                                                                                  PD-0186-15
                                                               COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                              Transmitted 4/6/2015 9:26:43 PM
                                                               Accepted 4/13/2015 1:44:20 PM
APRIL 13, 2015                                                                   ABEL ACOSTA
                                                                                         CLERK
                                                    ORAL ARGUMENT REQUESTED


                           No. PD-0186-15
                      In the Court of Criminal Appeals
                              Austin, Texas

                             ROBERT LYNN PRIDGEN,
                                                         Petitioner / Appellant,

                                       v.

                              THE STATE OF TEXAS,

                                                        Respondent / Appellee.


                 On appeal from the 369th District Court, no. 29956,
                  Anderson County, Texas, and the Tyler Court of
                           Appeals, No. 12-13-00136-CR



                   PETITION FOR DISCRETIONARY REVIEW


James W. Volberding
SBN: 00786313

First Place                               (903) 597-6622
100 E. Ferguson Street                    (866) 398-6883 (fax)
Suite 500                                 e-mail: james@jamesvolberding.com
Tyler, Texas 75702
Attorney for the Petitioner, Robert Lynn Pridgen
                       No. PD-0186-15
                 In the Court of Criminal Appeals
                         Austin, Texas

                        ROBERT LYNN PRIDGEN,
                                                    Petitioner / Appellant,

                                  v.

                         THE STATE OF TEXAS,

                                                   Respondent / Appellee.


            On appeal from the 369th District Court, no. 29956,
             Anderson County, Texas, and the Tyler Court of
                      Appeals, No. 12-13-00136-CR



               PETITION FOR DISCRETIONARY REVIEW


     To the Honorable Court of Criminal Appeals:

     Mr. Robert Lynn Pridgen, Petitioner, asks the Court to grant

discretionary review, then acquittal or retrial of his murder conviction.




                                       ii
                  THE PARTIES AND THEIR COUNSEL

     The following is a list of all parties to the trial court’s judgment
and the names and addresses of all trial and appellate counsel:

Petitioner                               Petitioner’s Counsel
Mr. Robert Lynn Pridgen                  Mr. James W. Volberding
                                         First Place
                                         100 E. Ferguson Street
                                         Suite 500
                                         Tyler, TX 75702
                                         (903) 597-6622

                                         Petitioner’s Trial Counsel
                                         Mr. Jeff Haas
                                         100 E. Ferguson, Suite 908
                                         Tyler, TX 75702

State of Texas                           State’s Appellate Counsel
                                         Ms. Allyson Mitchell
                                         Anderson County District
                                          Attorney
                                         500 N. Church Street, Room 38
                                         Palestine, TX 75801

                                         State’s Trial Counsel
                                         Mr. Douglas Lowe
                                         Mr. Stanley Sokolowski
                                         Mr. Scott Holden
                                         Anderson Co. Asst. District
                                          Attorneys




                                   iii
(Parties, cont.)

Judges                   Hon. Deborah Oakes Evans,
                          369th District Court, Anderson
                          County

                         Hon. Bascom W. Bentley, III,
                          369th District Court, Anderson
                          County

Justices                 Hon. Chief Justice James T.
                          Worthen
                         Hon. Justice Sam Griffith
                         Hon. Justice Brian Hoyle

                   /s/ James W. Volberding
                   _______________________________
                   James W. Volberding




                    iv
                                               CONTENTS

The Parties and Their Counsel ................................................................ iii

Authorities ................................................................................................ vii

Statement Regarding Oral Argument ................................................... viii

Statement of Jurisdiction ....................................................................... viii

Statement of the Case ............................................................................. viii

Statement of Procedural History ..............................................................ix

Grounds For Review ...................................................................................1

Statement of Facts ......................................................................................1

Argument .....................................................................................................8

    Ground I. Albeit stating the proper standard, the appellate court
    erred by actually applying a constitutionally deficient and
    discredited standard of sufficiency review. .........................................8

        A.       The court of appeals’ favored items of proof did not come
                 close to eliminating reasonable doubt. ……………………… 10

        B.       The appellate court’s analysis ignored undisputed facts
                 inconsistent with murder.……………………………………... 15

    Ground II. In assessing the case for self-defense, the appellate court
    erred by applying an unconstitutional hindsight viewpoint as to
    whether deadly force was necessary. ..................................................18

    Ground III. The appellate court erred in holding that the decedent’s
    photos of simulated sexual violence were inadmissible. ....................20




                                                       v
(Contents, cont.)


            A. The photos are material to Pridgen’s statutorily authorized
               defense……………………………………………………………. 21

            B. The photos are probative of self-defense…………………….. 22

            C. The photographs speak loudly for themselves and 12 citizen
               jurors should be permitted to listen………………………….. 23

            D. The appellate court undertook its own impermissible fact-
               weighing and credibility assessment………………………….24

Conclusion .................................................................................................25

Relief Sought .............................................................................................26

Certificate of Compliance .........................................................................27

Certificate of Service .................................................................................27

Appendix ....................................................................................................28

    Tyler Court of appeals opinion
     Pridgen v. State, 2014 Tex. App.
     LEXIS 12915 (Tex. App. --- Tyler
     Dec. 3, 2014, pet. filed)……………………………………………...... A-1

    Denied sexually explicit photographs by Rohne …………………… A-2




                                                      vi
                                           AUTHORITIES

CASES
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ............17, 24, 25
California v. Trombetta, 467 U.S. 479 (1984) .........................................25
Cooper v. State, 95 S.W.3d 488 (Tex. App.---Houston [1st Dist.]
  2002, no pet.) .........................................................................................22
Craig v. Boren, 429 U.S. 190 (1976) ........................................................23
Crane v. Kentucky, 476 U.S. 683 (1986) ..................................................25
Holmes v. South Carolina, 547 U.S. 319 (2006) .....................................25
In re Winship, 397 U.S. 358 (1970) .........................................................17
Jackson v. Virginia, 443 U.S. 307 (1979) ....................................14, 17, 18
Miller v. State, 36 S.W.3d 503 (Tex. Crim. App. 2001)………… 20, 22, 25

STATUTE
Tex. Penal Code § 9.32 (2011) ............................................................ 18-19

RULES
Tex. R. Crim. Evid. 401 .............................................................................20
Tex. R. Crim. Evid. 402 .............................................................................20




                                                    vii
               STATEMENT REGARDING ORAL ARGUMENT

      The Court will benefit from oral argument. This fact-intensive
murder/self-defense case pivots on two concepts. First, the case
delineates the difference between the constitutionally mandated
beyond-reasonable-doubt review standard of Jackson v. Virginia and
the lower, forbidden civil-sufficiency standard. The court of appeals
clearly applied the latter standard. But it never understood it was doing
so, a mistake subject to repetition. Second, the case explores the legal
framework for admitting pre-incident photos of simulated sexual
violence. The jury was explicitly charged to consider evidence of the
decedent’s sexual assault on defendant Pridgen. The photos would have
corroborated Pridgen’s protest that the decedent carried a knife and
intended sexual assault. When they were excluded, Pridgen was denied
the ability to prove self-defense.

      The decision in this case will affect scores of similar murder/self-
defense appeals. This appears to be the first case addressing whether
admission of intended rape evidence requires proof that the rapist was
of the same gender.

                     STATEMENT OF JURISDICTION

      This Court possesses jurisdiction under Texas Constitution Art. V,
§§ 1, 5 and Tex. Gov’t Code § 22.201, et seq.


                       STATEMENT OF THE CASE

Nature of the case          Prosecution for murder, under Texas Penal
                            Code section 19.02, and the lesser-included
                            offense of manslaughter, under section
                            19.04.

District court              Hon. Deborah Oakes Evans, 369th District
                            Court, Anderson County

                                   viii
(Case, cont.)

Course and disposition Mr. Pridgen pled not guilty. RR11:8-9.
of proceedings         After the court denied his motion for
                       directed verdict, a jury convicted Pridgen of
                       murder, RR15:65; CR166, and sentenced
                       him to 20 years incarceration, RR15:128;
                       CR163, 164. The court denied Pridgen’s
                       motion for new trial, by operation of law.
                       RR13:137; CR170, 174 (presented).

                           Properly certified, CR157, Pridgen timely
                           appealed. CR177.

                           The Court of Appeals affirmed in a written
                           unpublished opinion.

                STATEMENT OF PROCEDURAL HISTORY

Date of court of appeals opinion           December 3, 2014
 Pridgen v. State, 2014 Tex. App.
 LEXIS 12915 (Tex. App. --- Tyler
 Dec. 3, 2014, pet. filed)

Date motion for rehearing filed            January 20, 2015
                                           (extension granted)

Date rehearing motion overruled            January 30, 2015
                                    !




                                    ix
                          GROUNDS FOR REVIEW!

I.     Albeit stating the proper standard, the appellate court erred by
       actually applying a constitutionally deficient and discredited
       standard of sufficiency review. (Presented: Pridgen’s Jan. 20,
       2015, motion for rehearing at 1; Opening Brf. at 8-24; Directed
       verdict, RR15:65, MNT, RR13:137; CR170-174).

II.    In assessing the case for self-defense, the appellate court erred by
       applying an unconstitutional hindsight viewpoint as to whether
       deadly force was necessary. (Presented: Pridgen’s motion for
       rehearing at 11; Opening Brf. at 8-24, 25-28; Directed verdict,
       RR15:65, MNT, RR13:137; CR170-174).

III.   The appellate court erred in holding that the decedent’s photos of
       simulated sexual violence were inadmissible. (Presented:
       Pridgen’s motion for rehearing at 13; Opening Brf. at 28-49;
       Directed verdict, RR15:65, MNT, RR13:137; CR170-174).

                          STATEMENT OF FACTS

       Robert “Lynn” Pridgen shot and killed his friend, Paul Rohne, in

Pridgen’s home late at night.

       In response to Pridgen’s 911 call, police drove to Pridgen’s

Montalba home in which Rohne, recently divorced, rented a room.

RR14:9. They found Rohne slumped on the love seat, dead. RR12:59, 60-

62, 88-93, 121-22.




                                     1
     Both men were drunk. RR12:95-96, 106-07; 14:35. Alcohol bottles

lay throughout the kitchen. RR12:179-80. Rohne’s post-mortem blood-

alcohol content -- 0.33 -- was four times the legal limit. RR12:222. On a

911 call, sounding drunk, Pridgen acted nonchalantly with the operator,

explaining that there was a dead man on his couch. RR12:33-39, 47;

SX1 (recording).

     Nothing was knocked over; there was no sign of any struggle.

RR12:139, 181-82; RR14:38, 116-17.When arrested, Pridgen cooperated

completely. RR12:100.

     At trial Pridgen, 55, a retired TDC prison guard, explained what

happened. When his friend Paul Rohne, 40, divorced, Rohne and his ex-

wife persuaded Pridgen to rent Rohne a room in Pridgen’s Montalba

house   because    of   Rohne’s   heavy   drinking.   RR14:12-13,   53-55.

Otherwise, they feared, Rohne was “going to kill somebody [with his

drunk driving] ‘[i]f he keeps living up there in Tyler.’” RR14:12, 47-48.

Pridgen retained the master bedroom and the right to come and go.

RR14:13.




                                    2
     Seven months passed without incident. RR14:13-14, 55, 124-25.

Pridgen, intending to stay for a couple of days, RR14:14-15, arrived at

the Montalba house with some personal items, a case of beer, and an

unfinished vodka bottle. RR14:15-16, 59-60, 75, 77. He also brought a

12-gauge shotgun loaded with birdshot, which he used to frighten away

feral hogs, and the .45 pistol he regularly carried. RR14:15-16, 59.

     Pridgen and Rohne, who often drank together, RR14:16-17, 47-49,

52-53, 57, did so this time. Rohne had his own beer and vodka.

RR14:17-18; 71-74; SX82, 23 (photos). They drank and smoked until

late, watching TV and discussing fishing, hunting, women, politics and

the war. RR14:19, 61-64.

     Talk turned to sex. A week earlier, Rohne told Pridgen that he

hired a couple of Dallas prostitutes to chain him with leg-irons and

hand-cuffs to a bed. RR14:20-21, 66-67, 125. This time, Pridgen asked

Rohne to tell details. RR14:21-22, 66-67:

     I asked Paul, . . . “Tell me what those whores did to you.”

     And he said, “Oh, no, I'm not going to.” Probably 20 minutes
     later, I said, “Come on, Paul, tell me what they did to you.”
     And he said, “Oh, you would be surprised.” And a short time

                                    3
     after that, he said to me, “Lynn, you seem to be showing an
     awful lot of interest in that. You ought to try it some time.”
     And I said, “You've got to be fucked up.” And that was the
     end of the conversation regarding any of that.

     RR14:22, 26, 68-70 (Grammatical marks inserted for clarity.
     First paragraph outside jury, but before jury on page 68).

     Discussion turned to other subjects. RR14:39-40, 70-71.

     Pridgen fell asleep around 11 p.m., upright on the love seat.

RR14:30-32, 35, 65, 83-84.

     Near 1:25 a.m., he awoke to find the much larger Rohne (Rohne

was 6’, 4-1/4” and weighed 270 pounds; Pridgen is 5’, 8” and ninety

pounds lighter, RR14:38, 50) in unfastened shorts, pressed against

Pridgen, with his left hand rubbing Pridgen’s genitals. RR14:30-32, 34,

85-86, 120 (see photos SX9, 54). (Rohne had recently shaved his pubic

hair (RR12:234-35; SX63 (autopsy report, p. 3).) Rohne cooed, “Don’t get

up. Just relax and enjoy the pleasure.” RR14:30-32, 87, 114.

     Frightened, Pridgen leapt up and ran the several steps to the

sliding glass door, locked. RR14:31-21, 62-63, 88, 90-92. When he

turned, he saw Rohne with a knife in his right hand rising from the love

seat, eyes toward him. RR14:33, 92-94, 116, 121, 123. Surmising he was

                                   4
about to be killed (or as he surmised after shooting, handcuffed to a bed

and raped), and reacting to his prison-guard training, Pridgen

instinctively grabbed the shotgun that was propped by the door, turned,

and shot Rohne once center mass. Rohne slumped back onto the love

seat, where he died. RR14:35, 39, 40, 46, 94-96, 97-99, 102-03, 113-15,

118, 125, 130.

     For some minutes Pridgen, very drunk and dazed, stared at

Rohne. RR14:36, 99-101. In retrospect, he was suffering shock.

RR14:36, 99, 103, 105. He touched nothing. RR14:37. He called 911.

RR14:36, 101.

     He had never before seen Rohne’s knife. RR14:37. He certainly did

not plant it. RR14:37, 116.

     Throughout trial, the State argued—incredulously—that Pridgen

had killed Rohne as a means to evict him, and then—in the midst of his

deep, drunken stupor somehow managed to fabricate self-defense by:

        • planting a knife without leaving any trace of his DNA or
          prints;
        • reading a self-defense article from a gun magazine;
        • delaying calling 911;
        • calling his brother to concoct self-defense;

                                   5
         • falsely claiming attack in the 911 call; and
         • falsely claiming that Rohne stood from the love seat when
           his feet were crossed.

See supra and RR15:19-33, 54-64. The State argued that Pridgen made

up the account of Rohne’s sexual advances. According to the State,

Rohne was just a good ‘ol boy, like so many of the jurors, and Pridgen’s

contrary testimony was unbelievable.

       To counter these arguments and prove self-defense, Pridgen

sought to corroborate his testimony about Rohne’s homosexual attack.

He offered photographs taken by Rohne himself and found in Rohne’s

room. The photos cataloged Rohne’s (1) practice of simulated sexual

violence, (2) use of sexual-fantasy toys, and (3) wearing of sexual role-

play   clothing—including   a   “French   maid”   outfit,   suggesting   a

transsexual lifestyle. (See Appendix A-2.) The trial court barred the

proof’s admission, finding it irrelevant—even under the minimal

threshold of Evidence Rule 402—and further finding it outside the

allowance, in Rule 404, for proving a victim’s character or nature or

intent or motive.




                                   6
     Unaware of this critical contextual proof, the jury bought the

State’s argument and convicted Pridgen, who had no previously

criminal history, of murder, rejecting the lesser manslaughter, RR15:65,

and sudden passion, and assigned 20 years incarceration, RR15:128;

CR163, 164.




                                   7
                                 ARGUMENT

       Respectfully, the court of appeals’ analysis falls short in three

critical respects:

     • It applies a constitutionally deficient standard of review.

     • It misapplies the substantive elements of self-defense.

     • And it gets the admission-of-evidence analysis entirely wrong.


I.     Albeit stating the proper standard, the appellate court
       erred by actually applying a constitutionally deficient and
       discredited standard of sufficiency review. (Presented:
       Pridgen’s Jan. 20, 2015, motion for rehearing at 1; Opening Brf. at
       8-24; Directed verdict, RR15:65, MNT, RR13:137; CR170-174).

       While saying that murder must be proved and self-defense

rejected beyond all reasonable doubt – i.e., to a near-certainty – the

court of appeals actually applied a constitutionally prohibited “no

evidence” standard. The court searched only for a scintilla or mere

modicum of allegedly incriminating evidence and, on finding such proof,

called it a day.

       This is no mere technicality. When examined under the correct

standard of review, the proof here misses the required mark (guilt



                                      8
beyond reasonable doubt) widely—so widely, in fact, that we can negate

the State’s burden via a single undisputed fact: Rohne was found

clutching a knife, with no evidence it was planted.

        The scientific proof about the knife – the only probative evidence

respecting how it came to be in Rohne’s hand – was that it was at least

equally probable that Rohne wielded the knife as that he didn’t. See

RR12:224 (Pathologist “I wouldn’t even speculate.”). The responding

officers’ comments (about a so-called death grip, etc.) were pure

surmise, categorized as non-probative nonsense by the pathologist.

RR12:224. This is critical because if Rohne held a knife, the case for

murder crumbles, regardless how the Court might analyze any other

fact.

        The State has not even suggested that a murder conviction could

be sustained if Rohne wielded the knife. And it cannot. The remaining

items of the State’s “evidence” (such as the absence of a struggle) either

are so flimsy as to be utterly incapable of sustaining any inference at all

of murder, or they are so weakly suggestive of it that the unresolvable

uncertainty surrounding the knife simply swamps whatever slight

                                     9
effect they otherwise could have. That is, the equal probability that

Rohne held the knife defeats the case for murder. Given the abject

uncertainty about Rohne’s use of the knife, the case for murder is no

more probable than the case for self-defense. No rational jury, apprised

by the pathologist of the probabilities respecting Rohne’s use of the

knife, could find murder beyond all reasonable doubt.

      A. The court of appeals’ favored items of proof did not
         come close to eliminating reasonable doubt.

      The reasonable doubt that Rohne’s knife established was not

defeated by any other proof. For its contrary holding, the appellate

court listed nine items of evidence that it says “permit[ed] a rational

jury to conclude that deadly force was not immediately necessary,” slip

op. at 8:

      1.    Bruises on Rohne
      2.    Lack of signs of struggle
      3.    Rohne and Pridgen were intoxicated
      4.    911 call
      5.    Absence of prior confrontations
      6.    Rohne’s mellow demeanor
      7.    Weapon discharged at elevated position
      8.    Rohne’s position on loveseat with ankles crossed
      9.    Pridgen’s testimony he thought only of Rohne and the knife



                                   10
     Most of these items just are not probative and thus are incapable

of sustaining any inference of murder. And not one of these nine items

rationally contradicts self-defense.

  Evidence       Supposition                   Rational Test
Bruises on      That Pridgen       ! The pathologist, who rejected the
Rohne           assaulted him      bruises as proof of an assault by
                                   Pridgen, RR12:216, said the bruises
                                   could have existed for hours before the
                                   shooting. RR12:215-16.

                                   ! Rohne was tall, heavy, and .33
                                   drunk. It is more logical that he
                                   stumbled and hit the floor or a
                                   cabinet.

                                   ! Pridgen had no bruises himself. It is
                                   implausible that the smaller, weaker,
                                   sicker man inflicted bruises on the
                                   larger, stronger, younger man, but
                                   sustained no bruising himself.
Lack of signs   That Pridgen       ! The far more logical conclusion is
of struggle     assaulted him      that Pridgen did not strike Rohne,
                                   there was no struggle and Rohne
                                   attempted to seduce Pridgen.

                                   ! The officer testified that a man
                                   with a knife could stab a victim
                                   quickly unless the victim acted fast.
                                   RR13:50-51.




                                       11
  Evidence      Supposition                Rational Test
Rohne and      In a stupor,    ! Why would Pridgen, in his own
Pridgen were   Pridgen         home, shoot a long time friend paying
intoxicated    decided to      him rent, drunk or not?
               murder his
               friend          ! The logical conclusion is that
                               something unexpected occurred, like
                               attempted seduction, increasing the
                               vital need for Rohne’s photos to prove
                               it was so.
911 Call       Pridgen’s       ! The 911 call is at worst a neutral
               callousness     event. Pridgen was drunk and in
               shows lack of   shock.
               remorse
                              ! That he called 911 and remained at
                              the scene supports self-defense.
Absence of     That Rohne did ! Proof that something astonishing
prior          not pull knife must have occurred to justify a
confrontations                shooting.




                                12
  Evidence        Supposition                  Rational Test
Rohne’s          That Rohne        ! As the pathologist confirmed, if
position on      was sitting       Rohne was attempting to stand with a
loveseat with    when shot         knife, and was shot by a shorter man,
ankles                             gravity and the blast could have
crossed                            pushed Rohne back down into the
                                   seat, RR12:239-40, precisely what
                                   Pridgen said occurred, RR14:95-96,
                                   119, 121-22.

                                   ! Police officer agreed. RR12:189.

                                   ! Pathologist explained alcohol’s
                                   destruction of fine motor skills and the
                                   ability to walk. RR12:223; also officer:
                                   12:180-81. That Rohne stumbled,
                                   tripped or crossed his feet is
                                   predictable.
Pridgen’s        That Pridgen      ! The knife alone was sufficient cause
testimony he     shot Rohne        to shoot Rohne.
thought only     only because he
of Rohne and     had a large
the knife, not   knife, not for
rape             fear of rape
Weapon           That Pridgen      ! Pridgen admitted standing, and
discharged at    was standing      never contended that Rohne was fully
elevated         while Rohne       standing. Rohne was rising with the
position         was sitting       knife, consistent with self-defense.

                                ! The knife is the reason for self-
                                defense.
Rohne’s          That Rohne did ! Again, the appellate court ignored
mellow           not pull the   the knife. What is this mellow man
demeanor         knife on       doing with a 16-ounce knife? Mellow
                 Pridgen        people kill every day.

                                    13
      Even if these items, taken in hindsight, could establish a modicum

of proof that deadly force was not necessary, there is nothing

approaching proof beyond a reasonable doubt that Pridgen did not in

fact reasonably believe such force was necessary when he pulled the

trigger.

      While the appellate court was entitled to presume the jury

resolvedy conflicting inferences in favor of the prosecution, Jackson v.

Virginia, 443 U.S. 307, 326 (1979), this did not authorize the jury to

speculate its way into a criminal conviction, any more than it

authorized the appellate court to speculate its way to affirmance. And

yet that is exactly what has happened. The appellate court has parlayed

what is at best a “mere modicum” of proof into the basis for a murder

conviction. Constitutional due process forbids this. “[I]t could not be

argued that such a “modicum” of evidence could by itself

rationally support a conviction beyond a reasonable doubt.”

Jackson, 443 U.S. at 320 (emphasis added).

      Any attempt to rationalize a murder verdict in this case hinges on

speculation that the knife was planted – by the same drunk who made

                                   14
the bizarre 911 call the appellate court quotes. Pridgen’s reasonable

belief that force was necessary can’t be disproved beyond all reasonable

doubt if there was a knife. The only credible evidence respecting the

knife (and thus the only proof the jury could credit in its deliberation)

shows the presence of a knife was equally probable with its absence. So

no rational fact-finder could conclude that murder was proved beyond

all reasonable doubt.

     B.    The appellate court’s analysis ignored undisputed
           facts inconsistent with murder.

     The appellate court ignored seven items of incontestable fact:

   Evidence                        Proof of Self-Defense
The knife          ! Officers testified the one-pound knife is a deadly
                   weapon. RR13:42.

                   ! Only two equally probable possibilities exist: (1)
                   Pridgen planted the knife, for which no proof exists,
                   or (2) Rohne had the knife, and Pridgen had the
                   right to shoot him.
Pridgen’s home     ! The shooting was not in a honky-tonk. It was
                   inside Pridgen’s home, where he had every
                   entitlement to self-protection.

                   ! It is implausible Pridgen would plot murder in his
                   home, without any motive, but highly likely he
                   would defend himself given a knife threat.



                                   15
    Evidence                       Proof of Self-Defense
The difference in   ! Rohne was 15 years younger, 8 inches taller, and
size, age and       90 lbs heavier than Pridgen, who suffered from
condition of the    chronic obstructive pulmonary disease, RR14:38;
two men             SX53, 63; RR14:38, 50.

                  ! It is impossible that the much smaller Pridgen
                  inflicted bruises on Rohne while receiving none,
                  without disturbing the room. But it does explain
                  why Rohne selected Pridgen as a victim.
Pridgen’s prison  ! Police verified that officers are trained to fire
guard training    center of the chest of a knife attacker within 21 feet
                  (now 27-feet) because an attacker at close range can
                  stab faster than officer can fire. RR13:43-44, 46-47,
                  50-51;12:191-92. Pridgen, a former prison guard, is
                  similarly trained. His instinctive reaction to fire
                  tends to support that he faced a real threat.
Officer’s         ! The police officer, testifying as the State’s expert,
testimony that    confirmed that shooting under these circumstances is
shooting in       self-defense. RR13:46-47; 50-51. No reasonable juror
response to knife can set aside that testimony without a valid basis,
wielder within 21 and none exists.
feet is
appropriate self-
defense
Rohne changed to ! This is unrebutted proof of Rohne’s intent.
shorts which he
unfastened
The government’s ! No rational person could reasonably believe a
weak attempt at homeowner killed a renter to expel him when the
motive – to expel renter was a month-to-month tenant.
a renter




                                   16
     A reviewing court must consider these facts if it is going to

conduct a sufficiency review consistent with the Jackson beyond-a-

reasonable-doubt standard. The appellate court’s refusal to do so proves

it applied a “scintilla” or “mere modicum” test: having found 9 items it

believes supply a modicum of guilt evidence, the court saw no point in

examining any other record facts, no matter how strongly they might

point away from murder. Such analysis is constitutionally wrong. “[I]t

could not be argued that such a “modicum” of evidence could by

itself rationally support a conviction beyond a reasonable

doubt.” Jackson, 443 U.S. at 320 (citation omitted) (emphasis added);

accord Brooks v. State, 323 S.W.3d 893, 916 & n.20 (Tex. 2010)

(Cochran, J., concurring).

     The appellate court’s review of cherry-picked evidence—the kind

of ‘no-evidence’ review afforded in civil cases—is precisely barred in this

criminal case. In re Winship, 397 U.S. 358, 363 (1970) (“[A] person

accused of a crime . . . would be at a severe disadvantage, a

disadvantage amounting to a lack of fundamental fairness, if he could




                                    17
be adjudged guilty and imprisoned for years on the strength of the same

evidence as would suffice in a civil case.”) (citation omitted).


II.   In assessing the case for self-defense, the appellate court
      erred by applying an unconstitutional hindsight viewpoint
      as to whether deadly force was necessary. (Presented:
      Pridgen’s motion for rehearing at 11; Opening Brf. at 8-24, 25-28;
      Directed verdict, RR15:65, MNT, RR13:137; CR170-174).

      When it comes to self-defense, the appellate court did not even get

the substantive elements right. The nub of the court’s analysis, on page

eight of its slip opinion, is that certain cherry-picked proof “permit[ted]

a rational jury to conclude that deadly force was not immediately

necessary ....” Slip op. at 8. But the question is not whether a jury could

in hindsight conclude that deadly force was unnecessary. It is whether a

jury rationally could conclude to a near certainty that Pridgen – clearly

drunk and reacting in real time – could not have formed a reasonable

belief that deadly force was necessary, see TEX. PENAL CODE ANN. § 9.32,

and, further, could conclude that this conclusion was established so

soundly as to exist beyond any reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319 (1979) (“[B]y impressing upon the factfinder the need



                                     18
to reach a subjective state of near certitude of the guilt of the accused,

the standard symbolizes the significance that our society attaches to the

criminal sanction”).

     The question, as respects self defense under Penal Code Section

9.32, is what Pridgen himself, in the critical instant and faced with the

particular circumstances, might reasonably have believed when he

pulled the trigger. TEX. PENAL CODE ANN. §9.32(a) (imposing a

subjective standard under which deadly force is justified “when and to

the degree the actor reasonably believes the deadly force is immediately

necessary ... to prevent the other’s use or attempted use of unlawful

deadly force” or “to prevent the other’s imminent commission of ...

murder, sexual assault, [or] aggravated sexual assault ...”). Under this

statute, the appellate court’s analysis—which asks whether a detached

observer, in the calm and clarity of hindsight, could “conclude that

deadly force [in fact] was not immediately necessary,” slip op. at 8—is

beside the point.




                                   19
III. The appellate court erred in holding that the decedent’s
     photos of simulated sexual violence were inadmissible.
     (Presented: Pridgen’s motion for rehearing at 13; Opening Brf. at
     28-49; Directed verdict, RR15:65, MNT, RR13:137; CR170-174).

      “A defendant has a fundamental right to present evidence of a
      defense as long as the evidence is relevant and is not excluded by
      an established evidentiary rule.”

            Miller v. State, 36 S.W.3d 503, 507 (Tex. Crim. App. 2001)



     Evidence in a criminal trial is “relevant” if it has “any tendency to

make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it

would be without the evidence.” TEX. R. CR. EVID. 401; Miller, 36 S.W.3d

at 507. The photos of Rohne (attached to this petition) clearly meet this

test and thus are admissible under Evidence Rule 402. TEX. R. CR. EVID.

402 (“All relevant evidence is admissible, except as otherwise provided

by ... these rules .... Evidence which is not relevant is inadmissible.”).




                                     20
        A. The photos are clearly relevant to Pridgen’s statutorily
           authorized defense.


      “The photographs, I’ll concede, there are some images of sexual
     violence. We are dealing with bondage and S&M nature, where
     people are in a superior position and an inferior position, where
     someone was being sometimes violently abused, and someone was
     receiving that violent abuse.”

            Prosecutor, RR2:11-12.




     The photos—which depict Rohne role-playing bizarre, violent

sexual fantasies—directly addressed the statutory defense jurors were

charged to decide: “[a] person is justified in using deadly force ... to

prevent the other’s imminent ... sexual assault or aggravated sexual

assault.” Jury Charge, CR152-53. The government conceded this

indirectly at trial, stating that the photos included “images of sexual

violence”   and   “bondage.”   RR2:11-12.    The   photos    counter     the

government’s contention that Pridgen fired to evict a tenant. They go a

long way to answering the prosecutor’s rhetorical question: “And who

knows what went on that night?” RR15:62-63. And, of course, the

photos are vitally necessary to rebut the government’s cries that



                                     21
Pridgen planted the knife. If the photos were not admissible already,

the government arguments would make them admissible. See Cooper v.

State, 95 S.W.3d 488, 491 (Tex. App.---Houston [1st Dist.] 2002, no pet.)

(The State’s counter arguments alone can make evidence Rule 401

relevant).

        B. The photos are highly probative of self-defense.

     To be probative, “the proffered evidence must tend to make the

existence of the fact ‘more or less probable than it would be without the

evidence.’” Miller, 36 S.W.3d at 507. So what facts are made more or

less probable by the photos?

             • That Rohne was capable of sexual assault.

             • That Rohne had a knife.

             • That Rohne grabbed Pridgen’s genitals.

             • That Rohne whispered ““Don’t get up. Just relax and
               enjoy the pleasure.”

             • That Rohne’s bruises may have been self-inflicted when
               using his sex toys (see his chains and clamps, App. A-2).

             • That Rohne and Pridgen’s lack of prior confrontation is
               consistent and explained with the secret and threatening
               activities Rohne knew of but Pridgen did not.



                                    22
               Jurors&


Rule&404(a)&   Rule&404(b)&     Self&Defense&&
(Character&    (MoCve,&         TPC&Art&9.31&
Trait)&        Plan,&Intent)&




    Rule&402&Relevance&Threshold&
                         Rohne’s&Photos,&
                         Toys&and&
                         Equipment&
        C. The photographs speak loudly for themselves and 12
           citizen jurors should be permitted to listen.

     Remarkably, the appellate court erected an artificial barrier to

sexual assault evidence: the evidence must be of a homosexual nature

when the victim and perpetrator are of the same gender. See slip op. at

10 (“There are no images contained in Defense exhibits 1 through 27

that show Rohne acting as an aggressor or engaging in homosexual

conduct.”) This is not only wrong—at least one photo (see App. A-2)

showed the giant Rohne cross-dressing in a maid costume—but is a

violation of the Equal Protection Clause of the Fourteenth Amendment.

See Craig v. Boren, 429 U.S. 190 (1976).

     Whether Rohne is homosexual is beside the point. Who is to say

that Rohne did not see this encounter with Pridgen as a fresh

opportunity to branch out from female prostitutes to male participants?

What rational distinction can (or should) be made between simulated

violence against women and men, censuring the one, and sanctioning

the other?

     Further, as the government conceded, RR12:11-12, the photos do

show Rohne as an aggressor:

                                   23
        • 7 of the photos (see App. A-2) show Rohne inflicted pain on
          himself with a genital clamp (proof his bruises may be self-
          inflicted);

        • 3 photos show that Rohne used restraint devices to simulate
          bondage and pain.

        • And other photos (DX7 and DX12) (see App. A-2) display
          rope, penis clamps, handcuffs and chains --- designed to
          inflict pain and recognized as deadly weapons. See Hill v.
          State, 913 S.W.2d 581, 583 (Tex. Crim. App. 1996) (chain is
          deadly weapon); Castro v. State, 2006 Tex. App. LEXIS 704,
          7 (Tex. App. --- Houston [1st Dist.] Jan. 26, 2006, no pet.)
          (rope is deadly weapon); Smith v. State, 186 N.C. App. 57
          (N.C. App. 2007) (handcuffs as deadly weapon).

        D. The appellate court undertook its own impermissible
           fact-weighing and credibility assessment.

     The appellate court wrote, “Appellant testified that he shot Rohne

because he ‘was in fear of his life and thought Rohne was going to kill

him.’ But as the sole judge of witness credibility and the weight to be

given their testimony, the jury was free to disbelieve Appellant’s

contention that he feared for his life.” Slip op. at 8. But the court

withheld an entire class of evidence relevant to whether Pridgen in fact

feared for his life. The photos were unique and would have been critical

to the “witness credibility” and “weight” determinations on which the




                                  24
appellate court hangs its decision. See Brooks, 323 S.W.3d at 911

(appellate court cannot sit as 13th juror).

     The exclusion of the photos was more than error; it denied critical

constitutional   rights.   “[T]he    Constitution   guarantees   criminal

defendants ‘a meaningful opportunity to present a complete defense.’”

Crane v. Kentucky, 476 U.S. 683, 690 (1986). As this Court explained in

Miller, exclusions of evidence under Rules 401 and 402 implicate the

Due Process and Confrontation Clauses of the Sixth and Fourteenth

Amendments. See Miller, 36 S.W.3d at 506. By dismissing the

photographs of Rohne on mere relevance grounds and refusing retrial,

the court of appeals violated Pridgen’s right to present a complete

defense, in contravention of Holmes v. South Carolina, 547 U.S. 319

(2006), and the Due Process and Confrontation Clauses of the Sixth and

Fourteenth Amendments. See California v. Trombetta, 467 U.S. 479,

485 (1984).

                               CONCLUSION

     A former prison official with no criminal record, standing in his

own home, shot a transsexual who pulled a knife and grabbed his

                                     25
genitals with plans for simulated or actual rape. Every rational Texan

would say this is fair reason for self-defense. When jurors see the photos

that corroborate Pridgen’s explanation and Rohne’s misconduct, they

will acquit Pridgen. The court of appeals should not stand in the way of

the most important right we have, to have accusations decided by a jury

of peers with full presentation of evidence. The Court should grant

review.

                            RELIEF SOUGHT

     Pridgen seeks discretionary review followed by acquittal or new

trial. Respectfully submitted this 6 day of April 2015,

                                  By: /s/ James W. Volberding
                                  ___________________________________
                                  JAMES W. VOLBERDING
                                  SBN: 00786313

                                  First Place
                                  100 E. Ferguson Street
                                  Suite 500
                                  Tyler, Texas 75702
                                  (903) 597-6622
                                  (866) 398-6883 (fax)
                                  e-mail: james@jamesvolberding.com

                                  Attorney for Appellant,
                                  Mr. Robert Lynn Pridgen

                                    26
                    CERTIFICATE OF COMPLIANCE

     I certify that this document is written in 14-point font and
contains 4,238 words, as measured from the Statement of Facts through
the Relief Sought, plus about 200 words in pages containing exhibits.
                                 /s/ James W. Volberding
                                 ____________________________
                                 James W. Volberding

                      CERTIFICATE OF SERVICE

     I hereby certify that a true and correct copy of this pleading has
been delivered this 6 day of April 2015 to:

     Anderson County District Attorney
     500 N. Church Street, Room 38
     Palestine, TX 75801

     State Prosecuting Attorney
     P. O. Box 13046
     Austin, Texas 78711-3046

     by the following means:

     _____      By U.S. Postal Service Certified Mail, R.R.R.
     _X___      By First Class U.S. Mail
     _____      By Special Courier _______________________
     _____      By Hand Delivery
     _____      By Fax before 5 p.m.
     _____      By Fax after 5 p.m.
     _____      By email.
                                  /s/ James W. Volberding
                                 ____________________________
                                 James W. Volberding

                                  27
                     APPENDIX

Tyler Court of appeals opinion
 Pridgen v. State, 2014 Tex. App.
 LEXIS 12915 (Tex. App. --- Tyler
 Dec. 3, 2014, pet. filed) …………………………………………………. A-1

Denied photographs of Rohne …………………………………………… A-2




                        28
                                          NO. 12-13-00136-CR

                                IN THE COURT OF APPEALS

                  TWELFTH COURT OF APPEALS DISTRICT

                                             TYLER, TEXAS

ROBERT LYNN PRIDGEN,                                        §        APPEAL FROM THE 3RD
APPELLANT

V.                                                          §        JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                                    §        ANDERSON COUNTY, TEXAS

                                          MEMORANDUM OPINION
         Robert Lynn Pridgen appeals his conviction for murder. He raises three issues on appeal.
We affirm.


                                                   BACKGROUND
         An Anderson County grand jury indicted Appellant for the murder of Paul Rohne alleged
to have occurred on or about January 27, 2009. It is undisputed that Appellant fired the shot that
led  to  Rohne’s  death, but he contends that he was acting in self-defense.
         Appellant  pleaded  “not  guilty,”  and  his  first  trial resulted in a hung jury. In his second
trial,   the   jury   rejected   Appellant’s   claim   of   self-defense, found him guilty, and assessed
punishment at twenty years of imprisonment. This appeal followed.


                                        SUFFICIENCY OF THE EVIDENCE
         In his first two issues, Appellant contends that the evidence is legally and factually
sufficient   to   support   his   “affirmative   defense   of   self-defense.”      Appellant   contends   that   he   is  
entitled to an acquittal  because  the  evidence  established  his  “affirmative  claim  of  self-defense . . .
as  a  matter  of  law.”  
Standard of Review
        Appellant contends that the standard of review in this case is governed by the holding in
Matlock v. State, 392 S.W.3d 662 (Tex. Crim. App. 2013), but his reliance on Matlock is
misplaced. In Matlock, the court of criminal appeals reaffirmed that the civil standards of
review apply when  an  appellant  raises  a  legal  or  factual  sufficiency  challenge  to  a  jury’s  adverse
finding on his affirmative defense. See Matlock v. State, 392 S.W.3d 662, 668–70 (Tex. Crim.
App. 2013). This is because, in a criminal case, a defendant must prove an affirmative defense
by a preponderance of the evidence—the civil burden. See id.
        Under Matlock, the standard for reviewing the legal sufficiency of the evidence
supporting an adverse finding on an affirmative defense is as follows:


        When an appellant asserts that there is no evidence to support an adverse finding on which [he]
        had the burden of proof, we construe the issue as an assertion that the contrary was established as
        a matter of law. We first search the record for evidence favorable to the finding, disregarding all
        contrary evidence unless a reasonable fact[]finder could not. If we find no evidence supporting
        the finding, we then determine whether the contrary was established as a matter of law.


See id. at 669 (citations omitted). When examining whether an appellant established his factual
sufficiency claim, the appellate court views the entirety of the evidence in a neutral light, and
may sustain a factual sufficiency challenge on appeal


        only if, after setting out the relevant evidence and explaining precisely how the contrary evidence
        greatly outweighs the evidence supporting the verdict, the court clearly states why the verdict is so
        much against the great weight of the evidence as to be manifestly unjust, conscience-shocking, or
        clearly biased.


See id. at 671 (citing Meraz v. State, 785 S.W.2d 146, 155 (Tex. Crim. App. 1990) (en banc)).
However, the standards set forth in Matlock do not apply to the current case because self-defense
is a defense rather than an affirmative defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim.
App. 2003).
        The issue of self-defense  is  a  fact  issue  to  be  determined  by  the  jury,  and  a  jury’s  verdict  
of guilt is an implicit finding  that  it  rejected  a  defendant’s  self-defense theory. Saxton v. State,
804 S.W.2d 910, 913-14 (Tex. Crim. App. 1991) (en banc). In reviewing the sufficiency of the
evidence   to   support   the   jury’s   rejection   of   self-defense, we examine all of the evidence in the
light most favorable to the verdict to determine whether any rational trier of fact could have



                                                         2
found the essential elements of the offense and also could have found against the defendant on
the self-defense issue beyond a reasonable doubt. See id. at 914 (stating  “we  look  not  to  whether  
the   [s]tate   presented   evidence   which   refuted   appellant’s   self-defense”); Sutton v. State, No.
12-04-00150-CR, 2005 WL 3725087, at *3 (Tex. App.—Tyler  2006,  pet.  ref’d) (mem. op., not
designated for publication).          Under this standard, we do not conduct a separate factual
sufficiency review.       See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010).
Accordingly,   we   address   Appellant’s   second issue (legal sufficiency) but not his first (factual
sufficiency). See TEX. R. APP. P. 47.1.
Applicable Law
        The use of deadly force is justified as self-defense under certain circumstances. Morales
v. State, 357 S.W.3d 1, 7 (Tex. Crim. App. 2011). An actor is justified in using deadly force
against another if (1) the actor would be justified in using force under Section 9.31 of the penal
code, and (2) when and to the degree the actor reasonably believes that deadly force is
immediately  necessary  to  protect  the  actor  against  the  other’s  use  or  attempted use of unlawful
deadly   force,   or   to   prevent   the   other’s   imminent   commission   of   murder,   sexual   assault,   or  
aggravated sexual assault. See TEX. PENAL CODE ANN. § 9.32(a) (West 2011).
        Self-defense is an issue to be determined by the jury. Saxton, 804 S.W.2d at 913.
“Defensive evidence which is merely consistent with the physical evidence at the scene of the
alleged   offense   will   not   render   the   State’s   evidence   insufficient   since   the   credibility  
determination  of  such  evidence  is  solely  within  the  jury’s  province  and  the  jury  is free to accept
or reject the defensive evidence.” Id. at 914.
        When a defendant raises self-defense, he bears the burden of producing some evidence to
support his defense. See Zuliani, 97 S.W.3d at 594 (citing Saxton, 804 S.W.2d at 913); see also
McCurdy v. State, No. 06-12-00206-CR, 2013 WL 5433478, at *3 (Tex. App.—Texarkana Sept.
26, 2013,  pet.   ref’d) (mem. op., not designated for publication). Once the defendant produces
some evidence supporting his defense, the state then bears the burden of persuasion  to  “disprove  
the  raised  defense.”    Zuliani, 97 S.W.3d at 594; see also Tidmore v. State, 976 S.W.2d 724, 729
(Tex. App.—Tyler   1998,   pet.   ref’d)   (state   does   not   have   burden   of   producing   evidence   to  
affirmatively refute self-defense). The burden of persuasion does not require the production of
evidence; it requires only that the state prove its case beyond a reasonable doubt. Zuliani, 97
S.W.3d at 594.



                                                         3
The Evidence
        It is undisputed that Appellant shot and killed Paul Rohne. Appellant called 911 at
approximately 1:25 a.m. on January 27, 2009. The following discourse took place between
Appellant and the 911 dispatcher:


        Dispatch: Anderson County 911.

        Appellant:    Yeah,  how  you  doin’  tonight?

        Dispatcher: Sir, do you have an emergency?

        Appellant: Yeah I do, I got a dead man on my couch. Um.

        Dispatcher: You have a dead man on your couch?

        Appellant: Yeah, I just shot him.

        Dispatcher: You shot him?

        Appellant: Yes I did.

        Dispatcher:  What’s  your  name  sir?

        Appellant: Lynn Pridgen.

        Dispatcher: And who is the man you shot?

        Appellant: Uh, Paul Rohne.

        Dispatcher: And why did you shoot him?

        Appellant: Uh, because he was attacking me. But, you know, all this stuff needs to be hashed out
        in   court.      But   I’m   telling   you   I   got   a   dead   man   on   my couch   and   I’d   like   a[n] ambulance or
        something to come get him.

        Dispatcher: Okay, hold on for me just a second sir, okay?

        Appellant: Yeah.


At approximately 1:30 a.m., law enforcement arrived at  the  residence.    By  that  time,  Appellant’s  
911 call had ended. The 911 dispatcher called Appellant back and informed him that law
enforcement was requesting that he exit his residence. In concluding this phone call with the
dispatcher, Appellant  said,  “Cool  deal[.] You’re  doin’  good  girl.  Bye.”    
        Sergeant Ronnie Foster was among the first officers to enter the residence. He testified
that there did not appear to be any signs of struggle, that the temperature inside the residence was


                                                                     4
68 degrees, and that Rohne was deceased. Rohne was sitting on a loveseat, slumped over, with
his ankles crossed. He had a  “tight”  grip  on the side of his glasses with his left hand and “no  grip  
at  all”  on  a  knife  that  was  in his right hand.
         Deputy   Michael   Mitchell   arrived   at   Appellant’s   residence   at   the   same   time   as   Sergeant  
Foster.    When  they  arrived,  they  handcuffed  Appellant,  and  placed  him  in  Mitchell’s  patrol  car.    
Mitchell testified that Appellant had difficulty standing, his speech was slurred, and he smelled
heavily of alcohol. He testified that Appellant was intoxicated, which Appellant confirmed when
he  testified  that  he  was  “drunk”  the  night  of  the  shooting.  
         Paramedic Matthew Corbin arrived at   Appellant’s  residence  at   approximately  1:50   a.m.
Corbin confirmed that Rohne was dead and testified that he was cool to the touch, and his skin
was pale and mottled.1 Corbin testified that a  large  amount  of  blood  was  “all  over  the  place,”  and  
that blood was  “already  coagulating” when he arrived.
         The officers collected various items from the scene, including the knife in Rohne’s  right  
hand and a shotgun that they believed was used in the shooting. They swabbed the knife and
shotgun for forensic testing. The   trigger   of   the   shotgun   contained   Appellant’s   DNA,   but   no  
DNA profiles could be extracted from the knife. No usable fingerprints were obtained from the
gun or the knife.
         Cause and Time of Rohne’s Death
         Dr. Delbert Van Deusen, a forensic pathologist, performed an autopsy and determined
that Rohne’s  cause of death was a shotgun wound to the chest. He testified that Rohne had a
blood alcohol concentration of .33, “a  rather  obvious  bruise  on  the . . . right side of his face[,]
multiple bruises on his arms, a pretibial area on his legs[, and] of course, the shotgun wound to
the  chest.”     The  bruising  occurred  prior  to  Rohne’s   death, Dr. Van Deusen explained, because
bruising requires blood pressure. When Rohne was shot, he instantly lost blood pressure because
the gunshot went through his heart. Dr. Van Deusen described the bruising on Rohne’s  arms  as  
“defense   wounds”   because their pattern indicated that they were incurred from a person
attempting to protect his face or body. He agreed that an equally consistent explanation for the
cause  of  Rohne’s  bruising  was  falling.
         Dr. Van Deusen testified that Rohne’s  gunshot  wound  was front to back, downward, and
slightly   left   to   right.      He   described   the   wound   as   “more   of   a   distant   gunshot wound.” He

         1
             Corbin  explained  that  “mottled”  meant  Rohne’s  skin  appeared,  pale,  white,  and  blotchy.


                                                                 5
explained that the firearm was discharged approximately eight to ten feet away and was
positioned higher than Rohne when it was discharged. Dr. Van Deusen did not know how long
Rohne  had  been  dead  when  the  photographs  of  Rohne  (specifically  State’s  exhibits  10,  48,  and  
51) were taken. Hypothetically, he estimated that if there was some mottling of the skin, the
body was cool to the touch, and there was coagulation of blood, a person could have been dead
for  “two  or  three  hours.”2
          Dr. Van Deusen explained the differences between liver mortis and rigor mortis because
the  testimony  had  shown  that  some  of  the  officers  believed  Rohne’s  loose grip on the knife was
due to the fact that the knife was staged. Sergeant Foster testified that he expected Rohne to
have   a   “death   grip”   on   the   knife. Investigator Larry Warrick testified that he thought the
positioning of the knife was odd because Rohne’s   hand   was   “cupping”   the   knife   instead   of  
holding  it,  and  the  knife  fell  out  of  Rohne’s  hand  after  Warrick  barely  touched  it.    
          Dr. Van Deusen testified that there was not anything significant about Rohne’s  left  hand  
having a stronger grip on his glasses and his right hand being more loose and open around the
knife. He was asked,  “You  can’t  say  whether  [Appellant’s  fingers  were]  like  that  and  opened  up,  
or whether it was closed, or whether it was never closed, or—I   mean,   either   hand?”   Dr.   Van  
Deusen replied,  “I  wouldn’t  even  speculate.”
          Appellant’s  Testimony
          Appellant is a retired, fifty-nine-year-old man. He is five feet, eight inches tall, weighs
180 pounds, and has chronic obstructive pulmonary disease (COPD). He has worked as a
security officer, and as a sergeant and maintenance employee for the Texas prison system.
Appellant met Rohne sometime before 2001, and Appellant began renting part of his house to
Rohne approximately seven months before the shooting.3
          Appellant testified that he originally did not want to rent his house, but after several
months of being “begged” by Rohne  and  Rohne’s ex-wife, he finally agreed. Appellant testified,
“[B]oth   he   [(Rohne)]   and   Carla   [(Rohne’s   ex-wife)]   stated   [‘]If   I   keep   living   up   here,[’]   – or,
Carla would  say  [‘]If  he  keeps  living  up  there  in  Tyler,  he’s  going  to  kill  somebody.[’]”   Because
Appellant occasionally needed the use  of  his  Bois  D’  Arc  house, his agreement with Rohne was

          2
          State’s   exhibits   10,   48,   and   51   are   photographs   of   Rhone   from   different   angles   as   he   was   found   at  
Appellant’s  residence.    The  record  is  silent  as  to the time the photographs were taken.
          3
          Appellant’s  primary  residence  is  in  Neches,  Texas.    The  house  where  the  shooting  occurred  is  located  in  
Bois  D’Arc,  a  community  near  Montalba.


                                                                      6
that he would continue to have use of the master bedroom and bathroom, he could stay at the
house whenever he desired, and Rohne was to have use of the rest of the house.
         Appellant described Rohne as a much younger, very large man—over six feet tall and
weighing about 270 pounds. Rohne   was   one   of   Appellant’s   “drinking   buddies.” Appellant
testified that Rohne generally had a mellow demeanor when he was drinking but sometimes
became depressed and talked about killing himself.                         Rohne and Appellant never had any
disagreements, fights, or arguments prior to January 26, 2009.
         Appellant and Rohne talked on the phone almost every night. Appellant testified that he
was  sure  he  and  Rohne  had  talked  about  their  “escapades  of  the  past  a  couple  of  weeks”  before  
the shooting. But it was not until the week before the shooting that Rohne told Appellant that he
hired prostitutes in Dallas to handcuff and leg iron him to a bed.
         On January 26, 2009, at approximately 4:00 p.m., Appellant arrived at his Bois  D’  Arc  
house. Once he arrived, he and Rohne began drinking alcohol. During the night, Appellant
inquired about Rohne’s   experience with the Dallas prostitutes.                            Because Rohne had not
responded to his previous questions, Appellant continued to prod Rohne for details and stated,
“Come   on,   Paul,   tell   me   what   those   whores   did   to   you.”   Rohne   responded,   “Oh,   you’d   be  
surprised.”      Later that night, Rohne   commented   on   Appellant’s   interest   about the Dallas
prostitutes and said, “Lynn, you seem to show a lot of interest in that. You ought to try it
sometime.”    
         Sometime after 10:00 p.m., Appellant fell asleep on the loveseat and was awakened by
Rohne “rubbing  my  genitals” with  his  left  hand.    Rohne  told  Appellant,  “Don’t  get  up.    Just  relax  
and  enjoy  the  pleasure.”    Approximately one  second  after  Rohne’s  statement,  Appellant  “jumped  
up,”   and ran to the sliding glass door, but the door was locked. When Appellant turned and
looked back at Rohne, he   saw   that   Rohne   had   a   knife   in   his   hand   and   “was   getting   up,   and  
coming   towards   me.”          When   he   saw   Rohne   standing   with   the   knife,   Appellant   “thought
something bad was fixing to happen” to him. Appellant explained that he felt that he had been
sexually assaulted, and the thought running through his mind was that Rohne  “was  going  to  rape  
me,  handcuff  me  up  to  a  bed.    He  was  just  running  fast.” Appellant shot  Rohne  as  he  was  “in  the  
process of standing up,” and   testified   that   he   shot   Rohne   because   “I   was   in   fear   of   my   life.      I  
thought   he   was   going   to   kill   me.” Appellant testified that one of the photographs of Rohne




                                                              7
showed that his shorts were unbuttoned, but he did not state whether he was aware of this when
he shot Rohne.
         On cross examination, Appellant demonstrated how Rohne was positioned on the love
seat when he woke up. Appellant  confirmed  that  when  he  was  awakened  by  Rohne’s  touching,  
he did not see a knife and had no fear of a knife. But he confirmed that when he shot Rohne, he
was thinking only about Rohne and the knife. Appellant testified that “[t]he knife was the
immediate danger.” Appellant did not know how Rohne received the bruises on his face and
arms, and maintained that he had not fought with Rohne that evening.
Discussion
         To accept   Appellant’s   claim of self-defense, the jury had to find that Appellant was
justified under Section 9.31 of the penal code in using deadly force against Rhone, and that
Appellant reasonably believed the deadly force was immediately necessary to protect him against
Rhone’s   use   or   attempted   use   of   deadly   force, or   to   prevent   Rhone’s   imminent commission of
sexual assault. See TEX. PENAL CODE ANN. § 9.32(a).
         Appellant testified that he shot Rohne   because   he   “was   in   fear   of   his   life   and   thought
Rhone  was  going  to  kill  him.”    But  as  the  sole  judge  of  witness  credibility  and  the  weight  to  be  
given  their  testimony,  the  jury  was  free  to  disbelieve  Appellant’s  contention that he feared for his
life. See Saxton, 804 S.W.2d at 914. Although Rohne had bruising on his face and arms, the
living room showed no signs of struggle, and Rohne’s  gunshot wound showed that the weapon
was discharged from an elevated position. This evidence, when viewed in light of Appellant’s  
and  Rhone’s  intoxication,  Appellant’s  911  phone  calls,  Rohne’s  mellow demeanor, the absence
of prior confrontations between Rohne and Appellant, and Rohne’s  position on the loveseat with
his ankles crossed, permits a rational jury to conclude that deadly force was not immediately
necessary   to   protect   Appellant   from   Rohne’s   alleged   use   or   attempted   use   of   unlawful   deadly  
force. See TEX. PENAL CODE ANN. § 9.32(a)(2)(A); Saxton, 804 S.W.2d at 914.
         Appellant testified  further  that  Rhone  had  rubbed  his  genitals  and  he  thought  Rhone  “was  
going  to  rape”  him.    But  Appellant  contradicted  his  prior  testimony  on  cross  examination  when  
he testified that he was thinking only about Rohne and the knife when he shot Rohne. This
evidence permits a rational jury to conclude that it was not reasonable for Appellant to believe
that deadly force was immediately necessary to prevent the imminent commission of a sexual
assault. See TEX. PENAL CODE ANN. § 9.32(a)(2)(B),(b)(10(c); Saxton, 804 S.W.2d at 914.



                                                          8
         After viewing the evidence in the light most favorable to the verdict, we conclude that a
rational jury could have found the essential elements of the offense and also found against
Appellant on the self-defense issue beyond a reasonable doubt. Saxton, 804 S.W.2d at 914.
Therefore,   the   evidence   is   sufficient   to   support   the   jury’s   implicit   rejection   of   Appellant’s            
self-defense claim. See id. Accordingly,  we  overrule  Appellant’s  second  issue.    


                                             EXCLUSION OF EVIDENCE
         In his third issue, Appellant contends that the trial court abused its discretion by
excluding evidence that would have corroborated his testimony. He contends that the excluded
evidence   proves   “Rohne   was   an   aggressive   bisexual   hungry   to   role   play   bizarre   sexual
encounters  including  rape,  bondage,  and  torture.”    
Standard of Review
         A trial court has considerable discretion in determining whether to exclude or admit
evidence. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (en banc)
(op. on  reh’g);;  State v. Dudley, 223 S.W.3d 717, 724 (Tex. App.—Tyler 2007, no pet.). Absent
an  abuse  of  discretion,  we  will  not  disturb  a  trial  court’s  decision  to  admit  or  exclude  evidence  on  
appeal. Dudley, 223 S.W.3d at 724 (citing Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim.
App.  2005)).    Under  this  standard,  we  will  uphold  a  trial  court’s  evidentiary  ruling  as long as the
ruling  is  within  the  “zone  of  reasonable  disagreement.”    Id.
Applicable Law
         Evidence is relevant if it has  “any  tendency  to  make  the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without  the  evidence.”    TEX. R. EVID. 401. Evidence that is not relevant is inadmissible. TEX. R.
EVID. 402.
         In determining whether evidence is relevant, it is important that courts examine the
purpose for which the evidence is being introduced. Layton v. State, 280 S.W.3d 235, 240 (Tex.
Crim. App. 2009) (citations omitted). It is critical that there is a direct or logical connection
between the actual evidence and the proposition sought to be proved. Id.
         An alleged victim’s  prior  specific  acts  of  violence  are  admissible  “only  to  the  extent  that  
they  are  relevant  for  a  purpose  other  than  character  conformity.”    Torres v. State, 71 S.W.3d 758,
760 (Tex. Crim. App. 2002). In the context of proving the deceased was the first aggressor,



                                                             9
violent acts are relevant apart from showing character conformity by demonstrating the
deceased’s  intent,  motive,  or  state  of  mind.    Id. Before a specific, violent act is introduced, there
must be some evidence of a violent or aggressive act by the deceased that tends to raise the issue
of self-defense that the specific act may explain. Id. at 761. Prior specific acts of violence
relevant to the  ultimate  confrontation  may  be  offered  to  show  a  deceased’s  state  of  mind,  intent,  
or motive, and the specific violent acts need not be directed at the defendant to be admissible.
Id.   “As   long   as   the   proffered   violent   acts   explain   the   outward   aggressive conduct of the
deceased at the time of the killing, and in a manner other than demonstrating character
conformity  only,  prior  specific  acts  of  violence  may  be  admitted.  .  .  .”    Id. at 762.
Discussion
         The only contested issue at trial was whether Appellant shot Rohne in self-defense.
Appellant testified that Rohne was the first aggressor because   Rohne   rubbed   Appellant’s  
genitals, told him to relax and enjoy the pleasure, and then began to stand up from the loveseat
holding a knife in his hand. The trial court excluded twenty-seven exhibits that Appellant argues
would have increased the probability that Rohne (1) was an aggressive transvestite, (2) who
fondled  Appellant’s  genitals,   (3)  told  Appellant   to  relax  and  enjoy the pleasure, and (4) whose
next steps   “apparently   were   to   force   or   role   play   [Appellant’s]   rape   with   a   knife   (or   perhaps  
[Appellant’s]  involuntary,  forced  rape  of  Rohne).”
         Defense exhibits 2 through 27  are  photographs  of  items  found  inside  Rohne’s  room.    The  
items   include   women’s   shoes,   women’s   undergarments and other clothing,   and   various   “sex  
toys.”    Defense  exhibit  1  is  a  disc  containing  the  results  of  a  forensic  search  of  Rohne’s  laptop.    
The disc contains several different files that include links to websites which purport to contain
sexually explicit material, pornographic images of male genitalia, pornographic images of
women, and pornographic images of Rohne. The pornographic images of Rohne showed him
wearing women’s   clothing, being subjected to sexual acts with women in which he was in a
submissive position, or wearing other items with his genitals exposed. There are no images
contained in Defense exhibits 1 through 27 that show Rohne acting as an aggressor or engaging
in homosexual conduct.
         In order for Defense exhibits 1 through 27 to be admissible, they must explain the
outward aggressive conduct of Rohne at the time he was shot. Id. at 762. The evidence at trial
does not show that Rohne was wearing any of the items depicted in the proffered photographs, or



                                                           10
that Rohne was attempting to use any of the items on Appellant. No knives are shown to have
been   found   in   Rohne’s   room,   and none of the images of Rohne show him engaging in
homosexual activity or other activity in which a knife is being used. Accordingly, there is no
direct   or   logical   connection   between   these   exhibits   and   Appellant’s   contention   that   he   shot  
Rohne in self-defense. See Layton, 280 S.W.3d at 240.
         Although  the  items   found  in   Rohne’s  bedroom  and  laptop  show  that  Rohne  engaged  in  
unorthodox sexual practices, they do not make more or less probable the fact that Appellant was
in fear for his life when he shot Rohne or that he believed Rohne was going to rape him. See id.
Moreover, Defense exhibits 1 through 27  do  not   demonstrate  Rohne’s  state  of  mind,  intent, or
motive on the night of the shooting. See Torres, 71 S.W.3d at 760–62. Thus, the exhibits are
not relevant apart from showing character conformity. See TEX. R. EVID. 401; Torres, 71 S.W.3d
at 760. The trial court did not abuse its discretion by excluding Defense exhibits 1 through 27.
See TEX. R. EVID. 402; Montgomery,  810  S.W.2d  at  391.    Accordingly,  we  overrule  Appellant’s  
third issue.


                                                    DISPOSITION
         Having  overruled  Appellant’s  second  and  third  issues,  we  affirm the judgment of the trial
court.

                                                                        JAMES T. WORTHEN
                                                                           Chief Justice



Opinion delivered December 3, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




                                                          11
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                          DECEMBER 3, 2014


                                          NO. 12-13-00136-CR


                                    ROBERT LYNN PRIDGEN,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                  Appeal from the 3rd District Court
                           of Anderson County, Texas (Tr.Ct.No. 29956)


                    THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.

                    It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that the decision be certified to the court below
for observance.

                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
