Opinion issued January 9, 2020




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-18-00599-CR
                            ———————————
                     JOSE RUPERTO ALANIZ, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 30th District Court
                           Wichita County, Texas1
                        Trial Court Case No. 55,523-A

                          MEMORANDUM OPINION

      A jury convicted appellant, Jose Ruperto Alaniz, of aggravated assault with a

deadly weapon, and the trial court assessed his punishment at 75 years’ confinement.



1
      The Texas Supreme Court transferred this appeal from the Court of Appeals for the
      Second District of Texas. See TEX. GOV’T CODE § 73.001 (authorizing transfer of
      cases between courts of appeals).
In a single issue on appeal, appellant contends the trial court erred in failing to

instruct the jury on the law of self-defense. We affirm.

                                 BACKGROUND

The Stabbing

      On December 3, 2014, the complainant, Juan Johnathan Fernandez [“John”],

went with some of his friends to Stage West, a bar in Wichita Falls. John ordered a

drink and then sat down to visit with his friends, Joshua Reed and Jessica Holley.

When John went to the bar to get another round of drinks for his friends, he saw

Joshua’s brother, Justin, at the bar surrounded by three men. Because the discussion

between the men “didn’t look . . . friendly,” John leaned against the bar trying to

listen to their conversation.

      While doing so, appellant, who John did not know, got in John’s “personal

space” and asked, “what was up.”         John responded likewise, “What’s up?”

Appellant, still “in [John’s] face,” again asked, “What’s up?” John told appellant

that he was “just checking on [his] homeboy to make sure he’s ok.” Appellant

answered, “Well, what if he’s not? What the f— are you gonna do?”

      John then swung and hit appellant, knocking him back. John swung again,

but he was not sure if he hit appellant. John stated, “And then I went back and then

he came at me and swung at me and I went to dodge back, but something—I thought

he punched me in the nose.” A videotape of the incident shows John backing up and


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then appellant coming toward him and striking at him. A police officer testifying

about this video noted that you could see “[John] backing up and then you saw

[appellant] come toward him and start to strike him.”

      John felt that the amount of bleeding from him face was disproportionate to

the blow he had received. He noted, “I was thinking in my head he did not punch

me this hard for me to be bleeding this bad.” John did not see a weapon in appellant’s

hand and did not know that he had been cut or stabbed.

      John testified about what he did after noticing that his face was bleeding, as

follows:

      Q: What happens next?

      A: I think about that for a split second and then I charge him, I tackle
      him into like some tables or something, and then I’m on top of him.
      And as I’m right on top of him, the bouncer picks me up and like carries
      me out the door.

      Q: Did you ever punch him again?

      A: I never got a chance to.

      John testified that, after the bouncer shoved him out the door, he felt “weird,”

and said, “I think he stabbed me.” John soon collapsed in the parking lot and was

taken by ambulance to a nearby hospital. There, he was treated for “stabbings to his

face, chest, and abdomen.” John also suffered a collapsed lung from the chest wound

and underwent facial surgery for the cuts to his face. Photographs documenting

John’s extensive injuries were introduced at trial.
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        Police later located appellant at his friend’s house, and he was arrested.

Photographs were also taken of appellant showing only a small abrasion on his lower

back.

The DNA Evidence

        The police executed a search warrant at the house where appellant was

arrested and found several items of blood-stained clothing, as well as a blood-stained

lock-blade knife. The police also found blood stains in the car in which appellant

fled the bar.

        Chelsea Wingate, a forensic scientist with the Department of Public Safety

testified that she screened the evidence for the presence of blood, biological fluids,

or other sources of DNA. She testified that she recovered blood from the clothes, as

well as the knife. Regarding the testing of the knife, Wingate testified that it “was

screened for the presence of blood as well as it was swabbed for handler DNA to

determine who was holding the knife.” She explained that, when she tested the

handle of the knife, she tried to avoid the bloodstains so that she could get only the

DNA of persons who might have handled the knife, not just of the person who may

have been cut by the knife. When asked whether she was confident that she did not

collect any blood when she swabbed the handle, Wingate responded, “To my best

knowledge, I didn’t, but I can’t say for sure because sometimes blood, you know, I

mean, it depends, but there could be blood that’s like microscopic that I can’t see.”


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      Nicole Mullins, a DNA analyst with the Department of Public Safety,

analyzed the samples that Wingate had taken from the evidence. The DNA taken

from the hood and cuff of the denim jacket recovered when appellant was arrested

was from John. Likewise, DNA on the jeans and boots recovered when appellant

was arrested was from John. And, the DNA recovered from the car in which

appellant fled was also from John.

      Regarding the knife, Mullins tested both sides of the blade, as well as the

handle. One side of the knife’s blade was a DNA mixture that included appellant’s

DNA; John’s DNA was excluded. The other side of the blade contained a DNA

mixture that included appellant, John, and an unknown contributor. The handle of

the knife contained a DNA mixture of four contributors; appellant, John, and two

unknown contributors. Mullins testified that the majority of the DNA on the handle

was contributed by John. However, when further questioned about whether there

was blood in the DNA mixture that she was testing, Mullins replied:

      [I]f we take a swabbing of the knife to see who’s handled it, we try to
      avoid the bloody areas. Sometimes, depending on how bloody it is, it’s
      not completely possible to avoid it, but it’s—so I can’t say for sure that
      there’s no blood in this mixture. So it’s possible it’s just skin cells and
      it’s also possible that it’s a mixture of blood and skin cells.

      Mullins also stated that “from talking with Ms. Wingate when she did the

original screening on this case, [the blood on the knife handle] was difficult to avoid”

because “[t]here were not a lot of areas on the handle that didn’t have blood.”


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      Appellant’s expert, Dr. Robert Benjamin, testified that he did not “disagree

with any of the work that the DPS DNA experts [Wingate and Mullins]

completed[.]” He testified that, in analyzing DNA, ‘[i]t’s all the same DNA,” but he

noted that some biological sources were more plentiful in producing DNA.

Benjamin noted that between blood and skin, one would be more likely to find more

DNA in blood. Benjamin agreed that if the sample from the knife handle contained

blood, despite efforts to avoid the blood, that could explain why John was the major

contributor to the DNA recovered. Benjamin also stated that “there are too many

factors that you could ever make—[to] say what happened here.”

                                  SELF-DEFENSE

      In his sole issue on appeal, appellant contends the trial court erred in denying

his request for a jury instruction on self-defense. Specifically, appellant argues that

the requested instruction was proper because (1) there was DNA evidence

suggesting that the complainant, John, introduced a knife into what had been a

fistfight, and (2) that, when the complainant tackled appellant, the complainant could

have used his hands as deadly weapons. Appellant contends that either of these

scenarios, which he claims are supported by the evidence, would have required the

trial court to include an instruction on self-defense in the jury charge.




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Standard of Review and Applicable Law

      A defendant is entitled to a jury instruction on self-defense, when requested,

if the issue of self-defense is raised by the evidence, “whether that evidence is strong

or weak, unimpeached or contradicted, and regardless of what the trial court may

think about the credibility of the defense.” Gamino v. State, 537 S.W.3d 507, 510

(Tex. Crim. App. 2017). When reviewing a trial court’s decision denying a request

for a self-defense instruction, we view the evidence in the light most favorable to the

defendant’s requested submission. Id. A trial court errs in denying a self-defense

instruction if there is some evidence, from any source, when viewed in the light most

favorable to the defendant, that will support the elements of self-defense. Id.

      “Deadly force” is “force that is intended or known by the actor to cause, or in

the manner of its use or intended use is capable of causing, death or serious bodily

injury.” TEX. PENAL CODE § 9.01(3). Deadly force is justified in self-defense only

in response to “the other’s use or attempted use of unlawful deadly force,” or “to

prevent the other’s imminent commission of aggravated kidnapping, murder, sexual

assault, aggravated sexual assault, robbery, or aggravated robbery.” See TEX. PENAL

CODE § 9.32(a)(2)(A), (B); see also Bundy v. State, 280 S.W.3d 425, 435 (Tex.

App.—Fort Worth 2009, pet. ref’d) (deadly force not justified in response to non-

deadly force); Diaz v. State, No. 01-15-00646-CR, 2016 WL 6111035, at *2 (Tex.

App.—Houston [1st Dist.] Oct. 20, 2016, no pet.) (mem. op., not designated for


                                           7
publication) (defendant who used deadly force against complainant could claim self-

defense only upon showing complainant “used or attempted to use unlawful deadly

force, or that he was about to commit one of the offenses that justify deadly force to

prevent their commission”).

       A defendant is not required to testify in order to raise the issue of self-defense;

the issue “may be raised by the testimony of witnesses who testify to the defendant’s

acts and words at the time of the offense.” Reed v. State, 703 S.W.2d 380, 384–85

(Tex. App.—Dallas 1986, pet. ref’d) (citing Smith v. State, 676 S.W.2d 584, 587

(Tex. Crim. App. 1984)); see also VanBrackle v. State, 179 S.W.3d 708, 712 (Tex.

App.—Austin 2005, no pet.) (“Defensive issues may be raised by the testimony of

any witnesses, even those called by the State.”). But when, as here, a defendant does

not testify, there still must be some evidence of the defendant’s subjective belief that

deadly force was immediately necessary to protect himself. See Smith, 676 S.W.2d

at 585 (“[T]o 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 defendant was

in some apprehension or fear of being the recipient of the unlawful use of force from

the complainant.”); Lavern v. State, 48 S.W.3d 356, 360 (Tex. App.—Houston [14th

Dist.] 2001, pet. ref’d) (“While a non-testifying defendant may be entitled to a

charge on self-defense, it is rare for the defense to be raised when the defendant fails

to testify.”).


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      The record must contain some evidence or “observable manifestations” of the

defendant’s state of mind at the time of the alleged act of self-defense. See

VanBrackle, 179 S.W.3d at 713 (quoting Reed, 703 S.W.2d at 385). Examples of

observable manifestations of a defendant’s state of mind include evidence that the

defendant called for help during an altercation or told the complainant, “I don’t want

to fight you . . . . leave me alone,” as they struggled. VanBrackle, 179 S.W.3d at 714;

Smith, 676 S.W.2d at 586.

Analysis

      Appellant first argues that, because the DNA evidence shows that the

complainant’s DNA was the predominant DNA on the knife handle, “[i]t is a

reasonable inference from the evidence that [John] took the knife out while mounted

on Appellant and tried to use it.” The State responds that the presence of John’s

DNA on the handle of the knife is not evidence or an “observable manifestation” of

appellant’s state of mind. We agree with the State.

      The presence of John’s DNA on the handle of the knife, even if he is the major

contributor of the DNA, is not evidence of appellant’s state of mind, i.e., that

appellant reasonably believed that stabbing John was immediately necessary to

protect himself from deadly force. See, e.g., Morin v. State, No. 14-17-00080-CR,

2018 WL 3625290, at *2 (Tex. App.—Houston [14th Dist.] July 31, 2018, no pet.)

(mem. op., not designated for publication) (testimony that complainant had been


                                          9
“wielding around a very large knife” not evidence of defendant’s subjective intent,

where there was “no evidence that the [complainant] made any threats” against him);

Alexander v. State, No. 03-14-00290-CR, 2016 WL 286385, at *4 (Tex. App.—

Austin Jan. 21, 2016, pet. ref’d) (mem. op., not designated for publication) (evidence

that complainant “was ‘very angry’ and ‘upset’ during the altercation” and that she

bit defendant’s arm, cut his lip, punched him, and caused him to bleed did not

“establish anything regarding [defendant]’s state of mind during the altercation”);

Campbell v. State, No. 09-02-00054-CR, 2003 WL 21034610, at *2 (Tex. App.—

Beaumont May 7, 2003, pet. ref’d) (not designated for publication) (testimony

showing “violent nature of the victim and his heavy drinking habits” was “absolutely

no evidence as to the state of mind of [defendant] when he stabbed the victim”); cf.

Smith, 676 S.W.2d at 586 (defendant’s statement that he did not want to fight was

evidence of his state of mind); VanBrackle, 179 S.W.3d at 714 (cry for help was an

“observable manifestation” of defendant’s state of mind).

      Appellant’s position on appeal rests on his assertion that John had more “touch

DNA” on the handle of the knife, and that “[i]t is a reasonable inference from the

evidence that he took the knife out while mounted on Appellant and tried to use it.”

To evaluate this claim, we first consider whether appellant’s assertion that John

wielded the knife is a “reasonable inference.”




                                         10
      In Cavazos v. State, the defendant, like appellant here, did not provide any

direct evidence of his state of mind. Nos. 04-11-00366-CR & 04-11-00367-CR,

2012 WL 848159, at *1 (Tex. App.—San Antonio Mar. 14, 2012, pet. ref’d) (mem.

op., not designated for publication). Instead, he argued that self-defense was raised

because the scientific evidence showed that the victims had gunshot residue on their

hands. Id. at 2. The defendant argued that the gunshot-residue evidence was

sufficient to support a rational inference that the victims had fired weapons at him.

Id. Even though the firing of a weapon was one possible explanation of the gunshot

residue, the court noted that there was another “equally plausible” explanation, i.e.,

that the victims were near someone who had fired a weapon. Id. Without “other

facts” in the record supporting appellant’s explanation, there was no “rational

inference” that the victims fired weapons but was “mere speculation,” “theorizing

or guessing about the possible meaning of facts and evidence presented.” Id.

      We do not agree that appellant’s theory—that John introduced a knife to a

fistfight—is a rational inference from the evidence. As all the experts agreed, there

is no difference in the DNA produced by blood or skin; as Dr. Benjamin noted, ‘[i]t’s

all the same DNA.” While Wingate tried to avoid obtaining DNA from John’s blood

on the knife handle so that she could try to determine who held the knife, all the

experts agreed that, blood in the sample would result in the victim’s DNA being

more heavily present. And, Mullins noted, “There were not a lot of areas on the


                                         11
handle that didn’t have blood.” Appellant’s own expert, Benjamin, stated, “[T]here

are too many factors that you could ever make—[to] say what happened here.”

      The rational inference appellant wants the Court to make, i.e., that John pulled

the knife on appellant, is simply not supported by the mere presence of his DNA on

the knife handle. No evidence showed that John handled a knife and appellant

suffered no injuries other than a small abrasion on his back. Appellant’s conclusion

that John pulled the knife because his DNA was on the knife handle is not a “rational

inference” based on the evidence but is “mere speculation.” See id.; see also Hooper

v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007) (distinguishing between “rational

inferences” and “mere speculation”). As such, we conclude that the DNA evidence

relied on by appellant does not provide the necessary state-of-mind evidence

required to obtain a self-defense charge. See Cavazos, 2012 WL 848159, at *3.

      Appellant also argues that, when John tackled him and was positioned on top

of him before being forcibly removed by the bouncer, “[h]e could have easily caused

a serious bodily injury or impairment including beating him to death by striking

[appellant] with his fists.” This evidence does not require a self-defense instruction

for two reasons: First, as discussed above, there is no evidence in the record of

appellant’s state of mind i.e., that appellant reasonably believed that stabbing John

was immediately necessary to protect himself from John’s unlawful use of deadly

force. See, e.g., Morin, 2018 WL 3625290, at *2; Alexander, 2016 WL 286385, at


                                         12
*4; Campbell, 2003 WL 21034610, at *2. Second, there is no evidence that John

ever used or attempted to use his fists as a deadly weapon after tackling appellant

and getting on top of him. When asked whether he hit appellant after he tackled

him, John replied, “I never got a chance to.” This testimony is undisputed and does

not raise an issue of fact regarding whether appellant was entitled to a charge on self-

defense.

      For these reasons, we overrule appellant’s sole issue on appeal.

                                   CONCLUSION

      We affirm the trial court’s judgment.




                                                Sherry Radack
                                                Chief Justice

Panel consists of Chief Justice Radack and Justices Landau and Hightower.

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




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