Stanley v. State, 2018 Tex. App. LEXIS 411 (TX Ct. App. 2018)
Court of Appeals of Texas, Second District, Fort Worth
January 11, 2018, Delivered
2018 Tex. App. LEXIS 378
DEMICO STANLEY APPELLANT V. THE STATE OF TEXAS STATE
FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. F15-1131-16
Appellant Demico Stanley appeals his conviction for murder. See Tex. Penal Code Ann. § 19.02 (West 2011). We affirm.
I. The murder of Richard Myles
In 2015, Richard Myles lived in a small, one-bedroom apartment on the second floor of a building in the Hampton Bay apartment complex with his fiancée, Laura, and their 23-month-old son, David. While Laura worked two jobs, Myles cared for David. He also sold marijuana to earn extra money. Whenever he left the apartment, he carried his marijuana stash with him in a green lunch bag.
On the afternoon of April 7, Myles was busy conducting drug deals both at and away from his apartment while Laura was at work. Kyle Carlson, one of his frequent customers, visited the apartment late that afternoon to purchase a quarter-ounce of marijuana. Although Myles was in a good mood when Carlson arrived, Carlson observed Myles’s demeanor change dramatically after he received a phone call. After the call ended, Myles invited Carlson to stay and hang out but, weary of the newly soured atmosphere, Carlson declined and left the apartment.
As soon as he returned to his own apartment, located about a quarter of a mile away, Carlson realized he had accidentally overpaid for the marijuana. He telephoned Myles, but when Myles did not answer, Carlson drove back to Hampton Bay. When he arrived back at Myles’s apartment just a few minutes later, several police officers were gathered outside the apartment, so he left.
The police had been dispatched to respond to calls from two of Myles’s neighbors after they heard gunshots ring out from Myles’s apartment. Two neighbors and a friend of Myles, Anthony Bryant, testified at trial that shortly after hearing the gunshots, they observed two men-later identified as Stanley and Adrian Quigley-running away from the apartment. Stanley ran down the stairs from Myles’s apartment first and appeared to be clutching a bag or backpack close to his body containing packages of marijuana. Quigley followed Stanley, but he ran at a slower pace because of an apparent injury to his torso. As he ran, Quigley picked up baggies of marijuana that Stanley had dropped. Stanley and Quigley ran to the parking lot, jumped into a dark blue Chevy Cruze, and fled the scene.
When Officer Andrew Criswell and Officer John Martinez of the City of Lewisville Police Department (LPD) arrived on the scene, they quickly discovered Myles’s dead body on the floor of the living room inside his apartment. When they searched the apartment, they found David in the bedroom, lying on the bed very still. Although he appeared terrified, David was not hurt. The officers wrapped him in a blanket so that he could not see the murder scene and carried him out of the apartment to wait for Laura to return home from work.
A K-9 unit arrived on the scene and traced Stanley and Quigley’s route from Myles’s apartment to the parking lot. Along the route, the unit located a discarded box of ammunition that contained some bullets and fresh blood drops in the vacant parking spot where the dogs stopped tracking.
II. The ensuing investigation and Stanley’s confession
Within days, both Quigley and Stanley had turned themselves in to the police. Quigley was first-he arrived at the LPD offices the day after the murder and was immediately taken to the hospital for treatment of a gunshot wound to his side and an injury to his finger.
A few days later, Stanley turned himself in to police in New Orleans. Detective Scott Kelly, the lead investigator assigned to the case, traveled to New Orleans, picked up Stanley, and drove Stanley back to Lewisville. While talking to Detective Kelly on the drive back to Texas and in a subsequent interview at the police station, Stanley admitted that he had shot Myles and explained his version of the events.
According to Stanley, he did not know Myles prior to April 7. Quigley had connected them, and the two had gone to Myles’s apartment that day intending that Stanley would sell Myles $2,000 worth of marijuana. Stanley claimed that shortly after he and Quigley arrived, he became paranoid that Quigley and Myles were setting him up and intended to rob him. At some point when Myles reached out and touched Stanley’s shoulder, Stanley thought that Myles was trying to take his gun. According to Stanley, he reacted by pulling his gun out of the back of his waistband as he backed away from Myles, but as he did so, his gun “accidentally” fired. In an attempt to defend himself, Myles let go of Stanley’s shoulder and grabbed Quigley, shoving him toward Stanley just as Stanley fired a second shot. Stanley said he shot the second time in an attempt to get Myles and Quigley to back away from him. As he fired the shot, Stanley backed up into the living room and toward the hallway leading to the bedroom in the back of the apartment, but Myles followed Stanley. Stanley said he continued shooting until Myles fell to the floor, at which point Stanley ran out of the apartment and to his car. According to Stanley, he did not realize he had shot Quigley until Quigley jumped into the car with him.
Stanley insisted during the interview that he did not take anything from Myles’s apartment and only left with what he had brought, including a backpack that he had when he was arrested. Myles’s green lunch bag was never located.
III. The trial
A. Guilt phase
The State charged Stanley with capital murder, alleging that Stanley killed Myles in the course of committing a robbery. At trial, Stanley’s defense denied robbing Myles and argued that he had acted in self defense out of his paranoia that Myles and Quigley were setting him up to rob him.
To rebut Stanley’s self-defense theory, the State offered the testimony of Deputy Medical Examiner Dr. Richard Fries who conducted Myles’s autopsy to relate his findings as to Myles’s injuries. Dr. Fries described six gunshot wounds and identified photographs taken of these wounds during the autopsy that were admitted into evidence. Although he could not say what position the body was in at the time the gunshot wounds occurred, he did describe the “anatomic position”-the direction the bullets took through the body-of each wound. Dr. Fries identified “gunshot wound D” as a “fatal shot” and described its path through Myles’s upper left arm and then into his chest, where it passed through his ribs, left lung, heart, diaphragm, and liver. In support of this testimony, the State also offered a photograph of Myles’s liver after it had been removed from Myles’s body and through which a metal rod had been threaded to demonstrate the bullet’s trajectory downward through the liver.
To further refute Stanley’s self-defense theory, the State offered evidence that Stanley boasted about killing Myles while he was in the Denton County Jail. Detention Officer Luke Ottinger testified that on April 21, 2015, as he was walking another inmate down the hall of the jail housing unit where Stanley was residing, he witnessed Stanley brag to the inmate, “Murder, you know that n*****, Bam, I shot that hoe a** n***** and another hoe a** n*****.” The exchange was captured on video and the video was played for the jury.
The jury convicted Stanley of the lesser-included offense of murder.
B. Punishment phase
During the punishment phase, the State offered evidence of Stanley’s criminal history, including:
an October 2012 conviction for misdemeanor assault, family violence;
two December 2011 convictions for misdemeanor assault, family violence;
a December 2011 conviction for misdemeanor criminal mischief; a December 2011 conviction for misdemeanor assault; and
an April 2008 conviction for felony aggravated robbery.
The four December 2011 convictions stemmed from an incident in which a man, Gordon Haats, had attempted to intervene in an argument between Stanley and his then-girlfriend, Jeanette Richardson. After Stanley assaulted Haats, he attempted to flee from the police. After he was apprehended, he also kicked out the window of a police patrol car. In a police interview after the incident, Stanley admitted that he had punched and kicked Haats, but claimed he did so in self defense. Haats died four days after the incident. Stanley was initially charged with murder, but he was later reindicted for aggravated assault when a doctor determined that Haats died of an unrelated cause. A jury found him guilty of the lesser-included offense of misdemeanor assault.
In his defense at trial in the case before us, Stanley offered his girlfriend’s testimony to explain his paranoia. She testified that he had been diagnosed as schizophrenic and had been hospitalized when he was younger. According to her, although he had been prescribed medication to treat the condition, he did not take it because he did not like that it made him feel groggy.
The jury sentenced Stanley to 75 years’ confinement.
Stanley’s seven issues can be grouped into two categories: (1) the trial court’s rulings on certain evidentiary objections, and (2) the trial court’s rulings on Stanley’s requests for certain jury instructions.
I. Evidentiary objections
We review the trial court’s evidentiary rulings for an abuse of discretion. Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). A trial court does not abuse its discretion unless its ruling is arbitrary and unreasonable; the mere fact that a trial court may decide a matter within its discretionary authority in a different manner than an appellate court would in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Foster v. State, 180 S.W.3d 248, 250 (Tex. App.-Fort Worth 2005, pet. ref’d) (mem. op.).
In Stanley’s first, second, third, and seventh issues, he argues that the trial court erred in overruling his objections to the following evidence: testimony that David was present in the apartment at the time of the shooting, autopsy photographs of Myles’s liver, testimony related to Haats’s death, and the video of Stanley bragging about the murder while in jail. According to Stanley, any probative value of this evidence was substantially outweighed by the dangers of unfair prejudice, confusion of the issues, misleading the jury, considerations of undue delay, or needless presentation of cumulative evidence. See Tex. R. Evid. 403.
A. Rule 403
Evidence is relevant if it has any tendency to make a consequential fact more or less probable than it would be without the evidence. Tex. R. Evid. 401. The trial court may exclude relevant evidence if its probative value is “substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” Tex R. Evid. 403. We presume that relevant evidence is more probative than prejudicial. Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 832 (1997).
In determining the probative value of evidence, we look to how strongly it serves to make more or less probable the existence of a material fact and how strongly the proponent needs the item of evidence. Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006). We then weigh the item’s probative value against the risk of unfair prejudice, confusion of the issues, the tendency to mislead the jury, the risk of undue delay, and the risk of presenting needlessly cumulative evidence. Id.; Tex. R. Evid. 403. “Unfair prejudice” has been defined as the tendency to suggest decision on an improper basis-often an emotional one. Gigliobianco, 210 S.W.3d at 641. “Confusion of the issues” refers to a tendency to confuse or distract the jury from the main issues of the case-for example, evidence that consumes an inordinate amount of time to present or answer. Id. An item may tend to mislead the jury if it may be given undue weight by the jury on other than emotional grounds. Id. And the final risks-undue delay and cumulative evidence-refer to the efficiency of the trial proceeding. Id.
With this guidance in mind, we will address the evidence with which Stanley takes issue.
B. Testimony to David’s presence at the scene
In his first issue, Stanley argues that the trial court erred in admitting testimony by Officer Criswell that David was present in the apartment at the time of the murder.
Prior to Officer Criswell’s testimony, one of the neighbors, Francisco Cruz, testified that David was in the apartment. Stanley’s counsel did not object to this testimony. Later, Officer Criswell also testified, without objection, as to the presence of the child at the apartment. Only when Officer Criswell offered testimony that the child appeared to be afraid did Stanley lodge an objection.
To preserve this issue for appeal, Stanley was required to lodge a timely objection. See Tex. R. App. P. 33.1(a)(1) (requiring a party to present to the trial court a timely request, objection, or motion stating the specific grounds for the desired ruling in order to preserve a complaint for appellate review). The objection must be made as soon as the basis for the objection becomes apparent. Tex. R. Evid. 103(a)(1); see Lackey v. State, 364 S.W.3d 837, 843-44 (Tex. Crim. App. 2012) (discussing policies underlying the timeliness requirement). And preservation of error is a systemic requirement that this court should review on its own motion. Darcy v. State, 488 S.W.3d 325, 327-28 (Tex. Crim. App. 2016).
Stanley forfeited any error in admission of testimony by Officer Criswell that David was present in the apartment at the time of the murder by failing to object to Cruz’s testimony to the child’s presence and again failing to do so when Officer Criswell was asked if anyone was in the apartment. See Stubblefield v. State, 477 S.W.2d 566, 567-68 (Tex. Crim. App. 1972) (holding that objection to evidence was not preserved where defendant failed to object when evidence was first offered). We therefore overrule Stanley’s first issue.
C. Autopsy photograph of Myles’s liver
In his second issue, Stanley argues that the trial court erred in admitting the autopsy photograph of Myles’s liver.
Stanley’s counsel objected to the admission of the photograph of Myles’s liver on the basis of rule 403, arguing that it was “unnecessary” and “inflammatory,” particularly taking issue with the rod that Dr. Fries threaded through the liver to demonstrate the bullet’s path. We disagree.
The photograph of Myles’s liver was relevant and probative to show the bullet’s trajectory downward through the body, starting in Myles’s upper arm and traveling through his chest cavity until it reached the liver. Logically, in order for the bullet to travel downward, it had to have been shot from above. Evidence that Stanley discharged the gun from above Myles would tend to refute Stanley’s claim that he acted in self defense against six-foot-tall Myles, whom Detective Kelly acknowledged was “a whole lot bigger than” Stanley. Furthermore,
Dr. Fries explained the defensive posture that Myles likely took during the shooting:
through . . . the upper extremities in particular, when people are threatened, oftentimes they’ll interpose their hands and their arms in between whatever the perceived threat is at their body. And so we will frequently have gunshot wounds that go through their arms and then hit their body. As we saw in the wound D to where it entered the arm and then went through the chest.
We must weigh this probative value against any tendency for the photograph to suggest a decision on an improper basis, to confuse or distract the jury, to be given undue weight by the jury, and the amount of time it took to present. Gigliobianco, 210 S.W.3d at 641-42. In performing this balancing test, the court of criminal appeals has noted that autopsy photographs are generally admissible unless they depict mutilation of the victim caused by the autopsy itself. Hayes v. State, 85 S.W.3d 809, 816 (Tex. Crim. App. 2002). However, “[c]hanges rendered by the autopsy process are of minor significance if the disturbing nature of the photograph is primarily due to the injuries caused by the appellant.” Id. (citing Santellan v. State, 939 S.W.2d 155, 173 (Tex. Crim. App. 1997) (holding autopsy photographs depicting swabs in and a red stain around the victim’s mouth admissible because they were changes rendered as part of the autopsy process)). The court of criminal appeals has also held that autopsy photographs of a victim’s internal organs used to show the extent of her injuries were admissible and highly probative, and noted in that situation that there was no danger the jury would attribute the removal of certain body parts to the accused. Gallo v. State, 239 S.W.3d 757, 763 (Tex. Crim. App. 2007), cert. denied, 553 U.S. 1080 (2008).
Likewise, there was no danger the jury would attribute the removal of Myles’s liver and the insertion of the metal rod to Stanley. Dr. Fries’s testimony was clear that it was removed and the metal rod inserted as part of the autopsy. Id. (describing “gruesome” autopsy photographs depicting underside of victim’s scalp, her skull, and her brain but noting there was no danger the jury would attribute the removal of the scalp or skull cap to the defendant). The photograph itself is not particularly gruesome-it depicts the liver laying on a cloth. Compare Hayes, 85 S.W.3d at 816 (holding photographs were admissible that depicted victim’s head, which had been reconstructed by the examiner by shaving it, stitching it together, and putting paper inside). Only a short amount of time-one page of testimony-was devoted to discussing the photograph during the State’s examination of Dr. Fries.
Based on our review of the record, the probative value of the photograph of Myles’s liver was not outweighed by the concerns expressed in rule 403. We therefore overrule Stanley’s second issue.
D. Testimony to Haats’s death
In his third issue, Stanley argues that the trial court erred in admitting evidence of Haats’s death days after Stanley assaulted him and in admitting the judgment of conviction for “lesser included assault.”
At trial, Stanley’s counsel conceded that evidence of the conviction for misdemeanor assault was admissible but objected to evidence of the procedural history of the case. Specifically, Stanley objected to evidence that Haats died shortly after the assault, that Stanley was initially charged with murder but Stanley was reindicted and eventually tried for aggravated assault, and that he was convicted of the crime of “lesser included assault.” In response, the State clarified that they would not offer evidence of the original murder indictment and that evidence of Haats’s subsequent death was necessary and relevant to make it clear that Haats died in order to explain his absence as a witness. The trial court ruled that the State could offer the judgment reflecting the misdemeanor assault conviction and witnesses to testify to the facts of the offense, but the State was not permitted to offer the original indictment for murder. Stanley’s counsel requested and was granted a running objection to “all of the matters that [she had] brought forth before the court at [that] time.”
Stanley complains that the admission of the judgment of conviction which described the offense as “lesser included assault” erroneously permitted the jury to hear evidence that Stanley had been charged with a greater offense. In so arguing, Stanley relies upon the court of criminal appeals decision in Davis v. State, which found error in the admission into evidence of a judgment of conviction that reflected the defendant had been indicted for the felony offense of theft of an automobile but convicted for the lesser-included misdemeanor offense of unauthorized use of an automobile. 642 S.W.2d 510, 513 (Tex. Crim. App. [Panel Op.] 1982). In Davis, the court relied upon a former version of article 37.07, section 3(a) that provided that evidence of unadjudicated offenses was not admissible during the punishment phase. See Act of May 31, 1981, 67th Leg., R.S., ch. 639, 1981 Tex. Gen. Laws 2466 (amended 2015) (current version at Tex. Code Crim. Proc. Ann. art. 37.07 (West Supp. 2017)).
Unlike the judgment in Davis, the judgment in this case does not reflect the original charge of murder or the reindicted charge of aggravated assault. More to the point, however, article 37.07 was amended in 1993 to allow the admission of unadjudicated extraneous offenses. Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a)(1). Unadjudicated extraneous offenses are therefore no longer categorically inadmissible, contrary to Stanley’s assertion in his brief. Id.; see also Peters v. State, 31 S.W.3d 704, 715-16 (Tex. App.-Houston [1st Dist.] 2000, pet. ref’d) (discussing amendments to article 37.07 permitting evidence of unadjudicated extraneous offenses during punishment phase). The trial court, therefore, did not err in permitting the judgment of conviction to be admitted into evidence.
The State offered and the court admitted evidence of the circumstances surrounding the assault through the testimony of three police officers and Stanley’s then-girlfriend. On appeal, Stanley does not complain of the majority of this testimony but only complains of testimony by the lead detective to Haats’s death:
[State:] After speaking to Mr. Stanley, did you have an opportunity to go see Mr. Haats?
[Detective:] Yes, sir.
Q. And where was Mr. Haats?
A. He was at Parkland Hospital.
Q. Ultimately, what happened to Mr. Haats?
A. He died.
Q. About how long after this?
A. Approximately four days after.
Q. And was Demico charged with a crime in relation to that?
Q. To assaulting Mr. Haats?
A. Yes, sir.
Q. And was Demico convicted of ultimately a misdemeanor assault for this case?
A. Yes, sir.
On cross-examination, the detective clarified that Stanley was not convicted of causing Haats’s death and that a doctor had determined that he died of another cause. Stanley’s then-girlfriend also confirmed that Stanley was not found to have caused Haats’s death.
Once a defendant has been found guilty by a jury, article 37.07 § 3(a)(1) permits the State to offer evidence “as to any matter the court deems relevant to sentencing.” Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a)(1); see also Sierra v. State, 266 S.W.3d 72, 79 (Tex. App.-Houston [1st Dist.] 2008, pet. ref’d) (noting that “a wide scope of evidence of any ‘bad acts’ is allowed at the punishment phase”). During the punishment phase, the focus is on what is helpful to the jury in determining an appropriate sentence for the defendant. Erazo v. State, 144 S.W.3d 487, 491 (Tex. Crim. App. 2004). “Relevance” of evidence in the punishment phase is thus determined as a function of policy, including “(1) giving complete information to the jury to allow it to tailor an appropriate sentence for the defendant; (2) the rule of optional completeness; and (3) whether the appellant admits the truth during the sentencing phase.” Id.; see also Sunbury v. State, 88 S.W.3d 229, 233 (Tex. Crim. App. 2002) (“Because the material issue at punishment is so indistinct, relevancy of proffered evidence cannot be determined by deductive processes.”). In reviewing the trial court’s admission of evidence in the penalty phase, we will only determine that the trial court abused its discretion if it admits evidence “that is not relevant by any reasonable interpretation or if what appears to be common experience is really no more than the operation of a common prejudice, not borne out [of] reason.” Ramos v. State, 45 S.W.3d 305, 310 (Tex. App.-Fort Worth 2001, pet. ref’d).
Assuming, without holding, that the trial court erred by permitting the testimony to Haats’s death, this does not rise to the level of reversible error. Error in the admission of evidence is generally considered nonconstitutional error to which we apply rule 44.2(b) and disregard the error if it did not affect appellant’s substantial rights. Tex. R. App. P. 44.2(b); see Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001). In making this determination, we review the record as a whole, including any testimony or physical evidence admitted for the jury’s consideration, the nature of the evidence supporting the verdict, and the character of the alleged error and how it might be considered in connection with other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also consider the jury instructions, the State’s theory and any defensive theories, whether the State emphasized the error, closing arguments, and even voir dire, if applicable. Id. at 355-56.
We recognize that it would have been more forthright for the prosecutor to have avoided the potential for temporary confusion by addressing Haats’s cause of death on direct examination. Nevertheless, any confusion that the jury may have experienced after learning on direct examination that Haats died shortly after he was assaulted by Stanley was cleared up by the detective’s admissions on cross-examination that a doctor found that Haats died of an unrelated condition and that Stanley was not convicted of murdering Haats. Furthermore, significant evidence was admitted throughout the trial that supports the jury’s assessment of a 75-year sentence. Stanley admitted to killing Myles by shooting him multiple times, and the jury learned of Stanley’s violent criminal history, which included multiple convictions for assault. Based upon our review of the record, any error committed by the trial court in admitting evidence that Haats died shortly after he was assaulted by Stanley did not have a substantial and injurious effect on the jury’s determination of Stanley’s punishment. See Tex. R. App. P. 44.2(b); see also Ramos, 45 S.W.3d at 310-11. We therefore overrule Stanley’s third issue.
E. Video of Stanley in jail
In his sixth issue, Stanley argues that the trial court erred by admitting the video of Stanley bragging about the murder to another inmate in the Denton County Jail. At trial, Stanley’s counsel objected to the video portion being played because it depicted Stanley in jail and requested instead that only the audio of the recording be played. After Stanley’s request was denied, and once Officer Ottinger testified to the contents of the video, Stanley’s counsel objected to the admission and publication of the video itself on the basis that it was “cumulative” and “bolstering. . . . As well as under 403.” The State argued that it had solicited the officer’s testimony as to the content of the video in case the jury was not able to clearly hear the audio on the video. The trial court overruled the objection.
On appeal, Stanley argues that the admission of the video is analogous to the situation in Randle v. State, 826 S.W.2d 943, 946 (Tex. Crim. App. 1992), in which the court of criminal appeals held that forcing a defendant to stand trial in prison clothes violated his constitutional rights to a fair trial and to be presumed innocent and that such violation was not harmless beyond a reasonable doubt. In Randle, the court of criminal appeals pointed out that, apart from his appearance in prison attire, the jury would have had no knowledge of the defendant’s incarceration. Id. Here, however, Stanley’s counsel did not object to Officer Ottinger’s testimony that he, as a detention officer of the Denton County Jail and while walking with an inmate through the hallway of the Denton County Jail, heard Stanley bragging about the murder. By failing to object to Officer Ottinger’s testimony regarding the circumstances of the video, Stanley failed to preserve any argument that the admission of the video violated his constitutional rights by informing the jury that he had been incarcerated in jail. See Tex. R. App. P. 33.1(a)(1)(A); Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003) (noting objection must be timely and party must continue to object each time inadmissible evidence is offered.).
Regarding his objection that the admission of the video was “cumulative,” “bolstering,” and violated rule 403, any such error did not rise to the level of reversible error. We disregard any error in the admission of evidence if it did not affect appellant’s substantial rights. Tex. R. App. P. 44.2(b); see Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). Conversely, an error does not affect a substantial right if we have “fair assurance that the error did not influence the jury, or had but a slight effect.” Solomon, 49 S.W.3d at 365. As discussedabove, we review the record as a whole in determining whether the admission of evidence affected Stanley’s substantial rights. Motilla, 78 S.W.3d at 355.
The video, in which Stanley not only confessed to the murder but bragged about it, held a significant amount of probative value. Officer Ottinger’s testimony to the circumstances of the video, including the fact that it was recorded in the Denton County Jail, was necessary to the video’s admission into evidence. See
Tex. R. Evid. 901 (providing requirements for authentication of evidence). In view of these facts and our review of the record as a whole, any error in admitting the video did not rise to the level of reversible error. We therefore overrule Stanley’s sixth issue.
II. Jury instructions
The trial court denied Stanley’s requests for the following instructions to be included in the jury charges: an instruction of the lesser-included offense of manslaughter, an instruction as to sudden passion, and an instruction regarding the defense of one’s property.
A. Standard of review
“[A]ll alleged jury-charge error must be considered on appellate review regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In our review of a jury charge, we first determine whether error occurred; if error did not occur, our analysis ends. Id. If error occurred, whether it was preserved determines the degree of harm required for reversal. Id.
B. Manslaughter and self defense
In his fourth issue, Stanley argues that the trial court erred by denying his request for the inclusion in the jury charge of an instruction on manslaughter as a lesser-included offense. A person commits manslaughter if he recklessly causes the death of another. Tex. Penal Code Ann. § 19.04 (West 2011). He commits murder if he intentionally or knowingly causes a person’s death. Id. § 19.02.
Stanley’s complaint ignores the fact that he presented a theory of self defense to the jury and that the charge included an instruction of self defense. Self defense acts as a justification to a charge of murder but to be entitled to a self-defense instruction, the defendant must admit every element of the offense, including the culpable mental state. Tex. Penal Code Ann. § 9.02 (West 2011) (providing for justification as a defense to prosecution); Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007) (explaining that, to be entitled to a defensive instruction, the defendant’s evidence must essentially admit every element of the offense, “including the culpable mental state”), cert. denied, 553 U.S. 1059 (2008). By asserting self defense, Stanley necessarily argued that his actions were intentional or knowing. See Alonzo v. State, 353 S.W.3d 778, 782 (Tex. Crim. App. 2011).
“[A]n individual cannot simultaneously act intentionally and recklessly.” Id. at 781. Stanley’s self-defense argument therefore precluded him from obtaining an instruction of manslaughter, which occurs when a person recklessly causes a person’s death. Tex. Penal Code Ann. § 19.04; Alonzo, 353 S.W.3d at 780 n.8 (collecting cases holding that murder defendants who argue self defense are not entitled to an instruction of manslaughter). We accordingly overrule Stanley’s fourth issue.
C. Sudden-passion instruction
In his fifth issue, Stanley argues that the trial court erred in denying his request for the inclusion of an instruction on sudden passion in the charge on punishment.
During the punishment phase after a murder conviction, a defendant may argue that he caused the death “under the immediate influence of sudden passion arising from an adequate cause.” Tex. Penal Code Ann. § 19.02(d). “Sudden passion” is that which arises at the time of the offense and is “directly caused by and arising out of provocation by the individual killed or acting with the person killed.” Id. § 19.02(a)(2). A provocation is considered an “adequate cause” of sudden passion if it “would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.” Id. § 19.02(a)(1). Stanley, as the defendant, had the burden of production and persuasion with respect to sudden passion.
Wooten v. State, 400 S.W.3d 601, 605 (Tex. Crim. App. 2013).
We recognize that regardless of substantive character, any evidence admitted at trial that raises a defensive theory to the charged offense requires the trial court to charge the jury on the defensive theory when properly requested.
Brown v. State, 955 S.W.2d 276, 279 (Tex. Crim. App. 1997). But even though a sudden-passion instruction is often warranted in the punishment phase when a self-defense instruction is given in the guilt phase, Chavez v. State, 6 S.W.3d 66, 72 (Tex. App.-San Antonio 1999, pet. ref’d), an instruction on self defense does not, as Stanley appears to argue, “automatically obligate” the trial court to instruct the jury on sudden passion, Trevino v. State, 60 S.W.3d 188, 193 (Tex. App.- Fort Worth 2001), aff’d, 100 S.W.3d 232 (Tex. Crim. App. 2003).
To receive a sudden-passion instruction, the evidence must show more than fear of the victim; it “must show that [the accused]’s mental state ‘rose beyond a bare claim of fear or was so strong and overpowering that it rendered him incapable of rational thought and collected action.'” Id. at 194 (quoting Jones v. State, 963 S.W.2d 177, 180 (Tex. App.-Fort Worth 1998, pet. ref’d)). Stanley’s explanation of events to Detective Kelly does not reflect any such “strong and overpowering” level of fear. In his interview with Detective Kelly, Stanley professed that he did not know why Myles touched his shoulder and acknowledged that it could have simply been a friendly gesture. Stanley did not tell Detective Kelly that he was terrified by Myles’s gesture and there was no evidence that Myles had brandished a weapon or shown any other sort of aggression toward Stanley.
To the extent Stanley blamed his reaction on his own paranoia or mental condition, this does not evidence a reasonable fear sufficient to warrant a sudden-passion instruction. We must evaluate reasonableness from the perspective of “an ordinary and prudent person.” See Mays v. State, 318 S.W.3d 368, 383 (Tex. Crim. App. 2010) (explaining that the appellant could not rely upon evidence of his paranoia and psychotic thinking to raise a reasonable belief of another’s intentions), cert. denied, 562 U.S. 1274 (2011). The record before us does not support a conclusion that an ordinary and prudent person would have perceived Myles’s touch of his shoulder as a provocation that warranted shooting Myles to death. We therefore overrule Stanley’s fifth issue.
D. Defense of property
In his seventh and final issue, Stanley argues that the trial court erred by denying his request for an instruction on defense of property during the guilt phase.
Stanley would have been justified in using deadly force against Myles to protect his property if he reasonably believed that such force was immediately necessary to prevent Myles’s unlawful interference with, or robbery of, his property, and he reasonably believed (1) that his property could not be protected by any other means or (2) that the use of force other than deadly force would have exposed him or another to a substantial risk of death or serious bodily injury. Tex. Penal Code Ann. §§ 9.41, 9.42 (West 2011).
The trial court is only required to charge a defensive issue where it is raised by the evidence. Brown, 955 S.W.2d at 279. In this case, the evidence simply does not support the inclusion of a defense-of-property instruction. Instead, evidence merely demonstrated that Stanley explained to Detective Kelly that he was “paranoid” that Myles and Quigley “might” intend to rob him and he admitted that Myles might have been touching his shoulder in a “friendly” gesture. This does not show a reasonable belief that Myles intended to rob him and it certainly does not show a reasonable belief that the use of deadly force was necessary. See Mays, 318 S.W.3d at 383.
We therefore overrule Stanley’s seventh issue.
Having overruled each of Stanley’s seven issues, we affirm the judgment of the trial court.
/s/ Bonnie Sudderth
BONNIE SUDDERTH CHIEF JUSTICE
PANEL: SUDDERTH, C.J.; KERR and PITTMAN, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: January 11, 2018
1. See Tex. R. App. P. 47.4.
2. We use aliases to refer to Stanley’s family members. See 2nd Tex. App. (Fort Worth) Loc. R. 7; McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
3. Bryant testified that he believed Stanley and Quigley had stolen the marijuana from Myles.
4. Additionally, we note that Stanley did not object to the admission and publication of the video of his custodial interview with Detective Kelly, in which he was wearing a jail jumpsuit and handcuffs.