                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-08-00319-CR

STEPHEN ALLEN EVANS,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                          From the 413th District Court
                             Johnson County, Texas
                             Trial Court No. F42076


                          MEMORANDUM OPINION


      A jury convicted Stephen Allen Evans of two counts of aggravated assault. The

jury assessed his punishment at five years’ confinement on one count and

recommended that imposition of this sentence be suspended. The jury assessed his

punishment at ten years’ imprisonment for the other count. Evans contends in four

points that: (1) the two convictions are for the same offense and thus violate the Double

Jeopardy Clause; (2) the court abused its discretion by overruling his objections to the

prosecutor’s alleged misstatements of law regarding self-defense; and (3) the court
abused its discretion by excluding evidence of the complainant’s prior history of drug

use and a prior assault (two points). We will modify the judgment by vacating one of

Evans’s convictions and affirm the judgment as modified.

                                       Double Jeopardy

        Evans contends in his first point that his two convictions are for the same offense

and thus violate the Fifth Amendment’s Double Jeopardy Clause. The State concedes

that a double jeopardy violation has occurred. The parties dispute which conviction

should be vacated.

        “When [as here] a defendant is subjected to multiple punishments for the same

conduct, the remedy is to affirm the conviction for the most serious offense and vacate

the other convictions.” Bigon v. State, 252 S.W.3d 360, 372 (Tex. Crim. App. 2008). The

“most serious offense” is “the offense in which the greatest sentence was assessed.” Id.

at 373 (citing Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006)).

        The jury assessed the greatest sentence against Evans under Count Three,

sentencing him to ten years’ imprisonment. Therefore, we vacate his conviction under

Count One.1 Evans’s first point is sustained.

                                    Misstatements of Law

        Evans contends in his second point that the court abused its discretion by

overruling his objections to the prosecutor’s alleged misstatements of law during voir

dire and closing argument regarding self-defense. Specifically, Evans argues that the



1
       The jury acquitted Evans of the aggravated assault allegation contained in Count Two of the
indictment.


Evans v. State                                                                             Page 2
prosecutor misstated the applicable law regarding a person’s right to use deadly force

in self-defense.

        Section 9.32(a)(2)(A) of the Penal Code provides that a person is justified in using

deadly force against another “when and to the degree 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.” TEX. PEN. CODE ANN. § 9.32(a)(2)(A) (Vernon

Supp. 2009)).

        By contrast, section 9.31(a) provides that “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.” Id. § 9.31(a) (Vernon Supp. 2009).

        [I]t is not necessary that a jury find that the [complainant] was using or
        attempting to use unlawful deadly force against a defendant in order for
        the defendant’s right of self-defense to exist. A person has the right to
        defend himself from apparent danger to the same extent as he would if
        the danger were real.

Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996); see Carmen v. State, 276

S.W.3d 538, 545 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (“there is no additional

requirement that the jury find that the complainant was actually using or attempting to

use unlawful deadly force against appellant”).

        Evans complains that the prosecutor misstated the applicable law by stating that

he “could not use deadly force unless deadly force was in fact used against him first.”

Such a statement would appear to be contrary to applicable law. See id. However,




Evans v. State                                                                        Page 3
Evans’s paraphrase of the complained-of statements is not entirely accurate and

appears to be taken out of context.

        It is improper for a prosecutor to misstate the law. See Whiting v. State, 797

S.W.2d 45, 48 (Tex. Crim. App. 1990); Abbott v. State, 196 S.W.3d 334, 343 (Tex. App.—

Waco 2006, pet. ref’d). However, when evaluating the propriety of the challenged

statement, we must consider the context in which it was made. See Cantu v. State, 939

S.W.2d 627, 633 (Tex. Crim. App. 1997); Davis v. State, 268 S.W.3d 683, 694 (Tex. App.—

Fort Worth 2008, pet. ref’d); see also Gardner v. State, No. AP-75,582, 2009 WL 3365652, at

*17 (Tex. Crim. App. Oct. 21, 2009) (“Although it is possible to construe this argument

as being improper when taken out of its full context, the prosecutor’s argument is more

naturally interpreted as a permissible one.”).

        Evans first complains of the prosecutor’s explanation of the law concerning the

use of deadly force during voir dire. He cites as examples the following:

                 “You can only respond to force with force”

                 “the law specifically says the use of deadly force is not justified if all that
                 is threatened is force”

                 “the law says if a person is under attack by the use of force, not deadly
                 force, you can respond with force, but not deadly force. Okay. In other
                 words, there’s a proportionate, proportionality, I don’t know what the
                 right word would be, but you can’t use deadly force to repel an attack
                 that’s only force”

At first blush, these statements might be construed as assertions that a person may act

in self-defense only when actual force is used against him (and can use deadly force in

self-defense only when deadly force is actually used against him).



Evans v. State                                                                            Page 4
        However, when read in context, it appears that the prosecutor was attempting to

explain the difference between the justified use of deadly force in self-defense and the

justified use of force less than deadly in self-defense. Regardless of whether a person

faces an actual or apparent threat, sections 9.31 and 9.32 contain a proportionality

requirement with regard to the magnitude of force which the person is legally justified

to employ. See Tidmore v. State, 976 S.W.2d 724, 728-29 (Tex. App.—Tyler 1998, pet.

ref’d) (“The amount of force used must be in proportion to the force encountered.”);

accord McBride v. State, No. 13-04-00575-CR, 2006 WL 1965822, at *5 (Tex. App.—Corpus

Christi July 13, 2006, pet. ref’d) (not designated for publication); Seibert v. State, No. 05-

03-01131-CR, 2004 WL 2804795, at *6 (Tex. App.—Dallas Nov. 30, 2004, pet. ref’d) (not

designated for publication). “Deadly force is not immediately necessary if a reasonable

person in the position of the defendant would use some available nondeadly method of

self-defense. In such circumstances, a defendant's use of deadly force would not be

justified.” Tidmore, 976 S.W.2d at 729; accord McBride, 2006 WL 1965822, at *5; Seibert,

2004 WL 2804795, at *6.

        Later in voir dire after the statutory definitions had been read to the venire panel

and discussed further, a veniremember commented (apparently in his own effort to

explain Evans’s objection):

        This is the reason for his objection. That’s why he keeps standing up and
        saying he keeps leaving out the word perceived attempted force or some
        such, because if you perceive you’re going to be met with force, he’s
        probably going to argue that his client has the right to stop that force from
        happening.




Evans v. State                                                                          Page 5
The prosecutor agreed that the issue of self-defense must be viewed from “the

defendant’s standpoint” but re-emphasized that his focus was on the magnitude of

force a person is justified in using in self-defense. The prosecutor later commented that

“if a defendant reasonably believes he or she is being attacked with deadly force, then

you [sic] can respond with deadly force.” But the prosecutor also reiterated that his

point was that there is a proportionality requirement regarding the magnitude of force

which may be used in self-defense.

        The prosecutor correctly stated that there is a proportionality element

incorporated within the law of self-defense. See McBride, 2006 WL 1965822, at *5; Seibert,

2004 WL 2804795, at *6.Tidmore, 976 S.W.2d at 728-29. He acknowledged in voir dire

that the issue of self-defense must be viewed from the defendant’s perspective and

what he reasonably believed. Thus, we cannot say that the challenged statements,

when viewed in context, were affirmatively incorrect.

        Evans also complains of a similar remark made during closing argument. The

prosecutor stated, “And it says you can use deadly force in this scenario. When you’re

under attack or attempted attack by someone using or attempting to use deadly force.

That is the scenario that talks about deadly force.”

        As with the challenged voir dire statements, this argument standing alone could

be construed as an assertion that there must be an actual use or attempted use of deadly

force before a person is justified in using deadly force in self-defense. However, when

the argument is read in context with the prosecutor’s entire closing argument, we




Evans v. State                                                                      Page 6
conclude that the prosecutor’s focus on the proportionality issue was not affirmatively

incorrect.

        Just before making the challenged statement, the prosecutor reminded the jury

that a person is justified in using force “to the degree [he] believes is immediately

necessary viewed from his standpoint.” The charge accurately stated the applicable

law.     The prosecutor correctly stated that there is a proportionality element

incorporated within the law of self-defense. Id.

        Accordingly, we cannot say that the court abused its discretion by overruling

Evans’s objections to the complained-of voir dire statements and closing argument.

Evans’s second point is overruled.

                                 Extraneous Misconduct

        Evans contends in his third and fourth points respectively that the court abused

its discretion by excluding evidence of the complainant’s prior history of drug use and a

prior assault he committed.

        At the beginning of trial, the trial court granted the State’s motion in limine

regarding evidence of the complainant Timothy Carter’s prior violent acts and any prior

possession or use of illegal drugs by Carter.      During Evans’s cross-examination of

Carter, he sought to establish that Carter had “committed assaults” and “was in

possession of drugs” in Granbury. Outside the presence of the jury, Evans’s counsel

explained that these prior acts were relevant to self-defense because Evans was aware of

them when he assaulted Carter. Evans sought to make an offer of proof at this juncture

in the trial “about the assaults that occurred there and his drug use there.” After further


Evans v. State                                                                       Page 7
discussion regarding the relevance of the extraneous misconduct evidence, Evans’s

counsel agreed to make an offer of proof later in the trial after establishing relevance

(i.e., by showing that Evans was aware of the extraneous misconduct when he assaulted

Carter). However, Evans did not thereafter attempt to make an offer of proof.

               The rules of evidence permit the defendant to offer evidence
        concerning the victim’s character for violence or aggression on two
        separate theories when the defendant is charged with an assaultive
        offense, as applicant was in this case.

               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. This theory
        does not invoke Rule 404(a)(2) because Rule 404 bars character evidence
        only when offered to prove conduct in conformity, i.e., that the victim
        acted in conformity with his violent character. Here, the defendant is not
        trying to prove that the victim actually is violent; rather, he is proving his
        own self-defensive state of mind and the reasonableness of that state of
        mind.

                 . . . .

                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, No. AP-76,167, 2009 WL 3446468, at * 4-5 (Tex. Crim. App. Oct. 28, 2009)

(quoting Dempsey v. State, 159 Tex. Crim. 602, 266 S.W.2d 875, 877 (1954)) (footnotes

omitted).


Evans v. State                                                                           Page 8
        To preserve error with regard to the exclusion of evidence, a party must make an

offer of proof setting forth the substance of the excluded evidence unless the substance

of the evidence was apparent from the context. TEX. R. EVID. 103(a)(2); Mays v. State, 285

S.W.3d 884, 889-90 (Tex. Crim. App. 2009). Evans’s counsel plainly informed the trial

court that he wanted to offer evidence of a prior assault committed by Carter for which

he was placed on deferred adjudication community supervision. Thus, we conclude

that Evans adequately preserved error with regard to the court’s exclusion of this

evidence. See Mai v. State, 189 S.W.3d 316, 322 (Tex. App.—Fort Worth 2006, pet. ref’d).

        Because Evans claimed to be aware of this prior assault and because Evans

sought to prove it through Carter’s own testimony, it appears that Evans sought to

introduce this evidence as “communicated character” evidence to show the

“reasonableness of [his] claim of apprehension of danger.” See Miller, 2009 WL 3446468,

at * 4. However, Evans never established that he was aware of this specific assault.

        Evans testified that Carter told him “he’s been in a lot of fights and that he’s been

in trouble for fighting.” This general statement is not sufficient to establish that Evans

was aware that Carter had committed an assault in Granbury for which he was placed

on deferred adjudication community supervision. Accordingly, the court did not abuse

its discretion by excluding this evidence. See Hayes v. State, 124 S.W.3d 781, 785-86 (Tex.

App.—Houston [1st Dist.] 2003) (evidence of victim’s prior assault with wrench

admissible to show reasonableness of defendant’s fear because defendant personally

knew of incident, but evidence of victim’s prior assault with gun inadmissible because

defendant had no knowledge of it), aff’d, 161 S.W.3d 507 (Tex. Crim. App. 2005).


Evans v. State                                                                         Page 9
        With regard to evidence of Carter’s alleged prior drug use, we construe Evans’s

complaint as having two parts: (1) exclusion of evidence regarding Carter’s alleged

possession of drugs in Granbury; and (2) permitting the State’s witness to “minimize”

the presence of Valium in Carter’s system on the day of the assault.

        Evans’s father testified that Carter told them “he had done a lot of drugs in the

past.” This general statement is not sufficient to establish that Evans was aware that

Carter had possessed drugs in Granbury on a particular occasion. Accordingly, the

court did not abuse its discretion by excluding this evidence. Id.

        The State called Dr. Arthur Raines to establish that Carter suffered serious bodily

injury and that Evans’s feet and the pavement against which he was “jamming,

cramming, slamming”2 Carter’s head both constituted deadly weapons in the manner of

their use. On cross-examination, Evans’s counsel reviewed Carter’s medical records

with Dr. Raines and sought to establish from blood tests that Carter was under the

influence of a combination of alcohol, valium and marihuana at the time of the assault.

Regarding valium, Dr. Raines opined that the amount indicated was a therapeutic

amount. Evans objected that this opinion was speculative, but the court overruled the

objection. On redirect, Dr. Raines explained that a sedative like valium is often used in

an emergency room as a sedative to assist with a patient’s intubation.

        Evans did not call any experts of his own to try to refute Dr. Raines’s

interpretation of Carter’s medical records.             Dr. Raines explained the basis for his

opinion that the amount of valium in Carter’s system was therapeutic. We cannot say

2
        These are the words of an eyewitness to the assault.


Evans v. State                                                                          Page 10
that the court abused its discretion by overruling Evans’s objection to this testimony.

See DeLarue v. State, 102 S.W.3d 388, 396 (Tex. App.—Houston [14th Dist.] 2003, pet.

ref’d) (“Expert testimony cannot be based upon mere guess or speculation, but must

have proper factual basis”).

        Evans’s third and fourth points are overruled.

        We modify the judgment by vacating Evans’s conviction for aggravated assault

under Count One of the indictment and affirm the judgment as modified. See Caballero

v. State, 292 S.W.3d 152, 156 (Tex. App.—San Antonio 2009, pet. ref’d).



                                                         FELIPE REYNA
                                                         Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Modified and affirmed
Opinion delivered and filed February 3, 2010
Do not publish
[CR25]




Evans v. State                                                                  Page 11
