IN THE
TENTH COURT OF APPEALS
No. 10-01-246-CV
MARY LOUISE KLEKAR,
Appellant
v.
RONALD JENE KLEKAR,
Appellee
From the 311th District Court
Harris County, Texas
Trial Court # 98-16618
MEMORANDUM OPINION
Mary Louise Klekar appealed her divorce. She filed a motion to dismiss her appeal on February 19, 2002. The motion states that it is based upon the agreement of the parties pursuant to a mediated settlement agreement.
Rule of Appellate Procedure 42.1(a)(2) provides:
(a) The appellate court may dispose of an appeal as follows:
(2) in accordance with a motion of appellant to dismiss the appeal or affirm the appealed judgment or order; but no other party may be prevented from seeking any relief to which it would otherwise be entitled.
Tex. R. App. P. 42.1(a)(2).
Klekar’s dismissal motion complies with the requirements of the appellate rules. More than ten days have passed since the filing of the motion without a response from Appellee Ronald Jene Klekar. Accordingly, this cause is dismissed with costs to be taxed against the party incurring same.
PER CURIAM
Before Chief Justice Davis,
Justice Vance, and
Justice Gray
Appeal dismissed
Opinion delivered and filed March 6, 2002
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[CV06]
, 1991. They were tried together, though represented by separate counsel, and both were convicted and sentenced to life imprisonment.
Reese and Roberson have the same counsel on appeal, the statements of facts are identical and both urge three identical points on appeal.
Jack Keller (the deceased) and David Osborne were neighbors in a boarding house near downtown Houston. On April 20, 1991, at about 7:00 p.m., they walked to the Westheimer Arts Festival, ate at a hot dog stand, walked around for awhile, then walked toward their home. Near a soul food restaurant a small group of men shouted at them from the opposite side of the street asking if they were in the market for crack cocaine. Osborne replied they were not, whereupon, the men came at Keller and Osborne knocking Osborne down and beating him to unconsciousness. Keller was knocked down and while he was down Reese and Roberson stabbed him six times, three stabs to the chest and three to the back. The autopsy report showed four of the stabs were fatal and any one was sufficient to cause Keller's death. Reese's and Roberson's statements admit to killing Keller but assert self defense. In the punishment phase, the State proved four prior felony convictions against each of the defendants.
As noted, both defendants were convicted and both appeal on identical points.
Point one asserts that the trial court reversibly erred in permitting Houston Police Sergeant Swaim to testify that Appellants did not act in self defense in contravention of Texas Rules of Criminal Evidence 704.
On redirect examination of Sergeant Swaim the State asked:
Q.Sergeant Swaim, just one thing. Reading both of defendants' statements together, do you think that a person who is surrounded by a mob, including the defendant[s] and all of their friends, okay? And people are throwing bricks, and bottles and things, rocks, at one person who seems to be center of all this activity, that person is now down on the ground with their hands over their head unarmed at this point and a person plunges a knife into their back approximately four times while another person also, according to one of the defendant's statement, stabbed that person at the same time, do you think that the two people with the knives in their hand who are stabbing this man, who are in the center of the crowd are acting in self defense?
A.No.
[COUNSEL FOR ROBERSON]: We object totally to the question. It's calling for speculation on the part of the witness as to the mental state of the people involved in this case.
THE COURT: Overruled.
First, the trial objection was to "speculation on the part of the witness as to the mental state of the people involved in this case." The point of error does not comport with the trial objection. A trial objection stating one legal basis may not be used to support a different legal theory on appeal. Rezac v. State, (Tex. Crim. App.) 782 S.W.2d 869.
Second, Rule 704, Texas Rules of Criminal Evidence, relied on by Appellants provides:
Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
All portions of the State's questions were in evidence. In such a situation, Rule 704,
Texas Rules of Criminal Evidence, does not prohibit the complained of question or Sergeant Swaim's answer. Both Reese's and Robertson's point of error one are overruled.
Point two asserts that the trial court reversibly erred in allowing into evidence, over Appellants' hearsay objection, the statements of the medical examiner, Aurelio A. Espinola, through the testimony of another medical examiner, Edwardo Bellos, in contravention of Texas Rules of Criminal Evidence 803(8)(B).
The State sought to introduce Exhibit 39 which was the autopsy report of the deceased Jack Keller. Counsel for Roberson objected on the grounds of hearsay, to which the State responded that the exhibit was a business record exception to the hearsay rule. The trial court denied the objection and admitted the report.
Rule 803 reads in part:
(8) Public records and reports records, reports, statements or data compilation, in any form, of public offices or agencies setting forth . . . (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, matters observed by police officers and other law enforcement personnel . . . .
Objection was on the basis that the report was unsworn. This is a different objection from the one being raised on appeal, i.e., that the report was hearsay because it contained matters observed by law enforcement personnel within the exception of Rule 803(8)(B).
The point presented on appeal must be the same as the objection raised at the trial in order for any error to be preserved. Ransom v. State, (Tex. Crim. App.) 789 S.W.2d 572, 588; Rezac v. State, (Tex. Crim. App.) 782 S.W.2d 869.
Medical personnel who prepare autopsy reports are not "police officers" or "law enforcement personnel," but are medical examiners appointed by the County Commissioners' Court and serve at their pleasure. Tex. Code Crim. Proc. Ann. art. 49.25 § 2; Garcia v. State, No. 05-91-066-CR (Tex. App.—Dallas); Vasquez v. State, 814 S.W.2d 773 (Tex. App.—Houston [14th Dist.] pet. ref'd). Point two of both Reese and Roberson is overruled.
Point three asserts that the trial court reversibly erred in denying Appellants' requested charge, Exhibit 1.
Both appellants requested the following charge be given to the jury at the guilt/innocence phase of the trial:
You are instructed further, in connection with the law of self-defense that if you find from the evidence that shortly prior to the killing, the defendant reasonably apprehended an attack upon his person by the deceased, then the fact that the defendant armed himself with a knife would in no wise impair or lessen his right to self-defense because he would have a right to arm himself if he reasonably feared such attack.
Request for such instruction was denied by the trial court. The trial court did give the jury the following instructions on the law 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 he reasonably believes the force is immediately necessary to protect himself against the other person's use or attempted use of unlawful force. 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 if he would be justified in using force against the other in the first place, as above set out, and when he reasonably believes that such deadly force is immediately necessary to protect himself against the other person's use or attempted use of unlawful deadly force, and if a reasonable person in the defendant's situation would not have retreated.
By the term `reasonable belief' as used herein is meant a belief that could be held by an ordinary and prudent person in the same circumstances as the defendant.
By the term `deadly force' is meant force that is intended or known by the persons using it to cause, or in the manner of its use or intended use is capable of causing death or serious bodily injury.
When a person is attacked with unlawful deadly force, or he reasonably believes he is under attack or attempted attack with unlawful deadly force, and there is created in the mind of such person a reasonable expectation or fear of death or serious bodily injury, then the law excuses or justifies such person in reverting to deadly force by any means at his command to the degree that he reasonably believes immediately necessary, viewed from his standpoint at the time, to protect himself from such attack or attempted attack. And it is not necessary that there be an actual attack or attempted attack, as a person has a right to defend his life and person from apparent danger as fully and to the same extent as he would had the danger been real, provided that he acted upon a reasonable apprehension of danger, as it appeared to him from his standpoint at the time, and that he reasonably believed such deadly force immediately necessary to protect himself 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 the case in evidence before you, together with all relevant facts and circumstances going to show the condition of the mind of the defendant at the time of the occurrence in question, and in considering such circumstances, you should place yourselves in the defendant's position at that time and view them from his standpoint alone.
Now if you find from the evidence beyond a reasonable doubt that the defendant [each charge naming the respective defendant] did cause the death of Jack Keller by stabbing him with a knife, as alleged, but you further find from the evidence as viewed from the standpoint of the defendant at the time, that from the words or conduct, or both, of Jack Keller it reasonably appeared to the defendant that his life or person was in danger and there was created in his mind a reasonable expectation or fear of death or serious bodily injury from the use of unlawful deadly force at the hands of Jack Keller, and that acting under such apprehension and reasonably believing that the use of deadly force on his part was immediately necessary to protect himself against Jack Keller's use or attempted use of unlawful deadly force, he stabbed Jack Keller with a knife and that a reasonable person in the defendant's situation would not have retreated, 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.
If you find from the evidence beyond a reasonable doubt that at the time and place in question the defendant did not reasonably believe that he was in danger of death or serious bodily injury, or that a reasonable person in the defendant's situation would have retreated before using deadly force against Jack Keller, or that the defendant under the circumstances as viewed by him from his standpoint at the time, did not reasonably believe that the degree of force actually used by him was immediately necessary to protect himself against Jack Keller's use or attempted use of unlawful deadly force, then you should find against the defendant on the issue of self defense.
You are instructed in connection with the right of self-defense that if the defendant was acting in self defense when he used deadly force, if he did, then he would have a right to continue using deadly force so long as it reasonably appeared to him, at the time, as viewed from his standpoint along, that all danger had not passed.
The requested instruction is substantially the same as that given by the court's charge. When a requested instruction is substantially the same as that given by the court, there is no harm in refusing it. Philen v. State, (Tex. Crim. App.) 683 S.W.2d 440, 445; Davis v. State, (Tex. Crim. App.) 651 S.W.2d 787, 792. Both Reese's and Roberson's point three are overruled.
The judgment is affirmed.
FRANK G. McDONALD
Chief Justice (Retired)
Before Justice Cummings,
Justice Vance and
Chief Justice McDonald (Retired)
Affirmed
Opinion delivered and filed January 13, 1993
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