AFFIRMED; Opinion Filed October 31, 2014.




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-01259-CR

                         CHRISTOPHER ALAN LUPER, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                       On Appeal from the 59th Judicial District Court
                                  Grayson County, Texas
                              Trial Court Cause No. 062211

                             MEMORANDUM OPINION
                        Before Justices FitzGerald, Fillmore, and Stoddart
                                   Opinion by Justice Stoddart
       A jury convicted Christopher Alan Luper of aggravated assault with a deadly weapon

involving family violence and sentenced him to 45 years’ confinement. In his first three issues,

Luper argues his conviction should be reversed because he was denied the right to effectively

cross-examine the complaining witnesses and a police officer in violation of the Confrontation

Clause of the Sixth Amendment, the trial court refused his requested self-defense jury

instruction, and the evidence was insufficient to establish a dating relationship between Luper

and the complainant. He also argues the trial court erred by not instructing the jury on the lesser-

included offenses of aggravated assault and deadly conduct.          We affirm the trial court’s

judgment.
       Luper and Rori Bullis met each other on a dating website called Plentyoffish.com. Over

time, they began spending more time together. They went from seeing each other once a week

or once every-other week to three or four times per week.

       After Luper and Bullis had been dating for awhile, Bullis learned that Luper was still

using Plentyoffish.com and was seeing other women. Because Bullis was paying for his cell

phone, Bullis checked the cell phone records and saw that Luper was texting and calling five or

six different women.     Bullis cut off Luper’s cell phone, which caused Luper to become

“enraged.” Luper and Bullis broke up, but began dating again after a couple of weeks. Because

Luper continued to communicate with other women, Luper and Bullis broke up again.

       After they broke up for the second time, Luper confronted Bullis about instances in

which his car was vandalized. Bullis testified that someone poured bleach into Luper’s gas tank,

“messed with” the tires, keyed his car, and wrote “stuff” on the windows. Bullis denied any

involvement in the vandalism.

       Bullis testified that one night she decided to go to Luper’s house “to try to catch him

cheating and to egg his car.” She parked around the corner from his house so that Luper would

not be able to see her approach the house. She carried a carton of eggs with her. When she

walked up to the driveway, she saw a “flash and heard a boom.” She then “screamed out, Chris,

it’s me.” Bullis began running back toward her car and kept hearing shots. Then she “was on

the ground in excruciating pain, blood going everywhere.” Luper continued shooting and shot

Bullis while she was on the ground in the street. Luper testified she had “over 200 pellets” in her

legs, buttocks, torso, and right arm. The trial court admitted photographs showing Bullis’s

injuries. Bullis testified without objection that she sustained serious bodily injury. She was at a

serious risk of death after the events and she continues to suffer from permanent disfigurement

and impaired functionality of her body.

                                               –2–
       The emergency room physician who treated Bullis testified. Describing what he saw

when he first examined Bullis, he stated: “[i]n the left leg we saw a lot of tissue loss, muscle

damage, skin peeled away. It looked like a close-range hit. The opposite leg, a little bit more

scatter, multiple puncture wounds. . . . there’s a couple hundred pieces [of shot].” He concluded

that Bullis was fortunate to be alive.

       In his first issue, Luper argues that he was denied his Sixth Amendment confrontation

right because the trial court precluded him from questioning Bullis and a police officer about the

presence of a gun in Bullis’s car on the night she was shot. To preserve a complaint for appellate

review, a party must present the trial court with a timely, specific request, objection or motion,

and obtain a ruling. TEX. R. APP. P. 33.1(a). An appellate contention must comport with the

specific objection made at trial. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012).

When deciding whether an appellate complaint comports with the trial complaint, we look to the

context of the objection and the parties’ shared understanding at the time. See id.

       At trial, Luper only complained the trial court should have permitted him to question

Bullis and the officer about the gun because the evidence was relevant. Luper did not argue that

failing to allow him to question the witnesses would violate his Sixth Amendment right to

confront his accuser. Nothing in Luper’s argument in the trial court gave the trial court notice

that he believed the trial court’s rulings violated his constitutional right. Because Luper’s

complaint on appeal does not comport with his complaint in the trial court, we conclude he did

not preserve his first issue for review.

       In his second issue, Luper argues the trial court erred by refusing to submit his requested

jury instruction on self-defense. We review a trial court’s denial of a requested jury instruction

for an abuse of discretion. See Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000).

A trial court does not abuse its discretion when its decision is within the zone of reasonable

                                               –3–
disagreement. See Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007).                 When

reviewing claims of jury-charge error, we first determine whether an error actually exists in the

charge. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).

       A defendant is entitled to an instruction on every defensive issue raised by the evidence,

whether that evidence is weak or strong, unimpeached or uncontradicted, and regardless of what

the trial court may think about the credibility of the defense. See Allen v. State, 253 S.W.3d 260,

267 (Tex. Crim. App. 2008). A trial court may refuse an instruction on a defensive theory if the

issue was not raised by the evidence. See Shaw v. State, 243 S.W.3d 647, 657–58 (Tex. Crim.

App. 2007); see also TEX. PENAL CODE ANN. § 2.03(c) (West 2011) (defensive jury instruction

not submitted to jury unless “evidence [was] admitted supporting the defense”). 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.” Shaw, 243 S.W.3d at 657–58. The question of whether a defense is raised by the evidence

is a sufficiency question, which we review as a question of law. Id. at 658.

       A person is justified in using deadly force against another person 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 the 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 aggravated kidnapping, murder, sexual assault, aggravated sexual

assault, robbery, or aggravated robbery. See TEX. PENAL CODE ANN. § 9.32(a) (West 2011)

(Deadly Force in Defense of Person).

       There is no evidence in the record that Luper believed anyone, including Bullis, would be

attempting to use deadly force against him or would be attempting to commit any of the acts

described in section 9.32(a)(2)(B). See id. The fact that Luper’s car had been vandalized in the

                                                –4–
recent past and perhaps Luper received a text message from a friend that someone was going to

damage his vehicle that night would not have given rise to a belief that the unknown actor would

use or attempt to use unlawful deadly force, against which Luper needed to protect himself. See

id. § 9.32(a)(2)(A).

       Based on the evidence, Luper could not have formed a reasonable belief that Bullis was

going to engage in conduct that would entitle him to use deadly force under section 9.32 of the

penal code. See id. § 9.32(a). Because the evidence did not raise the issue presented by Luper’s

requested jury instruction, the trial court did not abuse its discretion by refusing to submit that

instruction to the jury. We overrule Luper’s second issue.

       In his third issue, Luper argues his conviction should be reversed because there was

insufficient evidence to establish a dating relationship between Luper and Bullis. In a legal

sufficiency review, “we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” See Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011).

This standard “recognizes the trier of fact’s role as the sole judge of the weight and credibility of

the evidence after drawing reasonable inferences from the evidence.” Id.

       A “dating relationship” is “a relationship between individuals who have or have had a

continuing relationship of a romantic or intimate nature.” TEX. FAM. CODE ANN. § 71.0021(b)

(West 2014). The existence of such a relationship is determined based on consideration of (1)

the length of the relationship, (2) the nature of the relationship, and (3) the frequency and type of

interaction between the persons involved in the relationship. Id.

       Bullis testified she met Luper on an online dating website.            As their relationship

progressed, they spent more time together and “[u]p to three and four times a week he would be

staying at my house.” They had a sexual relationship. Bullis considered Luper to be her

                                                –5–
boyfriend. When asked whether Luper told Bullis he was her boyfriend, she replied: “We had

conversations about it. Just like we had conversations of marriage and having a life together.”

She had the following exchange with the prosecutor:

               Q. You let him share your house and your bed.
               A. Yes.
               Q. He told you he loved you.
               A. Yes.

Bullis testified that when she discovered Luper was communicating with five or six other

women, the couple broke up.       However, they began dating again a couple of weeks later

“because he was sorry and he was going to change.” And then Bullis caught Luper cheating

again. She testified: “It was pretty much just the same thing as it was before. He was at my

house constantly, but there was still communication with other women. Same story.” She

testified she had a dating relationship with Luper at one time.

       Additionally, a police officer testified that when he interviewed Luper, Luper told the

officer that Luper and Bullis were dating.

       Viewing the evidence in the light most favorable to the verdict, we conclude the evidence

presented to the jury, when viewed together, would allow a rational trier of fact to find beyond a

reasonable doubt that Luper and Bullis were in a dating relationship. See Adames, 353 S.W.3d at

860. The testimony shows that the parties met on a website intended for finding people to date,

Luper spent three to four nights a week at Bullis’s house toward the end of their relationship,

their relationship was sexual, they had conversations about marriage and having a life together,

Luper told Bullis he loved her, and Luper told a police officer that he and Bullis were dating.

Because a rational trier of fact could have concluded Luper and Bullis were in a dating

relationship, we overrule Luper’s third issue.

       In his fourth issue, Luper argues the trial court erred by denying his request for the jury to

consider the lesser-included offenses of aggravated assault and deadly conduct. The State agrees
                                               –6–
both offenses are lesser-included offenses in this case, but argues the trial court properly

excluded them from the jury charge.

       Luper’s argument that the jury charge should have included a charge for aggravated

assault is based on his argument that the evidence was insufficient to show he was in a dating

relationship with Bullis. His brief states: “The reason for this requested charge [for aggravated

assault] will be fully briefed in Issue No. III, because Luper denies that he was in a dating

relationship pursuant to Section 71.0021(b), of the Texas Family Code.” As we have already

concluded that the evidence was sufficient to show that Luper and Bullis were in a dating

relationship and because the only grounds that Luper argues is that there was not sufficient

evidence of a dating relationship, we do not consider his argument that aggravated assault should

have been included in the jury charge.

       Luper argues that he was entitled to an instruction on the lesser-included offense of

deadly conduct pursuant to section 22.05(b)(1) of the penal code, which states that a “person

commits an offense if he knowingly discharges a firearm at or in the direction of” one or more

individuals. See TEX. PENAL CODE ANN. § 22.05(b)(1) (West 2011). Luper offers two reasons

he believes he was entitled to this instruction. First, Luper’s brief states that he “denies that he

was in a dating relationship pursuant to Section 71.0021(b), please see Issue No. Three above.”

We have already discussed and rejected this argument. Second, he argues there was evidence he

was “startled” and so he fired the shotgun. “Furthermore, his fear an [sic] apprehension was

heightened based on the text message that someone was going to come and damage his vehicle,

plus prior incidents of criminal mischief.”

       The trial court’s decision to submit or deny a lesser included offense instruction is

reviewed for an abuse of discretion. Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App.

2004). We apply a two-pronged test to determine if the trial court should have given a jury

                                                –7–
charge on a lesser-included offense. Hall v. State, 225 S.W.3d 524, 535–36 (Tex. Crim. App.

2007). We first determine if the proof necessary to establish the charged offense includes the

lesser offense. Id. If it does, we then review the evidence to determine that if appellant is guilty,

he is guilty only of the lesser offense. Id. at 536.

       The second step is a question of fact and is based on the evidence presented at trial.

Cavazos v. State, 382 S.W.3d 377, 383 (Tex. Crim. App. 2012). This step requires the reviewing

court to determine whether “there is some evidence in the record which would permit a jury to

rationally find that, if the defendant is guilty, he is guilty only of the lesser-included offense.”

Rice v. State, 333 S.W.3d 140, 145 (Tex. Crim. App. 2011) (citing Guzman v. State, 188 S.W.3d

185, 188–89 (Tex. Crim. App. 2006); Hall, 225 S.W.3d at 536). This evidence must show the

lesser included offense is a “valid, rational alternative to the charged offense.” Id. Moreover, it

“is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense.

Rather there must be some evidence directly germane to a lesser-included offense for the

factfinder to consider before an instruction on a lesser-included offense is warranted.” Skinner v.

State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997).

       When determining the question of fact under the second step, we consider all of the

evidence actually presented at trial. Hayward v. State, 158 S.W.3d 476, 478 (Tex. Crim. App.

2005). In this review, “we cannot consider ‘whether the evidence is credible, controverted, or in

conflict with other evidence.’” Isaac v. State, 167 S.W.3d 469, 475 (Tex. App.—Houston [14th

Dist.] 2005, pet. ref’d) (quoting Hall, 158 S.W.3d at 473). Satisfying the second step requires

more than mere speculation; “it requires affirmative evidence that both raises the lesser-included

offense and rebuts or negates an element of the greater offense.” Cavazos, 382 S.W.3d at 385.

       Even if we were to conclude that deadly conduct is a lesser included offense of

aggravated assault (as Luper argues and the State concedes), we cannot conclude that if Luper is

                                                 –8–
guilty, he is only guilty of the lesser offense. A person commits aggravated assault with a deadly

weapon involving family violence if the evidence shows that he intentionally, knowingly, or

recklessly caused bodily injury to a person with whom he is or has been in a dating relationship

and used or exhibited a deadly weapon during the commission of the crime. See TEX. PENAL

CODE ANN. §§ 22.01, 22.02 (West Supp. 2014); TEX. FAMILY CODE § 71.0021(b). The offense

of deadly conduct is committed if a person “knowingly discharges a firearm at or in the direction

of” one or more individuals. See TEX. PENAL CODE ANN. § 22.05(b)(1).

         The evidence clearly established that Bullis suffered serious bodily injury. She testified

that she had “over 200 pellets” in her legs, buttocks, torso, and right arm, she was in excruciating

pain, and she suffered blood loss. The treating physician testified that Bullis suffered “a lot of

tissue loss, muscle damage” and the skin on her leg was peeled away. On her other leg, “a little

bit more scatter, multiple puncture wounds. . . . there’s a couple hundred pieces [of shot].”

         Given the evidence in this case, the jury could not have rationally found that Luper only

knowingly discharged a firearm in Bullis’s direction. We conclude the trial court did not err by

denying Luper’s request for a lesser-included offense instruction. We overrule Luper’s fourth

issue.

         We affirm the trial court’s judgment.




Do Not Publish
TEX. R. APP. P. 47                                     /Craig Stoddart/
131259F.U05                                            CRAIG STODDART
                                                       JUSTICE




                                                 –9–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

CHRISTOPHER ALAN LUPER, Appellant                   On Appeal from the 59th Judicial District
                                                    Court, Grayson County, Texas
No. 05-13-01259-CR        V.                        Trial Court Cause No. 062211.
                                                    Opinion delivered by Justice Stoddart.
THE STATE OF TEXAS, Appellee                        Justices FitzGerald and Fillmore
                                                    participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 31st day of October, 2014.




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