                            153-fS
                          NO.   PD-0953-15
ORIGINAL


                                IN THE


                TEXAS COURT OF CRIMINAL APPEALS

                                                                 RECEIVED IN
                                                              PA! IDT AC ffnniiiMii
                                                                          wDM-„i!i\rtL nrrV.ALv)


                      LONNIE JAMES JONES Jr.                         SEP 23 2015
                            (APPELLANT)

                                 VS.
                                                                 5@! Acosta, C?srk
                                                                     FILED IN
                        THE STATE OF TEXAS                COURT OF CRIMINAL APPEALS
                            (APPELLEE)
                                                                  SEP 2 3 2315

                                                               Abel Acosta, Clerk
         APPELLANT'S PETITION FOR DISCRETIONARY REVIEW




    ON REVIEW FROM THE NINTH (9th) DISTRICT COURT OF APPEALS
     AT BEAUMONT,   TEXAS. NO. 09-13-00459-CR. DIRECT APPEAL

      FROM THE JUDGMENT OF CONVICTION - SENTENCE FROM THE

           221st DISTRICT COURT OF MONTGOMERY COUNTY

               TRIAL DOCKET NO.    13-03-03256-CR.

            HONORABLE JUDGE LISA MICHALK PRESIDING




                     ORAL ARGUMENT REQUESTED



                                             LONNIE J.   JONES Jr.
                                             T.D.C.J.    # 1889803
                                             (PRO SE)
                         IDENTITY OF PARTIES AND COUNSEL


FOR THE STATE:

     AT PRETRIAL &   TRIAL:   MR.    BLAKE ENAX
                              TBN:    24058872


                              MR.    JEFF HOHL
                              TBN: 00792509
                              ASSISTANT DISTRICT ATTORNEYS


                              MONTGOMERY COUNTY DISTRICT ATTORNEY'S OFFICE
                              207 W. PHILLIPS, 3rd FLOOR
                              CONROE, TEXAS 77301
                              936-539-7800


     ON APPEAL:               MR. WILLIAM J.         DELMORE III
                              ASSISTANT DISTRICT ATTORNEY


                              MONTGOMERY COUNTY DISTRICT ATTORNEY'S OFFICE
                              207 W. PHILLIPS, 2nd FLOOR
                              CONROE, TEXAS 77301
                              936-539-7800




FOR THE APPELLANT:

     AT PRETRIAL &   TRIAL:   MR. WILLIS SMITH
                              TBN:    18710500
                              LAW OFFICES of WILLIS SMITH
                              25408 US HIGHWAY 59,          SUITE 104
                              PORTER, TEXAS 77365
                              261-359-6059


     ON APPEAL:               MRS.    HEATHER HALL
                              TBN:    24026287


                              HEATHER HALL       &    ASSOCIATES
                              308 N.    MAIN
                              CONROE, TEXAS 77301
                              936-441-5002
                              conroelaw@gmail.com




                                                 li
                                  TABLE     OF   CONTENTS




SUBJECT:                                                                           PAGE:

 IDENTITY OF PARTIES AND COUNSEL                                                     i

TABLE OF CONTENTS                                                                 iii

 TABLE OF AUTHORITIES                                                           v-vi

 STATEMENT REGARDING ORAL ARGUMENT                                                   1

 STATEMENT OF THE CASE                                                            -. .1

 STATEMENT OF PROCEDURAL HISTORY                                                     1

 ISSUES PRESENTED                                                                    2

  POINT OF ERROR ONE FOR REVIEW (RESTATED)                                        1.2
  . THE. COURT OF APPEALS REVERSIBLY ERRED.AND ABUSED ITS DISCRETION
    IN     OVERRULING     ISSUE   ONE     WHEN THE RECORD SHOWS AND THE COURT
    ACKNOWLEDGES       THAT THERE IS SOME EVIDENCE. IN SUPPORT OF A SELF-
    DEFENSE     INSTRUCTION,      IT REVERSIBLE ERROR FOR THE COURT TO DENY
    A     SELF-DEFENSE     INSTRUCTION      BECAUSE IT BELIEVES THAT THE EVI
    DENCE IS VERY SMALL AND CONTROVERTED.                                         3-9

  POINT OF ERROR TWO FOR REVIEW (RESTATED)                                           9
    THE COURT. OF APPEALS REVERSIBLY ERRED AND ABUSED ITS DISCRETION
    IN     OVERRULING     ISSUE TWO WHEN POLICE OFFICERS HAVE NO PERSONAL
    KNOWLEDGE     OF     THE.   ALLEGED    OFFENSE,   IT IS REVERSIBLE ERROR TO
    ALLOW    THEM TO TESTIFY THAT DEFENDANT WAS GUILTY OF ASSAULT AND
    THAT SELF-DEFENSE DID NOT APPLY                                             9-12

  POINT OF ERROR THREE FOR REVIEW (RESTATED)                                       12
    THE. COURT OF APPEALS REVERSIBLY.ERRED AND ABUSED ITS DISCRETION
    IN OVERRULING    ISSUE  TWO WHEN   THE  CUMULATIVE IMPACT OF THE
    ABOVE ERRORS WAS SO GREAT THAT REVERSAL IS REQUIRED                        12-13

 PRAYER                                                                            13

 CERTIFICATE OF SERVICE                                                            14

 (APPENDIX) COURT OF APPEALS OPINION                                                 A




                                             ill
                            TABLE   OF   AUTHORITIES


CASES:                                                         PAGE:

•ALAMANZA v. STATE, 686 S.W.2d 157, 171 (TEX.CRIM.APP. 1985)    7
•DAVIS v. STATE, 313 S.W.3d 317, 350 (TEX.CRIM.APP.2010)       11
•DIXON v. STATE, 244 S.W.3d 472, 479 (TX.APP.2007)             11
•ELLISON v. STATE, 86 S.W.3d 226, 228 (TEX.CRIM.APP.2002).      8
•EX PARTE: NAILOR, 149 S.W.3d 125, 132 (TEX.CRIM.APP.2004)     4
•FELDMAN v. STATE, 71 S.W.3d738, 757 (.TEX.CRIM.APP.2002)      12
•FERREL v. STATE, 55 S.W.3d 586, 591 (TEX.CRIM.APP.2001)       4
•GIBSON v. STATE, 726 S.W.2d 129, 133 (TEX.CRIM.APP. 1987)     7
•HAYS v. STATE, 728 S.W.2d 804, 807 .(TEX.CRIM.APP.1987)        7
•HUGHES v. STATE, 24 S.W.3d 833, 844 (TEX.CRIM.APP.2000)       12
•JAMES v. STATE, 335 S.W.3d 719, 725 (TX.APP.2011)             11
•JOHNSON v. STATE, 271 S.W.3d 359,. 362 (TEX..CRIM.APP.2008)   4
•MILLER v. STATE, 815 S.W.2d 582 (TEX.CRIM.APP.1991)           7
•OVALLE v. STATE, 13 S.W.3d 774, 786 (TEX.CRIM.APP.2000)        7
•SALDANA, 2011 TEX.APP.LEXIS 1709                              11
•SHAW v. STATE, 243 S.W.3d 647, 657-58 (TEX.CRIM.APP.2007)      3
•SMITH v. STATE, 676 S.W.3d 584, 585 (TEX.CRIM.APP.2007)        3
•SOLOMON, 49 S.W.3d 356, 365 (TEX.CRIM.APP.2001)               12
•TREVINO v. STATE,. 100 S.W.3d 232, 242 (TEX.CRIM.APP.2003)     7
•WARNER v. STATE, 245 S.W.3d 458, 464 (TEX.CRIM.APP.2008)       8
•WILLIAMS v. STATE, 826 S.W.2d 783, 785 (TX.APP. 1992)         11


PENAL CODE:

•TEXAS PENAL CODE 2.03(c)                                       8
•TEXAS PENAL CODE 9.31(a)                                       4


TX.    R.   APP.   PROC-

•33.1(a)                                                        9
•33.1(a)(1)(A)                                                 10
•44.2(b)                                                       13

TEXAS RULES OF EVIDENCE

•701                                                            9
•702                                                            9
                              TABLE   OF   AUTHORITIES

                                      (CONTINUED)


TXiiCODE   CRIM.    PROC.                                PAGE:

•36.19                                                    7



STATE-FEDERAL CONSTITUTIONS:

•U.S. CONST.   AMEND.   XIV                              12

•TX. CONST. ART. I §19                                   12




                                           VI
                                   STATEMENT         REGARDING         ORAL   ARGUMENT



          PURSUANT TO TEXAS RULES OF APPELLATE PROCEDURE 39.7; THIS APPELLANT HEREBY

RESPECTFULLY             REQUEST          ORAL ARGUMENT; THUS WOULD SERVE TO EMPHASIZE AND CLARIFY

THE IMPORTANT LEGAL POINTS REGARDING THIS REVIEW.




                                              STATEMENT      OF    THE     CASE



          THIS        PETITION          FOR   DISCRETIONARY       REVIEW      ARISES      FROM A DECISION OUT OF

THE       COURT        OF APPEALS DENYING APPELLANT HEREIN:                    1) THE LEGAL RIGHT TO A SELF-
DEFENSE          CHARGE;           2)     UPHOLDING    VOICED      -    OPINION TESTIMONY BY BOTH A POLICE
OFFICER          -     POLLICE          OFFICER   IN   TRAINING;        AND    3) OVER-RULING THE CUMULATIVE
EFFECT STEMMING FROM POINTS OF ERROR ONE AND TWO COMBINED.




                                STATEMENT         OF   THE   PROCEDURAL           HISTORY



          THIS        PETITION          FOR   DISCRETIONARY REVIEW IS FROM A              CONVICTION FOR ASSUALT

CAUSING          BODILY INJURY TO A FAMILY MEMBER ENHANCED,                       i.e.,   A THIRD DEGREE FELONY

TO HABITUAL STATUS, IN WHICH APPELLANT RECEIVED A SENTENCE OF FORTY (40) YEARS.
CR 68.


          ON    JUNE 6,        2013, APPELLANT WAS INDICTED FOR ASSUALT CAUSING BODILY INJURY

TO    A        FAMILY     MEMBER         ENHANCED.     CR    20. ON SEPTEMBER 16,           2013, APPELLANT PLED

NOT       GUILTY        AND     TRIAL BEGAN IN THE 221st DISTRICT COURT OF MONTGOMERY COUNTY,

TEXAS,          THE     HONORABLE LISA MICHALK,             PRESIDING. CR 68; 4 RR 4-5. THE JURY FOUND

APPELLANT            GUILTY        OF ASSUALT CAUSING BODILY INJURY TO A FAMILY MEMBER,                  A THIRD

DEGREE          FELONY        ENHANCED TO A HABITUAL, ON SEPTEMBER 17,                    2013. CR 68. THE COURT

ASSESSED             PUNISHMENT         TO    CONFINEMENT    AT    40    YEARS IN THE TEXAS DEPARTMENT OF

CRIMINAL JUSTICE. CR 71.

          THE    TRIAL        COURT       CERTIFIED    APPELLANT'S RIGHT TO APPEAL ON SEPTEMBER 17,

2013. CR 70. APPELLANT FILED HIS NOTICE OF APPEAL ON OCTOBER 1, 2013. CR 79.

          THE    COURT        OF     APPEALS FOR THE NINTH (9th) DISTRICT OF TEXAS AT BEAUMONT,

AFFIRMED             APPELLANT'S         CONVICTION     IN A NON-PUBLISHED OPINION AUTHORED - BEFORE
McKEITHEN,      C.J.;         KREGER      AND HORTON, JJ.; DELIVERED JUNE 24, 2015. NO MOTIONS

FOR   REHEARING            WERE FILED.        A COPY OF THE COURT OF APPEALS'   OPINION IS ATTACHED

AND APPENDED HERETO.              THIS PETITION WAS TIMELY FILED.




                         POINT OF ERROR ONE FOR REVIEW (RESTATED)


      THE     COURT         OF APPEALS REVERSIBLY ERRED AND ABUSED ITS DISCRETION IN OVER

RULING       ISSUE    ONE        WHEN THE RECORD SHOWS AND THE COURT ACKNOWLEDGES THAT THERE

IS    SOME EVIDENCE IN SUPPORT OF A                 SELF-DEFENSE INSTRUCTION,   IT REVERSIBLE ERROR

FOR    THE    COURT         TO    DENY    A     SELF-DEFENSE INSTRUCTION BECAUSE IT BELIEVES THAT

THE EVIDENCE IS VERY SMALL AND CONTROVERTED.




                         POINT OF ERROR TWO FOR REVIEW (RESTATED)


       THE    COURT         OF APPEALS REVERSIBLY ERRED AND ABUSED ITS DISCRETION IN OVER

RULING ISSUE TWO WHEN POLICE OFFICERS HAVE NO PERSONAL KNOWLEDGE OF THE ALLEGED

OFFENSE,      IT      IS     REVERSIBLE         ERROR TO ALLOW THEM TO TESTIFY THAT DEFENDANT WAS

GUILTY OF ASSAULT AND THAT SELF-DEFENSE DID NOT APPLY.




                      POINT OF ERROR THREE FOR REVIEW (RESTATED)


      THE     COURT         OF APPEALS REVERSIBLY ERRED AND ABUSED ITS DISCRETION IN OVER

RULING       ISSUE THREE WHEN THE CUMULATIVE IMPACT OF THE ABOVE ERRORS WAS SO GREAT

THAT REVERSAL IS REQUIRED.




                                     ARGUMENT        AND   AUTHORITIES
                                           (REASONS FOR REVIEW)


                                                  :INTRODUCTION:



       THE     SOLE        FACT    COMMON       HEREIN   COUPLING   POINT OF ERROR ONE AND POINT OF

ERROR    TWO       FOR      REVIEW       IS THE ISSUE OF >>SELF DEFENSE<<. THUS, REFUSED BY THE
TRIAL        COURT              FOR      A     DEFENSE             JURY        INSTRUCTION IN FOLLOWING,    OPINE - ELICITED

TESTIMONY           REGARDING                  SUCH           BY    A     POLICE     - DEPUTY STATE AGENT;    IN WHOM,   TRULY

DID [NOTJ EYEWITNESS THE ALLEGED OFFENSE.

        THIS,           FURTHER               CO-JOINING                WITH     ADDITIONAL,     CO-LATERALL OPINE TESTIMONY

BY     POLICE           -        DEPUTY            STATE AGENTS UNQUALIFIED TO DO SO - IN RELATION TO SAME,

THEREBY,       ACCUMULATING EGREGIOUS HARM.




                                               POINT           OF       ERROR     ONE    FOR   REVIEW




        THE        COURT            OF APPEALS REVERSIBLY ERRED AND ABUSED ITS DISCRETION IN OVER

RULING        ISSUE              ONE         WHEN THE RECORD SHOWS AND THE COURT ACKNOWLEDGES THAT THERE

IS     SOME EVIDENCE IN SUPPORT OF A SELF-DEFENSE INSTRUCTION,                                           IT REVERSIBLE ERROR

FOR     THE     COURT               TO        DENY        A     SELF-DEFENSE INSTRUCTION BECAUSE IT BELIEVES THAT

THE EVIDENCE IS VERY SMALL AND CONTROVERTED.


        TO     PARAPHRASE                     THE     QUESTION ON THE BENCH OF THIS COURT UPON REVIEW,                   OPI

NIONS        MADE           -     WRITTEN            ORDER          TIME:       HOW WOULD THIS CASE BE ANY DIFFERENT FROM

ALL     OTHER           -        IN      WHETHER [SOME] EVIDENCE IS [ENOUGH] "EVIDENCE RAISED" BY THE
STANDARD TO WARRANT A                          SELF DEFENSE INSTRUCTION TO THE JURY?


        THE     COURT               OF APPEALS                 RETAIL RELIANCE ON SMITH V. STATE (676 S.W.3d 584,
585;     TEX.CRIM.APP.1984)                           -        LEAVES       ONE TO GUESS, HOPE, AND SURMISE APPLICABLE
TO     THE     "EVIDENCE                     RAISED           STANDARD"          [UJNDER   TX. PEN. CODE §2.03(c) OPINE IN
SHAW     v.     STATE,                243 S.W.3d 647, 657-58 (TEX.CRIM.APP.2007) IN THAT EYEWITNESS

TESTIMONY           IN           "SMITH"            (ABOVE)             SHOWS     THAT   THE COMPLAINANT AT ONE TIME HAD A
GUN DURING THE ALTERCATION AND APPELLANT                                           "SMITH" HAD A   STEAK KNIFE.


        HERE, IN THIS CASE, [NOT] SO - [WHAT] SO EVER ... !

        THIS        CASE            IS        MERELY           ABOUT AN ARGUING MATCH OVER "CHEATING" AND "MONEY"

TURNED        TO        PUSH          AND          SHOVE. THEN,            TO SOME PUNCH'S THROWN BOTH WAYS,       INITIALLY

BY     THE     COMPLAINANT                     -     CULMINATING                TO APPELLANT PICKING UP A    HAMMER FOR PRO

TECTION.        ALTHOUGH                     QUICKLY          TAKEN AWAY BY AN EYEWITNESS AT THE SCENE MIDST THE



*. SLIP OP.         -           APPX. "A". THE COURT GF APPEALS 9th DISTRICT AT BFAUYCNr, LCNSHE JAMES JONES, Jr.
     v. THE STATE GF TEXAS, NO. 09-13-00459-GR, MEiyCRANDUVi GPHMICN; pps: 1-12.
PHYSICAL SQUABBLE.

        SECTION          9.31 OF THE TEXAS PENAL CODE PROVIDES THAT 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. PEN. CODE ANN. §9.31 (WEST2011).
[THERE]FORE,             "A     DEFENDENT          IS        ENTILTED TO AN INSTRUCTION ON THE LAW OF SELF-
DEFENSE IF THERE IS SOME EVIDENCE THAT HE INTENDED TO USE FORCE AGAINST ANOTHER

AND     HE    DID        USE        FORCE,       BUT HE DID SO ONLY BECAUSE HE REASONABLY BELIEVED IT

WAS     NECESSARY          TO        PREVENT THE OTHER'S USE OF UNLAWFUL FORCE". EX PART, NAILOR

149 S.W.3d 125, 132 (TEX.CRIM.APP.2004)

        "A    DEFENDENT              IS    ENTITLED TO AN INSTRUCTION ON SELF DEFENSE IF THE ISSUE

IS    RAISED        BY        [THE]       EVIDENCE,          WHETHER THE EVIDENCE IS STRONG OR WEAK, UNIM-
PEACHED OR CONTRADICTED,                     AND REGARDLESS OF WHAT THE TRIAL COURT MAY THINK ABOUT

THE CREDIBILITY OF THE DEFENSE." FERREL v. STATE 55 S.W.3d 586, 591 (TEX.CRIM.
APP. 2001)

        A     "DEFENDENT             NEED NOT TESTIFY IN ORDER FOR A DEFENSIVE ISSUE TO BE SUFF

ICIENTLY        RAISED"          JOHNSON v. STATE 271 S.W.3d 359, 362 (TEX.APP.-BEAUMONT2008,
PET REF'D). "DEFENSIVE ISSUES MAY BE RAISED BY THE TESTIMONY OF [ANY] WITNESS,
EVEN ONE CALLED BY THE STATE." Id.

        THEREFORE,             AS     HERE,      WHAT KIND OF TESTIMONY IS NEEDED TO RAISE THE ISSUE

OF SELF-DEFENSE, SINCE V.T.C.A., PENAL CODE §9.31(a) FOCUSES ON THE DEFENDENT'S
SUBJECTIVE          STATE OF MIND? THUS,                     IN ORDER TO JUSTIFY THE SUBMISSION OF A CHARGE

TO    THE     JURY        ON        THE     ISSUE OF SELF-DEFENSE, THERE MUST BE [SOME] EVIDENCE IN
THE     RECORD       TO        SHOW       THAT THE DEFENDENT WAS IN SOME APPREHENSION OR [FEAR] OF
BEING        THE    RECEIPIENT             OF THE UNLAWFUL USE OF FORCE FROM THE COMPLAINANT. (ID.

SMITH ABOVE @ 585).

        HERE       IN     THE        INSTANT       AGNES       JONES ("AGNES") AND KERTHINE TIMES ("TIMS")
WERE        WATCHING       TV        AND     DRINKING          BEER WHEN APPELLANT, LONNIE JONES ("JONES"),
TIMS'        BOYFRIEND          AND AGNES' SON, ARRIVED AT THE HOUSE. 4 RR 9. AGNES TESTIFIED

THAT        TIMS    STARTED "FUSSING AND CUSSING" AND THE ARGUMENT STARTED BECAUSE TIMS

THOUGHT       JONES        WAS        CHEATING          ON     HER. 4 RR 10, 12. TIMS WAS ANGRY AND "PUSHED
[JONES] IN THE FACE," WHICH IS WHEN THE FIGHTING BEGAN. 4 RR 10. AS TIMS PUSHED
JONES        AND    GOT        INTO        HIS    FACE,       JONES      ALLEGEDLY PUSHED HER AND SHE SLIPPED,
FALLING         TO    THE        FLOOR      WHERE SHE MAY HAVE BUMPED HER HEAD AND CUT HER LIP.          IN

HER    STATEMENT AT THE SCENE,                    HOWEVER,     AGNES SAID THAT HER SON STARTED THE FIGHT

WHEN      SHE AND TIMS REFUSED TO GIVE JONES MONEY. 4 RR 13. STILL, AGNES TESTIFIED

THAT      SHE      KNEW         TIMS     THREW    THE     FIRST PUNCH BECAUSE SHE, AGNES, WAS THERE. 4

RR 25.


       AS       TIMS AND JONES WERE HITTING EACH OTHER,                      THE FIGHT MOVED FROM THE HALL

WAY    TO       THE       DEN, NEAR THE COUCH. 4 RR 11, 15-17. AS JONES PICKED UP A HAMMER,

AGNES       TOOK          IT    FROM     HIM.    4 RR 16,       29. JONES NEVER HIT TIMS WITH THE HAMMER.

4    RR     16,       29.       BECAUSE AGNES COULD NOT STOP THE FIGHT, SHE CALLED 911 AND DE
SCRIBED THE ARGUMENT AS A FISTFIGHT WITHOUT ANY WEAPON INVOLVED. 4 RR 11, 31.

       DEPUTY          WILKERSON          AND    HIS TRAINEE,      DEPUTY BEATTY,   WERE DISPATCHED TO THE

SCENE       WHERE BEATTY, THREE MONTHS OUT OF THE POLICE ACADEMY,                        BEGAN HIS INVESTI

GATION WITH WILKERSON, HIS FIELD-TRAINING OFFICER. 3 RR 10-12.

       THE        TRIAL         COURT     ALLOWED       BEATTY,   WHO WAS WITHOUT ANY TRAINING IN FAMILY

VIOLENCE          INVESTIGATION             BEYOND      HIS     "CLASSROOM    ORIENTATION", TO TESTIFY THAT

JONES       WAS      GUILTY         OF    ASSAULTING          HIS GIRLFRIEND. 3 RR 11, 12, 25. SIMILARLY,

THE       TRIAL       COURT ALLOWED WILKERSON TO TESTIFY OVER APPELLANT'S OBJECTION THAT,

HE    DID       NOT        BELIEVE       THAT JONES WAS ACTING IN SELF DEFENSE. 4 RR 50. (DESPITE

HIS LACK OF KNOWLEDGE REGARDING JONES' MENTAL STATE).

          DURING       THE       CHARGE       CONFERENCE,        DEFENSE COUNSEL ARGUED THAT THE EVIDENCE

SUPPORTED            AN        INSTRUCTION      ON     SELF-DEFENSE.     THE STATE ARGUED OTHERWISE. 4 RR

57-58.         THE     TRIAL COURT RECALLED THE WITNESSES' TESTIMONY AND NOTED THAT THERE

WAS       [SOME]          EVIDENCE       ON     THE    ISSUE OF SELF-DEFENSE, BUT BECAUSE THE EVIDENCE
WAS       SMALL       AND       CONTRADICTED, THE TRIAL COURT DENIED THE DEFENSE'S REQUEST FOR

A     SELF-DEFENSE               INSTRUCTION.         4 RR 59,    64. THE JURY FOUND JONES GUILTY AND THE

TRIAL COURT SENTENCED HIM TO 40 YEARS IN PRISON. CR 68, 71.

          THE     RECORD         SHOWED, AND THE JUDGE ACKNOWLEDGED, THAT THERE WAS SOME EVID
ENCE IN SUPPORT OF SELF-DEFENSE INSTRUCTION.


          ACCORDING            TO   AGNES, TIMS ACCUSED JONES OF CHEATING ON HER. 4 RR 10. AND,
AS     THE ARGUMENT ASCALATED, MRS. JONES TESTIFIED SHE WAS THERE WHEN COMPLAINANT

THREW       THE       FIRST         PUNCH     AND PUNCHED APPELLANT IN THE FACE. 4 RR 25. MOREOVER,
THE STATE ITSELF MUST HAVE BELIEVED THAT THERE WAS OME EVIDENCE OF SELF-DEFENSE
FOR       IT    ARGUED THAT AGNES' TESTIMONY OPENED THE DOOR TO JONES ALLEGED "HISTORY
OF VIOLENCE AGAINST WOMEN AND INDIVIDUAL,"

                      [PROSECUTOR]:. SECONDLY, I DON'T BELIEVE —                        DUE TO THE FACT
                      THAT            THE     DEFENSE HAS SUBMITTED AN ISSUE OF THE DEFENDANT
                      WAS         JUST        ACTING         OUT BASED ON HER PUSHING HIM, THEY HAVE
                      OPENED            THE        DOOR TO HIS HISTORY OF VIOLENCE AGAINST WOMEN
                      AND INDIVIDUALS


4   RR 34.


        THE       TRIAL        COURT,        ITSELF HAD REMARKED THAT THE ISSUE OF SELF-DEFENSE HAD

BEEN     RAISED.          WHEN WILKERSON TESTIFIED THAT HE DID NOT BELIEVE THAT DEFENDANT

ACTED        IN    SELF-DEFENSE,                  THE    TRIAL COURT OVERRULED APPELLANT'S OBJECTION AND

EXPLAINED,          "NOW.       THE         ISSUE       HAS SOMEWHAT BEEN TRIED TO BE RAISED, I AM GOING

TO ALLOW YOU TO ANSWER THAT QUESTION. SO GO AHEAD. YOU MAY ANSWER." 4 RR 501.
        AND,      DURING          THE        CHARGE CONFERENCE. THE TRIAL COURT NOTED THAT THERE WAS

SOME     EVIDENCE             THAT      COMPLAINANT           HAD     PUSHED APPELLANT AND MAY HAVE BEEN THE

FIRST        AGGRESSOR:           "SHE        [MS. JONES] DID SAY THE COMPLAINANT PUSHED[;]" "I MAY
HAVE     BEEN      THE         AGGRESSOR,"              "I   COULD,   HAVE   BEEN   FUSSING   AT HIM." 4 RR 59

(EMPHASIS         ADDED).             ACCORDING         TO    THE .TRIAL COURT, HOWEVER, THERE WAS NOT "A
LOT     OF     EVIDENCE           IN        THE    CASE,     AND THE EVIDENCE CONCERNING SELF-DEFENSE WAS

VERY     SMALL."          4     RR      59.       THUS, INSTEAD OF CONSIDERING WHETHER THERE WAS SOME

EVIDENCE,         THE TRIAL COURT, ERRONEOUSLY CONSIDERED WHETHER THERE WAS NOT ENOUGH

EVIDENCE,


                      SO        AS      THE.      GATEKEEPER. OF THIS,       I AM GOING TO DENY THE
                      CHARGE.               AND I MAY BE INCORRECT, BUT I JUST DON'T THINK
                      THERE            IS     ENOUGH THAT RAISES IT.         I   THINK THAT YOU HAVE
                      TO        HAVE         MORE THAN THE SOMEWHAT VACILLATING STATEMENTS
                      OF BOTH THE MOTHER OF THE DEFENDANT AND THE COMPLAINANT
                      TO        GET      A     CHARGE        OF SELF-DEFENSE.     I JUST DON'T THINK
                      IT IS THERE.


4 RR 64.




      [FRCSECUICR]:           CKAY.     BASED CN . EVERYTHING YCU OBSERVED AT THE SCENE, WOULD AKKTHUE LEAD
      Y03 TO BELIEVE THAT THE DEFENDANT WAS ACTING IN SELF-DEfctNdE?

      [DEFENSE COUNSEL]:              CBJECITCN. THAT CALLS FOR LEGAL CCNCLUSICN, .YCURHCNGR. HE WASN'T.THERE.
      HE WASN'T PRESENT. HE SAID HE HAD ALREADY LEFT THE SCENE.

      THE CCURT: .    I       WILL      ALLOW THE ANSWER BASED ON HIS — NOW THAT THE ISSUE HAS SCMEWMT BEEN
      TRIED TO BE RAISED, I AM GOING TO ALLOW YCU TO ASK THAT QUESTION. SO GO AHEAD. YCU MAY ANSWER
      THE CUESTTCN

      4 RR 50 (EMPHASIS ADDED).
       IT       IS    NOT        THE     COURT'S FUNCTION TO DETERMINE THE CREDIBILITY OR WEIGHT

TO    BE     GIVEN THE EVIDENCE RAISING THE ISSUE. GIBSON v. STATE, 726 S.W.2d 129,
133     (TEX.CRIM.APP.1987).                   THE        FACT     THAT   THE EVIDENCE RAISING THE ISSUE MAY
CONFLICT         WITH       OR     CONTRADICT             OTHER.    EVIDENCE IN THE CASE IS NOT RELEVANT TO

THE DETERMINATION OF WHETHER A CHARGE ON THE ISSUE MUST BE GIVEN. Id.

       HERE,.         THERE       WAS SOME EVIDENCE FOR A SELF-DEFENSE INSTRUCTION. THE TRIAL

COURT       ITSELF         NOTED        THE    EXISTENCE OF SUCH EVIDENCE, SEE SUPRA, BUT, BECAUSE
THE    TRIAL          COURT CONCLUDED THAT THE QUANTUM.OF EVIDENCE WAS SMALL AND CONTRA
DICTED,          IT    ERRONEOUSLY, DENIED                  THE     INSTRUCTION..SEE 4 RR 59 ("THE EVIDENCE
CONCERNING            SELF-DEFENSE            WAS     VERY       SMALL."); 4 RR 64 ("YOU HAVE TO HAVE MORE
THAN       THE SOMEWHAT VACILLATING STATEMENTS")-. THE TRIAL COURT, THEREFORE,. ERRED
WHEN       IT     DENIED. THE REQUEST FOR INSTRUCTION BECAUSE. "THE EVIDENCE CONCERNING.
SELF-DEFENSE WAS VERY SMALL" AND THAT WAS NOT ENOUGH. 4 RR 64.

        AS NOTED SUPRA, THE TRIAL COURT MUST INSTRUCT THE JURY ON EVERY. DEFENSIVE..
THEORY RAISED BY. THE EVIDENCE, WHETHER SUCH.. EVIDENCE. OR TESTIMONY WAS PRODUCED
BY    .THE       PROSECUTION . OR             THE     DEFENSE, REGARDLESS OF WHETHER SUCH EVIDENCE IS
STRONG          OR WEAK, UNIMPEACHED OR CONTRADICTED,.. AND REGARDLESS OF WHAT THE TRIAL
COURT       MAY       OR    MAY.       NOT    THINK        ABOUT THE CREDIBILITY OF THIS EVIDENCE. HAYES
v.     STATE,         728     S.W.2d          804,    807        (TEX.CRIM.APP.1987).,THIS RULE IS DESIGNED
TO     INSURE         THAT, THE JURY,. NOT THE JUDGE, WILL DECIDE THE RELATIVE CREDIBILITY
OF     THE       EVIDENCE.         MILLER v. STATE, 815 S.W.2d 582 (TEX.CRIM.APP.1991). "WHEN
A     JUDGE       REFUSES TO GIVE AN INSTRUCTION ON A DEFENSIVE ISSUE BECAUSE THE EVI
DENCE        SUPPORTING            IT     IS WEAK OR UNBELIEVABLE,. HE EFFECTIVELY SUBSTITUTES. HIS
JUDGMENT ON THE WEIGHT OF THE EVIDENCE FOR THAT OF THE JURY." Id.

        BECAUSE            THE     EVIDENCE VIEWED IN THE LIGHT MOST FAVORABLE TO JONES RAISES.

THE     ISSUE         OF     SELF-DEFENSE,. THE TRIAL COURT ERRED BY DENYING JONES'S REQUEST
FOR AN INSTRUCTION ON THIS DEFENSIVE ISSUE.

        REVERSAL            IS     REQUIRED          IF    APPELLANT SUFFERED "SOME HARM" BECAUSE OF THE
DENIAL.          OVALLE       v.        STATE,       13    S.W.3d     774, 786 (TEX.CRIM.APP.2000) (QUOTING
ALMANZA          v.    STATE,           686    S.W.2d       157, 171 (TEX.CRIM.APP.1985)). IF THE CHARGE
CONTAINS          ERROR,         AND      THAT       ERROR HAS BEEN PROPERLY PRESERVED BY AN OBJECTION

OR     REQUESTED            INSTRUCTION,, REVERSAL. IS REQUIRED IF THE ERROR IS "CALCULATED.
TO     INJURE         THE     RIGHTS          OF     DEFENDANT," MEANING THERE MUST BE SOME HARM. TEX.

CRIM.        PROC. CODE ANN. ART. 36.19; TREVINO v. STATE, 100 S.W.3d 232, 242 (TEX.
CRIM.APP.2003)               (per       curium);       ALMANZA,       686     S.W.2d   @ 171. "UNLEBS ALL HARM
WAS ABATED,. APPELLANT SUFFERED 'SOME1 HARM." MILLER, 815 S.W.2d @ 586 n.5.

       IN       AN     ALMANZA          HARM       ANALYSIS,     "BURDENS OF PROOF OR PERSUASION HAVE NO

PLACE.[.]" WARNER v. STATE, 245 S.W.3d 458, 464 (TEX.CRIM.APP.2008). HARM MUST
BE    EVALUATED             IN LIGHT OF THE COMPLETE JURY CHARGE,                    THE ARGUMENTS OF COUNSEL,

THE ENTIRETY OF THE EVIDENCE,                        INCLUDING THE CONTESTED ISSUES AND' WEIGHT OF THE

PROBATIVE EVIDENCE, AND ANY OTHER RELEVANT FACTORS REVEALED BY THE RECORD AS A

WHOLE.      ALMANZA,             686     S.W.2d @ 171. SEE ALSO ELLISON v. STATE, 86 S.W.3d 226,

228    (TEX.CRIM.APP.2002)                     (APPLYING ALMANZA HARM.ANALYSIS TO JURY-CHARGE ERROR
AT THE PUNISHMENT PHASE OF TRIAL).

       THE JURY CHARGE GAVE THE. JURY THE SOLE OPTION OF FINDING APPELLANT GUILTY

OF    "ASSAULT          CAUSES          BODILY INJURY FAMILY ENHANCED." CR 71, 73-74. THE CHARGE

INSTRUCTED THE JURY TO FIND APPELLANT GUILTY OF ASSAULT IF THE JURORS BELIEVED

BEYOND.     A     REASONABLE             DOUBT THAT.APPELLANT INTENTIONALLY, KNOWINGLY, OR RECK

LESSLY      CAUSE           BODILY . INJURY TO COMPLAINANT, A PERSON WITH WHOM THE DEFENDANT

HAS   OR        HAS        HAD    A     DATING       RELATIONSHIP. CR 73-74. THE CHARGE DID NOT ALLOW

THE JURY TO CONSIDER ANY LESSER OFFENSE OR DEFENSIVE ISSUE.


      THE RECORD INDICATES THAT APPELLANT'S TRIAL COUNSEL, WITHOUT OBJECTION BY

THE   STATE,           QUESTIONED            THE     VENIRE     DURING      VOIR    DIRE ON THE ISSUE OF SELF-

DEFENSE.        2 RR 71-75.


      WHO        WAS       THE        FIRST    AGGRESSOR       WAS     A   CONTESTED ISSUE AT TRIAL.   EVEN IF

CONTROVERTED,              THERE       WAS     EVIDENCE        THAT    "TIMS"      THREW THE FIRST PUNCH AFTER

SHE   HAD        CONFRONTED             APPELLANT.      AND     ACCUSED. HIM OF CHEATING ON HER. ALTHOUGH

THE   PROSECUTOR              ARGUED         THAT     THE     EVIDENCE      [CONTRA]DICTED APPELLANT'S SELF-
DEFENSE         CLAIM,        THIS       EVIDENCE       LINKING.TO,        APPELLANT PICKING UP A HAMMER FOR

PROTECTION            IN     DEFENDING         HIS-SELF,        AT    BEST,   MAKES THE ISSUE A QUESTION FOR

THE JURY TO DECIDE. (FERREL, 55 S.W.3d @ 591).

      ALBEIT,           AS       NOTED - OPINE IN SHAW v. STATE, 243 S.W.3d 647,.657-58 (TEX.
CRIM.APP.2007),                  "[U]NDER      §2.03(c)        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 - INFER

ENCE THAT ELEMENT IS TRUE.


      THEREFORE, IN LIGHT OF THE TRIAL COURT DENYING APPELLANT'S REQUEST FOR AN
INSTRUCTION          ON       SELF-DEFENSE;            COUNSEL, AFTER MAKING A "PRIMA FACIE CASE" per
QUANTUM       OF        EVIDENCE         NECESSARY          ...     ;    WAS NOT ABLE TO PRESENT THE EVIDENCE
-or-     [ANY]       DEFENSIVE            THEORY       TO     THE       JURY FOR JURY CONSIDERATION AND, THUS
APPELLANT          IN    THE       LEAST        SUFFERED "SOME HARM" IF NOT "EGREGORIOUS HARM!' FROM

THE    COURTS        DENIAL         OF     AN        INSTRUCTION ON THE ISSUE OF SELF-DEFENSE STEMMING

TO,    THE      COURT OF APPEALS [IN]CORRECTLY APPLYING THE "RAISED BY THE EVIDENCE"
STANDARD ESTABLISHED AND DEFINED.BY THE TEXAS LEGISLATURE.

        APPELLANT CONTENDS POINT OF ERROR ONE FOR REVIEW SHOULD BE SUSTAINED.




                                        POINT    OF     ERROR       TWO    FOR   REVIEW



       THE      COURT         OF    APPEALS . REVERSIBLY                 ERRED AND ABUSED ITS DISCRETION WHEN

POLICE        OFFICERS         HAVE       NO     PERSONAL.        KNOWLEDGE      OF THE ALLEGED OFFINSE,   IT IS

REVERSIBLE ERROR. TO ALLOW THEM TOT TESTIFY THAT DEFENDANT WAS GUILTY OF ASSAULT

AND THAT SELF-DEFENSE DID NOT APPLY.


        HERE,       UNDOUBTEDLY             REVIEW       SHOULD BE GRANTED BECAUSE. OVER DEFENSE OBJEC

TION^],         THE TRIAL COURT ERRONEOUSLY ALLOWED THE STATE TO ELICIT INADMISSIBLE
TESTIMONY FROM BOTH STATE AGENT DEPUTY "BEATTY", IN WHOM VOICED HIS OPINION AS

TO     APPELLANT'S GUILT, AND HIS PARTNER, STATE AGENT DEPUTY "WILKERSON'S" OPINE
TESTIMONY          AS     TO       IF     ...    ?     APPELLANT WAS ACTING IN SELF-DEFENSE DURING THE

ALLEGED COMMISSION OF ASSAULT.


        WHY, [EXPLICITLY] THIS POINT OF ERROR DESERVES REVIEW?

        THE        COURT      OF        APPEALS MISSED IT CLAIMING OPINE THAT APPELLANT'S [OBJEC-.
TIONS]        TO    DEPUTY         TESTIMONY           WAS INCONSISTENT - NOT VALID UNDER TEX. R. APP.
P. 33.1(a) -or- APPLICABLE (ADMISSIONWISE) UNDER TEX. R. EVID. 701, 702.

                         [PROSECUTOR]: BASED ON .THE EVIDENCE THAT YOU VIEWED, BASED
                         ON    WHAT       YOU SAW —          PHYSICALLY SAW, WHAT YOU LEARNED FROM
                         THE       WITNESSES. AND WHAT YOU LEARNED FROM THE HOUSE AND HOW
                         IT LOOKED, IS IT CONSISTENT WITH SOMEONE - DID YOU REACH A
                         CONCLUSION.AS TO WHAT HAD OCCURRED?


                         [BEATTY]: YES. THE CONCLUSION THAT WE CAME TO, per THE —

                         [DEFENSE          COUNSEL]: OBJECTION, JUDGE. THAT IS FOR THE JURY
                         TO DECIDE, NOT THIS OFFICER.


                         THE       COURT: I WILL ALLOW HIM TO ANSWER BASED ON HIS EXPER-
                         ENCE AND TRAINING. YOU MAY ANSWER THE QUESTION.
                          [BEATTY]: YES, MA'AM.
                          A.         THE    CONCLUSION         THAT     WE CAME TOCTHAT NIGHT FROM THE
                                     STATEMENTS        WE     RECEIVED AND FROM THE PHOTOGRAPHS WAS
                                     THAT     AN     ASSAULT HAD OCCURRED AND THAT KERTHINE TIMS
                                     WAS THE VICTIM.


                          [PROSECUTOR]: AND WHO DID YOU BELIEVE WAS THE DEFENDANT?

                          [BEATTY]: LONNIE JONES WAS BELIEVED TO BE THE ACTOR.

3 RR 25.


        LATER,        4        RR 50, THE TRIAL COURT, IN ADDITION, ALLOWED DEPUTY "WILKERSON

TO     TESTIFY        OVER           APPELLANT'S        OBJECTION CONCERNING THAT JONES DID NOT ACT IN

SELF-DEFENSE,

                          [PROSECUTOR]:              OKAY.     BASED    ON EVERYTHING YOU OBSERVED AT
                          THE        SCENE,     WOULD        ANYTHING    LEAD YOU TO BELIEVE THAT THE
                          DEFENDANT WAS ACTING IN SELF-DEFENSE?


                          [DEFENSE. COUNSEL]: OBJECTION. THAT CALLS FOR A LEGAL CON
                          CLUSION,          YOUR      HONOR.    HE WASN'T THERE. HE WASN'T PRESENT.
                          HE SAID HE HAD ALRFJADY LEFT THE SCENE.


                          THE        COURT:     I     WILL     ALLOW THE ANSWER BASED ON HIS —           NOW
                          THAT        THE ISSUE HAS SOMEWHAT BEEN TRIED TO BE RAISED,                   I AM
                          GOING TO ALLOW YOU TO ASK THAT QUESTION. SO GO AHEAD. YOU
                          MAY ANSWER THE QUESTION.

     TO PROPERLY PRESERVE ERROR ON APPEAL,   TEX. R. OF APP.. PROC. 33.1(a)
"IN GENERAL" - AS A PREREQUISITE TO PRESENTING A COMPLAINT FOR APPELLATE
REVIEW, THE RECORD MUST SHOW THAT: (1) THE COMPLAINT WAS MADE TO THE TRIAL
COURT     BY     A TIMELY REQUEST, OBJECTION, OR MOTION THAT: (A) STATED THE GROUNDS
FOR     THE    RULING            THAT       THE COMPLAINING PARTY SOUGHT FROM THE TRIAL COURT WITH
SUFFICIENT           SPECIFICITY TO MAKE THE TRIAL COURT AWARE OF THE COMPLAINT, UNLESS
THE SPECIFIC GROUNDS WERE APPARANT FROM THE CONTEXT;                                 ..    .


        [OBVIOUS]LY              HEREIN,       VALID         DEFENSE    OBJECTIONS        WERE   -MADE (SUPRA) WITH
SUFFICIENT           SPECIFICITY.             AND     THUS,     APPARANT    SUCH WAS "PERCEPTABLE" FROM THE

CONTEXT ..       .


        ALTHOUGH,              THE     TRIAL        COURT SPEEDILY INTERVENED - OVERRULING APPELLANT'S

OBJECTIONS [ABSENT COUNSEL A CHANCE TO. AMPLIFY] - AS NOTED OBJECTIONS WERE NOT
A     MODEL    OF CLARITY; APPELLANT, HOWEVER, ARGUES SAID OBJECTIONS WERE [SUFFIC
IENTLY SPECIFIC] - ENOUGH TO INFORM THE TRIAL COURT THAT.HE OBJECTED TO DEPUTY
"BEATTYS"        OPINION              IN    REGARDS      TO     "CONCLUSION AS TO.WHAT OCCURRED ...?" AND

SAME    THUS,        DEPUTY            "WILKERSON1S"           OPINE REGARDING A "LEGAL CONCLUSION" AS TO




                                                                 10
APPELLANT           NOT     ACTING              IN    SELF-DEFENSE.               SEE   JAMES v. SATE, 335 S.W.3d 719,

725 (TEX.APP.2011).

        ALTHOUGH           AND        AWHILE          BOTH        LAY       AND    EXPERT WITNESS'S CAN OFFER OPINION

TESTIMONY.           TEX.        R.        OF     EVID.       701 DEALS WITH THE [TRA]DITIONAL WITNESS, ONE
WHO     "WITNESSED"              OR PARTICIPATED IN THE EVENTS THAT ARE THE SUBJECT OF TESTI

MONY     WHILE        RULE        702           ALLOWS       FOR        A    WITNESS WHO IS NOT TESTIFYING BASED ON

PERSONAL KNOWLEDGE.. [TRE 701, 702].

        NEITHER.          "BEATTY           NOR       WILKERSON"             WERE DESIGNATED BY THE STATE AS EXPERT

WITNESSES.           CR     29.        THE        FIELDS          OF EXPERTISE DESIGNATED'BY THE STATE DID NOT

ENCOMPASS           "BEATTY" AND "WILKERSON'S" OPINION TESTIMONY OR THEIR ALLEGED FIELD

OF EXPERTISE, [IF] ANY. CR '29.

        THERE        WAS     NO        TESTIMONY THAT "BEATTY" HAD ..EVER [INDEPENDENTLY. .INVESTI
GATED        AN    ASSUALT         FAMILY             CASE        BEFORE,         ONLY THAT HE HAD (ONCE) "OBSERVED A
FIELD     OFFICER           DO        AN        ASSUALT      FAMILY          VIOLENCE CASE [.]" 3 RR 11. THE NIGHT
OF     THE        ALLEGED        OFFENSE,             "BEATTY" WAS STILL BEING TRAINED AND SUPERVISED BY

"WILKERSON",              "BEATTY'S"             FIELD       TRAINING             OFFICER. 3 RR 12.   "BEATTY" HAD ONLY

SOME     "CLASSROOM              ORIENTATION"                AT    THE POLICE ACADEMY.          3 RR .10.   BOTH DEPUTY'S

COMBINED           PATROL EXPERIENCE. MERELY ADDED UP TO. ONE (1) YEAR. 3 RR 9.

        IN        DIXON     v.     STATE,             244    S.W.3d 472, 479 (TEX.APP.-H0UST0N[14tHDIST..]-
2007,     PET.        REF'D);          WILLIAMS             v.      STATE,         826 S.W.2d 783, 785 (TEX.APP.1992)
AND DAVIS v. STATE, 313 S.W.3d 317, 350 (TEX.CRIM.APP.2010) - THE LAW ENFORCE
MENT    OFFICERS            HAD YEARS OF EXPERIENCES, HAD PERSONALLY INVESTIGATED NUMEROUS

CRIMES       DIRECTLY           RELATED,             TO, THE        SUBJECT OF THEIR EXPERT TESTIMONY,.. AND. HAD

RECEIVED SPECIALIZED TRAINING [BE]YOND THEIR BASIC POLICE ACADEMY INSTRUCTION.

                                                 HERE IN THE INSTANT NOT SO!


        BOTH        "BEATTY"          AND         "WILKERSON" DID NOT,HAVE [PERSONAL] KNOWLEDGE OF. THE
FACTS    OR        OF APPELLANT'S MENTAL STATE..SEE "SALDANA", 2011 TEX.APP.IEKIS1709.

LIKE    "SALDANA"          .-     HERE           "BEATTYS" OPINION, WHILE ALLEGEDLY BASED ON PHYSICAL

EVIDENCE          >>COULD<<           ONLY           HAVE    BEEN REACHED BASED ON HEARSAY STATEMENTS FROM

THE STATES WITNESSES. ("AGNES" AND "TIMS").

       HERE        ONLY     FOUR (4) WITNESS'S TESTIFIED, HOWEVER, IT WAS DEPUTY "WILKER
SON" AND DEPUTY "BEATTY", TESTIMONY, IN THEIR OPINION ... APPELLANT WAS GUILTY
- AND DID NOT ACT IN SELF-DEFENSE.




                                                                        11
          NOTE:        NEITHER           DEPUTY       WAS    PRESENT    AT    THE    SCENE   AT   THE TIME OF THE

OFFENSE.          BOTH           "TIMS"       AND     "AGNES" WERE PRESENT - AND NEITHER TESTIFIED THAT

APPELLANT             WAS    .GUILTY          OF    ASSAULT.      IN PARTICULAR,     "AGNES" TESTIFIED THAT THE

COMPLAINANT             ("TIMS")             WAS    THE [FIRST] AGGRESSOR.. THUS              BUT NOT FOR DEPUTY
"BEATTY"          -     DEPUTY             "WILKERSON"      THE     JURY   WOULD NOT HAVE [HEARD] [EV]lDENCE
THAT APPELLANT "JONES" WAS GUILTY OF ASSAULT -or- DID NOT ACT IN SELF-DEFENSE.

MOREOVER,             THE        STATE       REFERENCED      BOTH DEPUTY OFFICER'S OPINIONS - CONCERNING
THE       [TRUTH]FULNESS                OF .THE COMPLAINANT AND "AGNES". ALLEGATIONS - APPELLANT'S
GUILT       DURING          CLOSING.          ARGUMENT.       ASIDE THE OPINE TESTIMONY, THERE RFJALLY WAS.

NO    COMPELLING                 EVIDENCE       OF,      APPELLANT'S GUILT. A REVIEW OF THE ENTIRE RECORD

SHOWS       POINT           OF       ERROR.TWO DID INFLUENCE THE JURY -or- HAD MORE THAN A SLIGHT

EFFECT. SEE SOLOMON, 49 S.W.3d 356, 365 (TEX.CRIM.APP.2001).

          POINT OF ERROR TWO FOR REVIEW SHOULD BE SUSTAINED.                                                  ,T"';'"


                                        POINT       OF    ERROR    THREE     FOR    REVIEW



          THE     COURT OF APPEALS REVERSIBLY ERRED AND ABUSED ITS DISCRETION IN OVER

RULING          ISSUE        THREE         WHEN     THE     CUMULATIVE       IMPACT OF THE ABOVE ERRORS WAS SO

GREAT THAT REVERSAL IS REQUIRED.

          APPELLANT RESPECTFULLY URGES REVIEW ON EAHC - EVERY POINT OF ERROR. ABOVE,

BUT       ALSO        URGES           THIS    COURT       TO CONSIDER THE CUMULATIVE IMPACT OF THE.ERRORS

PRESENT          THROUGH OUT "APPELLANT'S" TRIAL ON THE OUTCOME OF THIS CASE. AN ERROR

IN    A     CRIMINAL                 TRIAL    DOES . NOT      ALWAYS. EXIST INDEPENDENTLY OF OTHER ERRORS.

WHEN       THERE        ARE           MULTIPLE ERRORS, THIS COURT SHOULD CONSIDER THEIR CUMULATIVE
EFFECT,          i.e.,           A     NUMBER OF ERRORS MAY BE HARMFUL IN THEIR CUMULATIVE EFFECT.
SEE FELDMAN v. STATE, 71 S.W.3d 738., 757 (TEX.CRIM.APP.2002); HUGHES v. STATE,
24     S.W.3d          833,          844      (TEX.CRIM.APP.2000). .EACH "DISCRETE." ERROR CAN CREATE,
WHEN       COMBINED              WITH OTHER ERRORS,. A "SYNERGISTIC PREJUDICE" AND THEREBY TAINT

THE OUTCOME - AS APPELLANT CONTENDS HERE IN THE INSTANT.

           THE    FOURTEENTH                 AMENDMENT      TO    THE   UNITED      STATES. CONSTITUTION AND ART.

I,     SECT. 19 OF THE TEXAS CONSTITUTION.GUARANTEE, CRIMINAL DEFENDANTS THE RIGHT
TO A         FAIR       TRIAL. U.S. CONST. AMEND.. XIV; TEX. CONST. ART. I §19. THE DENIAL.
OF     A    SELF-DEFENSE                   INSTRUCTION,. THE ERRONEOUS ADMISSION OF OPINION TESTIMONY
REGARDING APPELLANT'S GUILT, THE INTRODUCTION OF INADMISSIBLE EVIDENCE AGAINST




                                                                   12
SELF-DEFENSE, . COMBINED       TO   DENY   APPELLANT      HIS   RIGHT TO A FAIR TRIAL UNDER

THE    FEDERAL   AND   TEXAS   CONSTITUTIONS.      THUS     ERRORS.- MUST CUMULATIVELY,   AS

WELL    AS   INDIVIDUALLY,     IMPACTED APPELLANT'S RIGHT TO A FAIR TRIAL, THEREFORE!.

THE CONVICTION IN THIS CASE MUST BE REVERSED. [TEX. R. APP. P. 44.2(b)].



                                           PRAYER




       WHEREFORE,   PREMISES    CONSIDERED,.    APPELLANT       PRAYS THAT THIS COURT GRANT

REVIEW -and/or- ANY OTHER RELIEF TO WHICH MAY BE APPROPRIATE.


                                                          RESPECTFULLY SUBMITTED,




                                                           LONNIE JAMES""JONES Jr.
                                                           T.D.C.J. #''1889803
                                                           (PRO SE)




                                              13
 -   APPENDIX   -




 APPX. A (ONLY)
TOTALING 12 pages
         APPENDIX      A



       TOTALING 12 pages


         -   OPINION   -



        COURT OF APPEALS

NINTH (9th) DISTRICT OF BEAUMONT

      NO. 09-13-00459-CR
                                             In The


                                      Court ofAppeals

                          Ninth District of Texas at Beaumont


                                    NO. 09-13-00459-CR




                          LONNIE JAMES JONES JR., Appellant

                                               V.


                             THE STATE OF TEXAS, Appellee


                          On Appeal from the 221st District Court
                               Montgomery County, Texas
                              Trial Cause No. 13-03-03256 CR



                                MEMORANDUM OPINION


            Lonnie James Jones Jr. appeals from a judgment following a jury trial in

      which the jury found him guilty of assaulting a family member, a third-degree

      felony. See Tex. Penal Code Ann. § 22.01(b)(2) (West Supp. 2014)1 (elevating an

      assault to a third-degree felony if committed against a victim with whom the

      defendant has or has had a dating relationship); see also Tex. Fam. Code Ann. §



.           !We cite to the current version of the statute, as the subsequent amendment
-"'   does not affect the outcome of this appeal.
                                                1
71.0021(b) (West 2014) (defining dating relationship as a relationship with a

person with whom the defendant has or has had a continuing relationship of a

romantic nature). In his first two issues, Jones complains that the trial court refused

his request to instruct the jury on his claim of self-defense, and that the trial court

erred by admitting the testimony of the two investigating officers who expressed

their opinions about the investigation into the reported assault. In a third issue,

Jones suggests the cumulative impact of the trial court's errors requires another

trial.


         Based on our review, we conclude that no evidence was before the jury in

Jones' trial to demonstrate that he was acting in self-defense when the altercation

occurred. Given the lack of evidence before the jury on Jones' claim of self-

defense, we hold that the trial court did not err in refusing his request to instruct the

jury on self-defense. With respect to Jones' complaints about the testimony of the

officers investigating the assault, we conclude he failed to properly preserve error

regarding the testimony of one of the officers, and we conclude that the error in

admitting the testimony of the other officer was harmless. Regarding Jones' third

issue, we hold that Jones has not shown that multiple errors occurred.
                                       Self-defense


      The jury convicted Jones of assaulting his girlfriend, Karen. In issue one,

Jones complains the trial court refused to submit an instruction to the jury on his

claim of self-defense/Under Texas law, "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." Tex. Penal Code Ann. § 9.31(a) (West 2011).

      According to the State, Jones failed to produce any evidence during the trial

to prove that he thought the force used on Karen was immediately necessary for his

protection. We note that Jones did not testify during the guilt-innocence phase of

the trial. There were only two other eyewitnesses to the altercation, Karen and

Jones' mother, both of whom testified during the trial.

      Reviewing a trial court's refusal to submit a claim of self-defense requires

an appellate court to review the evidence admitted during trial under a standard

that requires evidence on the defensive issue to be reviewed in the light most

favorable to the defendant. Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App.

      2Karen is a pseudonym for the name of the person who Jones
assaulted. See Tex. Const, art. I, § 30 (granting crime victims "the right to be
treated with fairness and with respect for the victim's dignity and privacy
throughout the criminaljustice process"). During the trial, Karen explainedthat she
was no longer in a relationship with Jones.
2001). When the defendant has not testified, the record must contain some

evidence to show that at the time of the assault, "the defendant was in some

apprehension or fear of being the recipient of the unlawful use of force[.]" Smith v.

State, 676 S.W.2d 584, 585 (Tex. Crim. App. 1984).

       Two witnesses, Karen and Jones' mother, gave the jury conflicting accounts

about the events that led to the altercation between Jones and Karen. According to

Karen, she and Jones went to Jones' mother's house. Jones told Karen to wait in

the car while he went into the house; however, Karen entered the house a short

time after Jones and found Jones arguing with his mother. According to Karen,

when she attempted to calm Jones down, Jones pushed her to the floor and struck

her in the head. When this testimony is viewed in the light most favorable to Jones,

Karen's testimony does not indicate that Jones acted in self-defense.

      Jones' mother gave the jury an entirely different account of the events.

According to Jones' mother, she and Karen were at the house when Jones arrived.

At that point, Karen and Jones began arguing when Karen accused him of dating

others. According to Jones' Mother, Jones did nothing wrong before Karen

"pushed him in the face." When this testimony is reviewed in the light most

favorable to Jones, it too fails to provide the jury with any information that would

allow the jury to reasonably infer that Jones acted out of fear after Karen pushed
    him, nor does her testimony provide any information that would allow the jury to

    reasonably infer that Jones thought the force he used in response to Karen's push

    was reasonably necessary to protect himself against the force that Jones' mother

    claimed Karen had used on him.


/         While a defendant is not necessarily required to testify to raise an issue of

    self-defense, there must be some evidence before the jury to allow the jury to

    reasonably infer that the defendant was acting out of the fear that if he did not act,

    he would be the recipient of the other's unlawful use of force. Smith, 676 S.W.2d

    at 585. None of the testimony before the jury raises an inference indicating that

    Jones, during the altercation, had acted based on his fear that Karen was about to

    strike him.


          We conclude that the trial court did not err in rejecting Jones' request for an

    instruction on his claim of self-defense. See Tex. Penal Code Ann. § 2.03(c) (West

    2011) ("The issue of the existence of a defense is not submitted to the jury unless

    evidence is admitted supporting the defense."); Reed v. State, 703 S.W.2d 380,

    382, 384 (Tex. App.—Dallas 1986, pet. ref d) (rejecting the defendant's argument

    that the trial court was required to instruct the jury on the defendant's claim of self-

    defense where he did not testify and none of the other testimony allowed the jury
to infer what the defendant believed when he decided to shoot the victim). We

overrule issue one.                                                     ^

                 r Opinion Testimony of the Investigating Officers \
                 /

      In issue two, Jones complains that the trial court committed reversible error

by allowing the police officers to state the opinions they reached from their

investigation into the alleged assault. Deputy Beatty and Deputy Wilkerson,

employees of the Montgomery County Sheriffs Office, investigated the incident

the night it occurred.(Deputy Beatty testified that based on the investigation, he
concluded that Jones assaulted Karen/ Deputy Wilkerson, the other investigating

officer, testified that based on what he saw at the scene, nothing led him to believe

that Jones was responding to an attack.

      Generally, nonconstitutional errors in admitting or excluding evidence in a

criminal case must be disregarded unless the error affects a defendant's substantial

rights. Tex. R. App. P. 44.2(b). "A substantial right is affected when the error had a

substantial and injurious effect or influence in determining the jury's verdict."

King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v.

U.S., 328 U.S. 750, 776 (1946)). Nonetheless, an error does not affect a substantial

right if the appellate court reviewing the case has '"fair assurance that the error did

not influence the jury, or had but a slight effect.'" Solomon v. State, 49 S.W.3d
356, 364-65 (Tex. Crim. App. 2001) (quoting Reese v. State, 33 S.W.3d 238, 243

(Tex. Crim. App. 2000)) (applying nonconstitutional harm analysis to the

admission of testimony that it characterized as lay opinion). In determining the

effect of the erroneous admission of evidence on a jury's verdict, we review the

record as a whole, the nature of the evidence supporting the verdict, the character

of the alleged error, and how the jury might have considered the inadmissible

evidence in connection with the other evidence admitted in the case. Motilla v.

State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also consider the jury

instructions, the State's theory, any defensive theories, whether the State

emphasized the error, closing arguments, and voir dire, if voir dire is relevant to

the evidence that is the subject of the defendant's complaint. Id. at 355-56.

      On appeal, Jones argues that the testimony of Deputy Beatty was

inadmissible because he lacked personal knowledge of the altercation and he was

not properly qualified to express an opinion about the assault. According to Jones,

Deputy Beatty's opinion was inadmissible under Rules 701 or 702 of the Texas

Rules of Evidence. See Tex. R. Evid. 701 (admissibility of the opinions of lay

witnesses); Tex. R. Evid. 702 (admissibility of the opinions of experts).

      However, Jones did not object that the opinion of Deputy Beatty was

inadmissible under Rules 701 or 702, nor did he claim at trial that Deputy Beatty's

                                          7
opinion was not admissible as expert testimony, llnstead, Jones objected to Deputy
Beatty's testimony on the basis that the prosecutor's question asked the deputy to

express an opinion about a matter that the jury was to be asked to decide. On

appeal, Jones argues that Deputy Beatty's opinion was not properly admissible

under the Rules of Evidence that govern opinion testimony, Rules 701 and 702. In

our opinion, Jones' trial objection is inconsistent with the reasons he contends the

testimony was inadmissible on appeal.

      To preserve error on appeal, Rule 33.1 of the Texas Rules of Appellate

Procedure requires that to preserve a complaint for review on appeal, a party must

make the trial court aware of the basis on which he is entitled to the relief he is


requesting during the trial. Tex. R. App. P. 33.1(a). Based on the objection that

Jones made to Officer Beatty's testimony, the trial court would not have been

aware of Jones' claim that the testimony was not admissible as opinion testimony.

See Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) ("To avoid

forfeiting a complaint on appeal, the party must 'let the trial judge know what he

wants, why he thinks he is entitled to it, and to do so clearly enough for the judge

to understand him at a time when the judge is in the proper position to do

something about it.'" (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim.

App. 1992))).
       Jones also complains that the trial court erred by allowing Deputy

Wilkerson to testify that he saw nothing at the scene that led him to believe that

Jones was responding to Karen's attack. Jones objected to this testimony on the

basis that Deputy Wilkerson was not there, was not present, and that Jones left the

scene before the officers arrived. Although Jones did not specifically state that the

question called for Deputy Wilkerson to express an opinion that he was not

qualified to express, his objection was sufficient, in the context of the question that

was asked, to alert the trial court to Jones' complaint that Deputy Wilkerson was

not qualified to express an opinion because he was not present when the altercation

occurred. See Tex. R. App. P. 33.1(a)(1)(A).

      With respect to Deputy Wilkerson's opinion, the record does not show that

the State attempted to qualify Deputy Wilkerson as an expert on self-defense.

Therefore, with respect to the testimony at issue, we conclude that the State was

attempting to get testimony into evidence as lay witness testimony, not as expert

testimony. See Tex. R. Evid. 701, 702.

      The testimony the trial court admitted, however, is not admissible as lay

opinion. A lay witness may testify to his perception of an event if he personally

observed or experienced the event. The testimony of a witness who personally

observed an event may include the witness's opinions about the event, as long as
the opinion was drawn from the witness's experiences or observations. See

Williams v. State, 402 S.W.3d 425, 436 (Tex. App.—Houston [14th Dist.] 2013,

pet. refd).

      In this case, Deputy Wilkerson was not present at the scene when the

altercation between Karen and Jones occurred. Even though Deputy Wilkerson's

lay opinion should have been excluded, the opinion addresses Jones' claim of self-

defense, a defense that was not relevant to the trial.

      Even if Deputy Wilkerson's opinion also suggests that Jones assaulted

Karen, Deputy Beatty's opinion that Jones assaulted Karen was already before the

jury. Generally, when testimony that should not have been admitted is cumulative

of testimony that was admitted without objection, the error is harmless. See

Anderson v. State, 111 S.W.2d 622, 628 (Tex. Crim. App. 1986) (noting that

"[ijnadmissible evidence can be rendered harmless if other evidence at trial is

admitted without objection and it proves the same fact that the inadmissible

evidence sought to prove"); Barrera v. State, 10 S.W.3d 743, 746-47 (Tex. App.—

Corpus Christi 2000, no pet.) (applying the rule stated in Anderson to a case where

the defendant complained of one officer's testimony about the defendant's claim of

self-defense when another officer testified, without objection, that the police report

did not contain any allegation claiming the defendant had acted in self-defense). In

                                           10
this case, Jones did not lodge a valid objection to Deputy Beatty's opinion

indicating that the investigation showed that Jones had committed an assault. We

have previously concluded that the trial court did not err in overruling the objection

Jones made to Deputy Beatty's testimony.

      Considering the nature of the evidence supporting the verdict, we have fair

assurance that Deputy Wilkerson's opinion did not influence the jury's verdict. See

Solomon, 49 S.W.3d at 365. The exculpatory evidence before the jury, the

testimony of Jones' mother, may have been given little weight because the

evidence before the jury includes the 911 call that Jones' mother made to the

police seeking assistance after the altercation occurred. In the 911 call, Jones'

mother stated that Jones had assaulted his girlfriend and used his fists to hurt her.

The jury also saw photographs depicting Karen's injuries. During final argument,

the prosecutor did not refer to Deputy Wilkerson's opinion to support his argument

that Jones should be found guilty.

      Having carefully reviewed the evidence as a whole, and considering the

arguments presented to the jury in closing, we conclude that the admission of

Deputy Wilkerson's opinion, although error, was harmless. See Tex. R. App. P.

44.2(b). We overrule issue two.




                                          11
                                 Cumulative Error


      In issue three, Jones argues that the cumulative impact of the trial court's

errors was so great that his conviction should be reversed. However, we have

found in Jones' favor solely on his claim that the trial court erred by admitting the

opinion expressed by Deputy Wilkerson, and we have explained that the admission

of Deputy Wilkerson's opinion, in the context of all of the evidence admitted

during Jones' trial, was harmless. Because Jones has shown the trial court

committed only one error during the trial, the error is not cumulative of others. We

overrule issue three, and we affirm the trial court's judgment.

      AFFIRMED.




                                                        HOLLIS HORTON
                                                              Justice



Submitted on October 15, 2014
Opinion Delivered June 24,2015
Do Not Publish


Before McKeithen, C.J., Kreger and Horton, JJ.




                                          12
                                       CERTIFICATE             OF   SERVICE



        I,    LONNIE         JAMES    JONES     Jr.        T.D.C.J.    # 1889803, PRESENTLY CONFINED JN
THE    TEXAS        DEPARTMENT        OF CRIMINAL JUSTICE - C.I.D. AT THE H.H.COFFIELD UNIT

IN     ANDERSON        COUNTY,       DECLARE!    UNDER        THE PENALTY OF PERJURY AND CERTIFY THAT.

A     TRUE    AND .CORRECT           COPY     (TOTALING        13 pages) OF THE ENCLOSED INSTRUMENT,
APPELLANT'S           PETITION FOR DISCRETIONARY REIVIEW, WAS PLACED IN THE PRISON LEGAL

MAILING       SYSTEM         ON   SEPTEMBER      21,        2015, TO FORWARD via U.S.P.S. FIRST CDASS
POSTAGE TO:           1.) TEXAS COURT OF CRIMINAL APPEALS,. ATTN: "ABEL ACOSTA" (CLERK),.
P.O.     BOX        12308,     CAPITOL.STATION, AUSTIN, TEXAS 78711-2308; AND                  2.) COUNSEL
FOR     THE    STATE, MONTGOMERY COUNTY, TEXAS, 207 W. PHILLIPS, 2nd FLOOR, CONROE,
TEXAS 77301.




                                                                                 CK>?/?7^

                                                                        LONNIE JAMES^C^ES Jr.
                                                                        T.D.C.J. # 1889803
                                                                        H.H.   COFFIELD UNIT
                                                                         2661 FM 2054
                                                                        TENNESSEE COLONY,    TEXAS
                                                                                                75884-5000




                                            UNSWORN         DECLARATION



        I,     LONNIE        JAMES.JONES Jr., AM THE PETITIONER AND BEING PRESENTLY INCAR
CERATED        IN     BE      TEXAS DEPARTMENT OF CRIMINAL JUSTICE - C.I.D., DECLARE UNDER
PENALTY        OF     PERJURY. THAT,          ACCORDING        TO     MY BELIEF, THE FACTS STATED IN THE
ABOVE AND FOREGOING ARE! TRUE AND CORRECT.

        SINGED ON SEPTEMBER 21, 2015.




                                                                         LONNIE JAMES JONES Jr.
                                                                         T.D.C.J. # 1889803
                                                                         (PRO SE)




                                                      14
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