153-fS NO. PD-0953-15 ORIGINAL

IN THE TEXAS COURT OF CRIMINAL APPEALS

RECEIVED IN PA! IDT AC ffnniiiMii wDM-„i!i\rtL nrrV.ALv)

LONNIE JAMES JONES Jr. SEP 23 2015 (APPELLANT)

VS.

5@! Acosta, C?srk FILED IN THE STATE OF TEXAS COURT OF CRIMINAL APPEALS (APPELLEE) SEP 2 3 2315

Abel Acosta, Clerk APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

ON REVIEW FROM THE NINTH (9th) DISTRICT COURT OF APPEALS AT BEAUMONT, TEXAS. NO. 09-13-00459-CR. DIRECT APPEAL

FROM THE JUDGMENT OF CONVICTION - SENTENCE FROM THE 221st DISTRICT COURT OF MONTGOMERY COUNTY

TRIAL DOCKET NO. 13-03-03256-CR.

HONORABLE JUDGE LISA MICHALK PRESIDING

ORAL ARGUMENT REQUESTED

LONNIE J. JONES Jr.

T.D.C.J. # 1889803 (PRO SE)

IDENTITY OF PARTIES AND COUNSEL

FOR THE STATE:

AT PRETRIAL & TRIAL: MR. BLAKE ENAX

TBN: 24058872

MR. JEFF HOHL

TBN: 00792509

ASSISTANT DISTRICT ATTORNEYS

MONTGOMERY COUNTY DISTRICT ATTORNEY'S OFFICE

207 W. PHILLIPS, 3rd FLOOR CONROE, TEXAS 77301 936-539-7800

ON APPEAL: MR. WILLIAM J. DELMORE III

ASSISTANT DISTRICT ATTORNEY

MONTGOMERY COUNTY DISTRICT ATTORNEY'S OFFICE

207 W. PHILLIPS, 2nd FLOOR CONROE, TEXAS 77301 936-539-7800

FOR THE APPELLANT:

AT PRETRIAL & TRIAL: MR. WILLIS SMITH

TBN: 18710500

LAW OFFICES of WILLIS SMITH 25408 US HIGHWAY 59, SUITE 104 PORTER, TEXAS 77365 261-359-6059

ON APPEAL: MRS. HEATHER HALL

TBN: 24026287

HEATHER HALL & ASSOCIATES

308 N. MAIN CONROE, TEXAS 77301 936-441-5002 [email protected] li

TABLE OF CONTENTS

SUBJECT: PAGE: IDENTITY OF PARTIES AND COUNSEL i TABLE OF CONTENTS iii TABLE OF AUTHORITIES v-vi STATEMENT REGARDING ORAL ARGUMENT 1 STATEMENT OF THE CASE -. .1 STATEMENT OF PROCEDURAL HISTORY 1 ISSUES PRESENTED 2 POINT OF ERROR ONE FOR REVIEW (RESTATED) 1.2 . THE. COURT OF APPEALS REVERSIBLY ERRED.AND ABUSED ITS DISCRETION IN OVERRULING ISSUE ONE WHEN THE RECORD SHOWS AND THE COURT ACKNOWLEDGES THAT THERE IS SOME EVIDENCE. IN SUPPORT OF A SELF- DEFENSE INSTRUCTION, IT REVERSIBLE ERROR FOR THE COURT TO DENY A SELF-DEFENSE INSTRUCTION BECAUSE IT BELIEVES THAT THE EVI DENCE IS VERY SMALL AND CONTROVERTED. 3-9 POINT OF ERROR TWO FOR REVIEW (RESTATED) 9 THE COURT. OF APPEALS REVERSIBLY ERRED AND ABUSED ITS DISCRETION IN OVERRULING ISSUE TWO WHEN POLICE OFFICERS HAVE NO PERSONAL KNOWLEDGE OF THE. ALLEGED OFFENSE, IT IS REVERSIBLE ERROR TO ALLOW THEM TO TESTIFY THAT DEFENDANT WAS GUILTY OF ASSAULT AND THAT SELF-DEFENSE DID NOT APPLY 9-12 POINT OF ERROR THREE FOR REVIEW (RESTATED) 12 THE. COURT OF APPEALS REVERSIBLY.ERRED AND ABUSED ITS DISCRETION IN OVERRULING ISSUE TWO WHEN THE CUMULATIVE IMPACT OF THE ABOVE ERRORS WAS SO GREAT THAT REVERSAL IS REQUIRED 12-13 PRAYER 13 CERTIFICATE OF SERVICE 14 (APPENDIX) COURT OF APPEALS OPINION A ill

TABLE OF AUTHORITIES

CASES: PAGE: •EX PARTE: NAILOR, 149 S.W.3d 125, 132 (TEX.CRIM.APP.2004) 4 •SOLOMON, 49 S.W.3d 356, 365 (TEX.CRIM.APP.2001) 12 PENAL CODE:

•TEXAS PENAL CODE 2.03(c) 8 •TEXAS PENAL CODE 9.31(a) 4

TX. R. APP. PROC-

•33.1(a) 9 •33.1(a)(1)(A) 10 •44.2(b) 13 TEXAS RULES OF EVIDENCE •701 9 •702 9

TABLE OF AUTHORITIES

(CONTINUED)

TXiiCODE CRIM. PROC. PAGE: •36.19 7

STATE-FEDERAL CONSTITUTIONS:

•U.S. CONST. AMEND. XIV 12 •TX. CONST. ART. I §19 12

VI

STATEMENT REGARDING ORAL ARGUMENT

PURSUANT TO TEXAS RULES OF APPELLATE PROCEDURE 39.7; THIS APPELLANT HEREBY RESPECTFULLY REQUEST ORAL ARGUMENT; THUS WOULD SERVE TO EMPHASIZE AND CLARIFY THE IMPORTANT LEGAL POINTS REGARDING THIS REVIEW.

STATEMENT OF THE CASE

THIS PETITION FOR DISCRETIONARY REVIEW ARISES FROM A DECISION OUT OF THE COURT OF APPEALS DENYING APPELLANT HEREIN: 1) THE LEGAL RIGHT TO A SELF- DEFENSE CHARGE; 2) UPHOLDING VOICED - OPINION TESTIMONY BY BOTH A POLICE OFFICER - POLLICE OFFICER IN TRAINING; AND 3) OVER-RULING THE CUMULATIVE EFFECT STEMMING FROM POINTS OF ERROR ONE AND TWO COMBINED.

STATEMENT OF THE PROCEDURAL HISTORY

THIS PETITION FOR DISCRETIONARY REVIEW IS FROM A CONVICTION FOR ASSUALT CAUSING BODILY INJURY TO A FAMILY MEMBER ENHANCED, i.e., A THIRD DEGREE FELONY TO HABITUAL STATUS, IN WHICH APPELLANT RECEIVED A SENTENCE OF FORTY (40) YEARS. CR 68.

ON JUNE 6, 2013, APPELLANT WAS INDICTED FOR ASSUALT CAUSING BODILY INJURY TO A FAMILY MEMBER ENHANCED. CR 20. ON SEPTEMBER 16, 2013, APPELLANT PLED NOT GUILTY AND TRIAL BEGAN IN THE 221st DISTRICT COURT OF MONTGOMERY COUNTY, TEXAS, THE HONORABLE LISA MICHALK, PRESIDING. CR 68; 4 RR 4-5. THE JURY FOUND APPELLANT GUILTY OF ASSUALT CAUSING BODILY INJURY TO A FAMILY MEMBER, A THIRD DEGREE FELONY ENHANCED TO A HABITUAL, ON SEPTEMBER 17, 2013. CR 68. THE COURT ASSESSED PUNISHMENT TO CONFINEMENT AT 40 YEARS IN THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE. CR 71.

THE TRIAL COURT CERTIFIED APPELLANT'S RIGHT TO APPEAL ON SEPTEMBER 17, 2013. CR 70. APPELLANT FILED HIS NOTICE OF APPEAL ON OCTOBER 1, 2013. CR 79.

THE COURT OF APPEALS FOR THE NINTH (9th) DISTRICT OF TEXAS AT BEAUMONT, AFFIRMED APPELLANT'S CONVICTION IN A NON-PUBLISHED OPINION AUTHORED - BEFORE McKEITHEN, C.J.; KREGER AND HORTON, JJ.; DELIVERED JUNE 24, 2015. NO MOTIONS FOR REHEARING WERE FILED. A COPY OF THE COURT OF APPEALS' OPINION IS ATTACHED AND APPENDED HERETO. THIS PETITION WAS TIMELY FILED.

POINT OF ERROR ONE FOR REVIEW (RESTATED)

THE COURT OF APPEALS REVERSIBLY ERRED AND ABUSED ITS DISCRETION IN OVER RULING ISSUE ONE WHEN THE RECORD SHOWS AND THE COURT ACKNOWLEDGES THAT THERE IS SOME EVIDENCE IN SUPPORT OF A SELF-DEFENSE INSTRUCTION, IT REVERSIBLE ERROR FOR THE COURT TO DENY A SELF-DEFENSE INSTRUCTION BECAUSE IT BELIEVES THAT THE EVIDENCE IS VERY SMALL AND CONTROVERTED.

POINT OF ERROR TWO FOR REVIEW (RESTATED)

THE COURT OF APPEALS REVERSIBLY ERRED AND ABUSED ITS DISCRETION IN OVER RULING ISSUE TWO WHEN POLICE OFFICERS HAVE NO PERSONAL KNOWLEDGE OF THE ALLEGED OFFENSE, IT IS REVERSIBLE ERROR TO ALLOW THEM TO TESTIFY THAT DEFENDANT WAS GUILTY OF ASSAULT AND THAT SELF-DEFENSE DID NOT APPLY.

POINT OF ERROR THREE FOR REVIEW (RESTATED)

THE COURT OF APPEALS REVERSIBLY ERRED AND ABUSED ITS DISCRETION IN OVER RULING ISSUE THREE WHEN THE CUMULATIVE IMPACT OF THE ABOVE ERRORS WAS SO GREAT THAT REVERSAL IS REQUIRED.

ARGUMENT AND AUTHORITIES

(REASONS FOR REVIEW)

:INTRODUCTION:

THE SOLE FACT COMMON HEREIN COUPLING POINT OF ERROR ONE AND POINT OF ERROR TWO FOR REVIEW IS THE ISSUE OF >>SELF DEFENSE<<. THUS, REFUSED BY THE TRIAL COURT FOR A DEFENSE JURY INSTRUCTION IN FOLLOWING, OPINE - ELICITED TESTIMONY REGARDING SUCH BY A POLICE - DEPUTY STATE AGENT; IN WHOM, TRULY DID [NOTJ EYEWITNESS THE ALLEGED OFFENSE.

THIS, FURTHER CO-JOINING WITH ADDITIONAL, CO-LATERALL OPINE TESTIMONY BY POLICE - DEPUTY STATE AGENTS UNQUALIFIED TO DO SO - IN RELATION TO SAME, THEREBY, ACCUMULATING EGREGIOUS HARM.

POINT OF ERROR ONE FOR REVIEW

THE COURT OF APPEALS REVERSIBLY ERRED AND ABUSED ITS DISCRETION IN OVER RULING ISSUE ONE WHEN THE RECORD SHOWS AND THE COURT ACKNOWLEDGES THAT THERE IS SOME EVIDENCE IN SUPPORT OF A SELF-DEFENSE INSTRUCTION, IT REVERSIBLE ERROR FOR THE COURT TO DENY A SELF-DEFENSE INSTRUCTION BECAUSE IT BELIEVES THAT THE EVIDENCE IS VERY SMALL AND CONTROVERTED.

TO PARAPHRASE THE QUESTION ON THE BENCH OF THIS COURT UPON REVIEW, OPI NIONS MADE - WRITTEN ORDER TIME: HOW WOULD THIS CASE BE ANY DIFFERENT FROM ALL OTHER - IN WHETHER [SOME] EVIDENCE IS [ENOUGH] "EVIDENCE RAISED" BY THE STANDARD TO WARRANT A SELF DEFENSE INSTRUCTION TO THE JURY?

THE COURT OF APPEALS RETAIL RELIANCE ON SMITH V. STATE (676 S.W.3d 584, 585; TEX.CRIM.APP.1984) - LEAVES ONE TO GUESS, HOPE, AND SURMISE APPLICABLE TO THE "EVIDENCE RAISED STANDARD" [UJNDER TX. PEN. CODE §2.03(c) OPINE IN SHAW v. STATE, 243 S.W.3d 647, 657-58 (TEX.CRIM.APP.2007) IN THAT EYEWITNESS TESTIMONY IN "SMITH" (ABOVE) SHOWS THAT THE COMPLAINANT AT ONE TIME HAD A GUN DURING THE ALTERCATION AND APPELLANT "SMITH" HAD A STEAK KNIFE.

HERE, IN THIS CASE, [NOT] SO - [WHAT] SO EVER ... !

THIS CASE IS MERELY ABOUT AN ARGUING MATCH OVER "CHEATING" AND "MONEY" TURNED TO PUSH AND SHOVE. THEN, TO SOME PUNCH'S THROWN BOTH WAYS, INITIALLY BY THE COMPLAINANT - CULMINATING TO APPELLANT PICKING UP A HAMMER FOR PRO TECTION. ALTHOUGH QUICKLY TAKEN AWAY BY AN EYEWITNESS AT THE SCENE MIDST THE

*. SLIP OP. - APPX. "A". THE COURT GF APPEALS 9th DISTRICT AT BFAUYCNr, LCNSHE JAMES JONES, Jr. v. THE STATE GF TEXAS, NO. 09-13-00459-GR, MEiyCRANDUVi GPHMICN; pps: 1-12. PHYSICAL SQUABBLE.

SECTION 9.31 OF THE TEXAS PENAL CODE PROVIDES THAT A PERSON IS "JUSTIFIED IN USING FORCE AGAINST ANOTHER WHEN AND TO THE DEGREE HE REASONABLY BELIEVES THE FORCE IS IMMEDIATELY NECESSARY TO PROTECT HIMSELF AGAINST THE OTHER'S USE OR ATTEMPTED USE OF UNLAWFUL FORCE". TEX. PEN. CODE ANN. §9.31 (WEST2011). [THERE]FORE, "A DEFENDENT IS ENTILTED TO AN INSTRUCTION ON THE LAW OF SELF- DEFENSE IF THERE IS SOME EVIDENCE THAT HE INTENDED TO USE FORCE AGAINST ANOTHER AND HE DID USE FORCE, BUT HE DID SO ONLY BECAUSE HE REASONABLY BELIEVED IT WAS NECESSARY TO PREVENT THE OTHER'S USE OF UNLAWFUL FORCE". EX PART, NAILOR 149 S.W.3d 125, 132 (TEX.CRIM.APP.2004)

"A DEFENDENT IS ENTITLED TO AN INSTRUCTION ON SELF DEFENSE IF THE ISSUE IS RAISED BY [THE] EVIDENCE, WHETHER THE EVIDENCE IS STRONG OR WEAK, UNIMPEACHED OR CONTRADICTED, AND REGARDLESS OF WHAT THE TRIAL COURT MAY THINK ABOUT THE CREDIBILITY OF THE DEFENSE." FERREL v. STATE 55 S.W.3d 586, 591 (TEX.CRIM. APP. 2001)

A "DEFENDENT NEED NOT TESTIFY IN ORDER FOR A DEFENSIVE ISSUE TO BE SUFF ICIENTLY RAISED" JOHNSON v. STATE 271 S.W.3d 359, 362 (TEX.APP.-BEAUMONT2008, PET REF'D). "DEFENSIVE ISSUES MAY BE RAISED BY THE TESTIMONY OF [ANY] WITNESS, EVEN ONE CALLED BY THE STATE." Id.

THEREFORE, AS HERE, WHAT KIND OF TESTIMONY IS NEEDED TO RAISE THE ISSUE OF SELF-DEFENSE, SINCE V.T.C.A., PENAL CODE §9.31(a) FOCUSES ON THE DEFENDENT'S SUBJECTIVE STATE OF MIND? THUS, IN ORDER TO JUSTIFY THE SUBMISSION OF A CHARGE TO THE JURY ON THE ISSUE OF SELF-DEFENSE, THERE MUST BE [SOME] EVIDENCE IN THE RECORD TO SHOW THAT THE DEFENDENT WAS IN SOME APPREHENSION OR [FEAR] OF BEING THE RECEIPIENT OF THE UNLAWFUL USE OF FORCE FROM THE COMPLAINANT. (ID. SMITH ABOVE @ 585).

HERE IN THE INSTANT AGNES JONES ("AGNES") AND KERTHINE TIMES ("TIMS") WERE WATCHING TV AND DRINKING BEER WHEN APPELLANT, LONNIE JONES ("JONES"), TIMS' BOYFRIEND AND AGNES' SON, ARRIVED AT THE HOUSE. ^[4] RR 9. AGNES TESTIFIED THAT TIMS STARTED "FUSSING AND CUSSING" AND THE ARGUMENT STARTED BECAUSE TIMS THOUGHT JONES WAS CHEATING ON HER. ^[4] RR 10, 12. TIMS WAS ANGRY AND "PUSHED [JONES] IN THE FACE," WHICH IS WHEN THE FIGHTING BEGAN. ^[4] RR 10. AS TIMS PUSHED JONES AND GOT INTO HIS FACE, JONES ALLEGEDLY PUSHED HER AND SHE SLIPPED, FALLING TO THE FLOOR WHERE SHE MAY HAVE BUMPED HER HEAD AND CUT HER LIP. IN HER STATEMENT AT THE SCENE, HOWEVER, AGNES SAID THAT HER SON STARTED THE FIGHT WHEN SHE AND TIMS REFUSED TO GIVE JONES MONEY. ^[4] RR 13. STILL, AGNES TESTIFIED THAT SHE KNEW TIMS THREW THE FIRST PUNCH BECAUSE SHE, AGNES, WAS THERE. ^[4] RR 25.

AS TIMS AND JONES WERE HITTING EACH OTHER, THE FIGHT MOVED FROM THE HALL WAY TO THE DEN, NEAR THE COUCH. ^[4] RR 11, 15-17. AS JONES PICKED UP A HAMMER, AGNES TOOK IT FROM HIM. 4 RR 16, 29. JONES NEVER HIT TIMS WITH THE HAMMER.

4 RR 16, 29. BECAUSE AGNES COULD NOT STOP THE FIGHT, SHE CALLED 911 AND DE SCRIBED THE ARGUMENT AS A FISTFIGHT WITHOUT ANY WEAPON INVOLVED. ^[4] RR 11, 31.

DEPUTY WILKERSON AND HIS TRAINEE, DEPUTY BEATTY, WERE DISPATCHED TO THE SCENE WHERE BEATTY, THREE MONTHS OUT OF THE POLICE ACADEMY, BEGAN HIS INVESTI GATION WITH WILKERSON, HIS FIELD-TRAINING OFFICER. 3 RR 10-12.

THE TRIAL COURT ALLOWED BEATTY, WHO WAS WITHOUT ANY TRAINING IN FAMILY VIOLENCE INVESTIGATION BEYOND HIS "CLASSROOM ORIENTATION", TO TESTIFY THAT JONES WAS GUILTY OF ASSAULTING HIS GIRLFRIEND. 3 RR 11, 12, 25. SIMILARLY, THE TRIAL COURT ALLOWED WILKERSON TO TESTIFY OVER APPELLANT'S OBJECTION THAT, HE DID NOT BELIEVE THAT JONES WAS ACTING IN SELF DEFENSE. ^[4] RR 50. (DESPITE HIS LACK OF KNOWLEDGE REGARDING JONES' MENTAL STATE).

DURING THE CHARGE CONFERENCE, DEFENSE COUNSEL ARGUED THAT THE EVIDENCE SUPPORTED AN INSTRUCTION ON SELF-DEFENSE. THE STATE ARGUED OTHERWISE. ^[4] RR 57-58. THE TRIAL COURT RECALLED THE WITNESSES' TESTIMONY AND NOTED THAT THERE WAS [SOME] EVIDENCE ON THE ISSUE OF SELF-DEFENSE, BUT BECAUSE THE EVIDENCE WAS SMALL AND CONTRADICTED, THE TRIAL COURT DENIED THE DEFENSE'S REQUEST FOR A SELF-DEFENSE INSTRUCTION. 4 RR 59, 64. THE JURY FOUND JONES GUILTY AND THE TRIAL COURT SENTENCED HIM TO 40 YEARS IN PRISON. CR 68, 71.

THE RECORD SHOWED, AND THE JUDGE ACKNOWLEDGED, THAT THERE WAS SOME EVID ENCE IN SUPPORT OF SELF-DEFENSE INSTRUCTION.

ACCORDING TO AGNES, TIMS ACCUSED JONES OF CHEATING ON HER. ^[4] RR 10. AND, AS THE ARGUMENT ASCALATED, MRS. JONES TESTIFIED SHE WAS THERE WHEN COMPLAINANT THREW THE FIRST PUNCH AND PUNCHED APPELLANT IN THE FACE. ^[4] RR 25. MOREOVER, THE STATE ITSELF MUST HAVE BELIEVED THAT THERE WAS OME EVIDENCE OF SELF-DEFENSE FOR IT ARGUED THAT AGNES' TESTIMONY OPENED THE DOOR TO JONES ALLEGED "HISTORY OF VIOLENCE AGAINST WOMEN AND INDIVIDUAL,"

[PROSECUTOR]:. SECONDLY, I DON'T BELIEVE — DUE TO THE FACT THAT THE DEFENSE HAS SUBMITTED AN ISSUE OF THE DEFENDANT WAS JUST ACTING OUT BASED ON HER PUSHING HIM, THEY HAVE OPENED THE DOOR TO HIS HISTORY OF VIOLENCE AGAINST WOMEN AND INDIVIDUALS

4 RR 34.

THE TRIAL COURT, ITSELF HAD REMARKED THAT THE ISSUE OF SELF-DEFENSE HAD BEEN RAISED. WHEN WILKERSON TESTIFIED THAT HE DID NOT BELIEVE THAT DEFENDANT ACTED IN SELF-DEFENSE, THE TRIAL COURT OVERRULED APPELLANT'S OBJECTION AND EXPLAINED, "NOW. THE ISSUE HAS SOMEWHAT BEEN TRIED TO BE RAISED, I AM GOING TO ALLOW YOU TO ANSWER THAT QUESTION. SO GO AHEAD. YOU MAY ANSWER." 4 RR 501. AND, DURING THE CHARGE CONFERENCE. THE TRIAL COURT NOTED THAT THERE WAS SOME EVIDENCE THAT COMPLAINANT HAD PUSHED APPELLANT AND MAY HAVE BEEN THE FIRST AGGRESSOR: "SHE [MS. JONES] DID SAY THE COMPLAINANT PUSHED[;]" "I MAY HAVE BEEN THE AGGRESSOR," "I COULD, HAVE BEEN FUSSING AT HIM." 4 RR 59 (EMPHASIS ADDED). ACCORDING TO THE .TRIAL COURT, HOWEVER, THERE WAS NOT "A LOT OF EVIDENCE IN THE CASE, AND THE EVIDENCE CONCERNING SELF-DEFENSE WAS VERY SMALL." 4 RR 59. THUS, INSTEAD OF CONSIDERING WHETHER THERE WAS SOME EVIDENCE, THE TRIAL COURT, ERRONEOUSLY CONSIDERED WHETHER THERE WAS NOT ENOUGH EVIDENCE,

SO AS THE. GATEKEEPER. OF THIS, I AM GOING TO DENY THE CHARGE. AND I MAY BE INCORRECT, BUT I JUST DON'T THINK THERE IS ENOUGH THAT RAISES IT. I THINK THAT YOU HAVE TO HAVE MORE THAN THE SOMEWHAT VACILLATING STATEMENTS OF BOTH THE MOTHER OF THE DEFENDANT AND THE COMPLAINANT TO GET A CHARGE OF SELF-DEFENSE. I JUST DON'T THINK IT IS THERE.

4 RR 64.

[FRCSECUICR]: CKAY. BASED CN . EVERYTHING YCU OBSERVED AT THE SCENE, WOULD AKKTHUE LEAD Y03 TO BELIEVE THAT THE DEFENDANT WAS ACTING IN SELF-DEfctNdE?

[DEFENSE COUNSEL]: CBJECITCN. THAT CALLS FOR LEGAL CCNCLUSICN, .YCURHCNGR. HE WASN'T.THERE. HE WASN'T PRESENT. HE SAID HE HAD ALREADY LEFT THE SCENE.

THE CCURT: . I WILL ALLOW THE ANSWER BASED ON HIS — NOW THAT THE ISSUE HAS SCMEWMT BEEN TRIED TO BE RAISED, I AM GOING TO ALLOW YCU TO ASK THAT QUESTION. SO GO AHEAD. YCU MAY ANSWER THE CUESTTCN APPELLANT NOT ACTING IN SELF-DEFENSE. SEE JAMES v. SATE, 335 S.W.3d 719, 725 (TEX.APP.2011).

ALTHOUGH AND AWHILE BOTH LAY AND EXPERT WITNESS'S CAN OFFER OPINION TESTIMONY. TEX. R. OF EVID. 701 DEALS WITH THE [TRA]DITIONAL WITNESS, ONE WHO "WITNESSED" OR PARTICIPATED IN THE EVENTS THAT ARE THE SUBJECT OF TESTI MONY WHILE RULE 702 ALLOWS FOR A WITNESS WHO IS NOT TESTIFYING BASED ON PERSONAL KNOWLEDGE.. [TRE 701, 702].

NEITHER. "BEATTY NOR WILKERSON" WERE DESIGNATED BY THE STATE AS EXPERT WITNESSES. CR 29. THE FIELDS OF EXPERTISE DESIGNATED'BY THE STATE DID NOT ENCOMPASS "BEATTY" AND "WILKERSON'S" OPINION TESTIMONY OR THEIR ALLEGED FIELD OF EXPERTISE, [IF] ANY. CR '29.

THERE WAS NO TESTIMONY THAT "BEATTY" HAD ..EVER [INDEPENDENTLY. .INVESTI GATED AN ASSUALT FAMILY CASE BEFORE, ONLY THAT HE HAD (ONCE) "OBSERVED A FIELD OFFICER DO AN ASSUALT FAMILY VIOLENCE CASE [.]" 3 RR 11. THE NIGHT OF THE ALLEGED OFFENSE, "BEATTY" WAS STILL BEING TRAINED AND SUPERVISED BY "WILKERSON", "BEATTY'S" FIELD TRAINING OFFICER. 3 RR 12. "BEATTY" HAD ONLY SOME "CLASSROOM ORIENTATION" AT THE POLICE ACADEMY. 3 RR .10. BOTH DEPUTY'S COMBINED PATROL EXPERIENCE. MERELY ADDED UP TO. ONE (1) YEAR. 3 RR 9.

IN DIXON v. STATE, 244 S.W.3d 472, 479 (TEX.APP.-H0UST0N[14tHDIST..]- 2007, PET. REF'D); WILLIAMS v. STATE, 826 S.W.2d 783, 785 (TEX.APP.1992) AND DAVIS v. STATE, 313 S.W.3d 317, 350 (TEX.CRIM.APP.2010) - THE LAW ENFORCE MENT OFFICERS HAD YEARS OF EXPERIENCES, HAD PERSONALLY INVESTIGATED NUMEROUS CRIMES DIRECTLY RELATED, TO, THE SUBJECT OF THEIR EXPERT TESTIMONY,.. AND. HAD RECEIVED SPECIALIZED TRAINING [BE]YOND THEIR BASIC POLICE ACADEMY INSTRUCTION.

HERE IN THE INSTANT NOT SO!

BOTH "BEATTY" AND "WILKERSON" DID NOT,HAVE [PERSONAL] KNOWLEDGE OF. THE FACTS OR OF APPELLANT'S MENTAL STATE..SEE "SALDANA", 2011 TEX.APP.IEKIS1709. LIKE "SALDANA" .- HERE "BEATTYS" OPINION, WHILE ALLEGEDLY BASED ON PHYSICAL EVIDENCE >>COULD<< ONLY HAVE BEEN REACHED BASED ON HEARSAY STATEMENTS FROM THE STATES WITNESSES. ("AGNES" AND "TIMS").

HERE ONLY FOUR (4) WITNESS'S TESTIFIED, HOWEVER, IT WAS DEPUTY "WILKER SON" AND DEPUTY "BEATTY", TESTIMONY, IN THEIR OPINION ... APPELLANT WAS GUILTY - AND DID NOT ACT IN SELF-DEFENSE.

NOTE: NEITHER DEPUTY WAS PRESENT AT THE SCENE AT THE TIME OF THE OFFENSE. BOTH "TIMS" AND "AGNES" WERE PRESENT - AND NEITHER TESTIFIED THAT APPELLANT WAS .GUILTY OF ASSAULT. IN PARTICULAR, "AGNES" TESTIFIED THAT THE COMPLAINANT ("TIMS") WAS THE [FIRST] AGGRESSOR.. THUS BUT NOT FOR DEPUTY "BEATTY" - DEPUTY "WILKERSON" THE JURY WOULD NOT HAVE [HEARD] [EV]lDENCE THAT APPELLANT "JONES" WAS GUILTY OF ASSAULT -or- DID NOT ACT IN SELF-DEFENSE. MOREOVER, THE STATE REFERENCED BOTH DEPUTY OFFICER'S OPINIONS - CONCERNING THE [TRUTH]FULNESS OF .THE COMPLAINANT AND "AGNES". ALLEGATIONS - APPELLANT'S GUILT DURING CLOSING. ARGUMENT. ASIDE THE OPINE TESTIMONY, THERE RFJALLY WAS. NO COMPELLING EVIDENCE OF, APPELLANT'S GUILT. A REVIEW OF THE ENTIRE RECORD SHOWS POINT OF ERROR.TWO DID INFLUENCE THE JURY -or- HAD MORE THAN A SLIGHT EFFECT. SEE SOLOMON, 49 S.W.3d 356, 365 (TEX.CRIM.APP.2001).

POINT OF ERROR TWO FOR REVIEW SHOULD BE SUSTAINED. ,T"';'"

POINT OF ERROR THREE FOR REVIEW

SELF-DEFENSE, . COMBINED TO DENY APPELLANT HIS RIGHT TO A FAIR TRIAL UNDER THE FEDERAL AND TEXAS CONSTITUTIONS. THUS ERRORS.- MUST CUMULATIVELY, AS WELL AS INDIVIDUALLY, IMPACTED APPELLANT'S RIGHT TO A FAIR TRIAL, THEREFORE!. THE CONVICTION IN THIS CASE MUST BE REVERSED. [TEX. R. APP. P. 44.2(b)].

- APPENDIX - 71.0021(b) (West 2014) (defining dating relationship as a relationship with a person with whom the defendant has or has had a continuing relationship of a romantic nature). In his first two issues, Jones complains that the trial court refused his request to instruct the jury on his claim of self-defense, and that the trial court erred by admitting the testimony of the two investigating officers who expressed their opinions about the investigation into the reported assault. In a third issue, Jones suggests the cumulative impact of the trial court's errors requires another trial.

Based on our review, we conclude that no evidence was before the jury in Jones' trial to demonstrate that he was acting in self-defense when the altercation occurred. Given the lack of evidence before the jury on Jones' claim of self- defense, we hold that the trial court did not err in refusing his request to instruct the jury on self-defense. With respect to Jones' complaints about the testimony of the officers investigating the assault, we conclude he failed to properly preserve error regarding the testimony of one of the officers, and we conclude that the error in admitting the testimony of the other officer was harmless. Regarding Jones' third issue, we hold that Jones has not shown that multiple errors occurred.

Self-defense

The jury convicted Jones of assaulting his girlfriend, Karen. In issue one, Jones complains the trial court refused to submit an instruction to the jury on his claim of self-defense/Under Texas law, "a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force." Tex. Penal Code Ann. § 9.31(a) (West 2011).

According to the State, Jones failed to produce any evidence during the trial to prove that he thought the force used on Karen was immediately necessary for his protection. We note that Jones did not testify during the guilt-innocence phase of the trial. There were only two other eyewitnesses to the altercation, Karen and Jones' mother, both of whom testified during the trial.

Reviewing a trial court's refusal to submit a claim of self-defense requires an appellate court to review the evidence admitted during trial under a standard that requires evidence on the defensive issue to be reviewed in the light most favorable to the defendant. Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App.

2Karen is a pseudonym for the name of the person who Jones assaulted. See Tex. Const, art. I, § 30 (granting crime victims "the right to be treated with fairness and with respect for the victim's dignity and privacy throughout the criminaljustice process"). During the trial, Karen explainedthat she was no longer in a relationship with Jones.

2001). When the defendant has not testified, the record must contain some evidence to show that at the time of the assault, "the defendant was in some apprehension or fear of being the recipient of the unlawful use of force[.]" Smith v. State, 676 S.W.2d 584, 585 (Tex. Crim. App. 1984).

Two witnesses, Karen and Jones' mother, gave the jury conflicting accounts about the events that led to the altercation between Jones and Karen. According to Karen, she and Jones went to Jones' mother's house. Jones told Karen to wait in the car while he went into the house; however, Karen entered the house a short time after Jones and found Jones arguing with his mother. According to Karen, when she attempted to calm Jones down, Jones pushed her to the floor and struck her in the head. When this testimony is viewed in the light most favorable to Jones, Karen's testimony does not indicate that Jones acted in self-defense.

Jones' mother gave the jury an entirely different account of the events. According to Jones' mother, she and Karen were at the house when Jones arrived. At that point, Karen and Jones began arguing when Karen accused him of dating others. According to Jones' Mother, Jones did nothing wrong before Karen "pushed him in the face." When this testimony is reviewed in the light most favorable to Jones, it too fails to provide the jury with any information that would allow the jury to reasonably infer that Jones acted out of fear after Karen pushed him, nor does her testimony provide any information that would allow the jury to reasonably infer that Jones thought the force he used in response to Karen's push was reasonably necessary to protect himself against the force that Jones' mother claimed Karen had used on him.

/ While a defendant is not necessarily required to testify to raise an issue of self-defense, there must be some evidence before the jury to allow the jury to reasonably infer that the defendant was acting out of the fear that if he did not act, he would be the recipient of the other's unlawful use of force. Smith, 676 S.W.2d at 585. None of the testimony before the jury raises an inference indicating that Jones, during the altercation, had acted based on his fear that Karen was about to strike him.

We conclude that the trial court did not err in rejecting Jones' request for an instruction on his claim of self-defense. See Tex. Penal Code Ann. § 2.03(c) (West 2011) ("The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense."); Reed v. State, 703 S.W.2d 380, 382, 384 (Tex. App.—Dallas 1986, pet. ref d) (rejecting the defendant's argument that the trial court was required to instruct the jury on the defendant's claim of self- defense where he did not testify and none of the other testimony allowed the jury to infer what the defendant believed when he decided to shoot the victim). We overrule issue one. ^ r Opinion Testimony of the Investigating Officers \ /

In issue two, Jones complains that the trial court committed reversible error by allowing the police officers to state the opinions they reached from their investigation into the alleged assault. Deputy Beatty and Deputy Wilkerson, employees of the Montgomery County Sheriffs Office, investigated the incident the night it occurred.(Deputy Beatty testified that based on the investigation, he concluded that Jones assaulted Karen/ Deputy Wilkerson, the other investigating officer, testified that based on what he saw at the scene, nothing led him to believe that Jones was responding to an attack.

Generally, nonconstitutional errors in admitting or excluding evidence in a criminal case must be disregarded unless the error affects a defendant's substantial rights. Tex. R. App. P. 44.2(b). "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. U.S., 328 U.S. 750, 776 (1946)). Nonetheless, an error does not affect a substantial right if the appellate court reviewing the case has '"fair assurance that the error did not influence the jury, or had but a slight effect.'" Solomon v. State, 49 S.W.3d 356, 364-65 (Tex. Crim. App. 2001) (quoting Reese v. State, 33 S.W.3d 238, 243 (Tex. Crim. App. 2000)) (applying nonconstitutional harm analysis to the admission of testimony that it characterized as lay opinion). In determining the effect of the erroneous admission of evidence on a jury's verdict, we review the record as a whole, the nature of the evidence supporting the verdict, the character of the alleged error, and how the jury might have considered the inadmissible evidence in connection with the other evidence admitted 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, any defensive theories, whether the State emphasized the error, closing arguments, and voir dire, if voir dire is relevant to the evidence that is the subject of the defendant's complaint. Id. at 355-56.

On appeal, Jones argues that the testimony of Deputy Beatty was inadmissible because he lacked personal knowledge of the altercation and he was not properly qualified to express an opinion about the assault. According to Jones, Deputy Beatty's opinion was inadmissible under Rules 701 or 702 of the Texas Rules of Evidence. See Tex. R. Evid. 701 (admissibility of the opinions of lay witnesses); Tex. R. Evid. 702 (admissibility of the opinions of experts).

However, Jones did not object that the opinion of Deputy Beatty was inadmissible under Rules 701 or 702, nor did he claim at trial that Deputy Beatty's opinion was not admissible as expert testimony, llnstead, Jones objected to Deputy Beatty's testimony on the basis that the prosecutor's question asked the deputy to express an opinion about a matter that the jury was to be asked to decide. On appeal, Jones argues that Deputy Beatty's opinion was not properly admissible under the Rules of Evidence that govern opinion testimony, Rules 701 and 702. In our opinion, Jones' trial objection is inconsistent with the reasons he contends the testimony was inadmissible on appeal.

To preserve error on appeal, Rule 33.1 of the Texas Rules of Appellate Procedure requires that to preserve a complaint for review on appeal, a party must make the trial court aware of the basis on which he is entitled to the relief he is requesting during the trial. Tex. R. App. P. 33.1(a). Based on the objection that Jones made to Officer Beatty's testimony, the trial court would not have been aware of Jones' claim that the testimony was not admissible as opinion testimony. See Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) ("To avoid forfeiting a complaint on appeal, the party must 'let the trial judge know what he wants, why he thinks he is entitled to it, and to do so clearly enough for the judge to understand him at a time when the judge is in the proper position to do something about it.'" (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992))).

Jones also complains that the trial court erred by allowing Deputy Wilkerson to testify that he saw nothing at the scene that led him to believe that Jones was responding to Karen's attack. Jones objected to this testimony on the basis that Deputy Wilkerson was not there, was not present, and that Jones left the scene before the officers arrived. Although Jones did not specifically state that the question called for Deputy Wilkerson to express an opinion that he was not qualified to express, his objection was sufficient, in the context of the question that was asked, to alert the trial court to Jones' complaint that Deputy Wilkerson was not qualified to express an opinion because he was not present when the altercation occurred. See Tex. R. App. P. 33.1(a)(1)(A).

With respect to Deputy Wilkerson's opinion, the record does not show that the State attempted to qualify Deputy Wilkerson as an expert on self-defense. Therefore, with respect to the testimony at issue, we conclude that the State was attempting to get testimony into evidence as lay witness testimony, not as expert testimony. See Tex. R. Evid. 701, 702.

The testimony the trial court admitted, however, is not admissible as lay opinion. A lay witness may testify to his perception of an event if he personally observed or experienced the event. The testimony of a witness who personally observed an event may include the witness's opinions about the event, as long as the opinion was drawn from the witness's experiences or observations. See Williams v. State, 402 S.W.3d 425, 436 (Tex. App.—Houston [14th Dist.] 2013, pet. refd).

In this case, Deputy Wilkerson was not present at the scene when the altercation between Karen and Jones occurred. Even though Deputy Wilkerson's lay opinion should have been excluded, the opinion addresses Jones' claim of self- defense, a defense that was not relevant to the trial.

Even if Deputy Wilkerson's opinion also suggests that Jones assaulted Karen, Deputy Beatty's opinion that Jones assaulted Karen was already before the jury. Generally, when testimony that should not have been admitted is cumulative of testimony that was admitted without objection, the error is harmless. See Anderson v. State, 111 S.W.2d 622, 628 (Tex. Crim. App. 1986) (noting that "[ijnadmissible evidence can be rendered harmless if other evidence at trial is admitted without objection and it proves the same fact that the inadmissible evidence sought to prove"); Barrera v. State, 10 S.W.3d 743, 746-47 (Tex. App.— Corpus Christi 2000, no pet.) (applying the rule stated in Anderson to a case where the defendant complained of one officer's testimony about the defendant's claim of self-defense when another officer testified, without objection, that the police report did not contain any allegation claiming the defendant had acted in self-defense). In this case, Jones did not lodge a valid objection to Deputy Beatty's opinion indicating that the investigation showed that Jones had committed an assault. We have previously concluded that the trial court did not err in overruling the objection Jones made to Deputy Beatty's testimony.

Considering the nature of the evidence supporting the verdict, we have fair assurance that Deputy Wilkerson's opinion did not influence the jury's verdict. See Solomon, 49 S.W.3d at 365. The exculpatory evidence before the jury, the testimony of Jones' mother, may have been given little weight because the evidence before the jury includes the 911 call that Jones' mother made to the police seeking assistance after the altercation occurred. In the 911 call, Jones' mother stated that Jones had assaulted his girlfriend and used his fists to hurt her. The jury also saw photographs depicting Karen's injuries. During final argument, the prosecutor did not refer to Deputy Wilkerson's opinion to support his argument that Jones should be found guilty.

Having carefully reviewed the evidence as a whole, and considering the arguments presented to the jury in closing, we conclude that the admission of Deputy Wilkerson's opinion, although error, was harmless. See Tex. R. App. P. 44.2(b). We overrule issue two.

Cumulative Error

In issue three, Jones argues that the cumulative impact of the trial court's errors was so great that his conviction should be reversed. However, we have found in Jones' favor solely on his claim that the trial court erred by admitting the opinion expressed by Deputy Wilkerson, and we have explained that the admission of Deputy Wilkerson's opinion, in the context of all of the evidence admitted during Jones' trial, was harmless. Because Jones has shown the trial court committed only one error during the trial, the error is not cumulative of others. We overrule issue three, and we affirm the trial court's judgment.

AFFIRMED.

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