Affirmed and Memorandum Opinion filed August 26, 2014.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-13-00774-CR

                      ZACHARIAH HARVEY, Appellant
                                        V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 174th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1311763

                 MEMORANDUM OPINION

      A jury convicted appellant Zachariah Harvey of murder and assessed his
punishment at forty years’ confinement and a $10,000 fine; the trial court signed a
judgment accordingly. He challenges his conviction on the grounds that: (1) there
is insufficient evidence to disprove self-defense; (2) admission of certain autopsy
photographs violated his right to confrontation; and (3) exclusion of evidence of
the decedent’s violent character prevented him from presenting his claim of self-
defense in “any meaningful way.” We affirm.
                                  BACKGROUND

      On July 13, 2010, appellant and his wife, the decedent Ninotchka Harvey,
engaged in a lengthy argument about an electricity bill. They went from room to
room inside their house arguing. At one point, appellant went into his bedroom,
but the decedent kicked in the bedroom door to continue their argument. During
their argument, around 1:00 p.m., the decedent’s daughter and young son left the
home to go to the mall, leaving appellant and the decedent alone in the house.

      Around 2:00 p.m., appellant called 911 and requested that police come to his
house in response to “an incident that led to a stabbing.” When asked if he had
been stabbed, he replied, “No, self-defense.” After a few more questions from the
911 operator, appellant acknowledged that the person who had been stabbed was at
the scene and might need an ambulance.         After that operator transferred the
appellant to another operator, appellant said that he had stabbed a woman in self-
defense. He also said that the stabbing occurred about fifteen minutes ago. The
911 operator asked whether the woman who was stabbed was awake or breathing;
appellant said he could not tell because she was “face down.” He was instructed to
roll her over and determine whether she was breathing. After complying, he told
the operator that she was not breathing. The operator instructed him to start CPR;
before the 911 operator could start giving him instructions, appellant stated, “I
know how to do CPR.” He started performing CPR, but he got no breathing or
circulation. He was instructed to continue with chest compressions, which he did
until emergency response units arrived at the location.

      After emergency responders arrived at the scene, the decedent was
pronounced dead at the scene. She had injuries to her face, including bruising on
her face and forehead and swelling on her lip, her fingernails appeared to have
been bent back, and she had been stabbed twice. Appellant told police officers that

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he had tried to end the argument with the decedent by locking himself in a
bedroom, but she kicked in the door and continued the argument. He said that he
went into the kitchen to get away from her and started washing knives. Appellant
said that the decedent came up behind him with a knife and he turned and stabbed
her. He also speculated that she had “walked into” the knife.

      The autopsy performed on the decedent indicated that she had bruises on her
face consistent with blunt force trauma and slapping. She also had contusions on
her arm consistent with someone having grabbed both her arms.

      Appellant was indicted for murder. He pleaded “not guilty.” The trial court
charged the jury on the law of self-defense, but a jury found him guilty as charged.
After a punishment hearing, the jury assessed punishment at forty years’
confinement and a $10,000 fine. Appellant timely filed this appeal.

                  SUFFICIENCY OF EVIDENCE OF SELF-DEFENSE

      In his first issue, appellant asserts that the evidence is insufficient to
disprove self-defense.   A defendant has the initial burden of producing some
evidence to support a claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594
(Tex. Crim. App. App. 2003) (citing Saxton v. State, 804 S.W.2d 910, 913 (Tex.
(Tex. Crim. App. App. 1991) (en banc)). Once evidence is produced, the burden
shifts to the State to disprove the defense beyond a reasonable doubt. Saxton, 804
S.W.2d at 913. This burden of persuasion does not require the State to produce
evidence to refute the self-defense claim, but requires only that it prove its case
beyond a reasonable doubt. Id. Thus, self-defense is not an affirmative defense
that the defendant must prove by a preponderance of the evidence, but is instead a
defense that the State must overcome in its burden of proving the elements of the
offense beyond a reasonable doubt.       Compare Tex. Penal Code Ann. § 2.03
(“defenses to prosecution”), with id. § 2.04 (“affirmative defenses to prosecution”).
                                         3
See also Tex. Penal Code Ann. § 9.02 (“It is a defense to prosecution that the
conduct in question is justified under this chapter.” (emphasis added)); id. § 9.31
(providing requisites for self-defense).

      Where, as here, there is a claim of self-defense rejected by the jury, we must
consider all the evidence in the light most favorable to the verdict and determine
whether, based on the evidence and reasonable inferences therefrom, a rational fact
finder could have found beyond a reasonable doubt (1) the essential elements of
the offense and (2) against the appellant on the self-defense issue. Darkins v.
State, 430 S.W.3d 559, 565 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d)
(citing Saxton, 804 S.W.2d at 913). Because self-defense is an issue of fact to be
determined by the jury, the jury is free to accept or reject the defensive issue.
Medina v. State, 411 S.W.3d 15, 21 (Tex. App.—Houston [14th Dist.] 2013, no
pet.) (citing Saxton, 804 S.W.2d at 913–14). A jury’s guilty verdict is an implicit
rejection of the appellant’s self-defense claim. Saxton, 804 S.W.2d at 914. Here,
appellant has not challenged the sufficiency of the evidence to support the essential
elements of the charged offense—murder.         Thus, we review only whether a
rational fact finder could have found beyond a reasonable doubt against appellant
on the self-defense issue.

      A person is justified in using deadly force against another if he reasonably
believes that deadly force is necessary to protect against the other’s use or
attempted use of unlawful deadly force. See Tex. Penal Code Ann. § 9.32(a). As
noted above, although the State bears the burden of persuasion to disprove the
issue of self-defense, it is not required to affirmatively present evidence that
specifically refutes the defendant’s self-defense evidence. Saxton, 804 S.W.2d at
913–14.



                                           4
       Viewing all of the evidence in the light most favorable to the jury’s rejection
of self-defense, the jury was entitled to believe that:

       1. Appellant stabbed the decedent twice. This evidence is undisputed.

       2. The decedent did not threaten appellant with a knife. Appellant reported
to investigators that the decedent attacked him with a knife, but the jury was free to
disbelieve his statement.1 The jury heard no other evidence about the decedent
holding or otherwise threatening appellant with a knife. According to expert
testimony at trial, the presence of the decedent’s DNA on the knife blade and
handle reflects presence of decedent’s blood on the knife. .

       3. Whatever physical alteration had previously occurred had ended at the
time the decedent was stabbed. Appellant and the decedent argued and, when
appellant retreated to a bedroom, the decedent broke into that room and followed
him.   However, appellant subsequently went into the kitchen to wash dishes.
Appellant stabbed the decedent in the kitchen.

       4. Appellant was physically violent with the decedent. The decedent had
injuries to her face, hands, and arms, and the injury to her face was consistent with
a blunt force trauma. Appellant also had some minor physical injuries, including
some small scratches on his face and a cut on his lip. The physical evidence is
consistent with appellant’s claim of self-defense, neither proving nor refuting it.
But “[d]efensive evidence which is merely consistent with the physical evidence at
the scene of the alleged offense will not render the State’s evidence insufficient
since the credibility determination of such evidence is solely within the jury’s
province and the jury is free to accept or reject the defensive evidence.” Saxton,
804 S.W.2d at 914; see also Madrigal v. State, 347 S.W.3d 809, 818 (Tex. App.—
       1
        We note that there was no evidence that the decedent had a knife other than appellant’s
statements made to first responders.

                                              5
Corpus Christi 2011, pet. ref’d) (“Although we agree with Madrigal that there was
evidence that would have allowed a jury to find he acted in self-defense, the jury
was free to disbelieve all of such evidence. In fact, there was also evidence to
support a finding that he did not act in self-defense.” (citation omitted)); Lee v.
State, 259 S.W.3d 785, 792 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d).

      5. Once appellant confronted her with a knife, the decedent put her arms in
the air to show she was backing away, or was not a threat. The position of the
holes in the decedent’s shirt indicates that she may have had her arms raised when
she was stabbed. There were no stab wounds to the decedent’s hands. Although
this evidence might be consistent with self-defense, such evidence is undercut by
the fact that one of the first responding police officers recalled appellant stated to
him that appellant had a knife in his hand, turned around, and the decedent walked
into the knife. Similarly, the jury was entitled to infer that the decedent had her
arms raised to show appellant, who was holding a knife, that she was not
threatening him, yet he stabbed her anyway.

      6. Appellant made a self-serving self-defense claim after he stabbed the
decedent. The primary evidence supporting appellant’s self-defense claim was his
statements to the 911 operators that he acted in self-defense and his statement to
police that the decedent “came at him” with a knife.

      7. On the day the decedent was stabbed, she did not behave so violently that
deadly force was necessary in self-defense. Appellant relied on testimony that the
decedent had a violent character and had behaved violently in the past. The jury
was entitled to disbelieve the statements appellant made that he had acted in self-
defense and instead conclude that his actions on the day of the murder were not
justified. See Darkins, 430 S.W.3d at 566; Madrigal, 347 S.W.3d at 819 (citing



                                          6
Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. App. 2000) (plurality
op.)).

         In sum, viewing the evidence in the light most favorable to the verdict, we
conclude that a rational jury could have found beyond a reasonable doubt that
appellant was not acting in self-defense when he stabbed the decedent.             We
overrule appellant’s first issue.

                       ADMISSION OF AUTOPSY PHOTOGRAPHS

         Appellant next asserts that the trial court committed reversible error by
admitting certain autopsy photographs into evidence over his objection.            On
appeal, he asserts that admission of these photographs violated his right to
confrontation, relying on Bullcoming v. New Mexico, 131 S. Ct. 2705, 2710 (2011).

         The record reflects that, after appellant verified that the testifying medical
examiner had not written the autopsy report, he made the following objections to
the photographs at issue and the autopsy report prepared by an assistant medical
examiner when he took the testifying medical examiner on voir dire:

               [Counsel for Appellant]: Then, Judge, I would renew the
         objections I raised yesterday about the autopsy photos. Does the
         Court understand what I’m saying?
               THE COURT: Yes, sir.
               [Counsel for Appellant]: Okay. I would object to State’s Exhibit
         No. 350 under Bullcoming (phonetic) and a violation of the right to
         confront and cross-examination.

(emphasis added).

         First, State’s Exhibit 350 is the autopsy report, the admission of which
appellant does not complain about on appeal. The trial court’s admission of the
autopsy photographs, to which appellant renewed the objections he had raised the
day before, is the only ruling about which he complains on appeal. But the record
                                            7
reflects that the only objection raised to these photographs was a Texas Rule of
Evidence 403 objection:

            Okay. So, for clarity in the record, it will be Exhibits 463, 464,
      466, 467, 468, 469, and 470, as well as 476, 475, 471, 472, 473, and
      474. We're objecting that under 403 that these are substantially more
      than probative.
                                        ***
            We would raise the same objection, the 403 objection, to 477
      and 478 and 479 and 480, 481, and 482 and 483 and 484.
                                        ***
               We make the same objection, Judge, to the admission of all of
      these.
(emphasis added).

      To preserve a complaint for appellate review, the record must show that a
specific and timely complaint was made to the trial judge and that the trial judge
ruled on the complaint. Tex. R. App. P. 33.1; Lovill v. State, 319 S.W.3d 687, 691
(Tex. Crim. App. 2009). The complaint raised on appeal must comport with the
objection made at trial. Clark v. State, 356 S.W.3d 333, 339 (Tex. Crim. App.
2012). If it does not, the complaint is not preserved for appeal. See Lovill, 319
S.W.3d at 691–92 (“A complaint will not be preserved if the legal basis of the
complaint raised on appeal varies from the complaint made at trial.”); Pena v.
State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (“Whether a party’s particular
complaint is preserved depends on whether the complaint on appeal comports with
the complaint made at trial.”).

      Because appellant’s confrontation clause complaint does not comport with
his Rule 403 objection at trial, he has not preserved this issue for our review.
Moreover, appellant offers no authority for extending the Confrontation Clause
protections of Bullcoming to the autopsy photos in this case.

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      The United States Supreme Court in Bullcoming was presented with the
issue of

      whether the Confrontation Clause permits the prosecution to introduce
      a forensic laboratory report containing a testimonial certification—
      made for the purpose of proving a particular fact—through the in-
      court testimony of a scientist who did not sign the certification or
      perform or observe the test reported in the certification. We hold that
      surrogate testimony of that order does not meet the constitutional
      requirement.

Bullcoming, 131 S. Ct. at 2710 (emphasis added). Thus, the concern in Bullcoming
was the admission of testimonial scientific evidence in documentary form
sponsored by another scientist “who had neither observed nor reviewed” the
analysis. Id. at 2712 (emphasis added). Over Bullcoming’s Confrontation Clause
objections, the trial court admitted the analysis.

      Here, rather than a laboratory report, as in Bullcoming, appellant objects to
the introduction of autopsy photographs. He urges that he was entitled to confront
the “actual fornensic examiner.” But we have previously rejected a claim that
photos taken during an autopsy are testimonial. Herrera v. State, 367 S.W.3d 762,
773 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Appellant makes no effort to
distinguish this precedent or otherwise explain how the Confrontation Clause
considerations apparent in Bullcoming are present here—i.e., a report introduced
by a scientist who was not present and did not prepare it. See Bullcoming, 131
S.Ct. at 2712; see also Herrera, 367 S.W.3d at 773 (“An autopsy photograph,
however, is not a testimonial statement.”). The testifying expert here stated that he
was present when the photographs were taken and that they “fairly and accurately
depict[ed the decedent]’s body at the time of the autopsy.” See Tex. R. Evid. 901.
Thus, the admission of these photographs is not in conflict with the holding in
Bullcoming.

                                           9
      For the foregoing reasons, we overrule appellant’s second issue.

                             EXCLUSION OF EVIDENCE

      In his final issue, appellant urges that the trial court’s erroneous exclusion of
the testimony by several proffered defense witnesses regarding the decedent’s
propensity for aggression and her violent character prevented him from presenting
his self-defense claim in “any meaningful way.”

             When a defendant in a homicide prosecution raises the issue of
      self-defense, he may introduce evidence of the deceased’s violent
      character. Specific acts of violence may be introduced to demonstrate
      the reasonableness of the defendant’s fear of danger or to demonstrate
      that the deceased was the first aggressor. However, such specific acts
      of violence are admissible only to the extent that they are relevant
      apart from showing character conformity. This Court has held that
      specific, violent acts are relevant apart from showing character
      conformity in the context of proving that the deceased was the first
      aggressor by demonstrating the deceased’s intent, motive, or state of
      mind. Because the specific act is probative of the deceased’s state of
      mind or intent, the witness must know, but the defendant need not
      know of the act.
Torres v. State, 117 S.W.3d 891, 894–95 (Tex. Crim. App. 2003) (citations
omitted).

      We review a trial court’s evidentiary rulings under an abuse-of-discretion
standard. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); Waters
v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007). We will not reverse the
trial court’s ruling if it was within the zone of reasonable disagreement. Tillman,
354 S.W.3d at 435; Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App.
2006). Any error in the improper exclusion of evidence is harmless if the record
reflects that the evidence was cumulative of other defense evidence before the jury.
See Garcia v. State, 246 S.W.3d 121, 136 (Tex. App.—San Antonio 2007, pet.


                                         10
ref’d); Roberts v. State, 743 S.W.2d 708, 711 (Tex. App.—Houston [14th Dist.]
1987, pet. ref’d).

      Appellant first complains that the decedent’s daughter was not permitted to
testify that her mother had previously hurt her, had on occasion whipped her with a
broom, and had once actually drawn blood while whipping her. Although the
decedent’s daughter was not permitted to testify concerning these specific issues,
the daughter did testify that, on the day of the murder, she saw appellant go into his
bedroom and shut the door to avoid the decedent, but the decedent kicked in the
door. She further acknowledged that the decedent “had a temper” and “could get
very angry at times.” She testified that the decedent would provoke fights and
would fight back if provoked. She also testified that once, in response to the
appellant striking the decedent, the decedent threatened appellant with a gun.

      Appellant proffered the testimony of Maimunah Sabur outside the presence
of the jury. Sabur stated she had known appellant and the decedent for over five
years. Sabur testified that she had heard the decedent say she knew how to use a
knife and a machete. Specifically, Sabur stated she had heard the decedent say,
“Maimunah, he [appellant] thinks I don’t know how to use this machete, but I cut
him and I’ll leave him with the kids.” She further testified that the decedent had
stated, “I know how to use a knife, I can do it very well, especially a machete.”
Sabur was unsure whether the decedent was “joking or serious” when she made
these comments, because at least one time when she made comments about knives
or a machete, she was laughing. Sabur further was unable to state when the
decedent had made these statements, only that they had all occurred “a while ago.”
Sabur also testified as follows regarding her opinion about the decedent’s character
for violence: “My opinion is that you -- have to take [the decedent] as she is at that
particular time. The violence was there. It was always right underneath, right

                                         11
underneath the surface. . . . Sometimes she could be a little explosive.” Over
appellant’s objection, the trial court refused to permit this witness to testify before
the jury.

      Appellant also proffered the testimony of Latonya Howard outside the
presence of the jury. In this offer of proof, Howard testified that she had lived with
the decedent and appellant shortly before the decedent’s death. She testified that
(1) she had witnessed the decedent “whoop the kids excessively” using “[b]elts and
the stitching boards”; (2) she had seen the decedent kick in doors at least four times
and appellant was present for each of these occasions; and (3) the decedent had
specifically told Howard that the decedent had “pulled a knife” and a gun on
appellant in the past. Howard further opined that the decedent had a “very violent”
character. Initially, the State objected to this witness, and the trial court sustained
the State’s objection. But the next day, the State informed the trial court that it had
notified appellant’s counsel that it had withdrawn its objection to Latonya
Howard’s testifying. Nonetheless, appellant did not call this witness to testify.
Because appellant did not call this witness to testify after the State withdrew its
objection to her testimony, there is no longer a ruling by the trial court about which
appellant may complain regarding this witness. See Tex. R. App. P. 33.1; see also
Tex. R. App. P. 44.2 (providing that there must be some degree of harm to show
reversible error in criminal cases).

      Appellant made an offer of proof of the testimony of Al-Quiyama Faiz, a
friend of appellant and the decedent when they lived in Atlanta before they moved
to Houston. She described an incident where the decedent had engaged in a car
chase; she explained that the decedent had said she was going to “take a machete
from underneath her abaya and cut [the driver of the other vehicle] with it.” Faiz
also testified that she knew the decedent and was familiar with her reputation in the

                                          12
community. Faiz stated that the decedent had a reputation for being “hot-headed”
and violent “at times.”

      Appellant finally complains that he was not permitted to present the
testimony of Javier Carrion. But this complaint is belied by the record: Carrion
actually testified before the jury.    Carrion testified concerning “moments of
violence” he had witnessed between appellant and the decedent. For example, he
described an incident in which appellant and the decedent were arguing and
Carrion witnessed the decedent “point a gun” in appellant’s face. He also detailed
another occasion where appellant and the decedent were arguing, and the decedent
grabbed a knife from the kitchen and began running toward appellant. Carrion
explained that he was able to “wrestle” the knife away from the decedent.
According to Carrion, he saw another argument between appellant and the
decedent where the decedent threw things at appellant. Finally, Carrion opined
that the decedent could be “sweet one time,” but “the next time, if she got mad, she
could throw a switch and just be engulfed in rage.” He stated that the decedent’s
reputation was that “she could get violent or she had been violent in the past.”

      Based on our review of the record, it is apparent that the defensive issue of
the decedent’s acts of aggression and character for violence was presented to the
jury. First, her daughter described the decedent as having a bad temper and
provoking fights; the daughter further testified that the decedent broke down a door
to continue a confrontation with appellant on the day of the stabbing, and she
described an incident where the decedent had pointed a gun at appellant. Second,
Carrion testified that he had seen the decedent point a gun at appellant and that he
had intervened when the decedent attempted to confront appellant with a knife.
Carrion further testified that the decedent had a reputation for being violent and
that she had been violent in the past. Third, appellant had the opportunity to

                                         13
present further evidence of the decedent’s past violent behavior and character for
violence through Latonya Howard. Appellant chose not to call Howard as a
witness, even though his counsel was timely informed by the State that it had
withdrawn its objections to her testimony. Under these specific circumstances, we
conclude that any error in the improper exclusion of the testimony of Sabur and
Faiz is harmless. The record reflects that this evidence was cumulative of other
defense evidence before the jury or evidence that appellant chose not to present to
the jury. Cf. Garcia, 246 S.W.3d at 136; Roberts, 743 S.W.2d at 711.

      Under these circumstances, we overrule appellant’s third issue.

                                     CONCLUSION

      We have overruled each of appellant’s three issues. We affirm the trial
court’s judgment.



                               /s/            Sharon McCally
                                              Justice
Panel consists of Justices Christopher, Jamison, and McCally.
Do Not Publish — Tex. R. App. P. 47.2(b).




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