                              NUMBER 13-09-134-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


JORGE ROWE REYES,                                                            Appellant,

                                            v.

THE STATE OF TEXAS,                                                           Appellee.


                    On appeal from the 24th District Court
                         of Victoria County, Texas.


                         MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Yañez and Vela
                Memorandum Opinion by Justice Vela

       Appellant, Jorge Rowe Reyes, was indicted for the murder of Nelson Ibarra. See

TEX . PENAL CODE ANN . § 19.02 (Vernon 2003). A jury found him guilty of the offense and

assessed punishment at thirty years’ imprisonment. In four issues, appellant argues that:

(1) the prosecutor made improper arguments during opening statement; (2) the trial court

erred by preventing him from fully cross-examining a witness; and (3) the trial court erred
by denying his request for a self-defense instruction. We affirm.

                                       I. FACTUAL BACKGROUND

       At about 3:00 a.m. on September 23, 2008, Victoria police officer Chris Canales was

dispatched to the Vista Del Sol Apartments. When he knocked on the front door to

apartment 130, appellant and M.R.1 opened it. Officer Canales saw “a lot of blood,” broken

furniture on the floor, and that appellant’s pants “were saturated in blood.” When Officer

Canales looked to see if anyone was behind the front door, he saw Ibarra’s legs. After

appellant and M.R. were taken into custody, Officer Canales entered the apartment and

determined that Ibarra was dead.

       Witnesses testified that the day before the murder, Ibarra and appellant had an

argument at the restaurant where they both worked. That evening, Ibarra, Herminio

Hernandez, M.R., and appellant were drinking beer in the living room of the apartment in

which they all lived. M.R. testified that appellant and Ibarra had a fist fight in the living

room. After they stopped fighting, Ibarra sat down on the sofa, and M.R. and appellant

pushed Hernandez out of the apartment. Afterwards, appellant “went towards Nelson

[Ibarra],” who was sitting on a sofa and “hit him [Ibarra] with a knee, on the face.” Ibarra

fell to the floor, and appellant began hitting Ibarra “with chairs and chair legs and

everything.” Ibarra died at the scene.

       On cross-examination, M.R. testified that during the time when appellant and Ibarra

had the argument at work, Ibarra made a “physical advance” towards appellant. However,

on the night of the murder, Ibarra did not “get physically aggressive towards” appellant.

M.R. saw appellant attack Ibarra.



       1
       At the tim e of the incident, M.R. was a m inor and will be referred to by initials only.
                                                      2
       Dr. Leisha Wood, the forensic pathologist who performed Ibarra’s autopsy, testified

that Ibarra’s manner of death was a homicide resulting “from numerous types of abrasions

and bruises.” Specifically, she found numerous injuries on Ibarra’s head and “fractures all

throughout the skull, in varying degrees and sizes.” She could not determine what exactly

caused the injuries, but she said that it could be consistent with a wooden object. She

found defensive wounds on Ibarra’s hands.

       Appellant chose not to testify at the guilt-innocence phase, and the defense

presented no witnesses during the guilt-innocence phase.

                                 II. OPENING STATEMENT

       In his first issue, appellant contends that the trial court erred in permitting the

prosecutor to make improper arguments in his opening statement, which allegedly

improperly shifted the burden of proof and violated appellant’s right to the presumption of

innocence. During the guilt-innocence phase, the prosecutor made the following remarks

in his opening statement to the jury:

       Prosecutor:          Good morning, ladies and gentleman. Wood can be
                            used for many things. It can be used to make shelter.
                            It can be fuel for fire. And it can, also, be a weapon.

       Defense Counsel:     Objection. This is argument, your Honor. This is
                            supposed to be opening statement, not argument.

The trial court overruled the objection. Later, the prosecutor stated:

       Prosecutor:          After they beat Herminio Hernandez, then they turned
                            their anger and their hatred towards Nelson Ibarra—

       Defense Counsel:     Your Honor, this is argument. This is interpretation of
                            evidence we haven’t even heard.

The trial court overruled the objection, and the prosecutor continued as follows:

       Prosecutor:          That anger and that hatred left Mr. Ibarra fighting for his
                            life.
                                             3
                             ***

                             That piece of wood—That simple piece of wood was
                      used as a deadly weapon. And as simple as that piece of
                      wood was is as simple as this case is, ladies and gentleman.
                      (indicating)

                      It’s not self-defense. It’s not anything else but—

       Defense Counsel:      Objection, your Honor. This is argument. We haven’t
                             heard any evidence, we’re already getting into
                             argument about what this case is or isn’t.

The trial court overruled the objection, and the prosecutor told the jury, “The evidence will

show that this isn’t self-defense. It’s not anything else but murder.”

A. Preservation of Error

       Rule 33.1 of the Texas Rules of Appellate Procedure governs preservation of error

and states in part:

       (a) In General. As a prerequisite to presenting a complaint for appellate
       review, the record must show that:

              (1) the complaint was made to the trial court by a timely request,
              objection, or motion that:

                      (A) stated the grounds for the ruling that the complaining party
                      sought from the trial court with sufficient specificity to make the
                      trial court aware of the complaint, unless the specific grounds
                      were apparent from the context[.]

TEX . R. APP. P. 33.1.

       “This Rule encompasses the concept of ‘party responsibility.’” Pena v. State, 285

S.W.3d 459, 463 (Tex. Crim. App. 2009) (quoting Reyna v. State, 168 S.W.3d 173, 176

(Tex. Crim. App. 2005)). In other words, “[t]he complaining party bears the responsibility

of clearly conveying to the trial judge the particular complaint, including the precise and

proper application of the law as well as the underlying rationale.” Id. at 463-64. To avoid

forfeiting the complaint on appeal, “the party must ‘let the trial judge know what he wants,
                                               4
why he thinks he is entitled to it, and to do so clearly enough for the judge to understand

him at a time when the judge is in the proper position to do something about it.’” Id. at 464

(quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). “Whether a

party’s particular complaint is preserved depends on whether the complaint on appeal

comports with the complaint made at trial.” Id. In making that determination, “we consider

the context in which the complaint was made and the parties’ shared understanding at that

time.” Id.

B. Analysis

       While appellant’s objections at trial were that the prosecutor’s remarks constituted

“argument” and “interpretation of evidence,” the complaint on appeal focuses on the

shifting of the burden of proof in the eyes of the jury and alleged violation of appellant’s

right to the presumption of innocence. After considering the context in which the objections

were made and the parties’ shared understanding at that time, the record does not show

that appellant’s objections clearly conveyed to the trial court that the prosecutor’s remarks

either shifted the burden of proof in the eyes of the jury or violated appellant’s right to the

presumption of innocence. Accordingly, the complaint on appeal does not comport with

the objections made at trial. Therefore, appellant did not preserve error. See TEX . R. APP.

P. 33.1; Pena, 285 S.W.3d at 464; Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App.

1990) (stating that constitutional error may be forfeited by failure to raise the issue at trial);

Wright v. State, 776 S.W.2d 763, 766 (Tex. App.–Corpus Christi 1989, no pet.).

       Fundamental error may be raised for the first time on appeal. See TEX . R. EVID .

103(d) (providing that an appellate court may take notice of fundamental errors effecting

substantial rights, although the errors were not preserved at trial). Fundamental errors are


                                                5
violations of rights that are “waivable only”2 or denials of absolute systemic

requirements3—both of which need not be preserved by objection. Mendez v. State, 138

S.W.3d 334, 341 (Tex. Crim. App. 2004); Marin v. State, 851 S.W.2d 275, 280 (Tex. Crim.

App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262 (Tex. Crim. App.

1997). Thus, appellant was required to object unless the rights are either waivable only

or an absolute systemic requirement. Appellant refers to no authority holding that these

complaints constitute either a waivable only right or an absolute systemic requirement.

Issue one is overruled.

                                          III. CROSS -EXAMINATION

A. Credibility with Respect to Assault Charge

        By his second issue, appellant contends that the trial court violated the

Confrontation Clause to the Sixth Amendment of the United States Constitution by

preventing him from fully cross-examining Hernandez concerning his credibility with respect

to his plea of guilty to an assault charge. During the guilt-innocence phase, defense

counsel cross-examined Hernandez about his prior assault conviction. Hernandez testified

that he pleaded guilty to an assault charge; however, when defense counsel asked him if

the assault he pleaded guilty to was self defense, Hernandez stated, “Yes. Because I had

to defend myself.” When defense counsel asked him, “And when you told the Judge[4] that

it was your fault that you assaulted that person, you weren’t really telling the truth, because

        2
          Exam ples of rights that are waivable only include the rights to the assistance of counsel and to a jury
trial. Saldano v. State, 70 S.W .3d 873, 888 (Tex. Crim . App. 2002).

        3
          Exam ples of absolute system ic requirem ents include jurisdiction of the person, jurisdiction of the
subject m atter, a penal statute’s being in com pliance with the Separation of Powers section of the state
constitution, a constitutional requirem ent that a district court m ust conduct its proceedings at the county seat,
the constitutional prohibition of ex post facto laws, and certain constitutional restraints on the com m ents of
a judge. Id. at 888-89.

        4
            Defense counsel was not referring to the judge who presided over the trial now before us.
                                                        6
you’re saying it was self-defense?”, the prosecutor objected that “[h]e’s pled guilty to that

offense. He’s not denying the offense.” In response, defense counsel stated, “Your Honor,

he’s saying that he didn’t do it, because of acting under self-defense. I have a right to fully

cross-examine on that Sixth Amendment.—” At that point, the trial court sustained the

objection.

1. Standard of Review and Applicable Law

        A trial court’s decision to admit or exclude evidence is reviewed under an abuse-of-

discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). “The

trial court abuses its discretion when the decision lies outside the zone of reasonable

disagreement.” McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008). “[I]f the

trial court’s evidentiary ruling is correct on any theory of law applicable to that ruling, it will

not be disturbed even if the trial judge gave the wrong reason for his right ruling.” De La

Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

        The Confrontation Clause of the Sixth Amendment guarantees that, “[i]n all criminal

prosecutions the accused shall enjoy the right . . . to be confronted with the witnesses

against him.” U.S. CONST . amend. VI. The Sixth Amendment right to confront witnesses

includes the right to cross-examine them 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) (citing Davis v. Alaska, 415 U.S. 308, 316 (1974)). “This right is not

unqualified, however; the trial judge has wide discretion in limiting the scope and extent of

cross-examination.” Id.5 Generally, the Sixth Amendment right to present evidence and



        5
          See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (stating that “trial judges retain wide latitude”
under the Confrontation Clause to im pose restrictions on cross-exam ination based on such criteria as
“harassm ent, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only
m arginally relevant.”).
                                                        7
to cross-examine witnesses does not conflict with the corresponding rights under state

evidentiary rules. Id. Thus, we can resolve most questions regarding cross-examination

by looking to the Texas Rules of Evidence. Id. “In those rare situations in which the

applicable rule of evidence conflicts with a federal constitutional right, Rule 101(c) [of the

Texas Rules of Evidence] requires that the Constitution of the United States controls over

the evidentiary rule.” Id. In Hammer, the court of criminal appeals stated that “[t]he

Confrontation Clause mandate of Davis v. Alaska is not inconsistent with Texas evidentiary

law. Thus, compliance with a rule of evidence will, in most instances, avoid a constitutional

question concerning the admissibility of such evidence.” Id. at 566.

        “Under Rule 404(a)(3) of the Texas Rules of Evidence, a defendant may always

offer evidence of a pertinent character trait—such as truthfulness—of any witness. But,

under Rule 608, the witness’s general character for truthfulness may be shown only

through reputation or opinion testimony.” Id. at 563; see TEX . R. EVID . 608(a).6 Our state

evidentiary rules permit a party to cross-examine a witness “on specific instances of

conduct when they are used to establish his specific bias, self-interest, or motive for

testifying.”7 Hammer, 295 S.W.3d at 563.

2. Analysis

        Appellant attempted to impeach Hernandez’s credibility by showing through cross-

examination that when Hernandez pleaded guilty to the prior assault, he was untruthful to


        6
         Rule 608(a)(1) of the T exas Rules of Evidence provides: “The credibility of a witness m ay be
attacked or supported by evidence in the form of opinion or reputation, but subject to these lim itations: (1)
the evidence m ay refer only to character for truthfulness or untruthfulness. . . ” T EX . R. E VID . 608(a)(1).

        7
          In Hammer, the court of crim inal appeals stated: “Under Rule 613(b), the opponent m ust first cross-
exam ine the witness with the circum stances surrounding the bias, interest, or m otive, and, if the witness
denies the circum stances or the m otive, the opponent m ay introduce extrinsic evidence to prove the m otive
or bias.” Hammer v. State, 296 S.W .3d 561 (Tex. Crim . App. 2009). “Furtherm ore, Rule 404(b) explicitly
perm its the defense, as well as the prosecution, to offer evidence of other acts of m isconduct to establish a
person’s m otive for perform ing som e act— such as m aking a false allegation against the defendant.” Id.
                                                       8
the judge who presided over that case, because Hernandez assaulted the victim in self-

defense, and therefore, was not guilty of assault.8 However, “[a] witness’s general

character for truthfulness or credibility may not be attacked by cross-examining him (or

offering extrinsic evidence) concerning specific prior instances of untruthfulness.”9 Id.; see

TEX . R. EVID . 608(b);10 see also Lopez v. State, 989 S.W.2d 402, 405 (Tex. App.–San

Antonio 1999, no pet.); Ruiz v. State, 891 S.W.2d 302, 306 (Tex. App.–San Antonio 1994,

pet. ref’d) (stating that “[i]n Texas, a witness may not be impeached with specific instances

of bad conduct not resulting in conviction”); Ramirez v. State, 830 S.W.2d 827, 828-29

(Tex. App.–Corpus Christi 1992, no pet.) (stating that evidence showing that officer was

terminated because, in a telephone call, he said that he could not report for duty because

his truck had broken down when, in fact, he was visiting his girlfriend was inadmissible

under Rule 608(b) to impeach him after he had testified to facts that established the

charged offense and negated the lesser-included offense).


         8
            In his appellate brief, appellant argues that he “has a right to question the witness’ credibility, which
he was doing when he started questioning the witness about lying under oath in a prior offense to which he
pled. Lying under oath is a serious m atter and certainly raises questions of credibility.” Texas Rule of
Evidence 609 provides for the adm ission of a witness’s prior conviction for im peachm ent purposes. See T EX .
R. E VID . 609. However, nothing in the appellate record showed that Hernandez had either been charged with
or convicted of any crim e arising out of any statem ent he m ay have m ade either to a court official or to the
judge who presided over the hearing at which Hernandez pleaded guilty to the prior offense. Therefore, Rule
609 does not apply. W e note that appellant did cross-exam ine Hernandez about the fact that he had a prior
conviction for assault.

         9
             In Hammer, the court of crim inal appeals stated with respect to this rule:

         For exam ple, the defendant m ay not ask the witness: Didn’t you cheat on your incom e tax
         last year? Didn’t you lie on Tuesday about having an affair with your boss? Didn’t you steal
         five dollars from the church collection plate last week and then lie to the priest about it?
         W hile all of those questions attack the witness’s general character for truthfulness, that m ode
         of im peachm ent is specifically barred by Rule 608(b).

Hammer, 296 S.W .3d at 563.

        10
          Rule 608(b) provides in part, “[s]pecific instances of the conduct of a witness, for the purpose of
attacking or supporting the witness’ credibility, other than conviction of crim e as provided in Rule 609, m ay
not be inquired into on cross-exam ination of the witness nor proved by extrinsic evidence.” T EX . R. E VID .
608(b).
                                                          9
       We hold that whether Hernandez’s testimony was admissible is at least subject to

reasonable disagreement. Thus, the trial court did not abuse its discretion by denying

appellant the opportunity to cross-examine Hernandez about whether he was untruthful to

the judge that presided over his guilty plea to the assault charge. Issue two is overruled.

B. Credibility with Respect to Intoxication

       In issue three, appellant contends the trial court violated the Confrontation Clause

of the Sixth Amendment to the United States Constitution by preventing him from fully

cross-examining Hernandez concerning his credibility because of his intoxication “and

regarding his role in this offense.”

1. Context of the Complaint

       Hernandez testified on cross-examination that during the day preceding the murder,

he bought a six-pack of beer and drank all of it. That night, he and M.R. bought an

eighteen-pack of beer from which Hernandez drank five or six beers. He drank the beers

prior to Ibarra’s murder. Hernandez denied being “drunk.” When defense counsel asked

him, “And it’s fair to say, when guys start drinking beer, it’s a lot easier to get angry; isn’t

it?” He replied, “I don’t know. Of course, if something—if somebody offends you, you’re

going to get mad.” When defense counsel asked him, “And, if somebody offends you, you

are going to be more mad if you had been drinking beer; is that correct?” To this, he said,

“Yes.” After this exchange, the complained-of colloquy occurred as follows:

       Defense Counsel:      So, the fact that you had volunteered to drink a bunch
                             of beers, you were partly responsible for these
                             problems that had occurred; weren’t you?

       Prosecutor:           Your Honor, I’ll object. The question is argumentative.

       Defense Counsel:      I’m just asking him—Your Honor, they asked the
                             question and opened the door. I have the right to the
                             full Sixth Amendment right.

                                              10
The trial court told counsel to re-ask the question:

       Defense Counsel:     Sure. Since you had volunteered to drink many beers
                            before all this arguing started happening, you are partly
                            responsible for all these arguments and fights that
                            started; aren’t you?

       Prosecutor:          Your Honor, my objection was argumentative.

       Trial Court:         Sustained.

2. Preservation of Error

       With respect to that part of appellant’s complaint on appeal that the trial court

prevented him from cross-examining Hernandez regarding Hernandez’s role in the offense,

Texas Rule of Evidence 103(a)(2) limits the scope of issues which may be appealed when

evidence is limited or excluded. In other words, “[e]rror may not be predicated upon a

ruling which . . . excludes evidence unless a substantial right of the party is affected, and

. . . the substance of the evidence was made known to the court by offer, or was apparent

from the context within which questions were asked.” TEX . R. EVID . 103(a)(2). The offer

of proof may be in question-and-answer form or in the form of a concise statement by

counsel. TEX . R. EVID . 103(b); Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998).

“An offer of proof to be accomplished by counsel’s concise statement must include a

reasonably specific summary of the evidence offered and must state the relevance of the

evidence unless the relevance is apparent, so that the court can determine whether the

evidence is relevant and admissible.” Warner, 969 S.W.2d at 2. The primary purpose of

an offer of proof is to enable us to determine whether the exclusion was erroneous and

harmful. MC CORMICK ON EVIDENCE § 51 (4th ed. 1992); Accord, STEVEN GOODE ET AL., 1

TEXAS PRACTICE—GUIDE       TO THE   TEXAS RULES OF EVIDENCE: CIVIL AND CRIMINAL § 103.3

(1993).


                                             11
        Here, the substance of the evidence was not made known to the trial court by offer.

Further, the substance of the evidence was not apparent from the context within which

questions were asked. Defense counsel’s question, which the prosecutor objected to,

asked Hernandez, “Since you had volunteered to drink many beers before all this arguing

started happening, you are partly responsible for all these arguments and fights that

started; aren’t you?” It is not apparent from the context of this question that defense

counsel was asking Hernandez about his role in the offense; i.e., Ibarra’s murder. Because

the substance of the evidence was not made known to the trial court by offer, and because

the substance of the evidence was not apparent from the context within which questions

were asked, appellant has failed to comply with Rule 103(a)(2). We hold that appellant

waived any error with respect to the trial court’s exclusion of Hernandez’s testimony. See

TEX . R. EVID . 103(a)(2); Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999) (holding

that defendant’s argument regarding exclusion of evidence was waived because defendant

did not make offer of proof regarding excluded testimony).

        After the above colloquy, defense counsel, during the cross-examination of

Hernandez, asked him a question akin to that which the prosecutor had previously objected

to. Defense counsel asked Hernandez: “The fact that you have drank many beers, you

caused some of these fights; didn’t you?” The trial court allowed Hernandez to answer11

the question. Thus, assuming, arguendo, the trial court erred in excluding the testimony,



        11
         In his answer, Hernandez stated, in part:

                 They started telling m e I couldn’t be in that apartm ent. And then, from there, I asked
        them , “Give m e a chance to get out.” But it wasn’t to tell them that I wanted to fight. I told
        them to give m e an opportunity, so that I could leave the following day, because it wasn’t just
        for m e to leave, just like they had told m e—

At that point, defense counsel objected, in relevant part, that he “believe[d] he’s answered the question[.]”
The trial court overruled the objection.
                                                      12
and error was preserved, any error in excluding the testimony was cured. See Wade v.

State, 803 S.W.2d 806, 808 (Tex. App.–Fort Worth 1991, no pet.) (holding that although

trial court erred in excluding certain evidence, error was cured because evidence was

admitted through other testimony).

         With respect to appellant’s complaint on appeal that the trial court prevented him

from cross-examining Hernandez regarding credibility because of intoxication,12 the court

of criminal appeals has recognized a distinction between the general rule in rule 103(a)(2)

and the case in which the trial court does not permit the defendant to question a State’s

witness about matters that might affect the witness’s credibility. Virts v. State, 739 S.W.2d

25, 29 (Tex. Crim. App. 1987). In the latter case, the accused “need not show what his

cross-examination of the witness would have affirmatively established; he must merely

establish what general subject matter he desired to examine the witness about during his

cross-examination and, if challenged, show on the record why such should be admitted into

evidence.” Id.

         Here,     appellant       did    not    “merely       establish”      that    the     “general      subject

matter”—intoxication—would be used to impeach Hernandez’s credibility. We hold that

appellant waived any error with respect to the trial court’s exclusion of Hernandez’s

testimony on this topic. See id.

         Defense counsel cross-examined Hernandez with respect to the amount of beer he

drank prior to Ibarra’s murder and whether Hernandez was intoxicated the evening of the

murder. Thus, assuming, arguendo, this complaint was preserved, any error in excluding

         12
           The court of crim inal appeals has stated that “the right of cross-exam ination by the accused of a
testifying State’s witness includes the right to im peach the witness with relevant evidence that m ight reflect
bias, interest, prejudice, inconsistent statem ents, traits of character affecting credibility, or evidence that m ight
go to any im pairm ent or disability affecting the witness’s credibility.” Virts v. State, 739 S.W .2d 25, 29 (Tex.
Crim . App. 1987). Intoxication “bear[s] on the am ount of credibility [a witness’s] testim ony should receive.”
Cain v. State, 958 S.W .2d 404, 409 (Tex. Crim . App. 1997).
                                                         13
the testimony was cured. See Wade, 803 S.W.2d at 808. Issue three is overruled.

                              IV. SELF -DEFENSE INSTRUCTION

       In issue four, appellant contends that the trial court erred by denying his request for

an instruction in the charge on self-defense. During the charge conference at the guilt-

innocence phase, defense counsel requested a self-defense instruction, which the trial

court denied.

       Appellant argues that there was evidence presented that he acted in self-defense

and, therefore, the trial court should have included a self-defense instruction in the charge.

He directs our attention to the following evidence: Holly Jedlicka, a crime scene unit

supervisor, testified that the Texas Department of Public Safety identified Ibarra’s

fingerprints on some of the furniture in the apartment.

       During the State’s case-in-chief, the prosecutor played a videotape to the jury,

depicting the argument that appellant and Ibarra had at the restaurant on the day

preceding Ibarra’s murder. The videotape showed Ibarra making threatening gestures at

appellant.

       On the evening of Ibarra’s murder, appellant told his neighbor, Tom Davenport, that

he got into an argument at the restaurant. Davenport testified, “It sounded like they were

ganging up on him. And he was pretty upset.” By “they,” Davenport meant the employees

at the restaurant. According to Davenport, the employees were appellant’s roommates.

       Appellant’s wife, who lived in the apartment with appellant and the others, testified

that on the evening of the murder, appellant came into her bedroom “[a] little bit agitated.”

She told him, “‘No.’–‘Don’t fight.’ You’re all companions.’” After five minutes, appellant left

the bedroom, and a fight ensued soon thereafter.



                                              14
       On the day preceding the murder, M.R. saw Ibarra make aggressive physical

advances towards appellant while appellant and Ibarra were working at the restaurant.

M.R. testified that Ibarra initiated the aggression.

A. Standard of Review and Applicable Law

       When evaluating charge error, we first decide whether there was error in the charge.

Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh’g). If so, “the

next step is to make an evidentiary review . . . as well as a review of any other part of the

record as a whole which may illuminate the actual, not just theoretical, harm to the

accused.” Id.

       Prior to commencing deliberations, the trial court must provide the jury in a criminal

case with “a written charge distinctly setting forth the law applicable to the case[.]” TEX .

CODE CRIM . PROC . ANN . art. 36.14 (Vernon 2007). “This law requires the trial judge to

instruct the jury on statutory defenses, affirmative defenses, and justifications whenever

they are raised by the evidence.” Walters v. State, 247 S.W.3d 204, 208-09 (Tex. Crim.

App. 2007). “A defendant is entitled to an instruction on every defensive issue raised by

the evidence, regardless of whether the evidence is strong, feeble, unimpeached, or

contradicted, and even when the trial court thinks that the testimony is not worthy of belief.”

Id. at 209. “[A] defense is supported (or raised) by the evidence if there is some evidence,

from any source, on each element of the defense that, if believed by the jury, would

support a rational inference that that element is true.” Shaw v. State, 243 S.W.3d 647,

657-58 (Tex. Crim. App. 2007). A defendant need not testify in order to raise a defense.

Boget v. State, 40 S.W.3d 624, 626 (Tex. App.–San Antonio 2001), aff’d, 74 S.W.3d 23,

31 (Tex. Crim. App. 2001). Defensive issues may be raised by the testimony of any

witness, even those called by the State. Jackson v. State, 110 S.W.3d 626, 631 (Tex.

                                              15
App.–Houston [14th Dist.] 2003, pet. ref’d). When reviewing a trial court’s decision to deny

a requested defensive instruction, “we view the evidence in the light most favorable to the

defendant’s requested submission.” Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim.

App. 2006). However, “if the evidence, viewed in the light most favorable to the defendant,

does not establish self-defense, the defendant is not entitled to an instruction on the issue.”

Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001).

       To justify the use of deadly force against another, an actor must first show that he

reasonably believed the force was immediately necessary to protect himself or a third

person against another’s use or attempted use of unlawful deadly force. TEX . PENAL CODE

ANN . §§ 9.31(a), 9.32(a), 9.33 (Vernon 2003 & Supp. 2009). “A person has the right to

defend himself from apparent danger to the same extent as he would if the danger were

real.” Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996) (citing Dyson v. State,

672 S.W.2d 460, 463 (Tex. Crim. App. 1984)).

B. Analysis

       The evidence does not entitle appellant to a self-defense instruction. There was no

evidence that Ibarra either used force or attempted to use force against appellant such that

appellant believed immediate force was necessary to defend himself while at the

apartment. M.R. testified that appellant beat the victim to death without any provocation.

Although there was some evidence of verbal threats by Ibarra against appellant, an

accused is not entitled to a self-defense instruction if his or her use of force was in

response to verbal provocation. Id. at 494. We hold the trial court did not err in failing to

include a self-defense instruction in the charge. Issue four is overruled.




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                                     V. CONCLUSION

       We affirm the trial court’s judgment.



                                                    ROSE VELA
                                                    Justice


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

Delivered and filed the 1st
day of April, 2010.




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