                            NUMBER 13-08-00409-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


MANUEL CHAPA GARCIA,                                                         Appellant,

                                            v.

THE STATE OF TEXAS,                                                           Appellee.


                   On appeal from the 214th District Court
                         of Nueces County, Texas.


                         MEMORANDUM OPINION

               Before Justices Yañez, Rodriguez, and Garza
                Memorandum Opinion by Justice Rodriguez

      Appellant Manuel Chapa Garcia challenges his conviction for manslaughter

following a jury trial, for which he was sentenced to ten years' incarceration. See TEX .

PENAL CODE ANN . § 19.04 (Vernon 2003). By one issue, Garcia argues that the trial court

denied his due process rights under the United States Constitution when it refused to allow
him to present evidence at trial, related to his self-defense theory, that the deceased was

the first aggressor. We affirm.

                                              I. BACKGROUND 1

        Garcia was indicted for murder in connection with an altercation at a Denny's

restaurant in Corpus Christi, Texas, in which he punched the deceased who fell back, hit

his head, and died from that injury. At trial, Garcia raised the issue of self-defense, arguing

that the deceased was the first aggressor. The jury was charged on the indicted offense

of murder and also on the lesser-included offenses of aggravated assault, manslaughter,

and criminally negligent homicide. A self-defense instruction was included in the jury

charge. The jury returned a guilty verdict on manslaughter alone, sentenced Garcia to ten

years' incarceration in the Institutional Division of the Texas Department of Criminal

Justice, and assessed a $10,000 fine. This appeal followed.

                                                II. DISCUSSION

        By one issue, Garcia complains that his constitutional rights were violated by the trial

court's exclusion of evidence of the deceased's prior violent acts, which he argues would

have shown that the deceased was the first aggressor and was thus relevant and vital to

Garcia's self-defense theory.

        The exclusion of a defendant's evidence can amount to a violation of the right to

compel the attendance of witnesses in the defendant's favor, but not every erroneous

exclusion of a defendant's evidence amounts to a constitutional violation. Potier v. State,

68 S.W.3d 657, 659 (Tex. Crim. App. 2002) (en banc); see U.S. CONST . amend. VI.

          1
            Because this is a m em orandum opinion and the parties are fam iliar with the facts, we will not recite
them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See
T EX . R. A PP . P. 47.4.

                                                        2
        There are two circumstances in which the improper exclusion of evidence
        may establish a constitutional violation: (1) when a state evidentiary rule
        categorically and arbitrarily prohibits the defendant from offering relevant
        evidence that is vital to his defense; or (2) when a trial court erroneously
        excludes relevant evidence that is a vital portion of the case and the
        exclusion effectively precludes the defendant from presenting a defense.

Ray v. State, 178 S.W.3d 833, 835 (Tex. Crim. App. 2005) (citing Potier, 68 S.W.3d at 659-

62; Wiley v. State, 74 S.W.3d 399, 405 (Tex. Crim. App. 2002)). If the error is found to be

of constitutional proportions, we "must reverse [the] judgment of conviction or punishment

unless [we] determine[] beyond a reasonable doubt that the error did not contribute to the

conviction or punishment." TEX . R. APP. P. 44.2(a).

        "A defendant in a homicide prosecution who raises the issue of self-defense may

introduce evidence of the deceased's violent character."2 Torres v. State, 71 S.W.3d 758,

760 (Tex. Crim. App. 2002) (citing TEX . R. EVID . 404(a)(2); Tate v. State, 981 S.W.2d 189,

192-93 (Tex. Crim. App. 1998) (en banc); Thompson v. State, 659 S.W.2d 649, 653 (Tex.

Crim. App. 1983)). In this case, however, Garcia was convicted of manslaughter, an

offense for which the affirmative defense of self-defense is unavailable.

        A person commits the offense of manslaughter "if he recklessly causes the death

of an individual." TEX . PENAL CODE ANN . 19.04(a). The penal code makes self-defense

unavailable to a defendant who recklessly injures or kills an innocent third person; in other

words, self-defense requires intentional conduct. See id. § 9.05 (Vernon 2003), § 9.31


        2
          This evidence m ay be introduced in the form of opinion or reputation testim ony to prove the victim
acted in conform ity with his violent nature. T EX . R. E VID . 405(a). A defendant m ay introduce specific violent
acts of m isconduct to show the reasonableness of his fear or that the deceased was the first aggressor, but
to be adm issible, those acts m ust be relevant apart from their tendency to show character conform ity. Torres
v. State, 71 S.W .3d 758, 760 (Tex. Crim . App. 2002) (citing T EX . R. E VID . 404(b); Mozon v. State, 991 S.W .2d
841, 845-46 (Tex. Crim . App. 1999); Tate, 981 S.W .2d at 193)). "[S]pecific, violent acts are relevant apart
from showing character conform ity" if the acts "dem onstrat[e] the deceased's intent, m otive, or state of m ind."
Id. at 760-61 (citations om itted).

                                                        3
(Vernon Supp. 2009). One cannot "recklessly" act in self-defense. See id. §§ 9.05, 9.31;

see also Hayes v. State, 161 S.W.3d 507, 508 n.3 (Tex. Crim. App. 2005). It is therefore

unnecessary for this Court to decide whether the evidence of the deceased's past specific

acts of violence was admissible and the trial court's decision to exclude it was

erroneous—here, Garcia appeals his conviction for manslaughter, and the only relevance

of this evidence was to the murder charge, for which Garcia was acquitted by the jury.3

See Hayes, 161 S.W.3d at 509 (refusing to reach appellant's claim that the trial court erred

in excluding past acts of violence by the deceased because the jury acquitted appellant of

murder and convicted him of manslaughter alone); see also Fuller v. State, No.

01-06-01077-CR, 2008 WL 4427653, at *4 (Tex. App.–Houston [1st Dist.] Oct. 2, 2008, no

pet.) (mem. op., not designated for publication) (holding that jury could not have found that

appellant acted in self-defense after determining that he acted recklessly because

self-defense does not apply to a reckless act). We overrule Garcia's issue.

                                              III. CONCLUSION

        The judgment of the trial court is affirmed.

                                                                     NELDA V. RODRIGUEZ
                                                                     Justice

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

Delivered and filed the 25th
day of August, 2010.



        3
          W e note that in som e cases, under facts and circum stances not present here, evidence raising a
m anslaughter instruction m ay not preclude the application of a self-defense instruction. See, e.g., Jordan v.
State, 782 S.W .2d 524, 527 (Tex. App.–Houston [14th Dist .] 1989, pet. ref'd) (stating that Texas law allows
a "charge on self-defense when raised by the evidence, even if the accused claim s he did not intentionally pull
the trigger") (citing Harris v. State, 101 Tex. Crim . 33, 274 S.W . 568, 569 (1925)) (other citations om itted).

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