                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-11-00543-CR


MONTREY LAMAR WAGGONER                                            APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


                                   ----------

          FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

                                   ----------

                       MEMORANDUM OPINION 1

                                   ----------

      A jury convicted Appellant Montrey Lamar Waggoner of aggravated

assault with a deadly weapon and assessed his punishment at fifteen years’

confinement and a $10,000 fine. The trial court sentenced him accordingly. In

two points, Appellant complains about (1) the exclusion of evidence showing his

state of mind at the time of the incident and that the complainant was the


      1
      See Tex. R. App. P. 47.4.
aggressor and (2) the trial court’s refusal to include a charge on necessity for

uncharged conduct in the jury charge. Because we hold that the trial court did

not reversibly err, we affirm the trial court’s judgment.

Background Facts

        On January 12, 2010, Appellant was at home playing videogames with

friends.     Matthew Taylor, an acquaintance also known as M.T., arrived

unexpectedly. Appellant admitted to speaking with Taylor earlier that day when

both were in vehicles stopped in traffic but testified that he and Taylor were not

friendly enough for Taylor to drop by without an invitation, which Appellant did not

extend.     Appellant testified that Taylor had acted strangely after entering the

home, and then Appellant caught Taylor trying to steal videogames and money.

They exchanged words, and Appellant told Taylor to leave. But the situation

escalated, Taylor talked about fighting, and Appellant retrieved a gun. Friends

talked Taylor down, and he was persuaded to leave.

        Thirty minutes later, Taylor returned. Appellant testified that Taylor was

yelling and banging on the door to the house, stating that he wanted to fight.

Appellant’s friend, Bryan Smith, calmed Taylor down and convinced him to leave.

        Later in the day, Taylor returned a third time and again banged on the front

door. Appellant testified that he was concerned because his children were in the

home.      Smith testified that he thought Taylor was going to kick in the door.

Appellant’s neighbor, Taylor Tidwell, testified that he heard what sounded like

someone punching the door.


                                          2
      The banging stopped, and Appellant went outside with his gun drawn.

Taylor was now ten to twelve feet from the front door of the home, according to

Appellant and Smith. Appellant testified that he pointed the gun at Taylor and

told him not to take another step forward, but Taylor continued to approach.

Appellant stated that Taylor’s right hand was under his untucked shirt and not

visible, leading Appellant to believe that Taylor was armed. The two spoke for a

time lasting two to twenty-five minutes, depending on the testimony. A mutual

friend, Shawron Carr, arrived and tried to get Taylor to leave. Appellant testified

that when Taylor continued to move forward toward him, he fired three warning

shots at the ground. At this point, Appellant could see that Taylor did not have a

gun in his hand. Appellant said that Taylor continued to advance, so he shot

him. Taylor fell to the ground; Appellant said that he stopped shooting.

      Other eyewitnesses gave conflicting versions of the shooting. Appellant’s

neighbor, Chelsey McClintock, said that she saw him continue to shoot Taylor

after he fell to the ground. Carr testified that Appellant shot Taylor when he

charged Appellant, that the impact of the shots spun Taylor around, resulting in

wounds to his back, and that Appellant did not shoot Taylor after he had fallen to

the ground. Tidwell also saw the shooting. Tidwell testified that Taylor was

challenging Appellant and stepped forward like he was going to charge him;

Appellant then began firing his gun and stopped shooting when Taylor hit the

ground.




                                        3
      Taylor was shot four times: in the base of his skull at the junction with the

back of the neck, in his lower right back, in his upper right back, and in the back

of his upper arm. There were no exit wounds. Police said that he was unarmed.

      Officers did not find any damage to the home to indicate that someone had

tried to break in. The police found eight shell casings in the front yard and a

bullet lodged in a drum set located inside a garage attached to a home across

the street. The Fort Worth Police Department firearms and tool mark examiner

testified that the shell casings and the bullet found across the street were all fired

from the same gun, the nine-millimeter Ruger handgun found inside Appellant’s

home under the love seat. She also testified that the cartridge casings in a

functioning nine-millimeter Ruger handgun shot in the normal position would

eject to the right behind the shooter. One shell casing was found seventeen feet

from the front door; the rest were even further away from the house. Taylor’s

bloody shirt was found forty-eight feet from the home.

Evidence of the Complainant’s Past Conduct

      In his first point, Appellant contends that the trial court abused its discretion

by excluding evidence regarding Taylor’s prior acts because that evidence was

admissible to show Appellant’s reasonable apprehension and fear of Taylor and

that Taylor was the first aggressor.

      Appellant has not preserved for appeal his argument that he offered the

evidence to show that Taylor was the first aggressor. To preserve a complaint

for our review, a party must have presented to the trial court a timely request,


                                          4
objection, or motion that states the specific grounds for the desired ruling if they

are not apparent from the context of the request, objection, or motion. 2 Further,

the trial court must have ruled on the request, objection, or motion, either

expressly or implicitly, or the complaining party must have objected to the trial

court’s refusal to rule. 3 Below, Appellant repeatedly indicated to the trial court

that he wanted to use the evidence to show his state of mind at the time of the

offense.     He directs us to no place in the record, nor have we found such

instance, where he unsuccessfully offered the evidence to show that the

complainant was the first aggressor. We overrule this portion of Appellant’s first

point.

         Appellant tried to present evidence of Taylor’s past behavior in order to

explain his own state of mind at the time of the shooting. As the Texas Court of

Criminal Appeals has explained,

         [T]he defendant may offer reputation or opinion testimony or
         evidence of specific prior acts of violence by the victim to show the
         “reasonableness of defendant’s claim of apprehension of danger”
         from the victim. This is called “communicated character” because
         the defendant is aware of the victim’s violent tendencies and
         perceives a danger posed by the victim, regardless of whether the
         danger is real or not. This theory does not invoke Rule 404(a)(2)
         because Rule 404 bars character evidence only when offered to

         2
       Tex. R. App. P. 33.1(a)(1); Landers v. State, 402 S.W.3d 252, 254 (Tex.
Crim. App. 2013); Sample v. State, 405 S.W.3d 295, 300 (Tex. App.—Fort Worth
2013, pet. ref’d).
         3
       Tex. R. App. P. 33.1(a)(2); Pena v. State, 353 S.W.3d 797, 807 (Tex.
Crim. App. 2011).



                                          5
      prove conduct in conformity, i.e., that the victim acted in conformity
      with his violent character. Here, the defendant is not trying to prove
      that the victim actually is violent; rather, he is proving his own self-
      defensive state of mind and the reasonableness of that state of
      mind. 4

      But rule 403 of the rules of evidence states that otherwise relevant

evidence nevertheless may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, or needless

presentation of cumulative evidence. 5 Thus, in conducting a rule 403 analysis, a

court must balance the probative force of the evidence and the proponent’s need

for it against any tendency it may have to lead the jury to resolve an issue on an

incorrect ground “or [to] distract the jury from the main issues.” 6 The court must

also evaluate how long the proponent would need to develop the evidence,

whether the evidence is repetitive of evidence already admitted, and whether the

jury is in a position to fairly consider the evidence. 7




      4
       Ex parte Miller, 330 S.W.3d 610, 618–19 (Tex. Crim. App. 2009) (citations
omitted).
      5
       Tex. R. Evid. 403.
      6
       Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006).
      7
       Id. at 641–42.



                                            6
      We review a trial court’s decision to exclude evidence under an abuse of

discretion standard. 8 A trial court does not abuse its discretion as long as the

decision to exclude the evidence is within the zone of reasonable disagreement. 9

      Appellant asked to testify about seven specific acts of Taylor’s. One of

them was an arrest for the possession of drug paraphernalia.                Appellant

abandoned his proffer of the drug paraphernalia evidence; we therefore hold that

he forfeited that part of his point on appeal. 10 We consequently confine our

analysis to the remaining six acts.

      Appellant wanted to introduce evidence that Taylor told him that “a dude

was at his car, and he came out and assaulted the dude. He got charged for

assaulting—beating a dude up—beating him down bad.” “He said the guy was at

his car, trying to break into his car, and he caught him.” “[I]t was aggravated

assault, but it wasn’t with no weapon or nothing. It was with his hands.”

      Appellant also wanted to introduce evidence that he had learned from

Taylor “out of his own mouth, telling [Appellant] a couple of other occasion[s],

where he got caught for theft or robbing or stealing and a couple of cases where

he was caught with theft or robbery or whatever.” “He didn’t say nothing about


      8
       Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).
      9
       Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op.
on reh’g).
      10
          See Bland v. State, 417 S.W.3d 465, 472–73 (Tex. Crim. App. 2013).



                                        7
no aggravated robbery or theft. He just let [Appellant] know he had gotten [in]to

some trouble for that.”

      Appellant also testified on voir dire that he saw Taylor “with an AK-47, a—a

little-bitty one.” Appellant said that he and a friend had stopped by the house

“where [Taylor] was staying at the time over on the east side of Fort Worth.”

Taylor “came out of the bedroom and showed [Appellant and the others] this

weapon.” “It was like—more like—like showing off like, look what I have. He

was showing everybody in the house.”

      Appellant also offered,

      I have personal knowledge of two other incidents that I was around.
      One incident took place at my house probably, I want to say, two
      months prior to all this happening.

             ....

              He came over to my house one day, stopped by. We—it was
      just me and my—one other friend over there. And at the time I’m not
      knowing him, and the other friend done had words or had a problem
      or something. And so when I—when I . . . let him in, we sitting there
      talking, playing a game like usually, him and another guy had some
      little words, and I had to stop it because we was in my house.

             And I told him, I say, No, this ain’t the place for that, man.
      Y’all do that on y’all own time.

             And he—he had came in. He was actually trying to get the
      other dude riled up to fight him. He tried to fight him in my house,
      and I had to ask him—ask him to leave then. But he left, you know,
      and I told the other dude, don’t—don’t worry about that, man. I met
      you—I met him through y’all, so what I’m going to look like sitting
      with two of y’all, y’all supposed to be friends. Why I’m going to sit
      back and witness y’all fighting and this my house. Y’all have to
      respect me. If I don’t want y’all fighting, you need to respect that.



                                        8
            ....

             And the other incident happened at my one friend’s, Shawron
      Carr cousin, house. M.T. had came by there. I don’t know what the
      specific incident was between M.T. and Shawron’s cousin, but M.T.
      had came through there and had—he had left, and when me and
      Shawron had came by and while we visiting Shawron’s cousin, M.T.
      had returned, and he had returned in the same aggressive mode
      saying little—little things, threats toward Shawron’s cousin.

            ....

             Shawron had told M.T.—was like, Man, you know you not
      right, man. You just need to go on, leave, get away from here, and if
      this how you going to be acting around us, you don’t need to come
      around us no more.

      Appellant also testified on voir dire that at clubs, Taylor’s “attitude—the

way he carry hisself, he—he real like aggressive, you know, jumps in people

face, throws gang signs, all that type of stuff.” Appellant further stated that he

had “pictures with M.T. on there and other witnesses that was there. Everybody

has pictures from when we was in the club and stuff with M.T. on there throwing

them gang signs and holding money, too.” Finally, Appellant offered testimony

that at the time of the shooting, he believed that M.T. was from Westside Como

and that the Como area gang affiliation was “mainly like the Crips.”

      Defense counsel told the court:

             The purpose of this testimony is [to show] what [Appellant]
      believed on the date this offense happened, whether he had reason
      to believe. We’re not looking to make—you know, impeach and
      make this guy look terrible, but we are looking to show what my
      client’s state of mind was on that date as to whether or not he knew
      Matthew Taylor’s potential for being violent.




                                        9
      The trial court excluded all the evidence, stating that it was not relevant for

a claim of self-defense and that its probative value was substantially outweighed

by its prejudicial effect. The trial court also stated,

      [M]any of them are not relevant. In specifics, with regard to the
      aggravated assault with a serious bodily injury situation, most of this
      information is not from personal knowledge that he . . . observed . . .
      the victim engaging in.

            It is with regard to some other information, and in addition to it,
      the possession of a weapon by an individual in their own home is
      permissible. Now, whether or not the person’s known to carry the
      weapon out and about would be pertinent, but that is not what has
      been discussed or presented in the . . . proffer.

             And so, therefore, that information is highly prejudicial under
      those . . . particular circumstances. That is not what’s been alleged
      in the events thus far, and based upon the totality of the record, in
      addition to my knowledge from seeing the . . . three days of trial,
      those matters shall not be gone into.

      None of the evidence took very long to develop, and it was not repetitive or

confusing.    While Appellant contends that the evidence that he personally

observed was particularly relevant and necessary to his defense, none of it would

directly contribute to his alleged belief that Taylor was armed when Appellant

shot his gun eight times, hitting Taylor four times on the back of his body. The

only evidence tying Taylor to a weapon did not portray him as violent, just as a

braggart. And while the evidence of Taylor spoiling for a fight in two different

homes is similar to the facts of the case before us, Appellant offered no evidence

that Taylor had exhibited or used a weapon in those other instances.              The

evidence Appellant sought to admit was relevant to show Taylor’s tendency to



                                           10
provoke fights.   The evidence already admitted in the case at bar, however,

demonstrated more strongly that Taylor was being combative and aggressive

with Appellant on the day in question than the evidence of prior episodes could

have.

        Nevertheless, the evidence that Taylor was a gangbanger with a rap sheet

and a penchant for starting trouble did lend support to Appellant’s claim that he

believed Taylor was armed and gives rise to the question of whether Appellant

believed Taylor’s perceived aggression and penchant for violence rose to a level

justifying deadly force. After balancing the rule 403 factors, we hold that the trial

court abused its discretion by excluding the proffered evidence.

        Applying the proper standard of review for harm, 11 however, we note that

the jury was allowed to hear evidence of Taylor’s conduct during the three

encounters with Appellant on the day of the shooting. Given the record before

us, there is little question that Appellant was justified in going outside armed in

order to get Taylor to leave his property. Based on Appellant’s knowledge of

Taylor that the jury did not hear, Appellant could legitimately have claimed the

fear to which he testified. But the fear was equally legitimate based on the

evidence before the jury. Once Taylor turned to leave, however, and once it was

clear that he was unarmed, neither the excluded evidence nor the evidence

before the jury nor any combination thereof justified the shooting. We therefore

        11
         See Tex. R. App. P. 44.2(b).



                                         11
hold that any error in excluding the proffered evidence was harmless because it

did not affect Appellant’s substantial rights. 12    We overrule the remainder of

Appellant’s first point.

Charge on Necessity

      In his second point, Appellant contends that the trial court erred by refusing

to charge the jury on necessity to justify uncharged conduct. The jury charge

provides,

              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.

            The use of force against another is not justified in response to
      verbal provocation alone.

             A person is justified in using deadly force against another:

             (1)    if he would be justified in using force against the other in
                    the first place, as set out above; and

             (2)    when and to the degree he reasonably believes the
                    deadly force is immediately necessary to protect
                    himself or a third person against the other person’s
                    use or attempted use of unlawful deadly force; or to
                    prevent the other’s imminent commission of
                    robbery or aggravated robbery.




      12
       See Tex. R. App. P. 44.2(b); Solomon v. State, 49 S.W.3d 356, 365 (Tex.
Crim. App. 2001); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.
1998); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing
Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)).



                                          12
      (3)   By the term “reasonable belief” as herein used is meant
            a belief that would be held by an ordinary and prudent
            person in the same circumstances as [Appellant].

      (4)   By the term “deadly force” is meant force that is
            intended or known by the person using it to cause, or in
            the manner of its use or intended use is capable of
            causing, death or serious bodily injury.

      (5)   The actor’s belief that deadly force was immediately
            necessary as described above is presumed to be
            reasonable if the actor:

            a.    Knew or had reason to believe that the person
                  against whom the deadly force was used:

                  i.     Unlawfully and with force entered, or was
                         attempting to enter unlawfully and with
                         force, the actor’s occupied habitation;

                  ....

                  iii.   Was committing or attempting to prevent
                         the other’s imminent commission of robbery
                         or aggravated robbery;

            b.    The actor did not provoke the person against
                  whom the force was used; and

            c.    The actor was not otherwise engaged in
                  criminal conduct activity other than a Class C
                  misdemeanor that is a violation of the law or
                  ordinance regulating traffic at the time the
                  force was used.

      “Habitation” means a structure or vehicle that is adapted for
the overnight accommodation of persons.

      You are instructed that a person commits an offense if he
knowingly discharges a firearm at or in the direction of a
habitation or vehicle and is reckless as to whether the
habitation or vehicle is occupied. This offense is a third degree
felony.


                                13
       You are instructed that a person commits an offense if the
person recklessly discharges a firearm inside the corporate
limits of a municipality having a population of 100,000 or more.
This offense is a Class A misdemeanor.

      ....

       Now, if you find from the evidence beyond a reasonable doubt
that on the occasion in question, [Appellant] committed the offense
of aggravated assault, but you further find from the evidence, or
have a reasonable doubt thereof, that [Appellant] reasonably
believed, as viewed from his standpoint at the time, that from the
words or conduct, or both, of Matthew Taylor, it reasonably
appeared to [Appellant] that his life or person or the li[ves] or
person[s] of [his] children were in danger and there was created in
[Appellant’s] mind a reasonable expectation of fear of death or
serious bodily injury from the immediate use of unlawful deadly force
at the hands of Matthew Taylor to himself or [his] children, 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 [his] children against Matthew Taylor’s use or
attempted use of unlawful deadly force, he shot Matthew Taylor
with a firearm, then you should acquit [Appellant] on the grounds of
self defense, or if you have a reasonable doubt as to whether or not
[Appellant] was acting in self defense on said occasion and under
the circumstances, then you should give [Appellant] the benefit of
that doubt and say by your verdict Not Guilty.

      However, if you find from the evidence beyond a reasonable
doubt:

(1)    that at the time and place in question [Appellant] did not
reasonably believe that he or [his] children [were] in danger of death
or serious bodily injury; OR

(2)   that [Appellant], under the circumstances, and viewed 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 [his] children against Matthew Taylor’s use or
attempted use of unlawful deadly force, then you will find
against [Appellant] on the issue of self defense.




                                 14
      You are instructed that if there is any testimony before you in this
      case regarding [Appellant’s] having committed bad acts other than
      the offense alleged against him in the indictment in this case, you
      cannot consider said testimony for any purpose unless you find and
      believe beyond a reasonable doubt that [Appellant] committed such
      other bad acts, if any, . . . and even then you may only consider the
      same in determining the intent of [Appellant] if any, in connection
      with the offense, if any, alleged against him in the indictment in this
      case, and for no other purpose. [Emphasis added.]

      Even though the trial court charged the jury on self-defense and defense of

third persons, Appellant argues that the trial court erred by refusing a charge on

necessity because of the additional jury charge instructions on the uncharged

offenses of discharging a firearm in the city limits and recklessly discharging a

firearm at a habitation. Appellant contends that these “two charges effectively

removed [him] from the protection of the Castle Doctrine.”           He therefore

requested a charge on necessity to combat them. He did not request and is not

arguing that he was entitled to a necessity charge for the charged offense of

aggravated assault.

      We note that the jury was not charged on the presence or absence of a

duty to retreat; “retreat” is not mentioned in the jury charge.      We therefore

construe Appellant’s argument as a complaint that the presence of the two

instructions on uncharged conduct could have caused the jury to find that he was

engaging in otherwise unlawful conduct when he shot Taylor and that he

therefore needed the necessity defense charge to legitimate that conduct and




                                        15
trigger the presumption that his belief that deadly force was imminently

necessary was reasonable. 13

      In light of the evidence that a projectile was found in the garage of another

house, and the fact that the shooting occurred within the Fort Worth city limits,

the additional instructions appear to eviscerate any hope of a successful self-

defense claim. At best, the conflicting instructions are confusing. But on appeal,

Appellant does not contend that the trial court erred by giving these additional

instructions, although he objected to the instructions below.         Instead, he

complains solely of the denial of a necessity instruction regarding the uncharged

conduct.

      A step-by-step analysis is necessary.        Necessity, self-defense, and

defense of a third person are all justification defenses. 14    Self-defense and

defense of a third person are justification defenses that exclude criminal

responsibility for using deadly force. 15 It was established at least as early as

1854 that the right of self-defense is based upon and limited by necessity; when

the necessity arises, the right instantly accrues, and when the necessity, real or




      13
       See Tex. Penal Code Ann. § 9.32(b) (West 2011).
      14
       See id. §§ 9.22, 9.31, 9.32.
      15
       See id. §§ 9.31, 9.32.



                                        16
apparent, ceases, the right no longer exists. 16 All acts in furtherance of the

justified killing or assault are likewise justified. 17 That portion of section 9.32

providing that “[t]he actor’s belief under Subsection (a)(2) that the deadly force

was immediately necessary . . . is presumed to be reasonable if the actor: . . .

was not otherwise engaged in criminal activity” 18 refers only to criminal activity

that is not an essential part of the justified murder or assault. 19 Displaying the

weapon, attempting to commit the murder or assault, or firing the weapon

intentionally or recklessly in the course of the assault, the murder, or the

attempted assault or murder are all included within the justification defense. 20 It

is error for the trial court to separate out components of the greater assaultive

offense and instruct the jury that those components are criminal acts that deprive

the defendant of the presumption that his belief that the force was immediately

necessary is reasonable. 21

      16
       See Lander v. State, 12 Tex. 462 (1854); see also Brendendick v. State,
34 S.W. 115, 115 (Tex. Crim. App. 1896).
      17
         See Villa v. State, 370 S.W.3d 787, 792–93 (Tex. App.—Eastland 2012),
aff’d, 417 S.W.3d 455 (Tex. Crim. App. 2013).
      18
        Tex. Penal Code Ann. § 9.32(b)(3).
      19
        See Morales v. State, 357 S.W.3d 1, 7–8 (Tex. Crim. App. 2011).
      20
        See Alonzo v. State, 353 S.W.3d 778, 781–82 (Tex. Crim. App. 2011);
Burd v. State, 404 S.W.3d 64, 74–75 (Tex. App.—Houston [1st Dist.] 2013, no
pet.).
      21
        See Alonzo, 353 S.W.3d at 781–83.



                                        17
      To summarize, self-defense and defense of a third person are necessity

defenses that justify all aspects of the assaultive conduct justified by the defense.

A defendant is not entitled to a separate necessity defense regarding

independent components of the assaultive conduct justified by self-defense and

defense of a third person.      The trial court errs in instructing the jury that

components of the justified assaultive conduct are criminal acts that deprive the

defendant of the presumption of reasonableness. But Appellant did not complain

here about the instructions on uncharged conduct, and the trial court did not err

in refusing Appellant’s requested necessity instruction because the jury charge

already included instructions on self-defense and defense of a third person,

justification defenses steeped in necessity, and those justification defenses

already applied to all components of the charged conduct, including firing a

weapon in a municipality and recklessly firing a gun at a habitation. We therefore

overrule Appellant’s second point.

Conclusion

      Having overruled Appellant’s two points, we affirm the trial court’s

judgment.




                                         18
                                      /s/ Lee Ann Dauphinot
                                      LEE ANN DAUPHINOT
                                      JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 8, 2014




                              19
