                                              In The

                                       Court of Appeals
                          Ninth District of Texas at Beaumont
                                    _________________
                                      NO. 09-11-00156-CR
                                    _________________

                              TAMMY LYNN JONES, Appellant

                                                 V.

                              THE STATE OF TEXAS, Appellee

______________________________________________________________                   ____

                      On Appeal from the 1st District Court
                              Jasper County, Texas
                            Trial Cause No. 10621JD
_______________________________________________________________                   ___

                              MEMORANDUM OPINION

       In this appeal, we consider only one of the two issues that have been raised on its

merits: whether the evidence is sufficient to support the jury’s verdict that Tammy Lynn

Jones committed manslaughter. The other issue raised in the appeal, complaining of the

trial court’s exclusion of a report, was not perfected for our review.

       The State indicted Tammy for murdering her husband, Roy L. Jones. Tammy pled

not guilty, claiming she had acted in self-defense. The jury failed to find that Tammy

murdered Roy, but found her guilty of manslaughter. In Tammy’s first issue, she argues


                                                 1
the trial court erred by failing to admit a toxicology report that she offered while

examining the State’s expert pathologist, Dr. Tommy Brown. Because Tammy advances

an argument for admitting the report on appeal that she failed to make at trial, we hold

that Tammy has not perfected her right to have us review this issue.

       In her second issue, Tammy argues the jury could not have rationally rejected her

self-defense claim; as a result, she concludes the evidence is insufficient to support the

jury’s verdict finding her guilty of manslaughter. Based on the evidence admitted at trial,

we conclude the jury could rationally reject Tammy’s claim that she acted in self-

defense; therefore, we affirm the trial court’s judgment.

                                  Sufficiency of Evidence

       Because issue two is resolved on its merits, we address that issue first. Tammy and

Roy were the only witnesses with personal knowledge of what happened; Tammy did not

testify at trial. Roy did not testify either, as he was killed by a twenty-two caliber bullet

that Tammy fired, which struck him in the chest. According to Dr. Brown, Roy probably

lost consciousness about a minute after being shot.

       Tammy gave the police her statement on the night of Roy’s death. Her statement,

admitted without objection, constitutes the bulk of the direct evidence admitted during

the trial explaining the circumstances of Roy’s death. Both the audio recording of her

discussion with police as well as a written transcription were admitted. According to

Tammy’s statement, she and Roy had an abusive relationship, and he had beaten her


                                                 2
many times before the evening that she shot him. The day Roy died, they got into an

argument about having his prescription refilled. When Tammy told Roy that the drug

store had not filled his prescription, he was angry, accusing her of lying to him about

getting the pharmacy to fill the prescription.

       Tammy explained that, after Roy left the house that day, she got a pistol from the

house because she felt she needed protection. Because she did not know how the pistol

worked, she fired it twice, trying to learn how it worked. The night Roy died, she was

returning home in her car when Roy used a baseball bat to strike the exterior of her car

twice. Tammy stated that she wanted Roy to stop hitting the car, so she took the pistol

that she had placed beneath her car seat earlier that day, and then she fired it in Roy’s

direction. However, Tammy also said that she did not aim the pistol at Roy and that she

only intended to scare him. According to Tammy, if she had not fired the pistol: “I don’t

know what would have happened next or what.” Nevertheless, Tammy told the police

that she had fired the pistol to make Roy stop beating the car. After explaining what

happened, and after the police advised Tammy that she would be charged with murder,

Tammy said: “[W]hat was I supposed to do? [ ] Let him kill me?” This statement is the

only point during her conversation with the police that Tammy directly suggested that she

believed she was in danger of being seriously injured or that she feared for her life. Then,

Tammy explained that all of the property in their family belonged to Roy, except for her

car.


                                                 3
       Other witnesses testified during the trial that Tammy and Roy had an abusive

relationship and that they were arguing on the day Roy died. There was circumstantial

evidence admitted during the trial showing that Roy fell to the ground after being shot

near a gate that led to the Joneses’ home and that Tammy’s car had been hit with a

baseball bat found near Roy’s body. Officers, who investigated the shooting, testified that

the Joneses’ vehicles were found near a gate to the fence around the Joneses’ house.

Testimony and exhibits of the scene showed the outside mirror on the driver’s side of

Tammy’s car had been damaged. Another witness, Jim Okun, testified that on the

evening Roy died, he and Roy were sitting in Roy’s pickup at a house across the highway

from the Joneses’ home. According to Okun, Tammy drove up and began arguing with

Roy; at that point, Tammy and Roy left in their vehicles.

       Tammy contends that under these circumstances, no rational jury could have

found she did not act in self-defense. When a defendant challenges the sufficiency of the

jury’s rejection of an affirmative defense, we view the evidence in the light most

favorable to the State, and determine:

              whether a rational fact finder could find the defendant guilty of committing

              the essential elements of the offense beyond a reasonable doubt; and

              whether a rational fact finder could reject the defendant’s affirmative

              defense.




                                                4
See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991); see also Tex. Penal

Code Ann. § 9.31 (West 2011) (defining self-defense).

       A defendant asserting a claim of self-defense has the burden of production and

must bring forth some evidence to support the particular defense. See Tex. Penal Code

Ann. §§ 2.03(c), 9.02, 9.31, 9.32 (West 2011); Zuliani v. State, 97 S.W.3d 589, 594 (Tex.

Crim. App. 2003). But, once the defense is raised, the State bears the burden of

persuasion to disprove the defense. Zuliani, 97 S.W.3d at 594. The State’s burden is not

one that requires the production of evidence; rather, it requires the State to prove its case

beyond a reasonable doubt. Id. The issue of self-defense is a fact issue to be determined

by the jury, which can freely accept or reject any defensive evidence on the issue. Saxton,

804 S.W.2d at 913-14. A jury’s guilty verdict “is an implicit finding rejecting the

defendant’s self-defense theory.” Id. at 914.

       On appeal, Tammy has not argued the State did not prove the elements of

manslaughter. Instead, she contends that the State failed to meet its burden to prove that

she did not act in self-defense. With respect to the State’s burden of proving that Tammy

did not act in self-defense, the jury was instructed that the State was required to prove

that Tammy “did not believe her conduct was immediately necessary to protect herself

against [Roy’s] use or attempted use of unlawful deadly force;” or that Tammy’s “belief

was not reasonable.”




                                                 5
       Given all of the reasonable inferences available from the evidence, the jury could

reasonably find that Tammy did not believe she had to shoot Roy to protect herself from

him. The night Roy died, Tammy repeatedly told police that she had fired the pistol only

to scare Roy; thus, the jury could infer that she shot at Roy to scare him so he would stop

hitting her car—her only possession—not because she subjectively believed that he was

about to hit her. The circumstantial evidence together with all of the circumstances that

led to the shooting allowed the jury to conclude that Tammy fired the pistol to protect her

property, not to protect herself.

       Additionally, Tammy indicated that she got the pistol shortly after she and Roy

argued that day; fired it to familiarize herself with how it worked; and placed it under the

seat of her car. The evidence further shows that, even after leaving their house where they

argued, Tammy later pursued Roy by finding him at a neighbor’s house, which

precipitated even further argument. That circumstance offers additional support for the

jury’s conclusion that Tammy shot Roy shortly after she contacted him at a neighbor’s

home, an additional circumstance that tends to show Tammy had not acted out of a fear

for her safety.

       Finally, after shooting Roy, Tammy never directly stated that she thought Roy was

about to hit her with the bat; even had she done so, the jury could have considered all of

the other circumstances in deciding to reject such a statement. See Sells v. State, 121

S.W.3d 748, 753-54 (Tex. Crim. App. 2003) (concluding that defendant’s statement that


                                                6
he did not enter home with the specific intent to commit sexual assault was not enough to

render the evidence insufficient).

       We conclude that the evidence that Tammy acted in self-defense was not so strong

that it greatly preponderates against the jury’s finding that Tammy was guilty of

committing reckless manslaughter. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.

Crim. App. 2000) (rejecting argument that jury verdict was supported by insufficient

evidence where the defendant asserted a claim of justification to protect his personal

property); Denman v. State, 193 S.W.3d 129, 133 (Tex. App.—Houston [1st Dist.] 2006,

pet. ref’d) (holding that jury could reject defendant’s statement that he had acted in self-

defense where evidence included the defendant having been assaulted and threatened by

the complaining witness). Having carefully reviewed the testimony from the trial, we

conclude the jury’s determination that Tammy was guilty of reckless manslaughter was

not irrational. We further conclude that the circumstantial evidence allowed the jury to

conclude, beyond reasonable doubt, that Tammy did not believe her conduct was

immediately necessary to protect herself from Roy. Consequently, we hold that the

evidence is sufficient to support the jury’s verdict finding Tammy guilty of reckless

manslaughter. We overrule issue two.

                             Exclusion of Toxicology Report

       In her first issue, Tammy contends the trial court erred in excluding a toxicology

report, which indicated that Roy had a blood alcohol level of .231 milligrams per deciliter


                                                7
and a methamphetamine result of 14 nanograms per milliliter. Tammy’s attorney offered

the toxicology report during his cross-examination of Dr. Brown, the State’s expert

pathologist. After the State objected, asserting the report was hearsay because it was not a

report prepared by Dr. Brown, Tammy’s attorney argued that the report was admissible.

       Specifically, at trial, Tammy’s attorney argued that the report was admissible

because Dr. Brown relied on it in formulating his opinion about whether the gunshot

wound to Roy’s chest had caused Roy’s death, asserting that an expert “can rely on what

would otherwise be inadmissible hearsay . . . and can talk about it.”1 See Tex. R. Evid.

705.2 When the court ruled that it would allow the expert to say that he had relied on the

toxicology report, but would not allow the expert to testify regarding the results of the

report, Tammy’s attorney then offered another argument for admitting the report.

Tammy’s attorney explained to the trial court that the State had provided the report to

him during discovery, making the report admissible because the State was “vouching for

its authenticity.” However, Tammy failed to advance either of the arguments that she




       1
        At trial, Tammy’s attorney did not reference Rule 705 of the Texas Rules of
Evidence to support her argument that the toxicology report was admissible. However,
the trial court, based on the argument advanced by Tammy’s attorney, would have
understood that her counsel intended to reference Rule 705.
       2
        Rule 705 provides that during cross-examination, an expert may be required to
disclose his underlying facts or data in formulating his opinion; but, if the facts or data
would be inadmissible, the trial court “shall exclude [them] if the danger that they will be
used for a purpose other than as explanation or support for the expert’s opinion outweighs
their value as explanation or support or are unfairly prejudicial.” Tex. R. Evid. 705.
                                                8
made at trial in her appeal. Instead, on appeal, Tammy argues that the trial court should

have admitted the toxicology report under:

       1. Rule 107 of the Texas Rules of Evidence, the rule of optional completeness; or

       2. Rules 803(4) and 803(8) of the Texas Rules of Evidence, which are,
          respectively, hearsay exceptions for statements made for the purposes of a
          medical diagnosis and for public records and reports; or

       3. The Sixth Amendment of the United States Constitution.

See U.S. Const. amend. VI; Tex. R. Evid. 107, 803(4), 803(8).

       In seeking to overturn the trial court’s ruling regarding the toxicology report, the

basis of the arguments that Tammy raises on appeal are not the same as the arguments

she made during trial. Because the arguments she raises on appeal were not first raised at

trial, she has failed to preserve them for appellate review. Tex. R. App. P. 33.1(a)(1)

(preserving error for appellate review requires the complaining party to show that he

presented his complaint to the trial court in a timely request, objection, or motion and that

the trial court ruled on the request). These same error preservation rules apply to

Tammy’s complaint that the Sixth Amendment required the trial court to admit the

toxicology report. See Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005)

(holding that defendant failed to preserve Sixth Amendment complaint because he did not

object at trial on the constitutional ground).

       Because Tammy did not present the arguments she made at trial regarding the

admissibility of the toxicology report for our review, and because the arguments she has


                                                 9
made regarding issue one were not first presented in the trial court, we overrule her first

issue. Having overruled both of Tammy’s issues, the trial court’s judgment is affirmed.

       AFFIRMED.



                                                        ___________________________
                                                              HOLLIS HORTON
                                                                   Justice


Submitted on June 27, 2012
Opinion Delivered November 28, 2012
Do Not Publish

Before Gaultney, Kreger, and Horton, JJ.




                                               10
