

Opinion issued May 24, 2012
 

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-10-00977-CR
———————————
Joshua Reynolds, Appellant
V.
The State of
Texas, Appellee

 

 
On Appeal from the 185th District Court
Harris County, Texas

Trial Court Case No. 1259578
 

 
OPINION
          A
jury convicted appellant, Joshua Reynolds, of the second degree felony offense
of aggravated assault, assessed punishment at five years’ confinement, and
recommended that the trial court place him on community supervision.[1]  The trial court suspended appellant’s
sentence and placed him on community supervision for five years.  In three issues, appellant contends that the
trial court erred when it (1) denied him the right to cross-examine the
complainant regarding a potential bias against him; (2) refused to give a
self-defense instruction in the written charge pursuant to Penal Code section
9.04; and (3) allowed victim-impact testimony during the guilt-innocence phase
of trial.
          We
affirm.
Background
          On
April 17, 2010, the complainant, Jessica Paulin, and several of her neighbors
and friends held a barbecue party in front of their houses.  Jessica testified that, after midnight, she
was walking out of her neighbor’s house when she saw a car turn onto her street
“at a high speed,” narrowly missing several children who were playing in the
grassy median of the street.  According
to Jessica, the driver of the car, who was later identified as Ryan Gonzalez,
had his window rolled down and he was yelling and cursing at the children.  Jessica yelled back at Gonzalez, “You don’t
need to be talking to the kids like that. 
Those are just kids.”  After Gonzalez
sped away, Jessica told Rich Segali, one of the guests at the party, about the
incident.  She asked Segali if, when the
car drove by again, he would mind stopping the car and telling the driver to
slow down because of the children.  Segali
agreed to do so.
          When
the car approached again “a couple of minutes” later, Segali was standing in
the middle of the road.  Jessica heard
Segali, who seemed “concerned” and “kind of angry,” tell Gonzalez to slow down
because of the children in the area.  She
stated that, as Segali was speaking to Gonzalez, he had his hands on the
driver’s side window and was leaning into the car.  According to her, Segali was “firm,” but he did
not make any verbal or physical threats to Gonzalez, and Gonzalez was “very
passive [and] apologetic.”  Jessica
testified that a few of the men from the party walked over to the car, and one
of them, Luis Arjona, told the group that he knew Gonzalez and that everything
was “okay.”  After Luis joined the group,
Gonzalez got out of his car and the men stood around the car and calmly talked.Jessica
briefly spoke to her husband, Troy Paulin, who assured her that “[e]verything’s
going to be fine,” but as she turned to walk back into her house, she saw
appellant “walking fast” toward her with a gun.
          Jessica
testified that she froze and said, “What are you doing, Josh?  Why do you have the gun?  Put the gun down.”  As he walked toward her, appellant pointed
the gun at Jessica’s head.  Appellant
stopped “just a couple of inches” from Jessica, and continued pointing the gun
at her for “[m]aybe 10 [or] 15 seconds.” 
Appellant appeared angry and asked, “Why are you f——— with my boy?” 
Appellant “clicked” his gun, and Jessica started running to her house
and screamed, “He’s got a gun; get the kids inside.”  Jessica did not see if appellant pointed the
gun at anyone else.
          On
cross-examination, Jessica testified that Josh Oldham, another friend who
attended the party, stood in the street with Segali to stop Gonzalez, and she
agreed with defense counsel that Oldham “is a pretty large man.”  She again stated that Segali was “firm” with Gonzalez,
and she testified that Gonzalez “cooperated 100 percent,” got out of his car,
and shook hands with Segali.  She
testified that, after Luis arrived at the car, the men were being “very
friendly.”
          During
cross-examination of Jessica, defense counsel asked, “Even before this
[incident] happened, you would have been happy to see Josh’s family move out of
the neighborhood, correct?”  The State
objected on relevance grounds, and the parties had the following exchange with
the trial court:
[Defense]:   Goes to bias or motive.
 
. . . .
 
The Court:  Not sure where you’re going.
 
[Defense]:   Well, the bias is that she’s lying because
she hates [appellant’s] mom.  And that’s
what I’m getting at.
 
[State]:        I don’t think it’s relevant as to
self-defense.
 
The
Court:  Yeah, I don’t know if the fact she
doesn’t like his mom shows bias.
 
[Defense]:   It shows bias against him, you know, kind of
to get at the mom by making sure he gets in some kind of criminal trouble.
 
The
Court:  I don’t know that I can make that
leap.  Where does that come from?
 
[Defense]:   Well, I know that she has bias because when I
talked to her on the phone, she complains about [appellant’s] mom, says she’s a
piece of work or a work of art and a deadbeat mom and goes on about some other
stuff.  Clearly she doesn’t like the lady
and has—
 
The
Court:  But that’s not who’s on trial; so,
I’m going to sustain [the State’s] objection.
 
The trial court did not allow defense counsel to
question Jessica regarding her feelings toward appellant’s mother.
          Segali
testified that he was “upset” when Jessica told him about the car speeding
around the corner.  He stated that he
walked out into the street with Jessica to stop the car when it drove past
again and perhaps three or four of the other men attending the party
followed.  Segali characterized his
demeanor while standing in the street and holding up his hand as “aggressive,”
and he clarified that he exhibited “the intent that [he] wanted [the car] to
stop.”  Segali told Gonzalez in a
“raised” voice, “What . . . is your problem[?]  There [are] kids out here.”  He stated that Gonzalez was “kind of just
startled,” but he was also apologetic.  He
testified that the “mood” of the group of people standing around Gonzalez’s car
was “just fine,” and that everyone was standing around listening to Segali’s
conversation with Gonzalez.  Segali
testified that he spoke with Gonzalez for about three to five minutes before he
heard someone yell, “He’s got a gun.”  Segali
turned around and saw appellant pointing a gun at Jessica, and appellant then
“switched the gun from Jessica to [Segali] and then cocked it.”  Segali stated that he was standing
approximately two feet away from Gonzalez’s car when appellant arrived with the
gun and that appellant stood three or four feet away from him and Jessica when
he pointed the gun.
          Segali
testified that he began to yell at appellant when he saw the gun, and he told
him, “Why [are] you bringing a gun out here? 
Nothing [is] going on.  There is
no reason to bring a gun.”  He stated
that appellant did not look scared and that appellant replied, in response to
Segali’s questions, that “he was there to protect his friend.”  He did not recall verbally or physically threatening
appellant.  He testified that when
appellant arrived he was “still yelling” at Gonzalez about his speed and his
use of obscenitiesaround the children, but he was not threatening Gonzalez in
any way.  To Segali’s knowledge, no one
at this party had any kind of weapon, no one physically or verbally threatened Gonzalez,
no one banged on or tried to overturn his car, and no one touched Gonzalez.
          On
cross-examination, Segali acknowledged that, at the time of this incident, he
was holding an empty cup, but he did not recall throwing this cup at Gonzalez’s
car.  He also agreed with defense counsel
that he yelled at Gonzalez and that a few other adults were walking around Gonzalez’s
car during this incident.  He further agreed
that, after appellant arrived, he had to be physically pulled from the scene by
his wife and son.
          Julie
Oldham, another guest at the party, testified that after the men stopped Gonzalez’s
car, she heard yelling, although she did not know who was doing the
yelling.  She recalled that Luis arrived
and told everyone that he knew the driver and that everything was “cool,” and
that Gonzalez was apologetic.  She stated
that approximately six people were standing by Gonzalez’s car and that no one
had any weapons or anything that could be used as a weapon, such as a beer
bottle.  Julie testified that the
situation was “calm,” and then she heard someone scream, “He’s got a gun.”  She looked over and saw appellant walk right
past her, carrying a gun.  Julie heard
appellant cock the gun, and she saw him stand “right next to” Jessica and point
the gun at her head.  Julie did not see
appellant point the gun at anyone else because she ran off to take the children
inside.
          Troy
Paulin testified that he did not become involved in the incident until after
Segali had already stopped Gonzalez’s car. 
As he walked over, he heard someone say, “He’s apologizing; everything’s
cool.  He knows that he shouldn’t have
been speeding through here.”Troy told Jessica, “Everything’s good,” and he
started to walk away, but he then heard Jessica say, “He’s got a gun.”  Troy ran back over to the car, saw appellant,
who was pointing the gun at Segali, and said, “Josh, you don’t want to do
this.”  Troy was ultimately able to
disarm appellant.  At this point, he
heard appellant say, “There’s one in the chamber,” which Troy understood to
mean that the gun was loaded and ready to fire.
          The
prosecutor asked Troy, “What was going through your mind when you saw
[appellant] hold the gun to Rich?”  Defense
counsel objected on relevance grounds, and the trial court overruled the
objection.  Troy responded,
I couldn’t believe I was at
a location where there was an actual gun. 
My first thought was, Where [are] my kids, where’s my wife.  All I could think about were stories, okay,
people got shot here, people got shot there. 
I thought if I was going to do anything, I needed to react quickly, just
in case it did turn out to be something worse than it was.
 
Troy testified that no one else present had a weapon
and that he never saw anyone throw anything at Gonzalez’s car, pound on the
car, or make any kind of threats to Gonzalez or appellant.
          Josh
Oldham testified similarly to the other party attendees.  He agreed that the group did not surround Gonzalez’s
car and that, upon being stopped by Segali, Gonzalez “was just very forthcoming
that he was very, very sorry.”  He
testified that, when appellant arrived with the gun, he was saying, “What the F
are y’all doing? . . .  You F with him, you F with
me.  You get away from my
friend . . . .”  Oldham
testified that he and the others attempted to reassure appellant that the
situation was under control, that they “just wanted to know what was going on,”
and that there was no reason to bring a gun. 
He further stated that Gonzalez then got out of his car and told
appellant to put away his gun.  According
to Oldham, when appellant arrived, no one was yelling at or threatening Gonzalez.
          Luis
Arjona testified on behalf of appellant and stated that, after Gonzalezstopped,Segali
“chunked” his cup at the windshield of Gonzalez’s car.  He testified that it “looked like [Segali] was
about to yank [Gonzalez] out of the car” before Luis recognized Gonzalez as appellant’s
friend.  At this point, Segali “backed
off” and Luis spoke with Gonzalez.  Luis
testified that people were “surrounding” the car and that they were all
“upset.”  He also stated that Gonzalez
was apologetic and “very remorseful,” and that he “finally realized the gravity
of the situation and he apologized to everyone.”  After Gonzalez apologized and the group was
about to walk away from the car, Luis heard a click and someone say, “He’s got
a gun.”  Luis saw appellant with a gun,
but he never saw appellant point the gun at anyone’s head.
          Ryan
Gonzalez testified that, as he turned onto appellant’s street to drop him off
at his house, several kids were in the street. 
He yelled at them to “get the F out of the way.”  He dropped appellant off and drove back down
the street, but he started to slow down when he saw a few men approach his
car.  Gonzalez stopped completely when
one of the men threw a drink at the car. 
Gonzalez testified that he was “kind of scared” as he rolled down his
window.  He stated that he apologized
after the men explained why they were upset. 
He further testified that, as he was talking to Luis, no one was touching
him or his car.  Gonzalez was about to go
home when he “heard some commotion in the background,” saw appellant, and
“heard something about a gun.”  He
testified that he never saw appellant holding a gun.
          On
cross-examination, Gonzalez testified that he wanted to apologize to
appellant’s neighbors and that he “wanted to make it clear to them [that he
does] come though that neighborhood a lot and [he] would want them to respect
[him] as [he] would respect them.”  He
reiterated that he never saw appellant holding a gun, but he also testified that
when he learned about the gun he was surprised that appellant had brought it to
the scene.  He agreed with the State that
no one else present had any weapons.
          Appellant
testified on his own behalf.  He stated
that Gonzalez dropped him off at his house, and he began to walk to his front
door as Gonzalez made a U-turn to go back down the street.  As he reached his front door, he heard “the
brakes clamp” and Gonzalez’s car stop.  Appellant
testified that he walked back toward the street and saw a large man “running
with his hands up in the air in front of [Gonzalez’s] car, saying, ‘Do you have
a problem?  Get out of the car.’”  He stated that he could clearly hear what was
being yelled from his house, “about five houses” down from where Gonzalez had
stopped.  He saw a man approach Gonzalez’s
driver’s side door, throw something at the car, and begin to grab at the driver’s
side door.  He testified that he heard
the man scream at Gonzalez to get out of the car, and he ran into his house.
          Appellant
testified that he believed that the men were going to yank Gonzalez out of his
car and “beat him up right there.”  He
thought about calling the police, but he decided against this course of action
because he only had a cell phone and “[i]t takes a really long time to call
police on a cell phone.”  Appellant, who
had been at a shooting range with Gonzalez earlier in the evening, decided to
get the pistol that he had used at the range from his backpack.  He stated that his gun was not loaded,
because he had used all of the ammunition at the shooting range, so he grabbed
five or six bullets and began loading the gun as he ran back down the
street.  He stated that he took the gun
because he “thought it was the only way [he] could get [the group] away from Ryan.”  When asked why he brought the bullets as
well, appellant responded,
You just never know.  I really thought that they were going to be
beating him by then and these are big guys and a lot of guys, not just one but
three or four guys, and as I approached, the car’s surrounded by a bunch more
guys.
 
When appellant left his house, he could see a group
of people surrounding Gonzalez’s car, and he could not see what was
happening.  He believed that Gonzalez was
on the ground at this point, and he believed that Gonzalez was in danger.
          Appellant
testified that, when he arrived at the car, he saw two men leaning into the
driver’s side window and Gonzalez was crying. 
He stated that they were screaming at Gonzalez, but they were not
physically contacting him.  Appellant had
the following exchange with defense counsel:
Q:      What was your hope?  In taking the gun down there, what was your
hope of accomplishing?
 
A:      Just getting them away from [Gonzalez] so
I could call the police to stop what was happening.
 
Q:      That, in other words, it would scare them to leave?
 
A:      Scare them to leave and I could do something.
 
Q:      As you neared the car, did you make any
decision that you were going to shoot anybody?
 
A:      No, sir.
 
He further testified that, as soon as Troy and Luis
approached him and told him that there was no reason to bring a gun, he
“instantly was calm and understood that.” 
He denied ever being close enough to point the gun at Jessica.  Appellant testified that he never intended to
shoot anyone and that he did not try to shoot anyone.
          On
cross-examination, appellant agreed with the State that the gun was not loaded
when he grabbed it from his bedroom and that he “made the conscious decision to
load that gun.”  He testified that the type
of gun that he displayed during the incident required him to individually load
the bullets into the magazine.  He stated
that he loaded the magazine as he was running to the scene.  He testified that, as he approached the car,
he said, “Get away from the car.  What
are y’all doing to him?”  He admitted
that he “racked the gun in order to load . . . a live
bullet into the chamber.”  He agreed with
the prosecutor that Gonzalez appeared surprised when he got out of his car and
saw appellant holding the gun.  He
further agreed that, although his intent was only to show the gun to scare the
others, he loaded it because he realized that he might have to use it “[o]nly
if something that bad was happening.”
          At
the charge conference, defense counsel re        quested
that the trial court submitthe following jury instruction:
The threat of force is
justified when the use of force is justified. 
A threat to cause death or serious bodily injury by the production of a
weapon or otherwise, as long as the defendant’s purpose is limited to creating
an apprehension that he will use deadly force, if necessary, does not
constitute the use of deadly force.
 
This instruction tracks the language of Penal Code
section 9.04.  SeeTex. Penal Code Ann.
§ 9.04 (Vernon 2011).  The trial
court denied the request for this instruction, reasoning that this language “is
basically contained within the self-defense charge.”  The trial court included in the charge
instructions on self-defense, defense of others, and apparent danger.
          The
jury ultimately found appellant guilty of the offense of aggravated assault,
assessed punishment at five years’ confinement, and recommended that the trial
court place appellant on community supervision. 
The trial court sentenced appellant to five years’ confinement and
suspended the sentence.  This appeal
followed.
Limitation of Cross-Examination
          In
his first issue, appellant contends that the trial court abused its discretion
when it refused to allow defense counsel to cross-examine Jessica Paulin regarding
her alleged dislike of appellant’s mother, which would have revealed her bias
against appellant.[2]
          We
review a trial court’s decision to exclude evidence for an abuse of
discretion.  Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010).A trial
court abuses its discretion only if its decision is “so clearly wrong as to lie
outside the zone within which reasonable people might disagree.”  Taylor
v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008).  A trial court does not abuse its discretion
if any evidence supports its decision.  See Osbourn v. State, 92 S.W.3d 531, 538
(Tex. Crim. App. 2002).We will uphold the trial court’s evidentiary ruling if
it was correct on any theory of law applicable to the case.  See De
La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
          The
Sixth Amendment right to confront witnesses “includes the right to
cross-examine witnesses to attack their general credibility or to show their
possible bias, self-interest, or motives in testifying.”  Hammer
v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009).  Generally, the Texas Rules of Evidence permit
a defendant to “cross-examine a witness for his purported bias, interest, and
motive without undue limitation or arbitrary prohibition.”  Id.
at 563; see alsoTex. R. Evid. 613(b) (providing for
impeachment of witness by evidence of alleged bias or interest in favor or
against party); Billodeau v. State,
277 S.W.3d 34, 42 (Tex. Crim. App. 2009) (“The possible animus, motive, or ill
will of a prosecution witness who testified against the defendant is never a
collateral or irrelevant inquiry, and the defendant is entitled, subject to
reasonable restrictions, to show any relevant fact that might tend to establish
ill feeling, bias, motive, interest, or animus on the part of any witness
testifying against him.”); Carpenter v.
State, 979 S.W.2d 633, 634 (Tex. Crim. App. 1998) (“Exposing a witness’
motivation to testify for or against the accused or the State is a proper and
important purpose of cross-examination.”). 
The scope of permissible cross-examination is “necessarily broad.”  Carroll
v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996).  “A defendant is entitled to pursue all
avenues of cross-examination reasonably calculated to expose a motive, bias or
interest for the witness to testify.”  Id.
          This
broad scope of cross-examination does not mean, however, “that a defendant can
explore every possible line of inquiry.” 
Smith v. State, 352 S.W.3d 55,
64 (Tex. App.—Fort Worth 2011, no pet.). 
“[T]rial judges retain wide latitude . . . to impose
reasonable limits on such cross-examination based on concerns about, among
other things, harassment, prejudice, confusion of the issues, the witness’
safety, or interrogation that is repetitive or only marginally relevant.”  Delaware v. Van Arsdall, 475 U.S. 673,
679, 106 S. Ct. 1431, 1435 (1986) (emphasis added); see also Hammer, 296 S.W.3d at 561 (“This right is not unqualified,
however; the trial judge has wide discretion in limiting the scope and extent
of cross-examination.”).  Thus, the
proponent of evidence that allegedly establishes bias must show that the
evidence is relevant by demonstrating that a nexus, or logical connection,
exists between the witness’s testimony and the witness’s potential motive to
testify in favor of the other party.  Woods v. State, 152 S.W.3d 105, 111
(Tex. Crim. App. 2004).  The trial court
does not abuse its discretion in excluding evidence of the alleged bias if the
proponent of the evidence does not establish the required nexus.  Smith,
352 S.W.3d at 64.
          Here,
defense counsel asked Jessica Paulin, the complainant, about whether, even
before this particular incident occurred, she would have been happy to see
appellant’s family move from the neighborhood. 
The State objected on relevancy grounds, and defense counsel argued that
the evidence “goes to bias or motive.” 
When asked to explain, defense counsel stated that, “[T]he bias is that
she’s lying because she hates [appellant’s] mom.”  Defense counsel also argued that, “It shows
bias against [appellant], you know, kind of to get at the mom by making sure
[appellant] gets in some kind of criminal trouble.”  When the trial court responded, “I don’t know
that I can make that leap,” defense counsel stated that he had spoken with
Jessica, and, during this conversation, “she complain[ed] about [appellant’s]
mom, [said] she’s a piece of work or a work of art and a deadbeat mom and
[went] on about some other stuff. 
Clearly she doesn’t like the lady . . . .”  The trial court stated, “But that’s not who’s
on trial,” and it sustained the State’s objection.
          On
appeal, appellant provided no further reasoning for why evidence that Jessica
allegedly dislikes appellant’s mother provided a motivation for Jessica to
testify against appellant and to give false testimony regarding his actions
during the incident.  It does not
logically follow from Jessica’s dislike of appellant’s mother that she
necessarily dislikes, or has some animus against, appellant as well and wants to
see him in “criminal trouble” and, therefore, had a motive to lie under oath
about the facts of the incident.  As the
State notes, Jessica’s alleged comments to defense counsel in a prior telephone
conversation that appellant’s mother is a “piece of work” and a “deadbeat mom”
could “demonstrate a concern for [appellant] that he lacked proper parenting,”
not that she was biased against him and had a motivation to falsify her
testimony.
          As
the proponent of the evidence allegedly demonstrating bias or motive, appellant
bore the burden to establish a nexus or logical connection between Jessica’s
testimony and her potential motive to testify against him.  See
Woods, 152 S.W.3d at 111; Smith,
352 S.W.3d at 67 (“As the proponent of the evidence concerning Moss’s alleged
bias or motive, Appellant had the burden to demonstrate a nexus or logical
connection between the separate checking account and Moss’s alleged plan to
divorce him and her potential motive to testify against him.”).  The trial court expressly found that no such
logical connection existed between Jessica’s alleged dislike of appellant’s
mother and her motive to testify against appellant and give false
testimony.  See Smith, 352 S.W.3d at 68 (“Whether Moss had a separate checking
account was only a marginally relevant issue and does not necessarily indicate
that she had a reason to provide false testimony.”).  We defer to the trial court’s discretion to
determine that appellant failed to establish the logical nexus required to
demonstrate bias.  We hold that the trial
court did not abuse its discretion in refusing to allow defense counsel to
pursue this line of questioning.
          We
overrule appellant’s first issue.
 
Entitlement to Section 9.04 Instruction
          In
his second issue, appellant contends that the trial court erred in refusing to submit
a requested jury instruction pursuant to Penal Code section 9.04, relating to
self-defense.
          We
use a two-step process in reviewing jury charge error.  Ngo v.
State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).  First, we determine whether error exists in
the charge.  Id.  If error does exist, we
review the record to determine whether the error caused sufficient harm to
require reversal of the conviction.  Id. 
When the defendant properly objected to the error in the charge,
reversal is required unless the error was harmless.  Id.;
see also Almanza v. State, 686 S.W.2d
157, 171 (Tex. Crim. App. 1984); Starks
v. State, 127 S.W.3d 127, 133 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d,
untimely filed) (providing that, to preserve error in jury charge, defendant
must object or request specific charge).
          When
a defensive theory is raised by the evidence from any source, the theory must
be submitted to the jury.  See Brown v. State, 955 S.W.2d 276, 279
(Tex. Crim. App. 1997).  If the defense
is supported by the evidence, the defendant is entitled to an instruction on
that defense, regardless of whether the supporting evidence is strong, feeble,
unimpeached, or contradicted, and even when the trial court is of the opinion
that the testimony is not credible.  See Shaw v. State, 243 S.W.3d 647, 658
(Tex. Crim. App. 2007); see also Walters
v. State, 247 S.W.3d 204, 209 (Tex. Crim. App. 2007) (holding same).  We review a trial court’s decision not to
include an instruction on a defensive issue in the charge for an abuse of
discretion, and we view the evidence in the light most favorable to the
defendant’s requested submission.  See Bufkin v. State, 207 S.W.3d 779, 782
(Tex. Crim. App. 2006); Love v. State,
199 S.W.3d 447, 455 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).
          Penal
Code section 9.04 provides:
The threat of force is
justified when the use of force is justified by this chapter.  For purposes of this section, a threat to
cause death or serious bodily injury by the production of a weapon or
otherwise, as long as the actor’s purpose is limited to creating an
apprehension that he will use deadly force if necessary, does not constitute
the use of deadly force.
 
Tex. Penal Code Ann.§ 9.04
(Vernon 2011).Defense counsel requested an instruction that tracked the
language of this section.  The trial
court refused to include this instruction in the charge, reasoning that this
language “is basically contained within the self-defense charge.”
          Here,
appellant testified that he did not intend to shoot anyone and that he brought
the gun with him in the hope that he could scare the group surrounding the car
and get them away from Gonzalez.  He also
testified that he brought the gun with him to confront the group because he
“thought it was the only way [he] could get [the group] away from Ryan.”  He stated that when he brought the gun, he
hoped to “[s]care [the group] to leave . . . .”  We conclude that the record contains some
evidence that appellant’s purpose in threatening to use deadly force was
“limited to creating an apprehension that he will use deadly force if
necessary.”  See id.  Thus, because some
evidence supports this defensive issue, we hold that appellant was entitled to
a section 9.04 instruction.  See Brown, 955 S.W.2d at 279 (holding
that defensive theory must be submitted to jury when theory is raised by
evidence from any source); see also Shaw,
243 S.W.3d at 658 (holding that defendant entitled to instruction on defensive
theory regardless of whether evidence supporting theory is weak or
contradicted, or when trial court believes supporting evidence is not credible);
Bufkin, 207 S.W.3d at 782 (holding
that we view evidence in light most favorable to defendant’s requested
submission).
          Because
we have determined that the trial court erroneously failed to submit
appellant’s requested section 9.04 instruction, we must now determine whether
this failure caused some harm to appellant. 
See Ngo, 175 S.W.3d at 743
(holding that, when defendant properly objects to charge error, reversal
required unless error was harmless).  “To
determine if there is any harm, the degree of harm must be weighed in light of
the entire jury charge, state of the evidence, counsels’ arguments, and any
other relevant information revealed by the trial record as a whole.”  Starks,
127 S.W.3d at 133 (citing Almanza,
686 S.W.2d at 171).
          On
appeal, appellant argues, “The jury essentially had no choice but to convict
appellant after he admitted to pointing the gun with the crowd of people around
him, despite appellant’s testimony that he was trying to scare people away from
assaulting his friend, did not fire the gun, and did not intend to shoot
anyone.”  Appellant ignores the fact that
the trial court included in the charge instructions and application paragraphs
regarding self-defense, defense of others, and apparent danger.  For example, the trial court instructed the
jury as follows:
Upon the law of
self-defense, you are instructed 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 person’s use or
attempted use of unlawful force, or to protect a third person if, under the
circumstances as he reasonably believed them to be, such person would be
justified in using force or deadly force to protect himself against the
unlawful force or deadly force of another which he reasonably believed to be
threatening the third person he seeks to protect, provided he also reasonably
believes that his intervention is immediately necessary to protect the third
person.  The use of force against another
is not justified in response to verbal provocation alone.
 
The trial court also instructed the jury that:
When a person, or the third
person, is attacked with unlawful deadly force, or he reasonably believes he,
or the third person, is under attack or attempted attack with unlawful deadly
force, and there is created in the mind of such person a reasonable expectation
or fear of death or serious bodily injury to himself or the third person, then
the law excuses or justifies such person in resorting to deadly force by any
means at his command to the degree that he reasonably believes immediately
necessary, viewed from his standpoint at the time, to protect himself or the
third person from such attack or attempted attack.  And it is not necessary that there be an
actual attack or attempted attack, as a person has a right to defend his life and
person, or the life and person of the third person, from apparent danger as
fully and to the same extent as he would had the danger been real, provided
that he acted upon a reasonable apprehension of danger, as it appeared to him
from this standpoint at the time, and that he reasonably believed such deadly
force was immediately necessary to protect himself, or the third person,
against the other person’s use or attempted use of unlawful deadly force.
 
The trial court included the following application
paragraphs in the charge:
Therefore, if you find from
the evidence beyond a reasonable doubt that the defendant, Joshua Reynolds, did
threaten Jessica Paulin or others with imminent bodily injury by using or
exhibiting a deadly weapon, namely, a firearm, as alleged, but you further find
from the evidence, as viewed from the standpoint of the defendant at the time,
that from the words or conduct, or both of Jessica Paulin or others it
reasonably appeared to the defendant that his life or person, or the life or
person of Ryan Gonzalez, was in danger and there was created in his mind a
reasonable expectation or fear of death or serious bodily injury to himself or
Ryan Gonzalez from the use of unlawful deadly force at the hands of Jessica
Paulin or others, and that acting under such apprehension and reasonably
believing that the use of deadly force on his part was immediately necessary to
protect himself or Ryan Gonzalez against Jessica Paulin’s or others’ use or
attempted use of unlawful deadly force, he threatened Jessica Paulin or others
with a firearm, then you should acquit the defendant on the grounds of
self-defense or defense of a third person; or if you have a reasonable doubt as
to whether or not the defendant was acting in self-defense or in defense of
Ryan Gonzalez on said occasion and under the circumstances, then you should
give the defendant the benefit of that doubt and say by your verdict, not
guilty.
 
If you find from the
evidence beyond a reasonable doubt that at the time and place in question the
defendant did not reasonably believe that he or Ryan Gonzalez was in danger of
death or serious bodily injury, or that the defendant, under the circumstances
as viewed by him from his standpoint at the time, did not reasonably believe
that the degree of force actually used by him was immediately necessary to
protect himself or Ryan Gonzalez against Jessica Paulin’s or others’ use or
attempted use of unlawful deadly force, then you should find against the
defendant on the issue of self-defense and on the issue of defense of a third
person.
 
Even though the trial court did not include a separate
section 9.04 instruction in the charge, the language included in the charge did
not leave the jury with “no choice but to convict.”
          Section
9.04 states that “[t]he threat of force is justified when the use of force is
justified by this chapter.”  Tex. Penal Code Ann. § 9.04.  Sections 9.31 and 9.33, which set out the
defenses of self-defense and defense of a third person, respectively, provide
two instances in which the use of force is justified.  See id.§§ 9.31,
9.33 (Vernon 2011).  The trial court
included instructions concerning both of these defenses in the charge.  The jury was therefore instructed that if it
found that the use of force was justified under the facts of this case, either
because appellant acted in self-defense or in defense of Gonzalez, it should
acquit appellant.  By finding appellant
guilty of aggravated assault, the jury implicitly determined that the use of
force was not justified under these factual circumstances.  See
Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991) (“A jury
verdict of guilty is an implicit finding rejecting the defendant’s self-defense
theory.”).  Thus, because the jury
implicitly found that the use of
force was not justified, any finding that the threat of force was justified in this case would be immaterial.SeeTex.
Penal Code Ann. § 9.04.
          Both
defense counsel and the State addressed the issue of self-defense during
closing arguments, with defense counsel pointing out the general rationale behind
this defense and urging the jury to look at the situation from appellant’s
perspective.  The State acknowledged that
the jury had to consider the issue of self-defense, but it pointed out that
appellant intentionally and individually loaded multiple bullets into the gun,
that Gonzalez was never threatened nor did he ever feel threatened, that
Gonzalez was surprised by appellant’s presence and surprised to hear that
appellant had a gun with him, that appellant had never had any problems with
his neighbors before, that all of the party attendees and Gonzalez testified
that the situation had calmed down and was under control by the time appellant
arrived, and that appellant had drawn his gun and pointed it at the group
before he even reached the scene.  The
State argued that no reasonable person in this situation would act the way that
appellant did.
           The jury was properly instructed on the
defensive issues of self-defense, defense of others, and apparent danger, and
it was instructed to find appellant not guilty if it believed his testimony
relevant to these issues.  If the jury
believed that appellant’s behavior was reasonable and justified under the law
and the facts of this case, based on the language of the charge as given, it
could have found appellant not guilty.The jury, however, implicitly rejected
appellant’s contention that he justifiably acted in self-defense or in defense
of Gonzalez when he displayed the gun to the group and pointed it at Jessica
Paulin, and appellant does not challenge the sufficiency of the evidence
supporting this determination.  Based on
the language of the entire jury charge, the state of the evidence, and the
arguments of counsel, we therefore conclude that, under the facts of this case,the
trial court’s failure to include the requested section 9.04 instructionwas
harmless.    See Starks, 127 S.W.3d at 133 (“To determine if there is any harm,
the degree of harm must be weighed in light of the entire jury charge, state of
the evidence, counsels’ arguments, and any other relevant
information revealed by the trial record as a whole.”).
          We
overrule appellant’s second issue.
Admission of Victim-Impact Testimony
          Finally,
in his third issue, appellant contends that the trial court erroneously
admitted victim-impact testimony during the guilt-innocence phase of the trial
when it allowed the State to ask Troy Paulin what went through his mind when he
saw appellant point the gun at Rich Segali.
          The
Court of Criminal Appeals has drawn a distinction between victim character evidence and victim impact evidence, which is most commonly
an issue in murder cases:
The former is designed to
give the jury ‘a quick glimpse of the life that the petitioner chose to
extinguish, to remind the jury that the person whose life was taken was a
unique human being.’  The latter is
designed to remind the jury that murder has foreseeable consequences to the
community and the victim’s survivors—family members and friends
who also suffer harm from murderous conduct.
 
Salazar v.
State, 90 S.W.3d 330, 335 (Tex. Crim. App. 2002) (quoting Payne v. Tennessee, 501 U.S. 808, 830–31, 111 S. Ct. 2597, 2611
(1991) (O’Connor, J., concurring)); Williams
v. State, 176 S.W.3d 476, 483 (Tex. App.—Houston [1st Dist.] 2004, no pet.).  “Victim-impact” evidence, therefore, is
evidence concerning the effect of the crime after the crime occurs.  See
Hayden v. State, 296 S.W.3d 549, 553 (Tex. Crim. App. 2009) (“Victim ‘impact’
evidence is evidence of the effect the victim’s death has on other people.”); Haley v. State, 173 S.W.3d 510, 517
(Tex. Crim. App. 2005) (“Victim-impact evidence is evidence concerning the
effect the victim’s death will have on others, particularly the victim’s family
members . . . .”).
Victim-related evidence “may be
admissible at the punishment phase
when that evidence has some bearing on the defendant’s personal responsibility
or moral culpability.”  Espinosa v. State, 194 S.W.3d 703, 711
(Tex. App.—Houston [14th Dist.] 2006, no pet.) (emphasis added); see also Ford v. State, 919 S.W.2d 107,
115–16 (Tex. Crim. App. 1996) (allowing victim impact evidence in capital
murder case when jury was required to answer special issue asking about
defendant’s “personal moral culpability” and, thus, defendant’s moral
blameworthiness and culpability was relevant issue at punishment); Love, 199 S.W.3d at 456–57 (“Victim
impact testimony is irrelevant at the guilt-innocence phase of a trial because
it does not tend to make more or less probable the existence of any fact of
consequence with respect to guilt or innocence.”).  
To preserve a complaint regarding
the erroneous admission of victim-impact evidence for appellate review, the
defendant must object on the ground that the evidence constitutes impermissible
victim-impact evidence.  See Karnes v. State, 127 S.W.3d 184, 195
(Tex. App.—Fort Worth 2003, pet. ref’d) (holding that objection to testimony at
trial on grounds that testimony was “irrelevant, highly prejudicial, and below
the threshold requirement of admissibility” does not preserve appellate
challenge that testimony constitutes inadmissible victim-impact testimony); see also 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.”) (citingReyna
v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005)).
          Here,
the State asked Troy Paulin, “What was going through your mind when you saw
[appellant] hold the gun to Rich?”  In
response to the State’s question regarding what was going through his mind when
he saw appellant point a gun at Rich Segali, Troy testified as follows:
I couldn’t believe I was at
a location where there was an actual gun. 
My first thought was, Where [are] my kids, where’s my wife.  All I could think about were stories, okay,
people got shot here, people got shot there. 
I thought that if I was going to do anything, I needed to react quickly,
just in case it did turn out to be something worse than it was.
As in Karnes,
defense counsel objected solely on relevance grounds; he did not argue that any
testimony responsive to this question would constitute impermissible
victim-impact evidence.  See Karnes, 127 S.W.3d at 195.  Thus, as in Karnes, defense counsel’s relevancy objection at trial did not
preserve his appellate complaint that the testimony constitutes inadmissible
victim-impact testimony “because the objection at trial does not comport with
the complaint raised on appeal.”  See id.; see also Pena, 285 S.W.3d at 464 (noting that preservation depends
on whether complaint on appeal comports with complaint made at trial); Reyna, 168 S.W.3d at 177 (“The
issue . . . ‘[is] whether the complaining party on appeal
brought to the trial court’s attention the very complaint that party is now
making on appeal.’”) (quotingMartinez v.
State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002)).
          Furthermore,
even if appellant had properly preserved his complaint that Troy’s testimony was
inadmissible victim-impact evidence introduced during the guilt-innocence phase
of the trial, the testimony at issue does not constitute victim-impact
testimony.  Indeed, this testimony does
not fall into either category of victim-related evidence.  Troy testified regarding his thoughts at the time of the incident; he did not
testify regarding the effect that the crime had had on his life or how the
incident had affected him and his family. 
See Mathis v. State, 67 S.W.3d
918, 928 (Tex. Crim. App. 2002) (“[T]he testimony in the present case did not
involve testimony about how third persons were affected by the crime, nor was
there any discussion about the character of the victim.”); see also Hayden, 296 S.W.3d at 553 (characterizing, in murder case,
victim-impact evidence as “evidence of the effect the victim’s death has on
other people”); Espinosa, 194 S.W.3d
at 711 (“Relevant victim impact evidence may include the physical,
psychological, or economic effects of a crime on the victim or the victim’s
family.”).
          We
therefore conclude that, even if appellant had preserved his complaint for
appellate review, Troy Paulin’s testimony does not constitute inadmissible
victim-impact evidence.  Thus, we hold
that the trial court did not abuse its discretion in permitting this testimony.
          We
overrule appellant’s third issue.
Conclusion
          We affirm
the judgment of the trial court.
 
 
                                                                   Evelyn
V. Keyes
                                                                   Justice

 
Panel
consists of Justices Keyes, Bland, and Sharp.
Justice
Sharp, dissenting.
Publish.  Tex.
R. App. P. 47.2(b).




[1]           SeeTex. Penal Code Ann.
§§ 22.01(a)(2), 22.02(a)(2) (Vernon 2011).
 


[2]           To the extent appellant contends that
the trial court’s failure to allow cross-examination on this topic violates the
Confrontation Clause, we hold that appellant failed to preserve this complaint
for appellate review.  When an objection
to evidence is lodged, “it is not enough to tell the judge that [the] evidence
is admissible.  The proponent, if he is
the losing party on appeal, must have told the judge why the evidence was admissible.” 
Reyna v. State, 168 S.W.3d
173, 177 (Tex. Crim. App. 2005) (emphasis added).  Here, the State objected to this line of
questioning on relevance grounds, and defense counsel explained that the
questioning “[g]oes to bias or motive” on the part of Jessica Paulin against
appellant.  Defense counsel did not,
however, argue that this questioning was necessary to satisfy the mandates of
the Confrontation Clause.  See id. at 179 (“When a defendant’s
objection encompasses complaints under both the Texas Rules of Evidence and the
Confrontation Clause, the objection is not sufficiently specific to preserve
error.”) (citingCantu v. State, 939
S.W.2d 627, 634 (Tex. Crim. App. 1997)).


