                                                                                   ACCEPTED
                                                                              12-14-00158-CR
                                                                  TWELFTH COURT OF APPEALS
                                                                               TYLER, TEXAS
                                                                        3/26/2015 12:35:15 PM
                                                                                 CATHY LUSK
                                                                                       CLERK

APPELLANT RESPECTFULLY REQUESTS ORAL ARGUMENT
                 _______________
                                                           RECEIVED IN
                                                     12th COURT OF APPEALS
                         12-14-00158-CR                   TYLER, TEXAS
                        _______________              3/26/2015 12:35:15 PM
                                                          CATHY S. LUSK
                          IN THE                              Clerk
                    COURT OF APPEALS
                FOR THE TWELFTH DISTRICT
                      TYLER, TEXAS
                      ______________
                                                            3/26/2015
                  RICKY NEAL, JR., Appellant

                                VS.

               THE STATE OF TEXAS, Appellee
                     ______________

   On Appeal from the 7th District Court of Smith County, Texas
               Trial Court Cause No. 007-0505-13
              Before the Honorable Kerry L. Russell
                         ______________

                      APPELLANT’S BRIEF
                        ______________




CARLO D’ANGELO, PC
ATTORNEY AT LAW
100 East Ferguson, Suite 1210
Tyler, Texas 75702
Tel 903.595.6776
Fax 903.407.4119
carlo@dangelolegal.com
Attorney for Appellant
                      Identity of Parties and Counsel

Parties to the Appeal:

     Ricky Neal, Jr., Appellant

     The State of Texas

Names and Addresses of Trial Counsel:

     Jeffrey Allen Wood and Brian Mitchell Jiral
     Assistant District Attorney
     Smith County District Attorney
     100 N. Broadway Avenue
     Tyler, Texas 75702
     (903) 535-0520

     Thad Watts Davidson
     Davidson Law Office
     329 South Fannin Avenue
     Tyler, Texas 75702
     (903) 595.9600


Names and Addresses of Appellate Counsel:

     Michael West
     Assistant District Attorney
     Smith County District Attorney
     100 N. Broadway Avenue, 4th Floor
     Tyler, Texas 75702

     Carlo D’Angelo
     100 E. Ferguson, Suite 1210
     Tyler, Texas 75702




                                       ii
                                      Request for Oral Argument

In accordance with Rule 39.1 of the Texas Rules of Appellate Procedure,
Appellant respectfully requests oral argument. Appellant submits that if granted,
oral argument in this cause will further clarify the issues raised in this brief and aid
this Honorable Court in assessing the merits of the arguments raised therein.


                                              Table of Contents

Identity of Parties and Counsel ................................................................................. ii

Request for Oral Argument ...................................................................................... ii

Table of Contents ..................................................................................................... ii

Index of Authorities ................................................................................................. iv

Statement of the Case ............................................................................................. vii

Issues Presented ...................................................................................................... viii

References to the Record .......................................................................................... 1

Background ............................................................................................................... 2

Statement of Facts .................................................................................................. 3-4

Summary of Arguments ............................................................................................ 4

Argument .................................................................................................................. 5

Issue One: The State failed to prove that Appellant did not fire upon and kill Mass
in self-defense……………………………………………………………………...5

Issue Two: The trial court erred in limiting Appellant’s ability to elicit testimony
establishing the alleged victim, Moss’, gang affiliation and how that evidence
demonstrated Appellant’s justified use of deadly force in this case…………….....20



                                                             iii
Issue Three: The trial court erred in limiting Appellant’s ability to elicit testimony
establishing the alleged victim, Moss’, gang affiliation and how that evidence
demonstrated Appellant’s justified use of deadly force in this case……………….27


Issue Four: The trial court erred in limiting Appellant’s cross-examination of
State’s witnesses to establish the alleged victim, Moss’, gang affiliation and how that
evidence demonstrated Appellant’s justified use of deadly force in this case.……..30


Issue Five: The trial court erred in denying Appellant’s request for a necessity
instruction. ……………………………………………………………………..…41

Issue Six:. The trial court erred in its ruling that Appellant could not elicit
testimony from defense witness, Wilmon Davis, that shortly prior to the shooting
someone in the mall utter “he might get shot.”………………………………...…46
Issue Seven: Trial counsel rendered ineffective assistance of counsel in failing to
challenge whether the State’s gang identification witness was qualified to render an
expert opinion that Appellant was affiliated with a gang. ….………………….…58

Issue Eight: The trial court erred in denying Appellant’s request lesser-included
offense jury instructions. ……………………..…………………………………...76

Issue Nine: The trial court erred in denying Appellant’s request for inclusion in the
punishment charge of a sudden passion instruction…….………………………...81


Prayer………………………………………………………………………….…..88

Certificate of Compliance ……………………………………………………..….88

                                  Index of Authorities

Cases

Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App.1994)...................................75

Airline v. State, 721 S. W. 2d 348, 351 (Tex. Crim. App. 1986) ..............................40

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)..............................53

                                               iv
Andrews v. State, 159 S.W.3d 98 (Tex.Crim.App.2005)...............................................61

Anderson v. State, 15 S.W. 3d 177, 184 (Tex. App.—Texarkana 2000) ……………57

Alonzo v. State, 353 S.W. 3d 778, 781 (Tex. Crim. App. 2011) …………………..77

Barrios v. State, 389 S.W.3d 382 (Tex. App.—Texarkana 2012)..............................34

Benavides v. State, 992 S.W.2d 511, 524–25 (Tex. App.–Houston [1st Dist.] 1999,
pet. ref'd)………………………………………………………………………......87
Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999)..................................55

Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App.2010).......................................6

Bumgardner v. State, 963 S.W.2d 171, 175 (Tex. App. 1998).....................................52

Butler v. State, 663 S.W.2d 492, 496 (Tex. App. 1983)..............................................52

Carmen v. State, 276 S.W.3d 538, 545 (Tex. App. 2008)...........................................44

Chew v. State, 804 S.W.2d 633, 635 (Tex.App.-San Antonio 1991)..........................29

Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007)......................................6

Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000)..........................................6

Davis v. State, 278 S.W.3d 346, 352 (Tex.Crim.App.2009)......................................50

Darkins v. State, 430 S.W.3d 559, 565 (Tex.App.-Houston[14th Dist.] 2014)............8

DeLeon v. State, 322 S.W.3d 375 (Tex. App. 2010....................................................75

Dempsey v. State, 159 Tex. Crim. 602, 266 S.W.2d 875, 877–78 (Tex. Crim. App.

1954)........................................................................................................................23

Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989) ................................50

Diaz v. State, 380 S.W.3d 309, 311 (Tex.App.Fort Worth 2012, pet. ref'd)............57
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 587 (1993)....................................60
Ferrel v.State, 55 S.W.3d 586, 591 (Tex.Crim.App.2001)..............................................33

                                                               v
Fry v. State, 915 S.W.2d 554, 560–61 (Tex.App.-Houston[14th Dist.] 1995, no
pet.)........................................................................................................................23
Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)..................................61

Gaspar, 327 S.W.3d 349, 356 (Tex. App.—Texarkana 2010)...............................43

Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex. 1998)………..63

Green v State, 876 S.W.2d.226 (Tex.App.—Beaumont 1994, no pet.).....................56

Guilbeau v. State, 193 S.W.3d 156 160 (Tex. App.—Houston (1st Dist.) 2006)……51

Guzman v. State, 188 S.W.3d 185, 188 (Tex.Crim.App.2006) ……………………77

Grffen v. State, 2014 WL 7474076 (Tex. App.—Houston (1st Dist.) 2014) ………...87

E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995)………61

Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999)). ………………….79

Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923)…………………………60

Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996)................................49

Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007) ………………………77

Hartsfield v. State, 305 S.W.3d 859, 863 (Tex.App.-Texarkana 2010).......................6

Hill v. State, 99 S.W.3d 248, 251 (Tex. App.-Fort Worth 2003, pet. ref'd).............33

Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007)...........................................7

Jackson v. State, 877 S.W.2d 768 (Tex. Crim. App. 1994).......................................74

Jackson v. State, 482 S.W.2d 864, 868 (Tex.Crim.App 1972)........................................30

Johnson v. State, 650 S.W.2d 414, 416 (Tex. Crim. App. 1983)...............................50

Johnson v. State, 433 S.W.3d 546 (Tex. Crim. App. 2014).......................................30

Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App.1996)......................................6

                                                               vi
Klein v. State, 662 S.W.2d 166 (Tex.App.—Corpus Christi 1983, no pet.)..............43

Koehler v. State, 679 S.W.2d 6, 9 (Tex. Crim. App.1984)..........................................29

Lavern v. State,48 S.W.3d 356, 360–61 (Tex. App.-Houston[14 Dist.] 2001)...........51

Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011)...................................69

Love v. State, 199 S.W.3d 447, 455 (Tex.App.–Houston [1st Dist.] 2006, pet. ref'd)
…………………………………………………………………………………….82

Lewis v. State, 529 S.W.2d 550, 553 (Tex.Crim.App.1975) ………………..……..81

Matchett v. State, 941 S.W.2d 922, 940 (Tex.Crim.App.1996)..................................28

Matthews v. State, 708 S.W.2d 835, 837–38 (Tex. Crim. App. 1986) ......................36

McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005)............................20

McKinney v. State, No. 12–03–00155–CR, 2004 WL 1852975, 2004 Tex. App.

LEXIS 7472 (Tex. App.-Tyler August 18, 2004) ……………………………….87

Medina v. State, 411 S.W.3d 15, 21(Tex. App.-Houston [14th

Dist.]2013)..............................................................................................................45

Miranda v. State, 350 S.W.3d 141, 147 (Tex. App.-San Antonio 2011, no

pet.)............................................................................................................................7

Morales v. State, 357 S.W.3d 1, 7 (Tex.Crim.App.2011).............................................9

Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 712 (Tex. 1997)……………64

Mozon v. State, 991 S.W.2d 841, 845 (Tex. Crim. App. 1999).................................23

Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005)......................................31




                                                               vii
Ortiz v. State, 144 S.W.3d 225, 233–34 (Tex. App.–Houston [14th Dist.] 2004, pet.

ref'd) …………………………………………………………………………….78

Pentycuff v. State, 680 S.W.2d 527 (Tex.App.—Waco 1984, pet. ref'd).....................50

Pitonyak v. State, 253 S.W.3d 834, 846 (Tex. App.-Austin 2008, pet. ref'd) ……….80
Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003)...............................68

Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim App. 1991).....................................6

Semaire v. State, 612 S.W.2d 528, 530 (Tex. Crim. App. 1980).................................44

Strickland v. Washington, 466 U.S. 668, 686 (1984)…………………………..……..57

Shaw v. State, 243 S.W.3d 647, 657 (Tex.Crim.App.2007).......................................34

Smith v. State, 355 S.W.3d 138, 145 (Tex.App.-Houston [1st Dist.] 2011).................7

Smith v. State, 874 S.W.2d 269, 273 (Tex.App.—Houston[14th Dist.]
1994)........................................................................................................................50

Tate v. State, 981 S.W.2d 189, 192–93 & n. 5 (Tex.Crim.App.1998).......................24

Thompson v State, 9 S.W.3d 808, 814(Tex.Crim.App.1999)......................................68

Torres v. State, 71 S.W.3d 758, 760 & n. 4 (Tex. Crim. App. 2002)..........................23

Torres v. State, 117 S.W.3d 891, 896–97 (Tex. Crim. App. 2003).............................25

Trevino v. State, 100 S.W.3d 232, 238 (Tex. Crim. App. 2003). ………………….84

Vela v. State, 209 S.W.3d 128, 133 (Tex. Crim. App. 2006).....................................73

Virts v. State, 739 S.W.2d 25 (Tex. Crim. App. 1987)..............................................29

Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000)..............................54
Wilson v. State, 391 S.W.3d 131 (Tex.App.–Texarkana 2012, no
pet.)..........................................................................................................................49

Wiggins v. Smith, 539 U.S. 510 (2003)…………………………………….……….69
                                                              viii
See Wooten v. State, 400 S.W.3d 601, 608–09 (Tex. Crim. App. 2013)…………83

Yantis v. State, 49 Tex. Crim. 400, 94 S.W. 1019, 1021

(Tex.Crim.App.1906)..............................................................................................24

Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App.2003).......................................7



Rules

TEX. R. APP. P. 9.4................................................................................................. 88

Tex. R. Evid. 803(1)………………………………………………………………55

Tex. R. Evid. 702 ……………………………………………………………...…60

Tex R. Evid. 705(c)……………………………………………………………….73

Codes

Tex. Pen. Code Ann. § 9.22(1)……………………………………………………50

Tex. Code Crim. Proc. Ann. art. 36.19 ……………………………………….…53

Tex. Pen. Code § 2.03(a)…………………………………………………………76

TEX. PEN. CODE § 9.02 ……………………………………………………....76

TEX. PEN. CODE § 2.03(d)……………………………………………………..76

TEX. PEN. CODE § 9.31 ………………………………………..……………76

TEX. PEN. CODE ANN. § 22.05(a) …………………………………………….77

Tex. Code Crim. Proc. Ann. art. 37.09(3) ……………………………………….80

Tex. Penal Code Ann. § 6.03(c) …………………………………………………81




                                                          ix
Secondary Sources

Barbara E. Bergman & Nancy Hollander, Wharton's Criminal Evidence § 6:22
(15th ed. 1998 & Supp. 2000)..................................................................................49

Judge Harvey Brown Eight Gates for Expert Witnesses, 36 Hous. L. Rev. 743, 744
(1999) ......................................................................................................................64

David E. Colmenero, A Dose of Daubert to Alleviate "Junk Science" in Texas
Courtrooms: Texas Adopts the Federal Standard for Determining the Admissibility
of Scientific Expert Testimony, 27 Tex. Tech L. Rev. 293, 294 (1996)…………….61

Jason G. Duncan, Note, "A Pig's Breakfast": Judicial Gatekeeping for Scientific and
Specialized Expert Testimony, 6 Suffolk J. Trial & App. Advoc. 21, 30 (2001).............62

Edward J. Imwinkelried, The Next Step After Daubert: Developing a Similarly
Epistemological Approach to Ensuring the Reliability of Nonscientific Expert Testimony, 15
Cardozo L. Rev. 2271, 2279 (1994)........................................................................60

Placido G. Gomez, It is Not So Simply Because an Expert Says It’s So: The Reliability of
Gang Expert Testimony Regarding Membership in Criminal Street Gangs: Pushing the Limits of
Texas Rule of Evidence, 702, 34 St. Mary’s L.J. 581, 605 (2003)................................64

Emily L. Baggett, Note, The Standards Applied to the Admission of Soft Science Experts in
State Courts, 26 Am. J. Trial Advoc. 149, 156 (2002) ……………………………..62




                                                               x
                               Statement of the Case

Offense:                                                                    (CR 1)

Appellant’s plea to offense:                              (CR 19) and (RR 13/244)

Trial on Guilt/Innocence:                                                      Yes

Finding on Guilt: Yes                                         (RR 18/11) (CR 385)

Trial on Punishment:                                                           Yes

Punishment:                                      Life (RR Supp. Vol. 1/38) (CR 401)

Judgment:         Judgment conforms to the verdict (RR Supp. Vol. 1/38) (CR 416)




                                 Issues Presented

                                     Issue One



                                        xi
      The State failed to prove that Appellant fired upon and killed Mass in self-
defense.

                                      Issue Two

The trial court erred in limiting Appellant’s ability to elicit testimony establishing
the alleged victim, Mass’, gang affiliation and how that evidence demonstrated
Appellant’s justified use of deadly force in this case.


                                      Issue Three

The trial court erred in limiting Appellant’s cross-examination of State’s witnesses
to establish the alleged victim, Mass’, gang affiliation and how that evidence
demonstrated Appellant’s justified use of deadly force in this case.


                                      Issue Four

The trial court erred in granting the State’s proposed jury instructions negating
Appellant’s claim of self-defense.

                                       Issue Five

The trial court erred in denying Appellant’s request for a necessity instruction.


                                       Issue Six

The trial court erred in its ruling that Appellant could not elicit testimony from
defense witness, Wilmon Davis, that shortly prior to the shooting someone in the
mall utter “he might get shot.”

                                      Issue Seven

Trial counsel rendered ineffective assistance of counsel in failing to challenge
whether the State’s gang identification witness was qualified to render an expert
opinion that Appellant was affiliated with a gang.

                                      Issue Eight


                                           xii
The trial court erred in denying Appellant’s request lesser-included offense jury
instructions.

                                    Issue Nine

The trial court erred in denying Appellant’s request for inclusion in the punishment
charge of a sudden passion instruction.




                                        xiii
                              _______________

                               12-14-00158-CR
                              _______________

                                IN THE
                          COURT OF APPEALS
                      FOR THE TWELFTH DISTRICT
                            TYLER, TEXAS
                            ______________

                        RICKY NEAL, JR., Appellant

                                     VS.

                     THE STATE OF TEXAS, Appellee
                           ______________


TO THE HONORABLE COURT OF APPEALS:

      Appellant, RICKY NEAL, JR., respectfully submits this brief in the above

styled and numbered cause. This is an appeal of a conviction for the offense of

Murder in the 7th District Court of Smith County, Texas, before the Honorable

Kerry Russell.

                         References to the Record

      References to the Clerk’s Record are designated as “(CR page number)”

References to the Reporter’s Record are designated as “(RR volume number (1-24)

/ page number)”




                                      1
                                   Background

      In the Indictment, the State alleged that on or about the 9th day of February

2013, in Smith County, Texas, Appellant did intentionally or knowingly cause the

death of an individual names Christopher Mass, by shooting Christopher Mass

with a firearm (CR 1).    See Article 19.02(b)(1), TEX. PEN. CODE. The Indictment

further alleged that Appellant also did then and there, with the intent to cause

serious bodily injury to an individual, namely, Christopher Mass, commit an act

clearly dangerous to human life that caused the death of Mass, by shooting him

with a firearm. Id. Finally, the Indictment charged that Appellant used or exhibited

a deadly weapon, a firearm, during the commission of the above offense. Id. This

offense is a first-degree felony and is punishable by imprisonment in the

Institutional Division of the Texas Department of Criminal Justice for life or for

any term of not more than 99 years or less than 5 years in the Texas Department of

Criminal Justice and a fine not to exceed $10,000.00. See TEX. PEN. CODE § 12.32.

      Appellant plead not guilty (CR 19) and (RR 13/244). After hearing the

evidence, the jury nevertheless found Appellant guilty (RR 18/11). The jury later

returned a punishment verdict of confinement in the Texas Department of

Criminal Justice, Institutional Division for life (RR 22/166). Based upon the jury’s

verdict, the trial court thereafter sentenced Appellant to life term of confinement in

the Texas Department of Criminal Justice, Institutional Division (RR 23/9).


                                          2
                                Statement of Facts

      On February 9, 2013, Appellant called 911 and reported that shot

Christopher Mass in the parking lot of the Broadway Square Mall in Tyler, Texas

(RR 16/275) and (State’s Exhibit 63). After his arrest, Mr. Neal provided Tyler

Police with a recorded statement admitting that he shot Mass, but that he did so in

self-defense (RR 16/243). Appellant told officers that went to the mall that

morning because it was the release date for a new Air Jordan show (State’s Exhibit

63). Upon entering the mall, Appellant walked over the Chick-Fil-A restaurant to

talk with an acquaintance, Jimmy Whitt. He then became involved in a verbal

dispute with a subject he knew only as Dews (“Jonathan Dews”). Id.

      Apparently back when Dews was in prison, Appellant had a conversation

with his wife about whether she would stay married to him after his release (RR

14/36). Although Appellant tried to deescalate the situation, Dews insisted he

wanted to fight him (RR 16/243). Appellant told police that as he exited the mall,

he noticed who he later would learn was Mass standing in front of Champs

sporting goods (RR 16/243). As Appellant continued out the door he stopped to

speak to the manager of Champs, Kenesha Mayfield, and told her that there were

some guys “trippin” and that he was going outside to send his girlfriend, Tamara

Norris, who was waiting outside in the car in to pay for the shoes. Id.




                                          3
      As Neal approached his girlfriend’s vehicle he told her that some guys were

in the mall “trippin” and asked her to go in and pay for the shoes (RR 15/89 and

92). Appellant then walked from the driver’s side of the vehicle to the back right

door and check on his belongings in the backseat. Id. As he did so, Appellant

noticed that Mass standing near an adjacent green Buick vehicle that was parked

right next to his girlfriend’s blue Ford Fiesta vehicle. Id. Appellant also noticed that

Dews was standing close to him. Id.

      Appellant then saw Mass open the door of the green Buick and put is

sweatshirt in it (RR 15/59). Appellant believed that Mass reached into the vehicle

to retrieve a weapon and so he retrieved his .40 caliber semi-automatic pistol from

inside a black bag in the Fiesta (RR 16/235). Mass then began to walk toward the

rear of the Buick and Appellant overheard Dews state that he was a “gangster”

(State’s Exhibit 63). Appellant believed at that moment that his life was in danger

and he shot and killed Mass in self-defense and fired a shot in the direction of

Dews. Id.

                             Summary of Arguments

      In his first issue, Appellant contends the State failed to prove that Appellant

did not fire upon and kill Mass in self-defense. In his second issue, Appellant

maintains the trial court erred in limiting Appellant’s ability to elicit testimony




                                           4
establishing the alleged victim, Moss’, gang affiliation and how that evidence

demonstrated his justified use of deadly force in this case.


      Appellant maintains in his third issue that the trial court erred in limiting

Appellant’s cross-examination of State’s witnesses to establish the alleged victim,

Moss’, gang affiliation and how that evidence demonstrated his justified use of

deadly force in this case.


      In his fourth claim, Appellant argues that the trial court erred in granting the

State’s proposed jury instructions negating Appellant’s claim of self-defense.

Appellant submits in his fifth claim that the trial court erred in denying Appellant’s

request for a necessity instruction.

      In his sixth claim, Appellant maintains that the trial court erred in its ruling

that Appellant could not elicit testimony from defense witness, Wilmon Davis, that

shortly prior to the shooting someone in the mall utter “he might get shot.” In his

seventh claim, Appellant argues that trial counsel rendered ineffective assistance of

counsel in failing to challenge whether the State’s gang identification witness was

qualified to render an expert opinion that Appellant was affiliated with a gang. In

his final claim, Appellant argues [Possible Punishment Charge Error] TBD.

                                  Issue Number 1

      The State failed to prove that Appellant fired upon and killed Mass in self-
defense.

                                           5
                  Standard of Review-Sufficiency of Evidence

         When reviewing a sufficiency challenge on the issue of self-defense, this

Court views the evidence in the light most favorable to the verdict to see if any

rational trier of fact could have found (1) the essential elements of murder beyond a

reasonable doubt, and (2) against appellant on the self-defense issue beyond a

reasonable doubt. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim App. 1991).

         The jury is the exclusive judge of the credibility of the witnesses and of the

weight to be given to their testimony. Jones v. State, 944 S.W.2d 642, 647 (Tex.

Crim. App.1996). Reconciliation of conflicts in the evidence is within the exclusive

province of the jury. Id. The Court resolves any inconsistencies in the testimony in

favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

                                      Argument


         Appellant challenges both the sufficiency of the evidence to support the

essential elements of the charged offense—murder and whether a rational fact

finder could have found beyond a reasonable doubt against him on the self-defense

issue.


         In evaluating sufficiency of the evidence under the Jackson standard, we

review all the evidence in the light most favorable to the trial court's judgment to

determine whether any rational jury could have found the essential elements of

murder beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912
                                            6
(Tex.Crim.App.2010) (referring to Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex.App.-

Texarkana 2010, pet. ref'd) (citing Clayton v. State, 235 S.W.3d 772, 778

(Tex.Crim.App.2007). Because the State carries the burden of persuasion to

disprove self-defense beyond a reasonable doubt, we review a challenge to the

sufficiency of the evidence supporting a jury's rejection of a claim of self-defense

under the Jackson standard. See Brooks, 323 S.W.3d at 912; Smith v. State, 355 S.W.3d

138, 145 (Tex.App.-Houston [1st Dist.] 2011, pet. ref'd); see also Miranda v. State, 350

S.W.3d 141, 147 (Tex.App.-San Antonio 2011, no pet.).3 We examine legal

sufficiency under the direction of the Brooks opinion while giving deference to the

responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.”

Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007) (citing Jackson, 443 U.S. at

318–19); see Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).


      A person is justified in using deadly force against another “when and to the

degree the actor reasonably believes the force is immediately necessary to protect

the actor against the other's use or attempted use of unlawful deadly force.” Tex.

Penal Code Ann. § 9.32(a)(2)(A) (West 2011). “Deadly force” is force “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).

                                            7
      Where, as here, there is a claim of self-defense that is rejected by the jury,

this Court must consider all the evidence in the light most favorable to the verdict

and determine whether, based on the evidence and reasonable inferences

therefrom, a rational fact-finder could have found beyond a reasonable doubt (1)

the essential elements of the offense and (2) against the appellant on the self-defense

issue. Darkins v. State, 430 S.W.3d 559, 565 (Tex. App.-Houston [14th Dist.] 2014,

pet. ref ‘d) (citing Saxton, 804 S.W.2d at 913). Because self-defense is an issue of fact

to be determined by the jury, the jury is free to accept or reject the defensive issue.

Medina v. State, 411 S.W.3d 15, 21 (Tex. App.-Houston [14th Dist.] 2013, no pet.)

(citing Saxton, 804 S.W.2d at 913–14). A jury's guilty verdict is an implicit rejection

of the appellant's self-defense claim. Saxton, 804 S.W.2d at 914.


   A. Legal Sufficiency—Murder


      A person commits murder if he intentionally or knowingly causes the death

of an individual or if he intends to cause serious bodily injury and commits an act

clearly dangerous to human life that causes the death of an individual. Tex. Penal

Code Ann. § 19.02(b)(1), (b)(2) (West 2011). However, under certain circumstances,

self-defense justifies the use of deadly force. Morales v. State, 357 S.W.3d 1, 7 (Tex.

Crim. App. 2011). As relevant here, a person is justified in using deadly force

against another (1) if he would be justified in using force against the other under

section 9.31 of the penal code, and (2) when and to the degree he reasonably
                                           8
believes the deadly force is immediately necessary to protect himself against the

other's use or attempted use of unlawful deadly force. Tex. Penal Code Ann. §

9.32(a)(1) and (a)(2)(A) (West 2011). As relevant to this case, section 9.31 of the

penal code justifies force “when and to the degree the actor reasonably believes the

force is immediately necessary to protect the actor against the other's use or

attempted use of unlawful force.” Id. § 9.31(a) (West 2011).


      Appellant had no motive or state of mind to attack and kill Mass based on

the evidence presented to the jury. Although he did possess and used a firearm

capable of causing Mass’ injuries and Appellant in fact shot Mass 3 times, he had

no intent to cause the death or serious bodily injury. At the time he fired the shots,

Appellant stated to police that he had no intention of killing Mass (RR 16/241)

(Appellant shot Mass 3 times). Appellant maintained in is voluntary statement that

the reason he shot Mass was because he feared for his life. Id.

   B. Legal Sufficiency of Evidence of Self Defense

      The initial burden to produce evidence supporting self-defense rests with the

defendant. Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App.2003); Saxton v. State,

804 S.W.2d 910, 913 (Tex. Crim. App. 1991). Once the defendant produces some

evidence, the State bears the ultimate burden of persuasion to disprove the raised

defense. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913–14. This burden of

persuasion does not require that the State to produce evidence, but it does require

                                          9
that the State prove its case beyond a reasonable doubt. Zuliani, 97 S.W.3d at 594;

Saxton, 804 S.W.2d at 913. The issue of self-defense is a fact issue to be determined

by the jury, which is free to accept or reject any defensive evidence on the issue.

Saxton, 804 S.W.2d at 913–14. If the jury finds the defendant guilty, then it

implicitly finds against the defensive theory. Id. at 914.


      In reviewing the legal sufficiency of the evidence to support the fact finder's

rejection of a defensive issue, “we look not to whether the State presented evidence

which refuted appellant's self-defense testimony, but rather we determine whether

after viewing all the evidence in the light most favorable to the prosecution, any

rational trier of fact would have found the essential elements of murder beyond a

reasonable doubt and also would have found against appellant on the self-defense

issue beyond a reasonable doubt.” Id. at 914; see also Kirk, 421 S.W.3d at 777. The

evidence the jury heard in this case was factually insufficient evidence to reject

Appellant’s self-defense claim. The jury heard evidence that at the time Appellant

shot Mass, he feared for his life. See, e.g., Saxton, 804 S.W.2d at 914.


      C. Relevant Evidence from the Trial

      Jonathan Dews testified that he went to the mall on the day of the shooting

to buy new shoes (RR 14/21). He went to the mall early in the morning, before

store hours, to make sure he would have a place in line to purchase Nike Air

Jordan’s before they sold out (RR 14/22). Shortly after he arrived at the mall,
                                           10
Dews ran into two acquaintances, Jimmy Whitt and Christopher Mass (RR 14/27).

After walking around the mall to the various shoe stores, Dews sat at the Chick-Fil-

A and waited for the stores to open (RR 14/23). Eventually, Whitt joined Dews at

the Chick-Fil-A (RR 14/34).

      Whitt testified that he saw Appellant enter the mall while he as waiting at the

Chick-Fil-A (RR 14/234). Whitt observed that Appellant was dressed up and

Appellant told him he had to attend a funeral later that day. Id. Appellant asked

Whitt if he had any shoes in his size. Id. Whitt then testified that after he told

Appellant that he didn’t have any shoes in his size, Dews began to have heated

words with Appellant. Id. According to Whitt, Appellant asked Dews if he wanted

to come outside and box him and that his shoes were in his car (RR 12/236)

(Appellant was wearing dress shoes with no traction). Whitt added that Appellant

then walked toward the exit of the mall and as he was exiting he waived his hand at

Dews to “come on.” Id. Whitt testified that as Appellant exited, Mass walked over

to Dews at the Chick-Fil-A and then the two of them started to walk outside. Id.

Whitt then left his shoes with an acquaintance, Quintin Smith, and walked outside

after them. Id. (Smith then followed Whitt outside).

      Dews’ testimony contradicts this version of events. He testified that he then

looked up and saw Appellant standing over him (RR 14/35). Dews added that

while he was locked up in TDCJ serving a prison sentence for a “delivery of drugs”


                                         11
conviction, Appellant had been in communication with his wife. Upon his release

from prison, Dews discovered a Twitter conversation between Appellant and his

wife in which he asked her why she went back to him (RR 14/36).              Dews

responded to the message by telling Appellant to stay out of his business. Id.

Appellant made no threats on Twitter that he wanted to fight or in anyway harm

Dews (RR 14/112).

      Two weeks prior to the shooting incident, Dews and his wife, Lashanda, ran

into Appellant while he was working at the Champs store in the mall (RR 14/38).

Lashanda told Dews that Appellant was the person that he’d told-off on Twitter

(RR 14/39). Once again, Appellant made no threat during that encounter that he

wanted to fight or harm Dews (RR 14/112).

      Dews testified that as he was waiting at the Chick-Fil-A he looked up and

saw Appellant standing over him. He then asked him “do we have a problem?”

(RR 14/40). Whitt testified to the complete opposite (RR 15/18) (confirming Dews

approached Ricky Neal). Appellant responded “You don’t know me and I don’t

know you and we going to keep it that way.” Id. Dews asked Appellant what he

meant by that and then Dews stood up again asked “what you talking about?” Id.

Dews claimed that Appellant answered saying “I’m going to show you about me.

I’m going to go put on my shoes” and he then exited the mall. Id. Dews took this to

mean that Appellant was going to put different shows so the two could fight (RR


                                        12
14/42). Dews also claims that as he exited out the door of the mall, Appellant

turned and waived for him to “come on.” Id. This testimony was inconsistent with

surveillance footage of Appellant’s exit form the mall (RR 14/143) (Appellant’s

hand is obstructed on the footage).

      According to Dews, Whitt tried to stop him, but Dews persisted in leaving

the mall to go out and confront Appellant. Id. (RR 15/19) (Whitt testified he did

not try to stop Dews). Mass then approached Dews to ask what was going on and

the two men proceeded to exit the mall together to go and fight Appellant (RR

14/43).   Dews was the first to exit the mall (RR 14/44). Whitt’s testimony

contradicts Dews. (RR 15/20) (Dews and Mass exited first and then about a

minute later Whitt).

      Quintin Smith testified that when he exited the mall he saw: Appellant at his

car, Dews standing parallel to a car that was between Mass’ and Appellant’s car,

and Mass taking his sweatshirt off and placing it in his car (RR 15/59). Smith next

claimed he saw Appellant “come from the car and immediately cock his gun.” Id.

Smith alleges he heard Appellant say “I told y’all I was going to be ready” (RR

15/60). Smith saw Appellant shoot Mass and then turned the gun on Dews (RR

15/61). Smith then retreated back into the mall. Id. Smith testified he heard “two

or three” gunshots (RR 15/63).




                                        13
      While in the JC Penney parking lot Dews observed Ricky Neal standing

between two vehicles (RR 14/47). He claims that Appellant saw him and told him

“to come one” and why didn’t he come out by himself. Id. Dews claims that as he

walked toward Appellant he could see him unbuttoning his shirt. Id. This act

clearly demonstrates that Appellant was preparing for a potential fistfight with

Dews and not a shoot-out.

      As Dews approached Appellant, he observed Mass walking toward his

(Mass’) car (RR 14/48). He observed Mass take off his hoodie and threw it into his

car (RR 14/51). At that point Dews claims that Appellant asked him “[a]re y’all

trying to jump me?” (RR 14/50). Dews then took off his jacket as he continued to

walk towards Appellant to fight. Id.         This evidence clearly establishes that

Appellant was confronted by multiple assailants while in the mall parking lot. Dews

next claimed that Appellant looked at Mass standing by his car with his arms

crossed and asked who he was. Id. (Whitt instead testified that Mass’ arms were not

crossed (RR 15/37). Dews claims Mass responded that he was looking out for his

“homeboy.” Id. Dews claims at that moment that Appellant said “I’m going to

show y’all about me” and that he reached and grabbed a gun and cocked it and

pointed it at Mass. Id. Dews added that by the time Appellant had drawn the

weapon out, Whitt was also present in parking lot (RR 14/53).




                                        14
      Dews claimed that Appellant asked Mass as he pointed the gun if they were

trying to jump him and Dews put his hands up and said this “ain’t that type of

party.” (RR 14/55). Dews estimated he was 5 feet from Appellant at that time. Id.

Whitt denied seeing Dews walk toward Appellant (RR 15/33) (Whitt instead

claimed that Dews and Mass were together behind Mass’ car). Dews then claimed

he knelt down and picked up his jacket and then back away from Appellant (RR

14/57). He then testified that he heard a gunshot and saw Mass fall down to the

ground. Id. Dews stated he then ran toward some cars in parking lot and Appellant

began allegedly shooting at him. Id. Dews added that he saw no weapon on Mass

(RR 14/62).

      Whitt testified that when he followed Dews and Mass out of the mall he

observed Mass taking off his sweatshirt at his car with his door open (RR 14/246).

He denied seeing Mass with any weapon. Id. At the same time, Whitt saw Dews

standing at the back of the car. Id. This testimony contradicts Dews’ version of the

events and confirms that Dews and Mass exited together and both confronted

Appellant at the same time, thus justifying Appellant’s multiple assailant defense

theory. Whitt also testified that at that moment he saw a young lady getting out of

the front seat of Appellant’s car and walked towards the mall. Id. Whitt saw

Appellant on the other side of the car in the back seat of his car. Id. (from this

vantage point, Appellant had an obstructed view of what Mass and Dews were


                                        15
doing at of Mass’ car). This testimony was consistent with Appellant’s confession in

which stated that he exited the mall to give his girlfriend, Tamara Norris, his debit

card to go in and purchase his shoes because there some individuals in the mall

who were “tripping” (RR 15/89 and 92).

      Ms. Norris testified that she had her vehicle parked in the mall parking lot

next to a green vehicle that ultimately turned out to be Mass’ (RR 15/88). Norris

testified that she saw Appellant exit the mall first and then later saw Mass at the

rear of the green vehicle and Dews standing by the driver’s side of that vehicle (RR

15/93). Norris testified that as she was walking toward the mall, she heard the

racking of a gun and took off running into the mall (RR 15/97).

      Whitt testified that he walked up to Appellant while he was in the backseat

and that “y’all don’t need to be doing this” (RR 14/247) and (RR 15/26) (“He

[Appellant] had, like, his hands in the car, top part of his body”). Whitt testified

that Appellant had his gun cocked and he walked toward the back of the car “like,

towards Mass and then stopped at the back of the car. Then pointed the gun at

Mass.” Id. Whitt testified that he told Appellant to put the gun down. Id. (“If y’all

going to fight, y’all going to fight. You don’t need to have a weapon or whatever”).

Appellant answered and said “No. Y’all trying to jump me.” Id.

      Whitt added that Appellant stood with the gun pointed at Mass and asked if

they were not going to all jump him, then why did Mass have his sweater off. Id.


                                         16
(“And then the gun went off …”). This evidence again affirms that Appellant was

confronted by multiple assailants prior to opening fire on Mass and Dews. Whitt

saw two shots hit Mass and then as he took off running he heard a third shot (RR

14/248). Whitt recalled that he heard two more gunshots and then he turned

around and saw Appellant “put the gun down and he called the police …” Id.

      Detective Craig Shine of the Tyler Police Department took a recorded

statement from Appellant after the incident. Appellant stated that when he ran

into Dews at the mall, Dews stood up and challenged him to a fight and that he

[Appellant] walked away from the fight (RR 16/243). Appellant stated after the

verbal exchange with Dews he exited the mall and went to the passenger side of

Tamara’s car to give her his debt card to return back to the mall to purchase the

shoes (RR 16/234). He then walked around the back of Tamara’s blue Fiesta to

organized all the things he had in the backseat (RR 16/246) (according to Norris,

this included Valentine’s Day cards for his son’s class and a hat that he was

planning to take to the funeral) (RR 15/). Id. Appellant was dressed for a funeral

and he stated that he had no intention of fighting because he had no other shoes in

his car and the shoes he was wearing had no traction on them (RR 16/251).

      At the time that Appellant was at the backseat of the Fiesta, Dews came out

of the mall and was about 5 to 6 feet away from him (RR 16/246). Mass was about

20 feet away. Id. Although Appellant stated he did not see a weapon on either


                                        17
Dews or Mass, he fired on Mass out of a concern that Mass was going to retrieve a

weapon from his car (RR 16/235) (Appellant was in the backseat area of the Fiesta

and his view of Mass was obstructed).      At the time he fired the shots, Appellant

stated to police that he had no intention of killing Mass (RR 16/241) (Appellant

shot Mass 3 times). Appellant maintained in is voluntary statement that the reason

he shot Mass was because he feared for his life. Id.

      On cross-examination, defense counsel confirmed that immediately after the

shooting incident, Appellant put down his gun and called 911 for assistance (RR

16/275). He therefore had no intent to flee the scene because he believed his

actions were justified.

      Detective Shine acknowledged that he was the lead detective on this case

and to his knowledge none of the officers on scene searched the bushes, hedges,

trees and shrubbery around the mall for the existence of a possible second gun (RR

16/270). Detective Shine also did not know if any officers searched the rain gutters

and drainage areas around the mall for a second gun (RR 16/271). Detective

Shine acknowledged that there were dumpsters around the vicinity of the JC

Penney side of the mall and that he was unaware whether any officers searched

those dumpsters for a weapon (RR 16/272). Also, Detective Shine was unclear as

to whether any officers searched the rooftop area of the mall for a weapon. Id. Also

troubling was that despite the fact officers knew that Dews drove to the mall that


                                          18
day, they secured, but failed search his car for weapons (RR 16/273). Officers also

failed to search Whitt’s or Smith’s vehicles for weapons (RR 16/275).

        Detective Shine also testified that based upon his review of the JC Penney

video he could not see Appellant in anyway provoke Mass (RR 16/286). Detective

Shine also acknowledged that Mass is a very “big guy”, 6 foot 5, 235 pounds. Id. In

fact, Dews and Whitt were also good-sized individuals as well (RR 16/287).

        These facts confirm that a rational fact finder could have found that

Appellant had a reasonable belief that that deadly force was immediately necessary

to protect him against a use or attempted use of unlawful deadly force by Dews and

Mass.

        Under Texas law of self-defense, a defendant's conduct is excused if he

formed a reasonable belief that deadly force was immediately necessary to protect

himself or a third party from another use or attempted use of unlawful deadly

force. See TEX. PENAL CODE, § 9.32. The reasonableness of the belief is

measured by the objective standard of an “ordinary and prudent man.” See, TEX.

PENAL CODE § 1.07(42); see also' Davis v. State, 104.W.3d 177, 181 (Tex.App.-

Waco 2003, no pet.)(“Although the jury employs an objective standard to

determine the reasonableness of the defendant's belief, it must view the facts from

the defendant's perspective.”). Accordingly, Appellant is entitled to acquittal if a

person in his position reasonably believed the deadly force was immediately


                                        19
necessary to protect himself or another against the Dews’ and Mass’ use or

attempted use of unlawful deadly force. TEX. PENAL CODE §§ 9.32, 9.33.

      “Deadly force” means 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. TEX. PENAL CODE § 9.01(3). “Reasonable belief means a belief

that would be held by an ordinary and prudent man in the same circumstances as

the actor. TEX. PENAL CODE § 1.07(a)(42).

      “The greater weight and preponderance of the credible evidence herein

shows that [Neal] acted in self-defense from the apparent danger created by the

attack of multiple assailants …, so that it is manifestly unjust” that he was convicted

of murder. The jury's verdict to the contrary is, therefore, against the great weight

of the evidence. Appellant was entitled to a verdict of not guilty as his acts were

clearly in the defense of himself.

      The State presented no evidence by which a rational finder of fact could find

Appellant's use of deadly force to be unjustified, as Appellant was acting to defend

himself. Appellant did not initially possess a deadly weapon and instead retrieved

his firearm from inside the vehicle only after he was confronted by Mass and Dews

in the parking lot. See, supra. Assuming arguendo that the State brought sufficient

evidence that Appellant possessed a deadly weapon, the State brought no evidence

that Appellant would not have sufficient justification for arming himself with the


                                          20
firearm. It was not disputed that Mass and Dews were both large men (RR

16/287), that they pursued Appellant outside of the mall in order to fight him (RR

14/44), and that they were the aggressors in this exchange.


      Consequently, the jury's rejection of his justification of self-defense and the

jury's subsequent verdict was not rational. Accordingly, this Court should, as it

must, enter an order reversing the judgment entered in the court below and

thereafter enter a judgment of acquittal.

      Therefore, the evidence is legally insufficient to support Appellant's

conviction for murder because there was sufficient evidence that the Appellant

acted in self-defense. It was only through speculation that the jury could have

found beyond a reasonable doubt that Appellant did not reasonably believe the

force he used against Mass was necessary to defend himself. Such speculation does

not equate with beyond a reasonable doubt and cannot stand. No rational finder

of fact could have found beyond a reasonable doubt that Appellant was not

defending himself. For these reasons, Appellant's conviction of murder must be

reversed and reformed to show an acquittal. Burks v. United States, 437 U.S. 1, 98

S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57

L.Ed.2d 15 (1978).




                                            21
                                 Issue Number 2


       The trial court erred in limiting Appellant’s ability to elicit testimony
establishing the alleged victim, Mass’, gang affiliation and how that evidence
demonstrated Appellant’s justified use of deadly force in this case.

                               Standard of Review


      The trial court's decision to exclude 404(b) evidence is reviewed by this

Court for an abuse of discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex.

Crim. App. 2005).


                                     Argument

      The trial court erred in limiting Appellant’s ability to elicit testimony

establishing the alleged victim, Mass’, gang affiliation and how that evidence

demonstrated his justified use of deadly force in this case. Prior to the start of the

State’s case, Appellant requested that the trial court admit evidence that the alleged

victim, Christopher Mass, was as suspected member of the violent street gang know

as the West Side Crips (RR 13/290) (this information was provided to Appellant in

a communication to defense counsel from the State’s gang expert, Tyler Police

Detective Chris Miller) (RR13/10 and 287).

      Based on that letter and based on my conversation with Detective
      Miller, I believe that there is strong evidence that Chris Miller --
      excuse me -- Chris Mass, the deceased, was an active member of the
      West Side Rolling Crips, a gang here in Tyler ….



                                          22
Id.

Appellant argued that this evidence was relevant to show Mass’ reputation

has a “thug” and to establish his intent at the time of the shooting (RR

13/288). The State’s position was that because Appellant did not know

Mass, he had no knowledge of his violent character prior to the shooting

(RR13/290). The State added that Mass’ gang affiliation would not be

admissible because there was no evidence to suggest that he was the “first

aggressor.” Id.

      The trial court sided with the State noting that the gang evidence was

not admissible because there was no evidence adduced pretrial to suggest

Appellant knew Mass (RR 14/11). The court added that although there was

a very narrow exception in the law for admissibly of such evidence when the

defendant and victim do not know each other, the facts proffered by the

parties to that point did not suggest this case fell into that exception. Id.

      On cross-examination, Jonathon Dews testified that he knew Mass

“through friends” (RR 14/97). When defense counsel attempted to expand

upon this point to establish that these “friends” he knew Mass through were

members of the West Side Crips the State objected citing the motion in

limine and the court’s prior ruling (RR 14/97-98). The court sustained the

State’s objection and excluded Appellant from exploring this area further


                                            23
(RR 14/98).

      Appellant again attempted to elicit similar evidence of Mass’ gang

affiliation through the testimony of Jimmy Whitt (RR 15/4). Whitt testified

that he knew Mass “from the streets.” Id. The State immediately objected

that this line of questioning opened the door to character evidence

concerning Mass’ gang membership (RR 15/4-5). Again, Appellant was

forced to abandon this line of questioning due the trial court’s ruling in

limine Id. (the trial court granted the State’s motion in limine and excluded

any gang evidence until, and if, that evidence became relevant) (RR 13/6).

      Whitt also testified that he knew another State witness and friend of

Mass, Quintin Smith, from “in the streets” (RR 15/22). Defense counsel

later asked Quintin Smith how he knew Mass and Smith said he knew him

from “being out, clubs, stuff like that” (RR 15/65). The State again

immediately objected citing that this line of questioning also invited violation

of their motion in limine concerning Mass’ gang membership. Id.

      Judge, this is the same line of improper character evidence Mr.
      Davidson has been getting into with every single witness: Vernacular
      of "in the streets" and "around the way" and how he keeps insinuating
      this is something other than casual acquaintance is improper character
      evidence under 404.
Id.

Defense counsel responded that when these witnesses continue to respond

that they know Mass from “on the street”, this sort of testimony opened the

                                          24
door to further inquiry (RR 15/66).          Although the trial court allowed

Appellant to inquire further, the court’s limitation with respect to specific

evidence of Mass’ gang membership greatly hampered the defense. Id.

      The rules of evidence permit the defendant to offer evidence concerning the

victim's character for violence or aggression on two separate theories when the

defendant is charged with an assaultive offense, as Appellant is in this case. See

Mozon v. State, 991 S.W.2d 841, 845 (Tex. Crim. App. 1999) (setting out the two

theories for admitting evidence of victim's character for violence); see also Fry v. State,

915 S.W.2d 554, 560–61 (Tex. App.-Houston [14th Dist.] 1995, no pet.)

(discussing the history and rationale for both theories of admitting evidence of the

victim's character for violence).


      First, a 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. Torres v. State, 71

S.W.3d 758, 760 & n. 4 (Tex. Crim. App. 2002) (evidence of victim's prior specific

violent acts may be admitted to show the reasonableness of defendant's fear if he

was aware of those specific acts); Dempsey v. State, 159 Tex. Crim. 602, 266 S.W.2d

875, 877–78 (Tex. Crim. App. 1954) (prior specific acts of violence by the victim

offered by the defendant are admissible if (1) offered to show the reasonableness of

defendant's claim of apprehension of danger, and (2) the acts of violence or

                                            25
misconduct were known to the defendant at the time of the homicide). 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. See Mozon, 991 S.W.2d at 846 (when defendant's

claim of self-defense rested on a perceived danger from victim, defendant could

present evidence of victim's violent character to show her reasonable belief that

force was immediately necessary to protect herself from the victim's perceived

threat). This theory does not invoke Rule 404(a)(2) because Rule 404 bars character

evidence only when offered to prove conduct in conformity, i.e., that the victim

acted in conformity with his violent character.


      Although Appellant did not know Mass and was unaware of his character for

violence, he was nevertheless entitled to offer evidence of Mass’ gang affiliation

because it justified has shooting in self-defense. A defendant claiming self-defense

in a homicide prosecution may introduce evidence of a deceased's violent character

to show the reasonableness of his/her fear of danger or to show the deceased was

the first aggressor. Torres v. State, 71 S.W.3d 758, 761 (Tex. Crim. App. 2002). The

evidence must be admitted through opinion or reputation testimony. Tex. R. Evid.

405(a). The Court of Criminal Appeals in Mozon v. State, 991 S.W.2d 841 (Tex.

Crim. App. 1999) established what a defendant must prove: (1) to show

Defendant's perception of danger was reasonable requires a showing of being

                                         26
aware of the deceased's violent character; or (2) to show the deceased was the first

aggressor does not require a showing of Defendant having personal knowledge of

the deceased's violent character. Id. at 845. Further, the specific bad acts need not

be addressed to or known by the defendant in order to be admissible, if they have a

purpose apart from character conformity. Torres v. State., 71 S.W.3d 758 (Tex.

Crim. App. 2002).


      Moreover, in Ex parte Miller, the Court of Criminal Appeals clarified that

evidence of a deceased's reputation for violence is relevant to the Defendant's state

of mind. Ex parte Miller, 330 S.W.3d 610 (Tex. Crim. App. 2009). The Court of

Criminal Appeals called the evidence as “communicated character” because the

Defendant is aware of the deceased's “violent tendencies and perceives a danger

posed by the victim, regardless of whether the danger is real or not.” Id. at 618.

Here, the Appellant was not trying to prove that the deceased was violent; rather,

he was attempting to prove his self-defense state of mind and the reasonableness of

the state of mind. The evidence of gang affiliation could lead a jury to conclude

that Appellant’s use of force was reasonable because he had reason to believe the

deceased would attempt an unlawful deadly force.




                                         27
       Alternatively, a defendant may offer evidence of the victim's character trait

for violence to demonstrate that the victim was, in fact, the first aggressor. Rule

404(a)(2) is directly applicable to this theory and this use is called

“uncommunicated character” evidence because it does not matter if the defendant

was aware of the victim's violent character. See Mozon, 991 S.W.2d at 845; Tate v.

State, 981 S.W.2d 189, 192–93 & n. 5 (Tex. Crim. App. 1998); see also Yantis v. State,

49 Tex. Crim. 400, 94 S.W. 1019, 1021 (Tex. Crim. App. 1906) (“If there were

threats of an un-communicated character, [defendant] could then prove the

dangerous character of deceased as a man likely to execute such threats, in order

that the jury might determine who was most likely the aggressor in the difficulty:

both what occurred in the wash-room and what occurred at the time of the

killing.”).


       In the present case, Appellant sought to introduce evidence that Mass was a

member of the West Side Crips for the non-character purpose of establishing his

specific intent or motive to attack Appellant. See Christopher B. Mueller & Laird

Kirkpatrick, Federal Evidence § 103, at 569–70 (2d ed.1994).


       In describing the analogous federal rules, the professors state, Proof of
       specific acts of violence by the victim toward the defendant is often
       admissible to show hostility, plan, intent to inflict harm, and similar
       matters. Here the argument is not so much that the acts show
       character, hence conduct in conformity with character, but rather that
       the acts shed direct light on more particular aspects of the victim's

                                          28
      outlook or state of mind toward the defendant, and the proof is
      admissible under FRE 404(b).
Id.


Such extraneous offense evidence is admissible under Texas Rule of Evidence

404(b). See, e.g., Torres v. State, 117 S.W.3d 891, 896–97 (Tex. Crim. App. 2003)

(defendant was entitled to offer evidence that, several days before the murder, the

victim had climbed through his ex-girlfriend's aunt's window and threatened her

and her children; this evidence was relevant to show that the deceased had a

specific motive or intent to be the first aggressor when he climbed through his ex-

girlfriend's bedroom window early one morning and the defendant shot him); see

also Hayes v. State, 161 S.W.3d 507, 509 (Tex. Crim. App. 2005) and id. at 509–10

(Keller, P.J., concurring); Tate v. State, 981 S.W.2d at 193 (Tex. Crim. App. 1998)

(evidence of victim's prior specific acts may shed light on his intent or motive in the

confrontation).


      In Tate, the defendant was accused of stabbing his girlfriend’s father during

an altercation. Tate, 981 S.W.2d at 193. Tate took the stand at trial and testified

that he acted in self-defense and that the victim was the aggressor in the

altercation. Id.   In support of his self-defense case, Tate attempted to offer

testimony from his aunt about a conversation that the victim had with her a month

or two prior to his death in which he made a threat that might “have to kill the

little son of a bitch [Tate] some day.” Id. at 190. The trial court excluded the
                                          29
testimony as irrelevant because Tate was not present when the victim said this to

his aunt. Id. Tate appealed this ruling and his conviction was affirmed by the

Third Court of Appeals. Id.      The Texas Court of Criminal Appeals reversed

holding that the un-communicated threat was admissible under 404(b). Id. at 191

(holding the aunt’s testimony about the threat to kill Tate was admissible to help

demonstrate, not that the victim acted in conformity with his character, but that he

had the intent or motive to harm appellant on the night in question. Id. at 193.

Appellant cited Tate at trial and made a similar argument; that when Mass pursued

him outside the mall he did so with the intent or motive of doing him harm (RR

13/290). A victim's prior specific acts of violence may be admissible if offered for a

non-character purpose in the particular case, such as her specific intent or motive

for an attack on the defendant. See Tex. R. Evid. 404(b); Miller, 330 S.W.3d at 620.

But these specific acts are admissible only to the extent that they have relevance

apart from their tendency to show character conformity. Torres v. State, 71 S.W.3d

758, 760 (Tex. Crim. App. 2002).


      Appellant attempted to establish that the fact Mass was a Crip was

probative, specifically with regard to his (Mass’) violent and aggressive state of mind

toward Appellant on the day of the shooting. See Torres, 71 S.W.3d at 762 (“For

purposes of proving that the deceased was the first aggressor, the key is that the



                                          30
proffered evidence explains the deceased's conduct.”). Such evidence would have

justified Appellant’s self defense theory.


      Although Rule 404(b) prohibits the admissibility of gang affiliation evidence

to show that a person acted in conformity therewith, such evidence is admissible for

other purposes, such as proof of motive, intent, or identity. Tex. R. Evid. 404(b); see

also Williams v. State, 974 S.W.2d 324, 331 (Tex. App.-San Antonio 1998, pet. ref'd.)

(finding that evidence of defendant's gang affiliation was admissible to prove

motive).


      The trial court’s ruling that Appellant was not permitted to even hint at

Mass’ gang membership impeded his ability to justify the shooting in this case as

self defense. This error by the court was and abuse of discretion that harmed

Appellant and requires reversal in this case.


                                  Issue Number 3


      The trial court erred in limiting Appellant’s cross-examination of State’s
witnesses to establish the alleged victim, Mass’, gang affiliation and how that
evidence demonstrated Appellant’s justified use of deadly force in this case.

                                Standard of Review


      The trial court's decision to limit cross-examination is reviewed by the Court

under an abuse of discretion standard. See Matchett v. State, 941 S.W.2d 922, 940

(Tex. Crim. App.1996).
                                             31
                                     Argument

      The trial court erred in limiting Appellant’s cross-examination of State’s

witnesses to establish the alleged victim, Mass’, gang affiliation and how that

evidence demonstrated his justified use of deadly force in this case. Prior to the start

of the State’s case, Appellant requested that the trial court admit evidence that the

alleged victim, Christopher Mass, was as suspected member of the violent street

gang know as the West Side Crips (RR 13/290) (this information was provided to

Appellant in a letter written by the State’s gang expert, Tyler Police Detective

Chris Miller) (RR13/10 and 287). The trial court granted the State’s motion in

limine to exclude such evidence (RR 14/11).

      The trial court repeatedly prevented Appellant from cross-examining the

State’s witnesses concerning their possible ties to a violent street gang. On cross-

examination, Jonathon Dews testified that he knew Mass “through friends” (RR

14/97). When defense counsel attempted to expand upon this point to establish

that these “friends” he knew Mass through were members of the West Side Crips

the State objected citing the motion in limine and the court’s prior ruling (RR

14/97-98). The court sustained the State’s objection and excluded Appellant from

exploring this area further (RR 14/98).

      Later in his cross-examination of Mr. Dews, defense counsel attempted to

elicit testimony that on the day of the shooting the waistline on Mass pants was


                                          32
down so low that his undershorts were hanging out making him look “like a violent

thug” (RR 14/119). The court sustained the State’s objection as to the relevancy of

this testimony. Id. Appellant objected that the trial court’s ruling was a limitation

on his confrontation rights under the 6th Amendment. Id.

      The Sixth Amendment should be liberally construed to give appropriate

constitutional protection to the defendant. Chew v. State, 804 S.W.2d 633, 635 (Tex.

App.-San Antonio 1991, pet. ref'd)). Accordingly, the Court of Criminal Appeals

has emphasized that the right to cross-examination “includes the right to impeach

the witness with relevant evidence that might reflect bias, interest, prejudice,

inconsistent statements, traits of character affecting credibility, or evidence that

might go to any impairment or disability affecting the witness's credibility.” Virts v.

State, 739 S.W.2d 25, 29 (Tex. Crim. App. 1987). Moreover, any question asked of

a witness on cross-examination, which might have a tendency to show the witness'

credibility, is always a proper question. Koehler v. State, 679 S.W.2d 6, 9 (Tex. Crim.

App.1984). Thus, the proper scope of cross-examination includes “all facts and

circumstances which, when tested by human experience, tend to show that a

witness may shade his testimony for the purpose of helping to establish one side of

the cause only.” Id. (citing Jackson v. State, 482 S.W.2d 864, 868 (Tex. Crim.

App.1972)).




                                          33
      Although it is true that as it pertains to the Confrontation Clause, “trial

judges retain wide latitude ... to impose reasonable limits on such cross-

examination based on concerns about, among other things, harassment, prejudice,

confusion of the issues, the witness' safety, or interrogation that is repetitive or only

marginally relevant”, such limitations cannot go so far as to drastically curtail a

defendant’s cross-examination. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).

      In the present case, the trial court’s repeated limitation of Appellant’s ability

to explore Mass’ gang ties drastically curtailed his cross-examination as to leave

him “unable to make a record from which to argue why [the witness] might have

been biased or otherwise lacked that degree of impartiality expected of a witness at

trial.” See Davis v. Alaska, 415 U.S. 308, 318 (1973); see also Johnson v. State, 433

S.W.3d 546 (Tex. Crim. App. 2014). The trial court’s limitation on Appellant’s

cross-examination on this subject greatly limited his ability to establish his self-

defense claim. If permitted to explore such indicators of street gang affiliation,

Appellant would have been able to leave the jury with a “significantly different

impression of [the witness's] credibility” Id. The trial court’s error in this respect was

an abuse of discretion and necessitates the reversal of Appellant’s conviction.


                                  Issue Number 4

The trial court erred in granting the State’s proposed jury instructions negating
Appellant’s claim of self-defense.

                 Standard of Review—Jury Instruction Error
                                           34
      This Court reviews jury charge error in a two-step process. Ngo v. State, 175

S.W.3d 738, 744 (Tex. Crim. App. 2005). First, to determine whether error exists

in the charge. Id. If it does, then to review the record to determine whether

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

When, as in this case, the Appellant properly objected to the error in the jury

charge, reversal is required unless the error was harmless. Id. at 743.


                                     Argument


      At the close of the evidence in the guilt/innocence trial, the court conducted

a charge conference to discuss the proposed jury charge (RR 17/149) (CR 334)

(Court’s proposed jury charge). Both the State and defense counsel filed proposed

jury charges for the trial court’s consideration (CR 347) (State’s proposed jury

charge) and (CR 352-72) (Defendant’s proposed jury charge).


      Appellant’s proposed jury charge stated in part as follows:


      If you have a reasonable doubt as to self defense, you must acquit the
      Defendant and say by your verdict, “Not Guilty.”

      Under our law, a person is justified in using force against another wen
      and to the degree that he reasonably believes the force is immediately
      necessary to protect himself against the other’s use or attempted use of
      unlawful force.
      …

      A person is justified in using deadly force against another if he would
      be justified in using force against the other in the first place, and when
                                          35
      he reasonable believes that such deadly force is immediately necessary
      to protect himself against the other person’s use or attempted use of
      unlawful deadly force.

      …

      When a person is attacked with unlawful deadly force, or he
      reasonably believes he is under attach or attempted attack with
      unlawful deadly force by one or more persons, and this is created in
      the mind of such person a reasonable expectation or fear of death or
      serious bodily injury to himself at the hands of such attacker or
      attackers, then the law excuses or justifies such person in resorting to
      deadly force by any means at his command to the degree that he
      reasonably believes immediately necessary, viewed from his standpoint
      at the time, to protect himself from such attack or attempted attack.

      It is not necessary that there be an actual attack or actual attempted
      attack, as a person has a right to defend his life from apparent danger
      as fully and to the same extent as he would had the danger been real,
      provided that he acted upon a reasonable apprehension of danger, as
      it appeared to him from his standpoint at the time, and that he
      reasonably believed such deadly force was immediately necessary to
      protect himself against the attacker’s, or attackers’s [sic], use or
      attempted use of actual or apparent unlawful deadly force.
      A person who has a right to use deadly force to defend himself against
      one alleged attacker also has a right to use deadly force to defend
      himself against a second or subsequent perceived attacker who is with
      the first attacker if he reasonably believes that he is in immediate
      danger of death or serious bodily injury at the hands of either the first
      or the second or subsequent attacker.

(CR 363-64)

      The State’s proposed charge requested that the court instruct the jury that

under Texas Penal Code § 9.31:


      (b) The use of force against another is not justified: … (3) if the actor
      consented to the exact force used or attempted by the other; (4) if the
      actor provoked the other's use or attempted use of unlawful force,
                                         36
       unless: (A) the actor abandons the encounter, or clearly communicates
       to the other his intent to do so reasonably believing he cannot safely
       abandon the encounter; and (B) the other nevertheless continues or
       attempts to use unlawful force against the actor; or (5) if the actor
       sought an explanation from or discussion with the other person
       concerning the actor's differences with the other person while the
       actor was: (A) carrying a weapon in violation of Section 46.02; or (B)
       possessing or transporting a weapon in violation of Section 46.05.


Tex. Penal Code Ann. § 9.31 (West 2012).

The State essentially argued that Appellant was not entitled to raise a self-

defense or multiple assailants claim if he: 1) consented to the exact force used

or attempted by the other; 2) provoked the other's use or attempted use of

unlawful force; or 3) sought an explanation from or discussion with the other

person concerning the actor's differences with the other person while

Appellant was either carrying a weapon in violation of Section 46.02; or

possessing or transporting a weapon in violation of Section 46.05. (RR

17/169).

       Defense counsel objected to the State’s proposed charge because it

essentially negated the self-defense and multiple assailant instructions

previously approved by the trial court (RR 17/172) (“it would be improper

to have a counter instruction … in the jury charge that, essentially eliminates

Mr. Neal’s right to self-defense … protection under the circumstances of this

case”). Id.


                                          37
      The trial court overruled Appellant’s objection and included the

following instructions in the jury charge:

      The use of force against another is not justified … (3) if the actor
      provoked the other’s use or attempted use of unlawful force; or (4) if
      the actor sought an explanation from or discussion with the other
      person concerning the actor’s differences with the other person while
      the actor was unlawfully carrying a handgun.


(CR 335) (emphasis added).

Although the trial court included a self-defense and multiple assailants

instruction in the final charge (CR 335-36), the inclusion of the additional

instruction quoted supra essentially negated Appellant’s affirmative defenses

and thereby cancelled-out the self-defense and multiple assailants

instructions.

      The evidence presented at trial in this case in no way, shape or form

suggested that Appellant sought an explanation or discussion with Mass

and/or Dews at the time he armed himself with a firearm. To the contrary,

the evidence is undisputed that Mass and Dews followed Appellant outside

the mall and that they confronted him in the parking lot just prior to

Appellant retrieving his firearm from the backseat of his girlfriend’s vehicle.

The same holds true with respect the absence of any provocation of Mass

and Dews by Appellant.



                                             38
      A defendant is entitled to an instruction on self-defense if the issue is raised

by the evidence, whether that evidence is strong or weak, un-impeached or

contradicted, and regardless of what the trial court may think about the credibility

of the defense.” Gaspar, 327 S.W.3d 349, 356 (Tex. App.—Texarkana 2010, no

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

be some evidence, when viewed in the light most favorable to the defendant, will

support the claim. Id. (citing Ferrel, 55 S.W.3d at 591; Hill v. State, 99 S.W.3d 248,

251 (Tex. App.-Fort Worth 2003, pet. ref'd)). “[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.” Id. (quoting Shaw v. State, 243 S.W.3d 647, 657 (Tex. Crim. App.

2007)).




      Appellant cited Barrios v. State, 389 S.W.3d 382 (Tex. App.—Texarkana

2012) in support of his claim that his alleged unlawful possession of a firearm did

not negate his justified use of force in this case. In Barrios, the defendant objected

that the trial court erred in failing to submit a self-defense instruction. Id. at 393.

The State argued that the facts did not support a self-defense instruction because

Barrios was engaged in other criminal activity as defined under § 9.31(a)(3), namely

violation of the federal law concerning possession of a firearm by an illegal
                                          39
immigrant. Id. The Texarkana Court of Appeals ultimately held that § 9.31(a)(3) of

the Texas Penal Code did not encompass “other criminal activity” to include a

violation of a federal criminal code. Id. The court ultimately held that Barrios was

not entitled a self-defense instruction because he failed to offer any proof that he

feared for his own safety. Id. at 394.


      The court also noted, however, that had Barrios presented sufficient proof of

fear, the simple fact he was also engaged in other criminal activity at the time of the

shooting would not have negated his right to a self-defense instruction. Id. at 393.

Instead, such a finding of engagement in other criminal activity would have simply

removed the presumption that his actions were reasonable under § 9.31. Id. Stated

otherwise, Barrios would have been entitled to the self-defense instruction but

would have also had the burden of proving his actions were reasonable.


      In the present case, defense counsel argued that the reasoning in Barrios did

not negate Appellant’s right to claim self-defense if it was proven to the jury that he

unlawfully possessed a firearm. Counsel argued that Barrios did not negate self-

defense, but that it simply took away a defendant’s presumption of reasonableness.

While defense counsel was correct in this respect, Barrios also notes that

“commission of a crime under Section 9.31(a)(3) removes the presumption of

reasonableness, whereas commission of acts under Section 9.31(b) renders the use

of force against another unjustified.” Barrios, 389 S.W.3d at 394. The court in the
                                          40
present case nevertheless wrongly construed Barrios as supporting the proposed

instruction and as a consequence negating Appellant’s self-defense claim.


      The court noted that Barrios was accused a carrying a shotgun while outside

of his vehicle and that this act by Barrios did not trigger any “illegality” under the

law (RR 17/176) (“concealed handgun weapons, though, make a completely

different event; and that’s what we’re dealing with in this case. That this person

[Barrios] was brandishing a shotgun at the event in question, there’s no unlawful

carrying of a weapon charge that could be made”). Id. The trial court presumed

that since there was no argument raised in Barrios concerning the unlawful carrying

of firearm under § 9.31(b)(5)(A), and no other authority on point presented by the

parties, that the State’s proposed instruction was appropriate (RR 17/176).


      The court, however, failed to consider the fact that the instruction under §

9.31(b)(5)(A) requires that for self-defense to be “unjustified”, the actor must have

“sought an explanation from or discussion with the other person concerning the

actor’s differences with the other person while the actor was unlawfully

carrying a handgun. (CR 335) (emphasis added). Nothing in the trial record

even remotely suggests that at the time Appellant retrieved his firearm from the

rear of his girlfriend’s vehicle that he sought an explanation or discussion from

either Mass or Dews (RR 17/184-85)


                                         41
             You Honor, I object to this because the facts and evidence that
      were presented from the witnesses, particularly Detective Shine,
      indicate that the Defendant never sought a meeting with Mr. Mass,
      ever; that he never had a conversation with Mr. Mass; and that he
      never met or know Mr. Mass before the shooting.

Id.

      As a consequence, the court’s instruction had no place in the charge.

A charge on provoking the difficulty is properly given when: (1) self-defense is an

issue; (2) there are facts in evidence which show that the deceased made the first

attack on the defendant; and (3) the defendant did something intended and

calculated to bring on the difficulty in order to have a pretext for self-defense. See

Matthews v. State, 708 S.W.2d 835, 837–38 (Tex. Crim. App. 1986).


      In Bumguardner v. State, 963 S.W.2d 171, 175 (Tex. App. 1998), Bumguardner

was charged with murder for shooting a man, Hinton, who was seeing his wife. Id.

at 172. The evidence established that on the day of the shooting, a witness

overheard Bumguardner say he was going to kill Hinton. Id. at 175. That same

witness also testified that on the night prior to the shooting, Bumguardner admitted

to her that he had been looking for Hinton and his wife while he was carrying a

gun. Id. On the day of the shooting, Bumguardner confronted his wife and Hinton

in a convenience store and had words with them. Id. The court concluded that this

established that Bumguardner and Hinton “had differences with each other.” Id.

Bumguardner testified that he packed a gun and went to a nightclub to look for his

                                         42
wife. As Bumguardner exited the bar and walked toward his truck he confronted

Hinton. Id. (“Bumguardner was upset and angry and words were exchanged …

[he] demanded to know where his wife was”). The court ultimately concluded that

the § 9.31(b)(5)(A) instruction was justified by the facts of the case because:


Evidence exists which shows that Bumguardner had differences with Hinton.
Bumguardner's demand to know where Sheila was and yelling at
Hinton tends to show that he sought an explanation or discussion with
Hinton while unlawfully carrying a gun. Therefore, this evidence raises the
issue that Bumguardner sought an explanation from Hinton and the court properly
submitted this instruction to the jury.

Id. at 176 (emphasis added).

      While the facts set forth in the Bumguardner opinion justified the court’s

instruction, the facts in the present case simply do not. In this case, there was no

evidence in the record to suggest that Appellant carried his firearm on his person at

the time he had his verbal confrontation with Dews and while in the presence of

Mass. Moreover, although there was evidence to suggest that Appellant may have

invited Dews outside of the mall to fight, it is once again clear that Appellant was

not armed when he allegedly made that alleged invitation to fight. Appellant stated

in his confession that Mass and Dews followed him out of the mall and into the

parking lot. Appellant added that he retrieved his firearm out of his vehicle only

after he observed Mass take off his hoody and place it inside the green Buick. He

did so because he believed that Mass was intending to retrieve a firearm.

Consequently the firearm was produced, not in furtherance of any effort by
                                           43
Appellant to seek an explanation or discussion with Dews or Mass. Appellant

retrieved the firearm in response to a perceived danger that Mass was about to

come at him with deadly force. The evidence also establishes that Dews and Mass

exited the mall and sought out Appellant. This set of facts, therefore in no way

supports the giving of the above jury instruction by the trial court.

      Also problematic about the court’s charge is the fact that there was no

evidence establishing that Appellant unlawfully carried a firearm at the time he

retrieved it from the back of his girlfriend’s vehicle. Section 46.02 of the Texas

Penal Code provides that:


      A person commits an offense if the person intentionally, knowingly, or
      recklessly carries on or about his or her person a handgun, illegal
      knife, or club if the person is not: (1) on the person's own premises or
      premises under the person's control; or (2) inside of or directly en
      route to a motor vehicle or watercraft that is owned by the person or
      under the person's control. (a-1) A person commits an offense if the
      person intentionally, knowingly, or recklessly carries on or about his or
      her person a handgun in a motor vehicle or watercraft that is owned
      by the person or under the person's control at any time in which: (1)
      the handgun is in plain view; or (2) the person is:
      (A) engaged in criminal activity, other than a Class C misdemeanor
      that is a violation of a law or ordinance regulating traffic or boating;
      (B) prohibited by law from possessing a firearm; or (C) a member of a
      criminal street gang, as defined by Section 71.01.


Tex. Penal Code Ann. § 46.02 (West).

Appellant was not a convicted felon at the time he retrieved the firearm from the

vehicle. At the time Appellant retrieved the firearm, he was acting in self-defense

                                          44
and was therefore not acting in violation of any criminal activity. Prior to the

shooting, Appellant retrieved the firearm from his bag in the back floorboard of his

girlfriend’s vehicle. Therefore the firearm was not in plain view inside the vehicle.

At the time shooting, Appellant’s girlfriend was on her way into the mall to

purchase Appellant’s shoes. Accordingly, her vehicle was under Appellant’s care

and control. According to Detective Miller, Appellant was not a member of any

known street gang. Consequently, there was no evidence offered at trial to support

a finding that Appellant unlawfully carried a weapon. The court made no actual

finding as to why Appellant was prohibited from possessing a firearm. The court

therefore erred in allowing the § 9.41(b)(5)(A) jury instruction to go before the jury.

      The trial court’s error in allowing this instruction to go before jury had an

undeniable harmful impact upon the verdict in this case. There can be no dispute

the trial court’s ruling to allow such an unsubstantiated charge to go before the jury

was devastating to Appellant’s self-defense case. As written, the instruction

altogether negated his justification for the shooting. See Ngo, 175 S.W.3d at 744

(noting that to jury charge error exists if there was sufficient harm was caused by

the error to require reversal of the conviction).

      As noted supra, Appellant made a specific and timely objection to the State’s

self-defense counter instruction. Since Appellant preserved the error, this Court

must reverse the decision it finds that he suffered any actual harm by the omission


                                           45
of the defensive instruction. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

1985). The four-part analysis for assessing harm consists of reviewing (1) the entire

jury charge; (2) the state of the evidence, including contested issues and weight of

probative evidence; (3) arguments of counsel; and (4) any other relevant

information revealed by the trial as a whole. Id. Further, courts have determined

that errors in the charge error properly preserved means the charge will require

reversal “as long as the error is not harmless.” Id. at 172. The Court of Criminal

Appeals has determined this to mean that any harm, regardless of degree, is

sufficient to require reversal. Airline v. State, 721 S. W. 2d 348, 351 (Tex. Crim. App.

1986).


         It would be hard to envision a situation where Appellant suffered more harm

by the court's undoing of the self-defense and multiple assailants instructions.

Defense counsel extensively voir dired the jury on this issue and this was these were

the sole defensive issues raised at trial. By denying Appellant the right to present

the issues of self-defense and multiple assailants as defense to the charge, the trial

court left the jury with no other possible alternative but to convict Appellant of

murder.


         The third factor in the Almanza analysis is the jury argument. This factor also

weighs heavily in favor of Appellant. See Dickey v. State, 22 S.W.3d 490, 496 (Tex.

Crim. App. 1999) (noting that during the closing arguments, the prosecutor made
                                            46
several references to the multiple-assailants theory, despite the absence of said

instruction in the charge). The prosecutor made repeated references in closing that

Appellant’s use of force was not justified:

      There was no force being used against Ricky Neal. There was
      absolutely not a stitch of evidence that said Ricky Neal was being
      attacked, was being punched, was being struck by a foot, nothing.
      Nothing.
      …
      Use of force is not justified, period. Now, you're going to hear, "Well,
      wait a minute. He felt threatened. He felt threatened by Christopher
      Mass."

(RR17/197-98).

      Why did Christopher Mass go out there? Because a buddy of his was
      getting in a fight with this cold-blooded murderer. He went out there,
      just like anybody would who they know is going to get in a fight. He
      walks outside behind him; stands 20 feet from Ricky Neal. According
      to Ricky Neal, 20 feet. Jon Dews is in front of him. Throws his hoodie
      in the car, comes around, and stands there, just like this.

(RR 17/215).


The State conceded during closing argument that Dews and Mass pursued

Appellant out of the mall with the full knowledge that a fight was about to happen.

It’s therefore for laughable for the State to then suggest that Appellant had no

reason to expect that he was in danger when he saw Dews and Mass pursue him

outside the mall. This is especially ludicrous when the prosecutor himself confirmed

in his closing that Dews was went out there to fight Appellant. Moreover, it was the

prosecutor who also conceded in closing that Mass followed Dews outside with the
                                              47
full knowledge that a fight was about to occur. And what did the prosecutor

acknowledge that Mass did as soon as he got to his car? He took his hoodie off,

thereby communicating to Appellant that he too planned to participate in the fight.


      The State argued to the trial court that Appellant was not entitled to a

multiple-assailant or self-defense instruction for the reasons stated supra. The

prosecutor thereafter turned around in his closing argument and repeatedly

presented the issue of multiple-assailants to the jury. Despite the fact that the State

repeatedly invited the jury to believe that Mass and Dews went out there to fight

Appellant, the jury was not allowed to render a decision based upon the self-

defense and multiple-assailants instructions because the trial court essentially

voided those defenses by modifying the charge as it did.


      Appellant would therefore submit that the court’s decision to negate his self-

defense and multiple assailant instructions constitutes clear error and demands a

reversal.


                                 Issue Number 5

The trial court erred in denying Appellant’s request for a necessity instruction.

            Standard of Review—Denial of Proposed Instruction

      This Court employs a two-step analysis when evaluating jury charge error.

See Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Initially, this Court

                                          48
determines whether error occurred and then evaluates whether sufficient harm

resulted from the error to require reversal. Wilson v. State, 391 S.W.3d 131, 138

(Tex. App.–Texarkana 2012, no pet.) (citing Abdnor, 871 S.W.2d at 731–32).

                                    Argument

      Appellant submits that reversible error occurred when the trial court denied

his requested necessity instruction (RR 17/187-89) (“How do those facts,

undisputed, admitted by your client to the jury, entitle him to any lesser charge

other than outright murder”). Appellant’s proposed necessity instruction stated

that “when a person reasonably believes his conduct is immediately necessary to

avoid imminent harm and the desirability and urgency of avoiding the harm

clearly outweigh, according to ordinary standards reasonableness … that person’s

conduct is justified ….” (CR 364). Appellant ask that if the jury believed “from the

evidence that on the occasion in question the Defendant reasonably believed,

viewed from the standpoint of the Defendant at the time, that his conduct of

shooting his pistol at Christopher Mass was immediately necessary to avoid

imminent harm … then [he] should be acquitted” (CR 364-65).


      An accused has a right to an instruction on necessity as a defense if it is

raised by any evidence, however weak. See Hamel v. State, 916 S.W.2d 491, 493

(Tex. Crim. App. 1996). One element of a necessity defense is that the accused

reasonably believes that his otherwise illegal conduct is immediately necessary to

                                        49
avoid imminent harm. See Tex. Pen. Code Ann. § 9.22(1) (Vernon 1994). In

another context the Court of Criminal Appeals construed “imminent” bodily

injury to require a present, not a future threat. See Devine v. State, 786 S.W.2d 268,

270 (Tex. Crim. App. 1989). In interpreting § 9.22 one court has held that

imminent harm occurs when there is an emergency situation, and that conduct is

immediately necessary if the actor is required to make a split-second decision. See

Smith v. State, 874 S.W.2d 269, 273 (Tex. App.—Houston [14th Dist.] 1994, pet.

ref'd). In contrast, fear induced by one's presence in a high crime area is not

sufficient evidence of immediate necessity to avoid imminent harm to justify

unlawfully carrying a handgun. See Johnson v. State, 650 S.W.2d 414, 416 (Tex.

Crim. App. 1983).


      The plea of justification based upon necessity, like a plea of self-defense,

must be assessed from the standpoint of the accused. The jury instruction is not

called for unless there is evidence from the accused admitting the offense but

claiming justification for having committed the offense because of other facts. See

Pentycuff v. State, 680 S.W.2d 527 (Tex. App.—Waco 1984, pet. ref'd); Klein v. State,

662 S.W.2d 166 (Tex. App.—Corpus Christi 1983, no pet.). In the present case,

defense counsel urged that Appellant was justified in raising a necessity defense. As

discussed supra, Appellant was pursued outside of the mall by Mass and Dews and

opened fire on them out of a genuine fear for his life. When Appellant observed

                                         50
Mass reach into his vehicle, he became in fear that Mass would retrieve a weapon

and cause him serious bodily injury. In response, Appellant hastily retrieved his

firearm from inside his girl friend’s vehicle and opened fire on Mass and Dews.

Appellant did nothing while outside in the parking lot to provoke this advance by

Dews and Mass and he was therefore entitled to an instruction under the necessity.


      Deadly force is justified if the defendant would be justified in using force

against the other, if a reasonable person in the actor's situation would not have

retreated, and when and to the degree he reasonably believes the deadly force is

immediately necessary to protect himself against the other's use or attempted use of

unlawful deadly force. See Carmen v. State, 276 S.W.3d 538, 545 (Tex. App. 2008)

(citing Tex. Penal Code Ann. § 9.32). The use of force against another is not

justified if the actor provoked the other's use or attempted use of unlawful force

unless the other nevertheless continues or attempts to use unlawful force against the

actor. Id. § 9.31(b)(4)(B). A defendant “is justified in defending against danger as he

reasonably apprehends it” as viewed in light of the evidence of the overt acts and

words by the complainant, and there is no additional requirement that the jury find

that the complainant was actually using or attempting to use unlawful deadly force

against appellant. Guilbeau v. State, 193 S.W.3d 156 160 (Tex. App.—Houston (1st

Dist.) 2006); see Lavern v. State, 48 S.W.3d 356, 360–61 (Tex. App.-Houston [14



                                          51
Dist.] 2001, pet. ref'd); Halbert, 881 S.W.2d at 127; Semaire v. State, 612 S.W.2d 528,

530 (Tex. Crim. App. 1980).


      Viewing the evidence in a light favorable to Appellant, the circumstances

surrounding the shooting support the Appellant's reasonable belief that unless he

resorted to deadly force, Dews and Mass would cause him serious bodily injury. See

Guilbeau, 193 S.W.3d at 159–61. The trial court’s denial of the necessity instruction

once again resulted in a negation of his self-defense claim. See Bumguardner, 963

S.W.2d at 175 (noting that a charge limiting a defendant's right to self-defense

under this section is properly given when (1) self-defense is an issue; (2) there are

facts in evidence that show that the defendant sought an explanation from or

discussion with the victim concerning their differences; and (3) the defendant was

unlawfully carrying a weapon). The trial court therefore erred in refusing to charge

the jury as to necessity concerning Appellant’s need to defend himself with deadly

force. The error occasioned by the court cannot be considered harmless because

there was compelling evidence in the record to justify Appellant’s belief that his life

was in danger when both Mass and Dews exited the mall and confronted him in

the parking lot. By denying the necessity charge, Appellant suffered great harm in

his ability to demonstrate to the jury that his actions were necessary under the self-

defense affirmative defense. But see Butler v. State, 663 S.W.2d 492, 496 (Tex. App.

1983) aff'd, 736 S.W.2d 668 (Tex. Crim. App. 1987) (noting that in a murder case,

                                          52
however, where self-defense becomes the “immediately necessary” conduct, article

9.22 is rendered inapplicable). The undersigned would submit that this rule of law

should be revisited as it applies to the facts of this case because as noted supra in

Issue 4, the trial court all but negated Appellant’s self-defense chances at the jury

charge stage.


      Here, because Appellant made a proper objection at trial, reversal is

required if the error is “calculated to injure the rights of defendant, or unless it

appears from the record that the defendant has not had a fair and impartial trial.”

See Almanza, 686 S.W.2d at 171 (noting that once an objection to a charge is

properly preserved, this Court must reverse the conviction if appellant suffered any

actual harm by the omission of the defensive instruction); see also Abdnor v. State, 871

S.W.2d 726 (Tex. Crim. App. 1994) (en banc) (holding that the level of harm an

appellant must demonstrate as having resulted from the erroneous jury instruction

depends on whether the appellant properly objected to the error); see also Tex.

Code Crim. Proc. Ann. art. 36.19 (West 2006). In other words, on appeal,

Appellant needs to demonstrate only “some harm.” Abdnor, 871 S.W.2d at 732; see

Almanza, 686 S.W.2d at 171. Appellant has done so and his entitled to reversal as to

the above stated error.


                                  Issue Number 6


                                          53
      The trial court erred in its ruling that Appellant could not elicit testimony
from defense witness, Wilmon Davis, that shortly prior to the shooting someone in
the mall utter “he might get shot.”

                              Standard of Review


      An appellate court reviews a trial court's decision to admit or exclude

evidence under an abuse of discretion standard. See Weatherred v. State, 15 S.W.3d

540, 542 (Tex. Crim. App. 2000).


                                    Argument

      The trial court erred in its ruling that Appellant could not elicit testimony

from defense witness, Wilmon Davis, that shortly prior to the shooting someone in

the mall uttered the phrase “he might get shot.” (RR 17/97). Defense counsel

offered Mr. Davis testimony regarding this hearsay statement outside the presence

of the jury. He testified that prior to the shooting, he was in the mall doing his

walking exercises when he passed a group of males with “sagging” pants standing

out front of Champs (RR 17/95). This group caught Davis’ attention because he

constantly admonishes his grandson not to wear his pants in that fashion because

he looks like a gangster. Id. Mr. Davis distinctly recalled that Mr. Neal was not one

of the men standing in this group (RR 17/95). As Mr. Davis made his last round

of the mall, he overhead one of the males in that group say “he might get shot”

(RR 17/96-97). As Mr. Davis later exited the mall, he saw Mass dead on the

ground (RR 17/97). Davis recalled that Mass was one of the males standing in the
                                         54
group that he overheard say either “he might get shot” or “he’s going to get shot.”

Id. The last time Davis saw Mass in the mall, he saw Mass walking “out in front of

J.C. Penney and went back on the east side, went out that side” (RR 17/100). After

the shooting, Davis told Tyler police what he overheard (RR 17/99).

      Defense counsel argued that the statement overhead by Davis was admissible

as both and an excited utterance and a presence sense impression under the

hearsay rules. A present sense impression is “a statement describing or explaining

an event or condition made while the declarant was perceiving the event or

condition, or immediately thereafter. See Tex. R. Evid. 803(1). There is no question

that Davis “immediately after perceiving the event described that event to the

Tyler police. The present sense impression exception to the hearsay rule is based

upon the underlying premise that the contemporaneity of the event and the

declaration ensures reliability of the statement. Brooks v. State, 990 S.W.2d 278, 287

(Tex. Crim. App. 1999). The closer the declaration is to the event the less likely

there will be a calculated misstatement. Id. In the present case, Mr. Davis was

interviewed by the police shortly after officers arrived on scene in response to the

shooting. Therefore this testimony was admissible.

      The rationale for the exception stems from the statement's contemporaneity,

not its spontaneity, as one commentator has noted:

      If a person observes some situation or happening which is not at all
      startling or shocking in its nature, nor actually producing excitement

                                         55
      in the observer, the observer may yet have occasion to comment on
      what he sees (or learns from other senses) at the very time that he is receiving
      the impression. Such a comment, as to a situation then before the
      declarant, does not have the safeguard of impulse, emotion, or
      excitement, but there are other safeguards. In the first place, the
      report at the moment of the thing then seen, heard, etc., is safe from
      any error from defect of memory of the declarant. Secondly, there is
      little or no time for calculated misstatement, and thirdly, the statement
      will usually be made to another (the witness who reports it) who would
      have equal opportunities to observe and hence to check a
      misstatement. Consequently, it is believed that such comments, strictly
      limited to reports of present sense-impressions, have such exceptional
      reliability as to warrant their inclusion within the hearsay exception
      for Spontaneous Declarations.

Ray, 1A Texas Practice, Law of Evidence § 916, at 158–59 (3d ed.1980).

      The trial court excluded Mr. Davis’ testimony in part because he could not

identify who in the group made the statement (RR 17/85) (“could be, if you can

identify whoever the person was. But it sounds like neither side knows who said it, if

anyone really did say it”). In Green v. State, 876 S.W.2d 226 (Tex. App.--Beaumont

1994, no pet.), a police officer testified, over objection, to a statement “attributed to

two unnamed bystanders” that “the man in the brown trench coat was shooting.”

Id. at 227. On appeal, the court noted:

        The record reflects that Officer Chatelain responded quickly to the
        gunshot occurring only a block away. The two witnesses were running
        from the direction of the gunshot. They were obviously describing an
        event that they had perceived almost immediately before encountering
        Officer Chatelain. Sufficient reliability existed for the statement to be
        admitted under the hearsay exception of Rule 803(1).
Id. at 228.



                                            56
Just as in Green, Davis’ testimony in this case had sufficient indicia of reliability and

should have been admitted by the trial court. There is no disputing that this

testimony was both relevant and probative to the issue of whether Mass and his

group of thugs were the aggressors in this case. The proffered evidence by Davis

would have certainly aided the jury in understanding the motive and intent of the

group of gangsters in the mall prior to Mass exiting and confronting Appellant. See

Anderson v. State, 15 S.W. 3d 177, 184 (Tex. App.—Texarkana 2000) (noting that

statement of mind of the victim is relevant in cases involving defense claims of self-

defense, suicide, or accident) see also; 2 Barbara E. Bergman & Nancy Hollander,

Wharton's Criminal Evidence § 6:22 (15th ed. 1998 & Supp. 2000). The trial

court’s exclusion of this testimony was therefore an abuse of discretion.

                                  Issue Number 7

Trial counsel rendered ineffective assistance of counsel in failing to challenge
whether the State’s gang identification witness was qualified to render an expert
opinion that Appellant was affiliated with a gang.

           Standard of Review-Ineffective Assistance of Counsel

      The standard of review for Appellant's complaint of ineffective assistance of

counsel is whether counsel's conduct “so undermined the proper functioning of the

adversarial process that the trial cannot be relied on as having produced a just

result.” Strickland v. Washington, 466 U.S. 668, 686 (1984); see Davis v. State, 278

S.W.3d 346, 352 (Tex.Crim.App.2009); Diaz v. State, 380 S.W.3d 309, 311 (Tex.


                                           57
App.—Fort Worth 2012, pet. ref'd). The Strickland test has two prongs: (1) a

performance standard and (2) a prejudice standard. Strickland, 466 U.S. at 687.


                                                  Argument


        During the punishment trial, the State called Tyler Police Detective Chris

Miller to testify that based upon a review of Appellant’s tattoos, Miller believed that

he was a member of a violent street gang (RR 18/62). Miller testified as to his

experience as a police officer, a youth crimes division investigator and his

membership in the Texas Gang Investigators Association (RR 18/62-63). He also

testified that he had conducted training in the areas of gangs and gang intelligence

for the United States Attorney’s Office, the Texas Attorney General’s Office,

University of Texas, Tyler Junior College and the Texas Gang Investigation

Association. Id. Detective Miller did not testify as to any other qualifications that

would be make him an expert in gangs including whether he ever testified in the

past as a gang expert and how many times he’s been qualified in court as a gang

expert.1


        The State at no point during Miller’s testimony before the jury offered him

as an expert witness.2 The State simply asked Miller if he was the “gang guy” and

1
  The undersigned is familiar with Detective Miller having previously cross-examined him as gang expert and
challenged his opinions on appeal. The undersigned therefore knows that Detective Chris Miller is recognized as an
expert witness on criminal street gangs.
2
  After defense counsel objected to Miller’s testimony under Texas Rules of Evidence 401, 402, 403 and 705(d), the
State responded that “[a]s far as the 705 objection, obviously, Chris Miller has testified—and testified here today—
                                                        58
Miller responded “[t]hat’s what they tell me.” (RR 18/64). Defense counsel made

no effort whatsoever to challenge Miller’s qualifications as expert or the underlying

data that he relied upon in reaching his ultimate conclusions in this case. Instead,

trial counsel conceded on the record that Miller was an expert in gangs (RR 18/72)

(“I do not contest the State’s assertion that Detective Miller is an expert. I fully

concur with that. That is not my argument”).3                                 The trial court did overrule

counsel’s objections under Rules 401, 402 and 403, but made no ruling with

respect to the Rule 705(d) objection (RR 18/72) (“Well, I’ll overrule the objection.

37.07 is very broad. I don’t find, under 401, 402 or 403, that it should be

excluded”). Defense counsel failed to press the court for a ruling as to the 705(d)

objection and Miller was permitted to continue unchallenged with his opinions.


         Detective Miller opined that the tattoos he observed on Ricky Neal’s body

appeared to be a “constant theme” among the Bloods or a Blood set (RR 18/73).

Detective Miller thereafter went through photographs taken of each tattoo on

Appellant’s body and opined that the majority of those tattoos were consistent in

on way or another with the Bloods street gang (RR 18/73-83) (“In my opinion it




based upon his training and experience, he’s testified as an expert in this court before on numerous occasions. As a
matter of fact, I believe that he qualifies as an expert based upon all of those factors that the Court must listen to in
determining whether or not somebody is an expert ….” (RR 18/72-73).
3
  Trial counsel raised objections under Texas Rules of Evidence 401, 402, 403, and 705(d) as they related to the
relevance and probative value of Detective Miller’s ultimate opinions because Appellant had a history as “gang
affiliations” in Henderson, Texas and those past affiliations did not establish that he had any gang membership in
Tyler where the shooting occurred (RR 18/71-72).
                                                           59
would be a high probability that he would be a member of a criminal street gang

[A Piru Blood]”) (RR 18/83).


      On cross-examination, defense counsel had Miller run through an

exhaustive list of the violent street gangs in Tyler (RR 18/84-86). Miller conceded

that Appellant was not a “documented” member of any gang in Tyler (RR 18/86)

(Miller expanded that the other than the tattoos, he had no evidence to prove

Appellant was in an active member of any street gang in Tyler). That was the

extent of defense counsel’s cross-examination Miller.


      A.    The Problem with Gang “Expert” Testimony


      Like all expert testimony, the testimony of gang experts regarding gang

membership must meet the relevance and reliability requirements of Texas Rule of

Evidence 702. See Tex. R. Evid. 702 (West). Rule 702, along with Rules 401, 403,

and 703, require the trial judge to act as a "gatekeeper," limiting the testimony of

expert witnesses. See Judge Harvey Brown, Eight Gates for Expert Witnesses, 36 Hous.

L. Rev. 743, 744 (1999); see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,

587 (1993) (announcing that Federal Rule of Evidence 702 superseded the general

acceptance test for expert witness testimony articulated in Frye v. United States

seventy years earlier); Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923)

(promulgating the general acceptance test for the admissibility of expert witness

                                        60
testimony); David E. Colmenero, A Dose of Daubert to Alleviate "Junk Science" in

Texas Courtrooms: Texas Adopts the Federal Standard for Determining the

Admissibility of Scientific Expert Testimony, 27 Tex. Tech L. Rev. 293, 294 (1996)

(asserting that judges have an affirmative duty to determine relevancy and

reliability of expert testimony). Expert testimony offered pursuant to Rule 702 must

survive a traditional relevancy analysis under Rules 401 and 402 of the Texas

Rules of Evidence. See E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549,

556 (Tex. 1995) (noting Texas Rule of Evidence 702 requires the evidence to "assist

the trier of fact to understand the evidence or to determine a fact in issue").

      Additionally, the scientific technique or procedure must be reliable. See

Robinson, 923 S.W.2d at 557.      When determining the reliability of a scientific

technique or theory, a trial court may consider any number of factors, including

but not limited to: (1) the extent to which the theory has been or can be tested; (2)

the extent to which the technique relies upon the subjective interpretation of the

expert; (3) whether the theory has been subjected to peer review and/or

publication; (4) the technique's potential rate of error; (5) whether the underlying

theory or technique has been generally accepted as valid by the relevant scientific

community; and (6) the nonjudicial uses which have been made of the theory or

technique. Id.; see also Daubert, 509 U.S. at 593-94 (stating that many factors are

considered when determining reliability).


                                          61
      Similarly, the testimony of experts testifying about nonscientific matters must

be both relevant and reliable. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141

(1999) (concluding that a trial judge's "gatekeeping" duty applies to both scientific

and nonscientific expert testimony). Nonscientific expert testimony presents trial

courts with special concerns. See Emily L. Baggett, Note, The Standards Applied to the

Admission of Soft Science Experts in State Courts, 26 Am. J. Trial Advoc. 149, 156 (2002)

(stating that judges may find it difficult to distinguish between scientific and

nonscientific evidence). For example, nonscientific testimony may be based on

experience and observation that cannot be objectively tested. Id.               Because

nonscientific disciplines do not lend themselves to systematic scrutiny based on

objective retesting, the data often cannot be validated. See Weatherred v. State, 15

S.W.3d 540, 542 n.5 (Tex. Crim. App. 2000) (stating that "the 'hard' sciences, areas

in which precise measurement, calculation, and prediction are generally possible,

include mathematics, physical science, earth science, and life science," whereas

"the 'soft' sciences, in contrast, are generally thought to include such fields as

psychology, economics, political science, anthropology, and sociology"). Also,

nonscientific expert testimony may be more difficult to attack through cross-

examination. Jason G. Duncan, Note, "A Pig's Breakfast": Judicial Gatekeeping for

Scientific and Specialized Expert Testimony, 6 Suffolk J. Trial & App. Advoc. 21, 30

(2001).   Thus, "there is less assurance of the accuracy and truthfulness of


                                           62
nonscientific expert testimony." Edward J. Imwinkelried, The Next Step After Daubert:

Developing a Similarly Epistemological Approach to Ensuring the Reliability of Nonscientific

Expert Testimony, 15 Cardozo L. Rev. 2271, 2279 (1994).

       Texas courts consider the Daubert/Robinson factors when deciding whether

nonscientific evidence is reliable. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d

713, 726 (Tex. 1998). In cases where the expert's opinion is based more on skill and

experience, courts may not find the factors listed in Daubert and E.I. du Pont helpful

in determining the reliability of the expert's testimony. Gammill, 972 S.W.2d at 726

(stating that Daubert and Robinson considerations are not always useful in assessing

nonscientific testimony). In these cases, courts are charged with determining

whether there is "too great an analytical gap between the data and the opinion

proffered." Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997); Gammill, 972 S.W.2d at

726. The crucial inquiry in the "analytical gap" test is whether the expert relied on

objective data or experimentation, or subjective interpretations. See Ford Motor Co. v.

Aguiniga, 9 S.W.3d 252, 263 (Tex. App. - San Antonio 1999, pet. denied)

(identifying the concern as whether experts relied on subjective interpretation or on

objective data or interpretation). Texas courts have consistently held that expert

opinions with little more than a "subjective belief or unsupported speculation" are

unreliable and therefore inadmissible. Gammill, 972 S.W.2d at 728; E.I. du Pont de

Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995).


                                            63
      In Texas, the analysis employed to determine how the reliability of particular

expert testimony is to be assessed is within the trial judge's discretion. Gammill, 972

S.W.2d at 726. Further, whether a court analyzes the reliability of an expert's

testimony using the Daubert/Robinson factors, the "analytical gap" test, or a

combination of the two, "in light of the increased use of expert witnesses and the

likely prejudicial impact of their testimony, trial judges have a heightened

responsibility to ensure that expert testimony show some indicia of reliability."

Robinson, 923 S.W.2d at 553. In short, "it is not so simply because 'an expert says it

is so.'" Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 712 (Tex. 1997) (quoting

Viterbo v. Dow Chem. Co., 826 F.2d 420, 421 (5th Cir. 1987)).

      In Texas, the reliability and relevance requirements of Daubert apply to

both scientific and nonscientific expert testimony. Gammill, 972 S.W.2d at 726

(applying Daubert to all expert testimony). Texas courts require that a nonscientific

expert's skill and experience reflect the relevance and reliability of his testimony in

order for the testimony to pass through the methodological gate. Id. at 722. And,

although "reliability ... does not ... always require an examination of the

Daubert/Robinson factors ... the gatekeeping reliability requirement of Daubert applies

to all experts." Judge Harvey Brown, Eight Gates for Expert Witnesses, 36 Hous. L.

Rev. 743, 803-04 (1999).




                                          64
       Courts are also required to examine the foundational reliability of expert

testimony. Id. at 823. Daubert acknowledged that expert testimony must have "a

reliable foundation." Daubert, 509 U.S. 579, 597 (1993). "The foundational-

reliability gate ... focuses on the reliability of studies, articles, and data from others

in the expert's field and the assumptions of the expert." Judge Harvey Brown, Eight

Gates for Expert Witnesses, 36 Hous. L. Rev. 743, 821 (1999). The expert's testimony

that the research is reliable is not enough. Id. Simply put, "if the foundational data

underlying opinion testimony are unreliable, an expert will not be permitted to

base an opinion on that data because any opinion drawn from that data is likewise

unreliable." Merrell, 953 S.W.2d at 714.

       Typically, the gang expert's testimony is lacking reliability, both

methodological and foundational. Placido G. Gomez, It is Not So Simply Because an

Expert Says It’s So: The Reliability of Gang Expert Testimony Regarding Membership in

Criminal Street Gangs: Pushing the Limits of Texas Rule of Evidence, 702, 34 St. Mary’s L.J.

581, 605 (2003). First, because the information upon which the gang expert relies

comes from highly unreliable sources, there is no credible data upon which the

officer can base his opinion. Id. Second, even though the available research

indicates that individual gangs are often quite unique, gang experts across the

country base their opinions on definitions and criteria that are strikingly similar. Id.

       The research and available information regarding gangs, gang membership,

                                            65
and gang-related activity suffers from inaccurate reporting. Id. An overwhelming

amount of information regarding gangs originates with two "highly suspect" groups

of reporters - gang members and those who process the data, such as police officers

and service providers. Id. The perspectives of these groups can sometimes be "self-

serving and often unverifiable." Id. Gang members, the primary data source for

both law enforcement agencies and researchers, "tend to conceal and exaggerate

and may in fact not know the scope of the gang's activities." Id. at 606. Law

enforcement personnel and social service providers often respond to information

from the media, another notoriously unreliable source. Id. Consequently, "there is

no coherent, precise body of knowledge on gang behavior or gang activity to

synthesize officers' street experience." Id. Funding formulas often tempt police

departments and social service agencies to exaggerate gang activity. Id.

      Most agencies across the country still identify gang members using a set of

criteria introduced by the California Youth Gang Task Force in 1988. Id. at 610.

These factors include:

             (1) Subject admits being a member of a gang[;]
            (2) subject has tattoos, clothing, etc., that are only associated
      with certain gangs[;]
            (3) subject has been arrested while participating in activities
      with a known gang member[;]
            (4) information that places the subject with a gang has been
      obtained from a reliable informant[; and]
            (5) close association with known gang members has been
      confirmed.
                                         66
See Jeffrey J. Mayer, Individual Moral Responsibility and the Criminalization of Youth Gangs,
28 Wake Forest L. Rev. 943, 965-66 & n.126 (1993).


              Identification as a street gang member based on clothing, colors, or

tattoos, is unreliable. Placido G. Gomez, It is Not So Simply Because an Expert Says It’s

So: The Reliability of Gang Expert Testimony Regarding Membership in Criminal Street Gangs:

Pushing the Limits of Texas Rule of Evidence, 702, 34 St. Mary’s L.J. 581, 620 (2003).

While clothing may reflect the collective identity of a street gang, it is more likely to

indicate an individual's preference. Id. Young people often dress alike, particularly

if the style rejects authority. The gang look has frequently become stylish as

nongang members adopt the "dress, mannerisms, and behavior of hard-core street

gangs." Id. The tendency of gangs to adopt designer clothing or clothes associated

with popular sports teams makes it more difficult to distinguish gang members from

other young people. Id. Finally, the more sophisticated gangs, especially those

gangs engaged in entrepreneurial activities, will often hide their association with a

particular gang and not show gang colors or wear clothes identified with a gang. Id.

Thus, law enforcement officials cannot accurately identify gang members based on

their clothes or colors, without more. Id.

     B.    Defense Counsel was Ineffective in Failing to Challenge the
Basis for Miller’s Opinions


       As noted supra, tattoos are also an unreliable identification tool. Many former
                                             67
gang members have tattoos. Id. at 621 "Retired gang members bear the tattoos of

their active days, whether they want to or not." Id. Moreover, tattoos are popular,

especially with some minority communities. Id. Defense counsel failed to in any

way challenge the data Miller used to make his conclusions that based exclusively

on his tattoos, Appellant was a member of a violent street gang.            Counsel’s

performance in this regard fell far below acceptable professional standards.

      When considering whether counsel’s performance was deficient, this Court

must determine whether Appellant has shown by a preponderance of the evidence

that counsel's representation fell below an objective standard of reasonableness.

Strickland 466 U.S. at 687–88. Although there is a strong presumption that trial

counsel's conduct fell within the wide range of reasonable professional assistance, in

the present case the counsel’s performance on this particular issue falls below that

standard. Strickland, 466 U.S. at 689; Diaz, 380 S.W.3d at 311–12. The record in

this case discussed supra affirmatively demonstrate counsel’s ineffectiveness.

Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). While it is true that

“[t]rial counsel should ordinarily be afforded an opportunity to explain his actions

before being denounced as ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex.

Crim. App. 2003), in the present case there is not justification that counsel can offer

to excuse such deficient performance. That is because the record in this case

contains direct evidence of counsel's reasons for the challenged conduct; counsel


                                          68
believed wholeheartedly that Miller was his expert and that his opinions were

sound. Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011).             As a

consequence of this concession, counsel’s challenged conduct constituted deficient

performance conduct that was so outrageous that no competent attorney would

have engaged in it.” Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).


      As for prejudice standard of Strickland, this Court must determine whether

there is a reasonable probability that the outcome would have differed but for

counsel's errors. Wiggins v. Smith, 539 U.S. 510 (2003); Strickland, 466 U.S. at 686;

Andrews v. State, 159 S.W.3d 98 (Tex.Crim.App.2005). The reasonable probability

must rise to the level that it undermines confidence in the outcome of the trial.

Diaz, 380 S.W.3d at 312.


      Counsel’s conduct in this case meets the prejudice standard set forth supra

with respect to the devastating outcome this evidence had upon both the

guilt/innocence and punishment phases of Appellant’s trial. With respect to the

guilt/innocence phase, the primary reason that Appellant elected not to take the

stand and expand upon his self-defense justification for the shooting was because

his counsel feared what Miller’s gang testimony would be in rebuttal.


      Near the close of the defense’s guilt innocence case, the trial court conducted

the following inquiry:

                                         69
MR. DAVIDSON: The other issue, Your Honor, is that the State is
aware, from communications from Detective Chris Miller, the Tyler
PD's gang expert -- that Detective Miller, if called to testify, would
testify that Mr. Neal is not affiliated with any gang in Tyler; was not a
member of any gang in Tyler at the time of this shooting and has no
gang affiliation for any gang in Tyler.

THE COURT: May be what he has to testify to. But if he has gang
tattoos, those are relevant, typically. I didn't fully expect the trial
would finish without us talking about gangs in front of the jury. But,
again, just to make sure you have, I guess, what you presume to be an
effective strategy of calling your client to the stand, waiving his
privilege, testifying, knowing well that the State has evidence of at least
potential admissible gang affiliation, that by doing that you're
effectively suggesting that this -- I guess, where you're headed -- and
really, just laying it out to see if I'm maybe missing something.

Because courts, unfortunately, have to always look at cases to make
sure lawyers are effectively representing their clients. And whenever
the Court sees them making a move that's maybe not so effective,
from the Court's perspective, I think we have a duty to address it and
make sure that you're not at least inadvertently stepping on the
landmine, so to speak.
By introducing him, you introduce this issue, which introduces the
gang issues into the case, which means maybe you get evidence in that
Mr. Dews had some former type of gang connection or current. You
may, may not get in anything about the victim because of the way the
victim law is concerned.
But you, obviously, do go in eyes open, allowing the State to bring in
evidence about your clients. So then if the jury, ultimately, determines
that maybe this was a gang situation but only one of the gang
members had a weapon -- I've heard zero evidence -- just so you
understand what I've heard and what I think the jury's heard -- I've
heard zero evidence of anyone
in the parking lot, other than your client, having a weapon. And I'm
really just raising that because that's what I think I've heard. That's
what I think the jury will have heard.

MR. DAVIDSON: Right.

                                    70
      THE COURT: As a result, if that's the only evidence, and you choose
      to also interject that your client may be a gang member tied to him
      being the only one having a weapon, seems like an extremely
      dangerous strategy to try to convince 12 individuals of self-defense,
      which is what you argued, really, from the start on it. So, again, I'm
      really -- I'm not going to restrict you in any way. But, really, to make
      sure that you are telling me that you're aware of all those things; and
      that, yes, even knowing all those things, this is the strategy you best
      believe helps your client.

(RR 17/130-32).

Thereafter, Mr. Neal asked to confer with his counsel (RR 17/133). Defense

counsel then informed the court:

      MR. DAVIDSON: Your Honor, he says he wants to testify and is well
      aware -- my client says he wants to testify, number one. Number two,
      he is aware of the hazards, potential landmines that the Court alluded
      to. I have been far more direct with him about those landmines; and
      I've specifically identified them for him. It's his right to testify, and he
      says that's what he wants to do.

      THE COURT: Mr. Neal, if you'll stand again. You've had a few
      moments to speak privately with your lawyer, Mr. Davidson. He tells
      me, yet again, that he's gone over everything I've just told you, as well
      as probably many other things. It's your desire to -- knowing all those
      things, knowing that your case, very likely -- out of a fair reading, I
      think, at this point, the jury could be assessing your case of, really,
      what I think your lawyer has suggested to them, is that maybe you're
      the victim in the case; and that you came outside and two people
      came out and you had to go for your gun to defend yourself. That's
      pretty neutral. They don't really -- I don't think, out of a fair reading
      of the evidence, to this point, really think they could be thinking that
      it's really that simple. By taking the stand and these other issues
      coming in, the dynamics of that simple explanation really turn, I
      think, out of a fair-thinking person that I would presume jurors to be,
      to probably make a 180-degree turn; that they'll know a lot more
      information. They'll have a lot more suspicions about what might or

                                          71
      might not have happened out there, all of which will be before them,
      all of which will go into their digestive process of deciding what they
      think the real results are. So, again, knowing all those things, you've
      apparently told your lawyer that you've decided to waive your Fifth
      Amendment, go ahead and take the stand, and give testimony in your
      case? Because it is your privilege, as I've told you from the beginning.
      It's not the lawyer's. I think you should always get your lawyer's input
      and advice. But you don't have to follow that, even if he's telling you
      shouldn't get on the witness stand. Do you understand that?

      THE DEFENDANT: (Nodding).

      THE COURT: All right, sir. So, again, we're kind of at that place
      where I told you at the start of the trial that -- will he be your last
      witness?

      MR. DAVIDSON: Yes, sir. Well, I correct myself, sir. There may be
      one more witness. That would be Detective Miller.
      …

      (Defendant confers with attorney.)

      MR. DAVIDSON: Your Honor, my client has ordered me, first, to
      recall Mr. Dews; and, secondly, my client has just stated that he is now
      going to take the Fifth.

      THE COURT: Is that true Mr. Neal?

      THE DEFENDANT: Yes.

(RR 17/134-37).

Appellant ultimately elected not to take the stand and testify based upon the off-

record discussions with his trial counsel and the trial court’s input.

      On April 10, 2014, the State filed its third supplemental notice of intent to

call expert witnesses and listed as one of those witnesses, Detective Chris Miller


                                           72
(CR 244). Had counsel bothered to file a pretrial motion under Rule 705

challenging the basis for Miller’s expert opinion, he would have likely had the

opportunity to litigate the admissibility of Miller’s testimony prior to having to

having the debate with his client as to potential detriments of Appellant taking the

stand.

         Texas Rule of Evidence 705(c) governs the reliability of expert testimony and

states that “[i]f the court determines that the underlying facts or data do not

provide a sufficient basis for the expert’s opinion under Rule 702 or 703, then the

opinion is inadmissible.” Tex R. Evid. 705(c); see also Vela v. State, 209 S.W.3d 128,

133 (Tex. Crim. App. 2006). If counsel would have filed the appropriate 705

pretrial motion, then the issue of whether Miller’s opinions were supported by

sound underlying facts and data could have been addressed in advance of

Appellant’s decision whether to testify or not. Armed with the information learned

from the 705 hearing, counsel could have made a better-informed decision as to

the potential risks associated with Appellant being called to the stand.         Had

Appellant been better informed as to the admissibility and limits of Miller’s expert

testimony he would have been far better equipped to make the decision whether or

not to invoke his 5th Amendment right to not testify.

         In self-defense trial such as this, a defendant’s testimony can often make or

break the case of whether his actions were justified or not. Although the strategic


                                           73
decision of counsel whether to allow a defendant testify or not is not generally well

developed enough on direct appeal to be reviewable, the record set forth supra in

this case is sufficient to demonstrate counsel’s justification for not calling Appellant

to the stand. See Jackson v. State, 877 S.W.2d 768 (Tex. Crim. App. 1994). We know

form the record in this case that Appellant had no felony convictions that would

have come up if he testified. It can therefore be presumed that the sole reason that

he declined to testify had to do with the potential gang testimony of Miller.

Counsel’s failure to address the Miller testimony pretrial influenced Appellant’s

ultimate decision not to testify. This meant that the only evidence to support his

self-defense claim came from his video interview the law enforcement. Appellant

was denied the meaningful opportunity to elaborate on that interview with the jury

and communicate the true extent of his justified fears at the time of the shooting.

Appellant’s decision not to testify, that was based upon counsel’s deficient

performance, had detrimental influence on the outcome of this case.

      Counsel’s deficient performance stated supra also had a detrimental influence

upon the outcome of the punishment trial. Defense counsel failed to in anyway

challenge the support for Miller’s opinions with respect to the tattoos. Rather than

refute Miller’s findings that the tattoos were evidence of gang affiliation, counsel

simply endeavored to concede he tattoos were proof of gang membership, but not

documented gang membership in Tyler. Conceding this point most certainly had a


                                          74
profound and detrimental impact upon the jury’s decision to return a life prison

sentence. See DeLeon v. State, 322 S.W.3d 375 (Tex. App. 2010) (holding defendant

was prejudiced, and thus received ineffective assistance entitling him to new

punishment hearing, by trial counsel's deficient performance at punishment phase

of prosecution for indecency with a child by sexual contact in calling as expert

witness a probation officer who gave inflammatory testimony on cross-examination

about risks posed by sex offenders on probation)

                                  Issue Number 8

       The trial court erred in denying Appellant’s request lesser-included offense
jury instructions.

           Standard of Review—Denial of Proposed Instruction

      This Court employs a two-step analysis when evaluating jury charge error.

See Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Initially, this Court

determines whether error occurred and then evaluates whether sufficient harm

resulted from the error to require reversal. Wilson v. State, 391 S.W.3d 131, 138

(Tex. App.–Texarkana 2012, no pet.) (citing Abdnor, 871 S.W.2d at 731–32).

      At trial, Appellant requested special jury instructions be included the charge

for the lesser included crimes of manslaughter (CR 366-67), criminally negligent

homicide (CR 367), deadly conduct (CR 368) (RR 17/182). The trial court denied

Appellant’s request for these special instructions.

      Again, just so you're crystal clear with what I think this jury has heard,

                                          75
      that the evidence was that your client did the same thing that the
      admissions say, and that he pulled a gun out. And the gun
      inadvertently went off and shot this gentleman, yeah, maybe
      manslaughter, maybe recklessness is there. But whenever you start
      adding shot after shot, hitting the same person, as I said, I think it
      would be incredible that any higher court would suggest that, under
      those facts in this case, that your client would have any right to any
      lesser included offense charges.

(RR 17/182-83).

      Chapter 9 of the Texas Penal Code recognizes certain justifications that,

under Section 2.03, are defenses to prosecution. See TEX. PEN. CODE § 2.03(a)

(“A defense to prosecution for an offense in this code is labeled by the phrase: ‘It is

a defense to prosecution ...’ ”); see also TEX. PEN. CODE § 9.02 (“It is a defense to

prosecution that the conduct in question is justified under this chapter.”). If there is

some evidence that a defendant's actions were justified under one of the provisions

of Chapter 9, the State has the burden of persuasion to disprove the justification

beyond a reasonable doubt. See TEX. PEN. CODE § 2.03(d).

      In the present case, Appellant raised evidence that he shot Mass while acting

in self-defense, a Chapter 9 justification. See TEX. PEN. CODE §§ 9.31 (Self–

Defense), 9.32 (Deadly Force in Defense of Person). Assuming a jury believes that

a defendant's actions were justified under Chapter 9 (or has a reasonable doubt

that the actions were justified under Chapter 9), the plain meaning of Sections 9.02

and 2.03 is that the fact-finder may not convict the defendant for an offense based

on those actions. See Alonzo v. State, 353 S.W. 3d 778, 781 (Tex. Crim. App. 2011).

                                           76
      In the present case, the trial court erred in denying Appellant’s request for

these lesser-included offense instructions because the evidence at trial, including

Appellant’s own recorded confession, discussed supra justified inclusion of these

instructions in the final charge.

      “[A] lesser-included offense instruction shall be included in the jury charge

if: (1) ‘the requested charge is for a lesser-included offense of the charged offense;

and (2) there is some evidence that, if the defendant is guilty, he is guilty only of the

lesser offense.’ “ Guzman v. State, 188 S.W.3d 185, 188 (Tex.Crim.App.2006)

(quoting Hayward v. State, 158 S.W.3d 476, 478 (Tex.Crim.App.2005)). Appellant

in the present case met both of these burdens at trial.

      The first step is a question of law that is determined by the pleadings and

does not depend on the evidence produced at trial. Hall v. State, 225 S.W.3d 524,

535 (Tex. Crim. App. 2007). An offense is a lesser included offense if: (1) it is

established by proof of the same or less than all the facts required to establish the

commission of the offense charged; (2) it differs from the offense charged only in

the respect that a less serious injury or risk of injury to the same person, property,

or public interest suffices to establish its commission; (3) it differs from the offense

charged only in the respect that a less culpable mental state suffices to establish its

commission; or (4) it consists of an attempt to commit the offense charged or an

otherwise included offense. Tex. Code Crim. Proc. Ann. art. 37.09 (West 2006).


                                           77
“[T]he elements and the facts alleged in the charging instrument are used to find

lesser-included offenses[.]” Hall, 225 S.W.3d at 535.

      The statutory elements of deadly conduct would require that Appellant

recklessly engaged in conduct that placed Mass in imminent danger of serious

bodily injury. TEX. PEN. CODE ANN. § 22.05(a) (Vernon 2003). Recklessness

and danger are presumed if the actor knowingly pointed a firearm at or in the

direction of another. Id. at § 22.05(c). Appellant asserts that it was error for the

court to refuse to instruct the jury on the offense of deadly conduct. The offense of

deadly conduct can be committed in two ways. A person commits the

misdemeanor version of the offense if he recklessly engages in conduct that places

another in imminent danger of serious bodily injury. TEX. PENAL CODE §

22.05(a), (e). The felony version of deadly conduct occurs if a person knowingly

discharges a firearm at or in the direction of one or more individuals. Id. §

22.05(b)(1). Thus, under these facts proven at trial in the present case, felony deadly

conduct satisfies the first prong of the lesser-included test because it was included in

the proof necessary to establish the offense of murder. See TEX. CODE CRIM.

PROC. art. 37.09(1); Ortiz v. State, 144 S.W.3d 225, 233–34 (Tex. App.–Houston

[14th Dist.] 2004, pet. ref'd).

      “The second step in the analysis should ask whether there is evidence that

supports giving the instruction to the jury.” Id. at 536. “[A]nything more than a


                                          78
scintilla of evidence may be sufficient to entitle a defendant to a lesser charge.” Id.

“[T]he evidence must establish the lesser-included offense as ‘a valid, rational

alternative to the charged offense.’ “ Id. (quoting Forest v. State, 989 S.W.2d 365, 367

(Tex. Crim. App. 1999)).

      In this case, the indictment contained a single paragraph alleging murder

(CR 1). Under Penal Code section 19.02(b)(1), the indictment alleges that (1)

Appellant intentionally or knowingly caused Mass’ death shooting him with a

firearm. In comparison, the elements of manslaughter would require some proof

that Appellant recklessly caused Mass’ death by shooting him with a firearm. Id. at

§ 19.04(a). Conversely, the elements of criminally negligent homicide would require

proof that Appellant with criminal negligence caused Mass’ death by shooting him

with a firearm. Id. at § 19.05(a) (West 2003).

      In this case, the offense as charged and presented to the jury included

intentional or knowing murder under section 19.02(b)(1), which requires a culpable

mental state. Tex. Penal Code. Ann. § 19.02(b)(1). “The only distinction between

an intentional or knowing murder and the lesser offenses of manslaughter and

criminally negligent homicide lies in the culpable mental state accompanying the

homicidal act.” Pitonyak v. State, 253 S.W.3d 834, 846 (Tex. App.-Austin 2008, pet.

ref'd). Accordingly, manslaughter, criminally negligent homicide and deadly

conduct differ from the charged offense of intentional or knowing murder only in


                                          79
the respect that a less culpable mental state suffices to establish their commission;

thus, they are lesser-included offenses of murder as charged and presented to the

jury. See Tex. Code Crim. Proc. Ann. art. 37.09(3) (West 2006); see also Pitonyak, 253

S.W.3d at 846–47; Pierce v. State, 234 S.W.3d 265, 269–71 (Tex. App.-Waco 2007,

pet. ref'd) (Where indictment charged Pierce with murder under 19.02(b)(1) and

(b)(2), the Waco court concluded that manslaughter and criminally negligent

homicide were lesser-included offenses of murder as charged in the indictment).

      To establish the second prong of the lesser-included offense analysis,

Appellant must demonstrate that the evidence at trial raises the issue of

manslaughter, criminally negligent homicide and deadly conduct because the jury

could have concluded that he did not knowingly or intentionally kill Mass, but

either recklessly or negligently caused his death when he fired the fatal shots in his

direction. At trial, Appellant’s counsel argued that the evidence suggested that Neal

fired the shots out of “sudden passion” while he was “stricken with terror” at the

events that unfolded before him (RR 17/178). The trial court rejected Appellant’s

argument (RR 17/182).

      Given Appellant’s confession that he had no intent to kill Mass at the time

the shots were fired, there was proof that the jury could have relied upon to find

him guilty of only manslaughter or criminally negligent homicide. Tex. Penal Code

Ann. § 6.03(c) (West 2003) (defining “recklessly”); Id. at § 6.03(d) (defining “criminal


                                          80
negligence”); See Guzman, 188 S.W.3d at 188; see also Lewis v. State, 529 S.W.2d 550,

553 (Tex.Crim.App.1975) (“At the heart of reckless conduct is conscious disregard

of the risk created by the actor's conduct; the key to criminal negligence is found in

the failure of the actor to perceive the risk.”). As noted supra, at the time he fired

the shots, Appellant stated to police that he had no intention of killing Mass (RR

16/241) (Appellant shot Mass 3 times). Appellant maintained in is voluntary

statement that the reason he shot Mass was because he feared for his life. Id.

Anything more than a scintilla of evidence is sufficient to entitle a defendant to an

instruction on a lesser-included offense. See Goad v. State, 354 S.W.3d 443, 446

(Tex.Crim.App.2011). The evidence can come from any source, and a defendant's

testimony alone is sufficient to raise the issue. Bell v. State, 693 S.W.2d 434, 442

(Tex. Crim. App. 1985).

      Accordingly, because proof existed to justify consideration by the jury of the

lesser-included offense instructions for manslaughter, criminally negligent

homicide, deadly conduct the trial court erred in denying Appellant’s requested

special jury instructions. Because the jury was altogether precluded by the trial

court from even considering evidence of guilt as to these lesser-included offenses,

the error occasion in this case caused sufficient harm and requires reversal. Wilson

v. State, 391 S.W.3d 131, 138 (Tex. App.–Texarkana 2012, no pet.) (citing Abdnor,

871 S.W.2d at 731–32).


                                         81
                                Issue Number 9

The trial court erred in denying Appellant’s request for inclusion in the punishment
charge of a sudden passion instruction.

                 Standard of Review—Jury Instruction Error

      We review a trial court's decision whether to instruct the jury on a defensive

issue, such as sudden passion, for an abuse of discretion. See Love v. State, 199

S.W.3d 447, 455 (Tex.App.–Houston [1st Dist.] 2006, pet. ref'd) (citing Wesbrook v.

State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944 (2001)).

In reviewing a case involving a sudden-passion jury charge, it is our duty to focus

on the evidence supporting that charge, not on the evidence refuting it. Trevino, 100

S.W.3d at 239.


      During the punishment trial phase of the case, the court inquired whether

either the State or defense had any objection to the proposed punishment jury

instructions (RR 18/61) (CR 342). Both the State and defense counsel advised the

trial court that they had no objection to the punishment charge (RR 18/61).

Thereafter, defense counsel filed a motion to replace the current punishment

charge (CR 390-91).


      In the motion, defense counsel noted        “at approximately 5:00 PM on

Wednesday, 7 May 2014, the Court excused the jury and ordered same to return

to Court on Tuesday, 13 May 2014 to be read the Punishment Charge, to hear

                                         82
closing arguments, and to deliberate the Defendant’s punishment in the case at

hand” (CR 390).      Defense counsel thereafter acknowledged that he made no

objection to the trial court’s proposed punishment instruction at that time. Id. On

May 12, 2014, the day prior to the jury’s return to court, defense counsel filed his

motion requesting replacement of the jury punishment charge. Id.


      Counsel argued in the motion that the punishment charge should include a

section regarding “sudden passion”. Id. and (RR Sup. 1/6-7). Counsel argued that

according to Appellant’s confession:


      [H]e felt he had no choice but to shoot Christopher Mass in order to
      save his own life from immediate imminent attack by Mr. Mass. Mr.
      Neal explained in his interview that the sudden approach of Mr. Mass
      and Mr. Neal’s immediate fear and apprehension of imminent attack
      upon him by Mr. Mass, a stranger to Mr. Neal, was the reason he shot
      Mr. Mass.

(CR 390).

Defense counsel also stressed that:

      During the punishment stage of the trial, the Defendant put on seven
      witnesses, who, together, inferentially and/or directly painted a
      picture to the jury that Mr. Neal (1) is not a violent man; (2) is not
      prone to bursts of temper; (3) is a fluent and gifted communicator who
      can usually talk his way out of a pending or imminent bad or dire
      situation. It is therefore possible, under the evidence presented to the
      jury during the punishment phase of the trial, that Mr. Neal, normally
      a cool, calm, communicative individual, and while fearing imminent
      attack from Mr. Mass, acted out sudden passion when he shot and
      killed Christopher Mass.
Id.

                                        83
The State objected to the inclusion of the sudden passion instruction (RR

Supp. 1/8). The trial court denied Appellant’s requested charge ruling that

in order for Appellant to have been entitled to the sudden passion

instruction, the evidence had to establish more than “mere fear” (RR Supp.

1/11).


          Texas law recognizes that sudden passion and self-defense are distinct

inquiries for which a jury's verdict will not always overlap. See Wooten v. State, 400

S.W.3d 601, 608–09 (Tex. Crim. App. 2013). “If the defendant proves the issue in

the affirmative by a preponderance of the evidence, the offense is a felony of the

second degree.” Id.; see also Bell, 693 S.W. 2d at 442 (noting that such evidence can

come from any source, and a defendant's testimony alone is sufficient to raise the

issue).

          “Sudden passion” is defined for these purposes as “passion directly

caused by and arising out of provocation by the individual killed or another

acting with the person killed which passion arises at the time of the offense

and is not solely the result of former provocation. Id. § 19.02(a)(2). The

“adequate cause” giving rise to sudden passion for these purposes is a cause

“that would commonly produce a degree of anger, rage, resentment, or

terror in a person of ordinary temper, sufficient to render the mind

incapable of cool reflection.” Id. § 19.02(a)(1). An accused is entitled to an

                                          84
instruction on every defensive issue raised by the evidence, regardless of

whether that evidence is weak, contradicted, un-impeached, or unbelievable.

Trevino v. State, 100 S.W.3d 232, 238 (Tex. Crim. App. 2003). The defendant

has the burden of production and persuasion with respect to the issue of

sudden passion. TEX. PENAL CODE § 19.02(d).


      To justify an instruction on the issue of sudden passion at the

punishment phase, at a minimum the record must support inferences that:

(1) the defendant acted under the immediate influence of a passion such as

terror, anger, rage, or resentment; (2) his sudden passion was in fact induced

by some provocation by the deceased or another acting with him, which

provocation would commonly produce such a passion in a person of

ordinary temper; (3) he committed the murder before regaining his capacity

for cool reflection; and (4) a causal connection existed “between the

provocation, passion, and homicide.” Wooten, 400 S.W.3d at 605. If the

reviewing court agrees that a trial court erred by failing to submit a sudden

passion instruction, then it must analyze whether the error harmed the

appellant. Id. at 606.


      In Wooten, CCA considered the question whether the defendant had

been harmed by the omission of a requested sudden-passion special issue at

the punishment phase. Id. at 608. In holding that he had not, the CCA
                                         85
observed that, given that the jury had rejected Wooten's claim that his use of

deadly force was justified, it was, on the facts of that record, “highly

unlikely” that the jury would have nevertheless found that he acted under

the immediate influence of sudden passion. Id. at 609. The Court's holding

in Wooten was based on the rationale that, by its verdict of guilty, the jury had

indicated that it “simply did not believe” Wooten's self-defense claim, which

was premised on a factual assertion that the complainant had fired upon

Wooten first. Id. The Court accordingly concluded that Wooten had not

suffered “some harm” as a result of the omitted sudden passion special issue.

Id. at 610.


       The facts of this case, however, differ from those in Wooten. As noted

supra in Issue 4, the trial court completely gutted Appellant’s self-defense

instruction. As a consequence, the jury in this case, unlike the jury in Wooten,

was not afforded the opportunity to thoroughly deliberate and determine

whether Appellant acted in self-defense. It therefore cannot be presumed

that jury in this case would have rejected a sudden-passion special issue.


       In Trevino v. State, 60 S.W.3d 188 (Tex. App.–Fort Worth 2001), aff'd

100 S.W.3d 232 (Tex. Crim. App. 2003), the Fort Worth court of appeals

observed that “[w]hen the defendant raises issues of self-defense during the

guilt/innocence phase of trial, the issue of sudden passion is typically also
                                          86
raised.... Accordingly, trial courts should give both instructions when

requested.” Trevino, 60 S.W.3d at 195 (quoting Chavez v. State, 6 S.W.3d 66,

72–73 (Tex. App.–San Antonio 1999, pet. ref'd)). Similar language can be

found in other cases, albeit in the context of different types of legal

challenges. See, e.g., Chavez, 6 S.W.3d at 72–73 (ineffective assistance of

counsel for failure to request sudden-passion instruction); Benavides v. State,

992 S.W.2d 511, 524–25 (Tex. App.–Houston [1st Dist.] 1999, pet. ref'd)

(legal sufficiency of evidence to support murder conviction). But see Grffen v.

State, 2014 WL 7474076 (Tex. App.—Houston (1st Dist.) 2014). (observing

that “a bare claim of ‘fear’ ” does not demonstrate “sudden passion arising

from adequate cause”).


      As noted supra, Appellant’s confession confirms that under the

circumstances of his attack he was in fear for his life and had to adequate

time to reflect upon the full consequence of his actions. In McKinney v. State,

No. 12–03–00155–CR, 2004 WL 1852975, 2004 Tex. App. LEXIS 7472

(Tex. App.-Tyler August 18, 2004) this Court noted that for anger or fear to

rise to the level of sudden passion, the appellant's mind must have been

rendered incapable of cool reflection. In the case sub judice, Appellant did not

simply act in response to Mass’ provocation. He instead acted under the

immediate influence of sudden passion arising from an adequate cause, the

                                          87
fact that two large individuals whom he’d just had a heated verbal exchange

with had pursued him outside of the mal in order to fight with him.

Accordingly, the facts in this case justified inclusion of a sudden passion

instruction in the punishment charge and trial court erred in refusing to

grant same.


                                      Prayer

      Wherefore, premises considered, appellant prays that the Court reverse the

judgment and remand the cause for new trial. Appellant further prays for all other

relief to which he may be entitled.

                                      Respectfully submitted,


                                      /s/ Carlo D’Angelo
                                      Carlo D’Angelo
                                      State Bar No. 24052664
                                      100 East Ferguson, Suite 1210
                                      Tyler, Texas 75703
                                      Tel. 903.595.6776
                                      Fax 903.407.4119
                                      carlo@dangelolegal.com
                                      Attorney for the Appellant


                       CERTIFICATE OF COMPLIANCE

       This document complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
point for text and 12-point for footnotes. This document also complies with the
word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains
25,900 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).

                                        88
                           CERTIFICATE OF SERVICE

      I certify that a true and correct copy of Appellant’s brief was delivered via
U.S. Mail to the following parties on 26 March 2015:

Michael West
Assistant District Attorney
Smith County District Attorney
100 N. Broadway Avenue, 4th Floor
Tyler, Texas 75702

Jim Ferguson Unit
Inmate: Rickey Neal, Jr.
TDCJ No. 01934438
12120 Savage Dr.
Midway, Texas 75852



                                      /s/ Carlo D’Angelo




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