Opinion issued on June 24, 2004.
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-00362-CR
CHARLSIE AMANDA BOLTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 23rd District Court
Brazoria County, Texas
Trial Court Cause No. 43124
MEMORANDUM OPINION
A jury found appellant, Charlsie Amanda Bolton, guilty of murder and assessed punishment at 40 years’ confinement and a $10,000 fine. In two points of error, appellant contends that the trial court erred in (1) allowing the State to use grand jury testimony and (2) refusing to incorporate, in the jury charge, appellant’s requested instruction on self defense. We affirm.
Background
Appellant and Zaul Zamora, the complainant, previously lived together for a few months. On June 18, 2002, Zamora was moving out of appellant’s garage apartment, and Joshua Harley, his friend, accompanied him to move a couch.
Harley testified that, when he and Zamora arrived at appellant’s apartment, they found a note taped on the garage door that said “Zaul, the couch is Derrick’s and Derrick jacked me so its mine fool.” They then walked to the main house and talked to appellant’s brother, Charles. Charles opened the garage door and let them in. Harley and Zamora knocked on the apartment door and called appellant’s name several times. Harley testified that he and Zamora stood and knocked on the door for approximately five minutes before the door opened on its own. They saw appellant lying on her back, on a couch, with her arms folded across her chest. As Zamora walked toward appellant, Harley went to the couch that he and Zamora were there to move and picked up the cushions. Zamora gently shook appellant attempting to wake her. Harley then heard Zamora yell that appellant had stabbed him.
Zamora died of his stab wounds, and appellant was arrested for his murder. While Pearland Police Department Dispatcher Holly Chauvin collected appellant’s clothing at the police station, appellant told her, “I just didn’t want to deal with him and the couch.” Appellant also told Chavin that she thought that she was in a lot of trouble and might be going away for a while.
Appellant’s defense at trial was that she was asleep and was startled by Harley and Zamora’s presence in her apartment.
Grand Jury Testimony
In her first point of error, appellant contends that the trial court erred in allowing the State to use the grand jury testimony of her brother, Charles, for impeachment purposes. Appellant argues that Charles’s prior grand jury statements are hearsay, and, therefore, are inadmissible. We disagree.
We review a trial court’s evidentiary ruling for an abuse of discretion. Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002). If the trial court’s ruling is within the zone of reasonable disagreement, we will not intercede. Id.
Hearsay is defined as an oral or written “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tex. R. Evid. 801(d); Garcia v. State, 868 S.W.2d 337, 339 (Tex. Crim. App. 1993). Texas Rule of Evidence 802 provides that “hearsay is not admissible except as provided by statute or these rules.” Tex. R. Evid. 802. Texas Rule of Evidence 613(a) also permits a party to impeach a witness with a prior inconsistent statement. Tex. R. Evid. 613(a); Lopez, 86 S.W.3d at 320. To qualify for admission under the inconsistent-statement exception, the trial court must be persuaded that the statements are indeed inconsistent. Id. As a predicate, rule 613 directs that, before a witness may be impeached, she must be informed of the statement’s content, the time and place at which it was made, and the person to whom it was uttered. Tex. R. Evid. 613(a). If the witness unequivocally admits having made the statement, extrinsic evidence of the statement may not be admitted. Tex. R. Evid. 613(a).
Appellant challenges three instances, during the trial, where the State introduced grand jury testimony to impeach Charles.
First, Charles testified that he did not remember if, during his telephone conversation with appellant shortly before Zamora was stabbed, appellant told him that Zamora and Harley had arrived. The State asked Charles if he remembered previously giving a statement under oath. Appellant objected to hearsay, and the trial court overruled the objection and reminded the jury that they could only consider the evidence for the limited purpose of impeachment and for no other purpose. The State then asked Charles to silently read a portion of his grand jury testimony to refresh his memory. Charles stated that he had given the earlier testimony under oath, but now, he could not recall what appellant had said during the telephone conversation. He acknowledged that he had previously testified that, during his telephone conversation with her, appellant told him that “they are here.”
Second, Charles testified that, after Zamora and Harley arrived, he did not hear knocking on appellant’s door. After Charles testified that he was “pretty sure” that he did not hear knocking, the trial court again gave a limiting instruction to the jury telling them that they could only consider the testimony for the limited purpose of impeachment and for no other purpose. The State presented Charles with his grand jury testimony and asked him if it refreshed his memory. Charles said that it did refresh his memory but that he could not remember if he heard knocking on appellant’s door. The State then asked Charles if, previously, under oath, he had testified that he heard knocking at appellant’s door. He said “Yes.”
Third, Charles was asked if he had “messed the doorjam and the actual trim piece” from the garage door leading to appellant’s apartment. Charles denied breaking into the door. After this testimony, appellant’s trial counsel turned to the trial court, and said, “I may need a limiting instruction again, Judge,” and the trial court instructed the jury that the prior statements could only be used for impeachment and could be considered for no other purpose. The trial court overruled appellant’s hearsay objection. The State showed Charles his grand jury testimony and asked him if it refreshed his memory. He said “yes and no.” The State then asked if, under oath, he had testified that once he had to break appellant’s door for her. He replied, “Yes.” In this case, none of the grand jury testimony used to impeach Charles was hearsay. The State used Charles’s prior statements for the limited purpose of attacking his credibility because of his inconsistent statements. Because it was not offered to prove the truth of the matter asserted, it was not hearsay. See Guidry v. State, 9 S.W.3d 133, 152 (Tex. Crim. App. 1999). Further, the trial court instructed the jury that it could only consider the prior grand jury statement for the limited purpose of impeachment and for no other purpose. Therefore, the State’s use of the grand jury testimony was not hearsay, and the trial court did not abuse its discretion in allowing the State to impeach Charles with his grand jury testimony.
We overrule appellant’s first point of error.
Self-Defense Instruction
In her second point of error, appellant contends that the trial court erred in refusing to submit her requested instruction on self defense.
In reviewing the charge, we must determine (1) whether there is error in the charge and (2) whether sufficient harm resulted requiring reversal. Hutch v. State, 922 S.W.2d 166, 170–71 (Tex. Crim. App.1996); Duke v. State, 950 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d).
If the trial court fails to instruct a jury on the law and on the law as applied to the facts, a jury cannot perform its function of being the exclusive judge of the facts. Doyle v. State, 631 S.W.2d 732, 736 (Tex. Crim. App. 1980). The charge must clearly apply the law to the facts. Id. at 737. The general rule is that a charge should be read as a whole and such a rule becomes applicable only when a reviewing court is judging the application of the law to the facts paragraph and uses the charge as a whole to flesh out and explain the application paragraph. Id. at 738.
An application paragraph on the issue of criminal responsibility is adequate if (1) it specifies all of the conditions to be met before a conviction is authorized, (2) it authorizes a conviction under conditions specified by other paragraphs of the jury charge to which the application paragraph necessarily and unambiguously refers, or (3) it contains some logically consistent combination of such paragraphs. Degrate v. State, 86 S.W.3d 751, 753 (Tex. App.—Waco 2002, pet. ref’d). It is unnecessary to repeat every abstract definition in the application paragraph of the jury charge. Dinkins v. State, 894 S.W.2d 330, 339–40 (Tex. Crim. App. 1995) (holding that the jury charge was not defective when it omitted a culpable mental state in application paragraph, where definition was given in abstract portion of charge); Jones v. State, 907 S.W.2d 850, 854 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d) (concluding that the failure to define “combination” in the application paragraph was not error). A general application in the charge is not a total failure to apply the law to the facts. See Chatman v. State, 846 S.W.2d 329, 332 (Tex. Crim. App. 1993) (concluding that the general application of the law of parties to the facts was sufficient to refer the jury to the abstract instructions on the law of parties).
Here, the trial court submitted the following abstract charge to the jury on the issue of self defense:
Upon the law of self defense[,] you are instructed that a person is justified in using force against another when and to the degree she reasonably believes the force is immediately necessary to protect herself against the other’s use or attempted use of unlawful force.
When a person is attacked with unlawful deadly force, or she reasonably believes she is under attack or attempted attack with unlawful deadly force, and there is created in the mind of such a person a reasonable expectation or fear of death or serious bodily injury, then the law excuses or justifies such a person in resorting to deadly force by any means at her command to the degree that she reasonably believes immediately necessary, viewed from her standpoint at the time, to protect herself from such attack. It is not necessary that there be an actual attack or attempted attack, as a person has a right to defend her life and person from apparent danger as fully and to the same extent as she would had the danger been real, provided that she acted upon a reasonable apprehension of danger, as it appeared to her from her standpoint at the time, and that she reasonably believed such deadly force was immediately necessary to protect herself against the other person’s use or attempted use of unlawful deadly force.
In determining the existence of real or apparent danger, you should consider all the facts and circumstances in evidence before you, all relevant facts and circumstances surrounding the killing, if any, the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the defendant at the time of the offense, and, in considering such circumstances, you should place yourselves in the defendant’s position at that time and view them from her standpoint alone.
The use of force against another is not justified in response to verbal provocation alone.
A person is justified in using deadly force against another:
(1) if she would be justified in using force against the other; and
(2) when and to the degree she reasonably believes the deadly force is immediately necessary;
(a) to protect herself against the other’s use or attempted use of unlawful deadly force; or
(b) to protect herself against the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.
The charge then defined “unlawful,” “reasonable belief,” “deadly force,” “deadly weapon,” “bodily injury,” and “serious bodily injury.”
The application paragraph ended with the following language:
Now, if you believe from the evidence beyond a reasonable doubt, that the defendant, CHARLSIE AMANDA BOLTON, in Brazoria County, Texas, on or about the 18th day of June, 2002, did knowingly, or recklessly, cause the death of Zaul Zamora, by stabbing him with a knife, but you further find that she was acting in self-defense (as defined for you above), or if you have a reasonable doubt as to whether she was acting in self-defense, you will acquit the defendant and say by your verdict “Not Guilty” of the offenses of Murder, as charged in the indictment, and Manslaughter.
Appellant argues that the trial court erred by not replacing the above application language with a charge that incorporated the following self defense language that she provided the trial court:
But you further find from the evidence as viewed from the standpoint of the defendant at that time . . . that from the words or conduct or both of Zaul Zamora it reasonably appeared to the defendant that her life or person was in danger and there was created in her mind a reasonable expectation of fear or death or serious bodily injury from the use of unlawful deadly force at the hands of Zaul Zamora and that[,] acting under such apprehension and reasonably believing that the use of deadly force on her part was immediately necessary to protect herself against Zaul Zamora’s use or attempted use of unlawful deadly force, she stabbed him with a knife, then you should acquit the defendant on the grounds of self-defense or if you have a reasonable doubt as to whether or not the defendant was acting in self-defense on said occasion and under the circumstances, then you should give the defendant the benefit of that doubt and say by your verdict “Not Guilty.”
In this case, the trial court’s application paragraph charged the jury that, if it found that appellant “was acting in self defense (as defined for you above)” or if it had a reasonable doubt as to whether she was acting in self defense, it must acquit her. The application paragraph clearly and unambiguously referred to the prior detailed definition on self defense that was given in the abstract charge. The jury could have logically inserted the definition of self defense from the charge into the application paragraph. See Jones, 907 S.W.2d at 854. Thus, the application paragraph was not defective, and the jury was not misled or confused by such application under the facts of the case. Accordingly, the trial court did not err in refusing to incorporate, in the application paragraph of the jury charge, appellant’s requested instruction on self defense.
We overrule appellant’s second point of error.
Conclusion
We affirm the judgment of the trial court.
George C. Hanks, Jr.
Justice
Panel consists of Justices Taft, Hanks, and Higley.
Do not publish. Tex. R. App. P. 47.2(b).