Opinion issued October 20, 2016.




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-15-00646-CR
                           ———————————
                     ALAN DOMINGO DIAZ, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                    On Appeal from the 21st District Court
                         Washington County, Texas
                        Trial Court Case No. 16,527


                         MEMORANDUM OPINION

      A jury convicted appellant Alan Domingo Diaz of aggravated assault

causing serious bodily injury. See TEX. PENAL CODE § 22.02. The trial court found

an enhancement allegation true and sentenced Diaz to 99 years in prison. On

appeal, Diaz argues that the trial court erred by denying his request for a self-
defense instruction in the jury charge, excluding testimony that he was threatened

by the complainant, and excluding evidence regarding a lawsuit filed by the

complainant.

      We affirm the judgment of the trial court.

                                   Background

      Appellant Alan Domingo Diaz was charged with aggravated assault in

retaliation against a witness against him. See TEX. PENAL CODE § 22.02(b)(2)(c).

Diaz had been arrested for burglary in Washington County, Texas, along with the

complainant, Brandon Andrews. After their arrest, Diaz told Andrews, “don’t

snitch.” But Andrews made a statement to the police about Diaz’s involvement in

the burglary. As a result, Diaz and Andrews were housed in jail separately.

      Andrews walked into a cell block to get a haircut, and he found Diaz there,

also getting a haircut. After Diaz was finished, he rolled up his pant legs, asked

which way the cameras were pointed, and asked Andrews: “are you ready?” Diaz

then punched him repeatedly, while Andrews tried to cover himself to prevent

injury. After a punch to the face, Andrews began bleeding out of his left eye. After

the incident, Andrews was unable to see out of that eye. He requested medical care,

but he did not receive treatment until the next day. As a result, Andrews has been

told he is unlikely to ever see out of that eye again, and he filed a lawsuit against

Washington County based on its alleged failure to treat him in a timely manner.



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      Several inmates who witnessed the fight testified at Diaz’s trial on the

aggravated assault charge, giving different accounts. Some testified that Andrews

spit on Diaz before the fight, but others claimed this never occurred. Some inmates

claimed that Diaz and Andrews fought each other, while others claimed that

Andrews did not fight back. The trial court excluded testimony about a threatening

statement about Diaz that Andrews allegedly communicated to another inmate

shortly before the fight.

      The defense questioned Andrews about his pending lawsuit against

Washington County. Diaz offered the petition into evidence. The State objected to

these questions and to admitting the petition into evidence. The trial court allowed

some questions about the lawsuit, but it eventually sustained objections to repeated

questions on that subject. The trial court also sustained the State’s objections to the

petition.

      The jury found Diaz not guilty of aggravated assault in retaliation, but guilty

of the lesser-included offense of aggravated assault causing serious bodily injury.

The State alleged as an enhancement Diaz’s previous felony conviction for

burglary of a habitation with the intent to commit theft. The trial court found the

allegations of the enhancement to be true and sentenced Diaz to 99 years in prison.

Diaz appealed.




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                                      Analysis

      Diaz raises three issues on appeal. First, he claims that the trial court erred

by refusing to include an instruction on self-defense in the jury charge. Second, he

asserts that the trial court erred by excluding testimony that Andrews threatened

him. Third, he claims that the trial court erred by excluding evidence and limiting

cross-examination regarding the civil lawsuit filed by Andrews against Washington

County.

I.    Self-defense instruction

      In his first issue, Diaz argues that the trial court erred by refusing to include

a self-defense instruction in the jury charge because he introduced evidence that he

was acting in self-defense when he fought Andrews.

      Jury charge error is reviewed by a two-step process. Ngo v. State, 175

S.W.3d 738, 743 (Tex. Crim. App. 2005). First, the court determines whether error

exists in the charge. Id. If error does exist, the record is reviewed to determine

whether the error caused sufficient harm to require reversal of the conviction. Id.

When the defendant properly objects 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).




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      When a defensive theory is raised by the evidence, the theory must be

submitted to the jury, regardless of whether the supporting evidence is strong,

feeble, unimpeached, or contradicted, and even when the trial court believes the

supporting evidence 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); Brown v. State, 955 S.W.2d 276, 279 (Tex. Crim. App. 1997). A trial

court’s decision not to include an instruction on a defensive issue in the charge is

reviewed for an abuse of discretion, with the evidence viewed 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).

      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’s use or attempted use of unlawful force.” TEX. PENAL CODE

§ 9.31(a). A higher standard applies to the use of “deadly force,” which is defined

as “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.” Id. § 9.01(3).

“‘Serious bodily injury’ means bodily injury that . . . causes . . . serious permanent

disfigurement, or protracted loss or impairment of the function of any bodily

member or organ.” Id. § 1.07(46). A person is only justified in using deadly force



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when he is justified in using force under section 9.31 and to the degree he

reasonably believes the deadly force is immediately necessary to protect himself

against another’s use or attempted use of unlawful deadly force, or to prevent

another’s imminent commission of aggravated kidnapping, murder, sexual assault,

aggravated sexual assault, robbery, or aggravated robbery. Id. § 9.32(a).

      Diaz used “deadly force” because he used force that caused the loss of the

function of a bodily organ, Andrews’s left eye. Id. §§ 1.07(46), 9.01(3). Therefore,

Diaz could claim self-defense only upon a showing that Andrews 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. Id. § 9.32; Ferrel v.

State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001). Diaz relies upon the testimony

of several inmates to support his claim of self-defense. These witnesses testified

that upon entering the haircut room, Andrews spit on Diaz, thereby instigating the

fight. The claim that Andrews spit on Diaz is the only evidence of force initiated

by Andrews. Spitting does not constitute deadly force because it is not ordinarily

capable of causing death or serious bodily injury. See TEX. PENAL CODE §

9.32(a)(2)(A). Nor does it qualify as an offense that justifies a preemptive use of

deadly force. See id. § 9.32(a)(2)(B). Diaz therefore was not justified in using

deadly force, and he was not entitled to a jury charge instruction on the issue of

self-defense.



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      We overrule Diaz’s first issue.

II.   Exclusion of evidence

      Diaz’s remaining issues concern the exclusion of evidence. “A party may

claim error in a ruling to admit or exclude evidence only if the error affects a

substantial right of the party . . . .” TEX. R. EVID. 103(a). A trial court’s decision to

admit or exclude evidence is reviewed under an abuse-of-discretion standard.

Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006); Sauceda v. State,

129 S.W.3d 116, 120 (Tex. Crim. App. 2004); Smith v. State, 340 S.W.3d 41, 53–

54 (Tex. App.—Houston [1st Dist.] 2011, no pet.). A trial court abuses its

discretion when it acts arbitrarily and unreasonably, without reference to any

guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim.

App. 1990) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–

42 (Tex. 1985)); Smith, 340 S.W.3d at 53–54. A trial court’s evidentiary ruling will

not be reversed unless that ruling falls outside the zone of reasonable disagreement.

Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). To preserve error and

challenge the exclusion of evidence on appeal, the complaining party must present

the excluded evidence to the trial court by offer of proof. See Alfaro v. State, 224

S.W.3d 426, 433 (Tex. App.—Houston [1st Dist.] 2006, no pet.); TEX. R. EVID.

103(a)(2).




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      A.     Evidence of threatening statement

      In his second issue, Diaz argues that the trial court erred by excluding

testimony about a threat that Andrews allegedly communicated to another inmate.

The trial judge sustained a hearsay objection to this alleged statement. On appeal,

Diaz argues that the statement was admissible under the excited utterance

exception to the hearsay rule. But because Diaz made no offer of proof to the trial

court regarding the substance of the testimony, this issue has not been preserved

for appeal. TEX. R. EVID. 103(a)(2).

      We overrule Diaz’s second issue.

      B.     Exclusion of evidence regarding civil lawsuit

      In his third issue, Diaz argues that the trial court erred by limiting cross-

examination of Andrews about his lawsuit against Washington County and by

refusing to admit a redacted version of the petition filed in that suit.

      Diaz contends that this cross-examination would have revealed Andrews’s

motive or bias in testifying that he was the initial aggressor and that the fight was

one-sided. In addition, Diaz asserts that this cross-examination would have called

into question whether he or Washington County caused Andrews’s serious bodily

injury.

      A trial court has discretion to limit the scope of cross-examination to avoid

harassment, prejudice, confusion of the issues, endangering the witness, and the



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injection of cumulative or collateral evidence. Cruz-Escalante v. State, 491 S.W.3d

857, 861 (Tex. App.—Houston [1st Dist.] 2016, no pet.). A trial court’s decision to

limit cross-examination is reviewed under an abuse-of-discretion standard. Mims v.

State, 434 S.W.3d 265, 271 (Tex. App.—Houston [1st Dist.] 2014, no pet.). When

evidence alleged to have been erroneously excluded is admitted later through

another source, any error in excluding it is harmless. See Railsback v. State, 95

S.W.3d 473, 480 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).

      Diaz identifies two aspects of Andrews’s civil suit that were relevant to his

defense of the assault charge. He contended that the lawsuit was relevant to

Andrews’s “motive and bias in testifying” that he was “the initial aggressor and

that the fight was one-sided.” And in response to the charge that he caused serious

bodily injury to Andrews, Diaz took the position that “his action did not result in

serious bodily injury but rather the serious eye injury . . . was the result of the

failure of the jail personnel to provide medical care.”

      Both of these themes were explored through the cross-examination of

Andrews about his civil suit. The trial court allowed Andrews to be asked about the

lawsuit he filed against Washington County and how his claim would be impacted

if in fact he and Diaz simply “had a jailhouse fight.” In response, Andrews stated:

“Washington County failed to treat me after the injury which explains the lawsuit

and I’m going to leave it at that. But Washington County did not assault me. That



                                          9
man did.” The trial court also allowed Diaz’s counsel to ask Andrews whether he

believed Washington County’s failure to treat him after the fight “resulted in the

deterioration” of his vision to the degree that he became blind. Andrews replied,

“Washington County didn’t punch me in the eye. Alan Diaz did.”

      Diaz’s counsel subsequently asked Andrews: “Do you recall whether in your

lawsuit you alleged that Washington County’s failure to treat your eye injury

resulted in the deterioration of your vision to the point you were blind.” At this

point, the trial court sustained the State’s objection. Diaz challenges this ruling on

appeal, but his argument does not acknowledge that he already had asked several

substantially similar questions about the civil lawsuit. Nor does he explain how the

error in sustaining an objection, if any, affected his substantial rights in light of the

other questions that were asked and answered. See TEX. R. EVID. 103(a); TEX. R.

APP. P. 44.2(b); see Railsback, 95 S.W.3d at 480.

      Diaz raises similar arguments that the trial court should have admitted a

redacted version of Andrews’s petition into evidence. He asserts that the petition

demonstrated motive or bias and called into question the cause of Andrews’s

serious bodily injury. The redacted petition included the factual allegation that

Washington County, the Sheriff, and the Sheriff’s Department refused Andrews’s

request for medical attention, and “his condition deteriorated to a degree he lost the




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use of his left eye.” The trial court sustained the State’s objections to admitting the

petition into evidence.

      Although the trial court excluded the petition, Diaz elicited testimony from

Andrews which provided the same information as that contained in the petition.

Because the evidence alleged to have been erroneously excluded was admitted

through another source, any error in excluding it was harmless. See Railsback, 95

S.W.3d at 480; see also TEX. R. EVID. 103(a); TEX. R. APP. P. 44.2(b).

      We overrule Diaz’s third issue.

                                     Conclusion

       We affirm the judgment of the trial court.



                                                Michael Massengale
                                                Justice

Panel consists of Justices Bland, Massengale, and Lloyd.

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




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