                             Fourth Court of Appeals
                                     San Antonio, Texas
                                MEMORANDUM OPINION

                                       No. 04-18-00623-CR

                                         Matthew SERNA,
                                             Appellant

                                                 v.

                                      The STATE of Texas,
                                            Appellee

                   From the 218th Judicial District Court, Atascosa County, Texas
                                 Trial Court No. 16-05-0186-CRA
                            Honorable Russell Wilson, Judge Presiding

Opinion by:      Liza A. Rodriguez, Justice

Sitting:         Luz Elena D. Chapa, Justice
                 Irene Rios, Justice
                 Liza A. Rodriguez, Justice

Delivered and Filed: April 29, 2020

AFFIRMED

           Matthew Serna was convicted by a jury of murder and aggravated assault. On appeal,

Serna contends the trial court erred in denying his request for an instruction on the justification of

necessity in the aggravated assault portion of the jury charge. In addition, Serna contends the trial

court erred in excluding evidence that the murder victim previously was convicted of robbery. We

affirm the trial court’s judgment.
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                                          BACKGROUND

       Serna and his brother were driving in a car allegedly seeking to confront Lawrence Cole

and John Paul Garcia about a stolen cooler. Cole was driving Garcia’s truck with Garcia’s

girlfriend, Selena Ramon, seated in the rear passenger seat. After the two vehicles pulled into a

business parking lot, a confrontation ensued during which Cole and Ramon were shot by Serna

and Serna was shot by Cole. Cole died at the scene.

       Serna was charged with the murder of Cole and with aggravated assault for the injuries to

Ramon. The jury charge included instructions on self-defense and defense of a third person in

relation to the murder charge. The jury convicted Serna of both offenses. Serna appeals.

                                            NECESSITY

       In his first issue, Serna contends the trial court erred in denying his request for an

instruction on necessity in the aggravated assault portion of the jury charge. Although the jury

charge allowed the jury to convict Serna of aggravated assault if he acted intentionally, knowingly

or recklessly, Serna’s brief narrows the issue, asserting he was entitled to the instruction on

necessity because he admitted to committing the offense of “reckless aggravated assault.”

Specifically, Serna’s brief asserts Serna’s testimony at trial “raised the issue that he may have

committed the assault by reckless behavior.” Serna’s brief further argues, “The court was put on

notice that the necessity defense was being used to refute the reckless mental state.”

       “Our first duty in analyzing a jury-charge issue is to decide whether error exists.” Ngo v.

State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). “Then, if we find error, we analyze that error

for harm.” Id.

       Section 9.22 of the Texas Penal Code contains the elements that must be shown for conduct

to be justified by necessity. TEX. PENAL CODE ANN. § 9.22. However, section 9.05 of the Code

entitled “Reckless Injury of Innocent Third Person” provides:


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             Even though an actor is justified under this chapter in threatening or using force
         or deadly force against another, if in doing so he also recklessly injures or kills an
         innocent third person, the justification afforded by this chapter is unavailable in a
         prosecution for the reckless injury or killing of the innocent third person.

Id. § 9.22; see also In re D.L., 656 S.W.2d 181, 183 (Tex. App.—San Antonio 1983, no writ)

(Butts, J., concurring) (noting instruction under section 9.05 “is a codified limiting charge” to a

self-defense charge and “tells the jury that the justification which the defendant may have for his

acts against A may not carry over to exonerate the defendant for his reckless acts against the

innocent third party B”). In this case, the evidence is undisputed that Ramon was an innocent third

person during the confrontation between Serna, his brother, Cole, and Garcia. 1 Accordingly, the

trial court did not err in denying Serna’s request for an instruction on necessity in the aggravated

assault portion of the jury charge.

         Serna’s first issue is overruled.

                              EVIDENCE OF COLE’S ROBBERY CONVICTION

         In his second issue, Serna contends the trial court erred in excluding evidence that Cole

was previously convicted of robbery. Serna’s brief argues that “in a homicide case, when the issue

of self-defense is raised, evidence of prior specific acts of violent conduct are admissible, whether

or not they are known by the Defendant. Once a defendant raised the issue that the deceased is the

first aggressor through some form of evidence the specific violent acts are to be admitted.” We

disagree.



1
  In supplemental briefing, the parties addressed the Texas Court of Criminal Appeals decision in Jordan v. State, 593
S.W.3d 340 (Tex. Crim. App. 2020). The Jordan court’s decision, however, is readily distinguishable from the instant
case. In Jordan, the issue was whether the appellant was entitled to a multiple assailants instruction, not a necessity
instruction. 593 S.W.3d at 342–43. Furthermore, the facts in Jordan are very different from the facts in the instant
case where the record contains no evidence that Ramon was in any way encouraging, aiding, or advising Cole. See
id. at 344–45 (setting forth facts in Jordan). Ramon testified she was shot as she was moving to help Garcia after he
was jumped by Serna and his brother. In his interview, Serna only mentions Ramon after being asked about her, and
then stated he recalled seeing her get out of the back passenger seat of the truck at approximately the same time Cole
shot him.


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       As the Texas Court of Criminal Appeals has explained, evidence concerning a victim’s

character for violence or aggression is admissible under the following two separate theories when

a defendant is charged with an assaultive offense:

           First, the defendant may offer reputation or opinion testimony or evidence of
       specific prior acts of violence by the victim to show the “reasonableness of
       defendant's claim of apprehension of danger” from the victim. This is called
       “communicated character” because the defendant is aware of the victim’s violent
       tendencies and perceives a danger posed by the victim, regardless of whether the
       danger is real or not. . . . .
           Second, a defendant may offer evidence of the victim’s character trait for
       violence to demonstrate that the victim was, in fact, the first aggressor. Rule
       404(a)(2) is directly applicable to this theory and this use is called
       “uncommunicated character” evidence because it does not matter if the defendant
       was aware of the victim’s violent character. The chain of logic is as follows: a
       witness testifies that the victim made an aggressive move against the defendant;
       another witness then testifies about the victim's character for violence, but he may
       do so only through reputation and opinion testimony under Rule 405(a).

Ex parte Miller, 330 S.W.3d 610, 618–19 (Tex. Crim. App. 2009) (emphasis in original).

Accordingly, under these two theories, evidence of specific prior acts of violence by the victim are

admissible only if they are known to the defendant. Here, Serna’s brief does not assert Cole’s

robbery conviction was known to Serna. Instead, he strenuously argues such knowledge was not

required.

       “An entirely separate rationale supports the admission of evidence of the victim’s prior

specific acts of violence when offered for a non-character purpose—such as his specific intent,

motive for an attack on the defendant, or hostility—in the particular case.” Id. at 620. Serna’s

brief “does not suggest that this theory of admissibility might apply to evidence concerning” Cole’s

robbery conviction. Id.

       Serna’s second issue is overruled.




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                                       CONCLUSION

     The trial court’s judgment is affirmed.

                                                Liza A. Rodriguez, Justice

DO NOT PUBLISH




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