can be a deadly

weapon by design or use. Tucker v. State, 274 S.W.3d 688, 691 (Tex. Crim. App.

2008). An object is a deadly weapon by usage if it is “capable of causing death or

serious bodily injury” in its manner of use or intended use. Id. (quoting McCain v.

State, 22 S.W.3d 497 (Tex. Crim. App. 2000)). The State is not required to prove

that the use of the weapon caused actual death or serious bodily injury, merely that

it was capable of doing so. Id.




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      Timms contends that the only evidence produced by the State that indicated

she had committed aggravated assault was O’Neal’s testimony. She asserts that

O’Neal’s testimony alone was not sufficient to establish her use of a deadly weapon.

Her argument relies on O’Neal’s testimony that he could not remember if he had

been cut by a knife in the altercation.

       The State presented evidence that O’Neal and Timms began to argue, that she

hit him multiple times, that she grabbed a knife and threatened to stab him, and

finally that O’Neal sustained injuries as a result of the altercation. As there is

evidence that Timms used or exhibited a deadly weapon while assaulting O’Neal, it

was unnecessary to show that the knife itself was the cause of his injuries. See

Tucker, 274 S.W.3d at 691–92. The State needed to prove only that the knife was

capable of causing death or serious bodily injury, not that the deadly weapon caused

such injury. Id. Officer Soto testified that Timms was holding a knife when he found

her, and the weapon was capable of causing death or serious bodily harm. The knife

was admitted into evidence for inspection by the jury, which could evaluate Officer

Soto’s assertion that the knife was a deadly weapon. This was sufficient evidence

for a reasonable jury to conclude that a deadly weapon was used or exhibited in the

assault. See Merritt, 368 S.W.3d at 525–26; Curry, 30 S.W.3d at 406.

      Timms also asserts that the evidence was insufficient to disprove her theory

of self-defense. When raising the issue of self-defense, the defendant bears the



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burden of production of evidence in support of the defense, while the State bears the

burden of persuasion to disprove the defense. Zuliani v. State, 97 S.W.3d 589, 594

(Tex. Crim. App. 2003).

       The issue of self-defense is an issue of fact to be determined by the jury.

Cleveland v. State, 177 S.W.3d 374, 393 (Tex. App.—Houston [1st Dist.] 2005, pet.

denied). “A jury verdict of guilty is an implicit finding rejecting the defendant’s

self-defense theory.” Id. The jury may believe all, some, or none of the testimony

provided. Williams v. State, 226 S.W.3d 611, 615 (Tex. App.—Houston [1st Dist.]

2007, no pet.). To support a rejection of self-defense “we ask whether any rational

jury would have found, beyond a reasonable doubt, against appellant on the self-

defense issue.” Id. at 616–17.

      A person is justified in using force against another when and to the degree that

the actor reasonably believes the force is immediately necessary to protect oneself

against the other’s use or attempted use of unlawful force. TEX. PENAL CODE § 9.31.

A person is justified in using deadly force against another if she would be justified

in using force under section 9.31, and the actor reasonably believes the deadly force

is immediately necessary to protect the actor against the other’s use or attempted use

of unlawful deadly force, or to prevent the other’s imminent commission of

aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery,

or aggravated robbery. Id. § 9.32(a).



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      The only evidence to support Timms’s theory of self-defense was her

testimony that O’Neal chased her and later laid on top her in an attempt to cause her

to suffocate. While Timms’s testimony supported a theory of self-defense, the jury

was entitled to believe any controverting testimony. See Williams, 226 S.W.3d at

617. O’Neal testified he did not touch or attack Timms, while Officer Soto testified

that Timms was the aggressor and was uninjured. Based on the verdict, the jury

appears to have discredited Timms’s testimony and credited O’Neal and Officer

Soto. See Merritt, 368 S.W.3d at 525–26. A rational jury could have found beyond

a reasonable doubt that Timms was not acting in self-defense. See Zuliani, 97

S.W.3d at 595.

      We overrule Timms’s first issue.

II.   Exclusion of testimony about content of photos

      In her second issue, Timms argues that the trial court erred in excluding

testimony regarding the content of the photos on O’Neal’s tablet. Timms contends

that her testimony that O’Neal had viewed pictures of “underaged girls” was relevant

to self-defense because it would have aided the jury in determining whether he

provoked the assault. She argues this probative value outweighed any potential

prejudice, which the State suggested might result because it suggested “possession

of child pornography.”




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      We review trial court rulings concerning the exclusion of evidence under an

abuse-of-discretion standard. Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim.

App. 2004); Smith v. State, 340 S.W.3d 41, 53 (Tex. App.—Houston [1st Dist.]

2011, no pet.). A trial court abuses its discretion when it acts arbitrarily and

unreasonably, without reference to any guiding rules or principles. Smith, 340

S.W.3d at 53–54. In reviewing a trial court’s ruling for an abuse of discretion, an

appellate court will not intercede as long as the trial court’s ruling is within the zone

of reasonable disagreement. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.

Crim. App. 1990). Error may not be predicated upon a ruling admitting or excluding

evidence unless a substantial right of the party is affected. TEX. R. EVID. 103(a); see

also TEX. R. APP. P. 44.2(b).

      Evidence is relevant if “it has any tendency to a make a fact more or less

probable than it would be without the evidence” and “the fact is of consequence in

determining the action.” TEX. R. EVID. 401. Generally, all relevant testimony is

admissible. TEX. R. EVID. 402; Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim.

App. 2009). For evidence to be relevant, it is critical that there be a direct or logical

connection between the actual evidence and proposition sought to be proved. Layton,

280 S.W.3d at 240. “The court may exclude relevant evidence if its probative value

is substantially outweighed by a danger of . . . unfair prejudice . . . .” TEX. R. EVID.

403. In conducting a Rule 403 admissibility analysis, a reviewing court looks at



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several factors including: “(1) the probative value of the evidence; (2) the potential

to impress the jury in some irrational, yet indelible way; (3) the time needed to

develop the evidence; and (4) the proponent’s need for the evidence.” Erazo v. State,

144 S.W.3d 487, 489 (Tex. Crim. App. 2004); see also TEX. R. EVID. 403.

      In this case, the probative value of the testimony about the images would have

been marginal. See Erazo, 144 S.W.3d at 489. As the trial court noted, Timms

already had testified about the fact that she was offended by the images and that she

was especially upset because her daughter had been abused. She had also stated that

the argument began after she called O’Neal a “perv.” The most the images could

have proved was that Timms was justified in her anger at O’Neal. This would not be

an element in her theory of self-defense, because it would not show that O’Neal had

been the aggressor in the conflict, nor that Timms was required to use deadly force

to defend herself. See TEX. PENAL CODE §§ 9.31, 9.32. Even without an allegation

that the images were “child pornography,” the trial court could have concluded that

the testimony that O’Neal had been viewing “underaged girls” had the potential to

impress the jury in some irrational, yet indelible way.

      While it would have taken no appreciable amount of time for Timms to testify

that O’Neal had been looking at “underaged girls,” she nevertheless did not appear

to have a legitimate need to develop that fact. It bore no relevance to self-defense,

and at trial, her lawyer’s only explanation was that the “door was already opened”



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to the testimony, because the jury had heard that O’Neal was looking at photos on

Instagram. On appeal, Timms suggests that the evidence “would support her

contention that he provoked the assault to retaliate against her for questioning his

mental sickness of possessing pictures of underage girls.” But as noted above, this

would not show that O’Neal had been the aggressor, nor that Timms was required

to use deadly force to defend herself.

       We hold that the trial court reasonably could have concluded that testimony

characterizing the images on O’Neal’s tablet was more prejudicial than probative,

and the trial court was within its discretion in refusing to admit it. See id.; Erazo,

144 S.W.3d at 489; Sauceda, 129 S.W.3d at 120. We overrule Timms’s second issue.

III.   Admission of reputation evidence

       In her third issue, Timms contends that the trial court erred by admitting the

testimony of Officer Jefferson about her reputation as an aggressor. Timms argues

that Officer Jefferson was not qualified to provide character testimony based on a

single incident rather than her overall reputation. See TEX. R. EVID. 405(a).

       In order to preserve an error relating to the admission of evidence, a party

must make a timely objection or motion and obtain a ruling on that objection. See

TEX. R. APP. P. 33.1(a); TEX. R. EVID. 103(a); Heidelberg v. State, 144 S.W.3d 535,

537 (Tex. Crim. App. 2004). The party complaining on appeal about a trial court’s

“admission, exclusion, or suppression of evidence must, at the earliest opportunity,



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have done everything necessary to bring to the judge’s attention the evidence rule or

statute in question and its precise and proper application to the evidence in question.”

Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005). “A complaint will not

be preserved if the legal basis of the complaint raised on appeal varies from the

complaint made at trial.” Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App.

2009).

       At trial, Timms objected to Officer Jefferson’s testimony on the basis of

speculation and under Rules 403 and 404. Rule 403 allows a court to exclude

relevant evidence because of unfair prejudice, while Rule 404 discusses when a court

can admit character evidence. TEX. R. EVID. 403, 404. Timms did not object to

Jefferson’s testimony under Rule 405(a), which relates to a witness’s qualifications

to testify regarding the character or character trait of an accused at the guilt stage of

a trial. TEX. R. EVID. 405(a)(2) (“. . . a witness may testify to the defendant’s character

. . . only if before the day of the offense, the witness was familiar with the defendant’s

reputation or the facts or information that form the basis of the witness’s opinion.”).

Because the legal basis of her complaint on appeal, that Jefferson’s testimony was

inadmissible pursuant to Rule 405(a), varies from the complaint she made at trial,

the issue has not been preserved for appeal. See Lovill, 319 S.W.3d at 691–92. We

overrule Timms’s third issue.




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                                   Conclusion

      We affirm the judgment of the trial court.




                                                Michael Massengale
                                                Justice

Panel consists of Justices Bland, Massengale, Lloyd.

Do not publish. Tex. R. App. P. 47.2(b).




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