Affirmed and Memorandum Opinion filed March 10, 2009.
In The
Fourteenth Court of Appeals
____________
NO. 14-07-00913-CR
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JADE SHEREE NEAL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause No. 1126385
M E M O R A N D U M O P I N I O N
Appellant, Jade Sheree Neal, appeals from her conviction for murder. Tex. Penal Code Ann. ' 19.02(b)(1)-(2) (Vernon 2003). The jury found appellant guilty and assessed punishment at thirty-four years= confinement in the Texas Department of Criminal Justice, Institutional Division. In eight issues, appellant contends that (1) the trial court erred when it did not permit appellant to offer evidence of the complainant=s past and when it allowed a police officer to testify that witnesses= statements were consistent, (2) statements made by the prosecutor during closing argument were improper, and (3) the evidence is legally and factually insufficient. We affirm.
I. Background
On November 4, 2006, appellant, the complainant Joseph Durousseau, and several family members set out in appellant=s father=s car for birthday-party supplies. At one point during the trip, an argument started between the complainant and one or more occupants of the car. The complainant told the driver, his girlfriend Tomika Hall, to stop the car. Hall, who identified appellant as her step-sister,[1] testified that when she told the complainant that a parking lot was nearby, he Asnatched@ the keys out of the ignition. At that point, the complainant exited the car, followed by appellant, her father Efrem Neal, her uncle Edward Neal, and Hall.[2]
The testimony differs as to what happened next. According to Hall, appellant and the complainant continued to argue. Hall testified that when she attempted to intervene, appellant pushed her. Hall went back to the car and retrieved a screwdriver from the glove compartment to open the trunk and remove her groceries. As she was doing so, Hall looked around the trunk and saw the complainant on the ground and appellant and Edward Neal standing over him. Hall observed the complainant covered in blood. She stated that the complainant stumbled into the street and fell. Maximillian Sanchez was visiting his wife at work and witnessed the events happening on the street. He testified that the younger of the two men standing by the car punched the complainant, and the complainant fell. Sanchez stated that appellant was making motions as if looking for a spot to stab the complainant. He then saw three or four stabbing movements. The complainant stood up, stumbled into the street, and fell to the ground, at which point Sanchez called 911. C.R., Hall=s eight-year-old daughter, who was an occupant of the car, testified that the complainant was stabbed with a knife by appellant and that appellant got the knife from Edward Neal=s pocket.
Edward and Efrem Neal testified that the complainant struck appellant, and then the complainant and Edward Neal began to fist fight. Both testified that they did not see anyone stab the complainant. Appellant testified that the complainant slapped her twice. After the second time, appellant pulled out a knife and Aused it.@ She testified that her intention was not to kill him but to Aget him off of me so he could quit hitting me.@ According to appellant=s testimony, when the complainant raised his hand to strike her again, appellant cut him again with the knife. She testified that Edward Neal and the complainant started to fight. Appellant stated that she and Hall tried to break up the fight, and when they did, the complainant, Edward Neal, and Hall fell to the ground. As they were getting up, Hall noticed that the complainant was bleeding. According to the appellant=s testimony, the complainant got up and swung again; Edward Neal hit him in the chest, and the complainant took two steps before he collapsed. Dr. Anna Lopez, a forensic pathologist with the Harris County Medical Examiner=s Office, testified that the complainant had major stab wounds to the chest and back. The stab wound to the chest went through the heart; the knife blade was still in the complainant=s back.
After Sanchez called 911, he brought the two child occupants of the car inside because they were crying. He then went around the corner to talk to his friend Jimmy Galaviz. Galaviz testified that he observed appellant walking up and down his street. According to Galaviz, appellant asked Galaviz=s neighbor for a telephone, but the neighbor declined to let her use one. Galaviz told Sanchez where he saw appellant walking, and Sanchez found her. Sanchez went back to the scene and told Officer Jim Adkins of appellant=s whereabouts. Officer Adkins and Sanchez drove in Sanchez=s car to appellant=s location. Based on information from Sanchez, Officer Adkins arrested appellant. Appellant was charged with murder. A jury found appellant guilty and sentenced her to thirty-four years= confinement in the Texas Department of Criminal Justice, Institutional Division.
II. Analysis
A. Admissibility of Evidence
In her first three issues, appellant contends that the trial court erred when it did not permit appellant to offer evidence of the complainant=s past at the guilt/innocence and punishment phases of trial. Specifically, appellant argues the trial court erred in excluding this evidence (1) to show that the complainant was the first aggressor, (2) to rebut an alleged false impression left by Sergeant Guillermo Gonzalez, and (3) to rebut an alleged false impression left by the complainant=s brother during the punishment phase.
We review a trial court=s decision to admit or exclude evidence under an abuse of discretion standard. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). We reverse only when the trial court=s decision was so clearly wrong as to fall outside the zone of reasonable disagreement. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). We uphold the trial court=s ruling if it is reasonably supported by the record and correct under any theory of law applicable to the case. Willover, 70 S.W.3d at 845.
Generally, a defendant in a murder prosecution who raises the issue of self-defense may introduce evidence of the victim=s violent character. See Tex. R. Evid. 404(a)(2); Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). The defendant may offer opinion or reputation testimony to prove that the victim acted in conformity with his violent nature. See Tex. R. Evid. 404(a)(2), 405(a); Torres, 71 S.W.3d at 760. Specific, violent acts of misconduct may be admitted to show the reasonableness of the defendant=s fear of danger, or to show that the victim was the first aggressor. Torres, 71 S.W.3d at 760. Evidence of specific bad acts is admissible only to the extent that it is relevant for a purpose other than to show character conformity. Tex. R. Evid. 404(b); Torres, 71 S.W.3d at 760.
1. First Aggressor
First, appellant complains that the trial court erred in refusing to allow her to question Hall regarding the complainant=s propensity for violent behavior. Appellant argues the evidence of the complainant=s violent past was admissible to show that the complainant was the first aggressor. The Court of Criminal Appeals has held that specific, violent acts may be relevant to show the victim=s intent, motive, or state of mind when proving that a victim was the first aggressor. Torres, 71 S.W.3d at 760. However, in this case, appellant did not argue to the trial court that the evidence should be admitted because the victim was the first aggressor. Rather, during a discussion at the bench, appellant=s counsel argued in favor of admissibility of the complainant=s past acts because the acts showed appellant=s state of mind as to why she was afraid of him. We may not overturn a trial court=s decision on a legal theory not presented to the trial court. Vasquez v. State, 225 S.W.3d 541, 543 (Tex. Crim. App. 2007); London v. State, B S.W.3d B, No. 05-07-00983-CR, 2008 WL 5102975, at *5 (Tex. App.BDallas Dec. 5, 2008, pet. filed) (holding appellant failed to preserve error when he did not present his Afirst aggressor@ argument in trial court). Because appellant did not present the argument that the complainant was the first aggressor to the trial court when seeking to admit the evidence, she has failed to preserve error for review.
Moreover, during cross-examination outside the presence of the jury, Hall testified that the complainant never hit her. Hall also stated that she was not aware that the complainant had been convicted of assault and terroristic threat, and she was not aware of any type of assaultive behavior from complainant. While the appellant need not have knowledge of the victim=s violent acts to show that the victim was the first aggressor, the witness must have knowledge of such acts; according to the offer of proof, Hall did not. See Torres, 71 S.W.3d at 761. Accordingly, we overrule appellant=s first issue.
2. Alleged False Impression Left by Sergeant Gonzalez
In her second issue, appellant contends that the trial court erred when it refused to allow appellant to cross-examine Sergeant Guillermo Gonzalez about the complainant=s past criminal history. Specifically, appellant claims that Sergeant Gonzalez left a false impression when he stated that he did not have any reason to believe throughout the course of his investigation that the complainant was killed in self-defense.
To preserve error in a trial court=s exclusion of evidence, the substance of the excluded evidence must be shown by an offer of proof unless it is apparent from the context of the questions asked. Tex. R. Evid. 103(a)(2). Otherwise, there is nothing before the appellate court to show reversible error in the trial court=s ruling. Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999); Stewart v. State, 686 S.W.2d 118, 122 (Tex. Crim. App. 1984). Error may be preserved by an offer of proof in question and answer form or in the form of a concise statement by counsel. Tex. R. Evid. 103(b); Love v. State, 861 S.W.2d 899, 901 (Tex. Crim. App. 1993). Counsel=s concise statement must include a summary of the proposed testimony. Love, 861 S.W.2d at 901. Error is not preserved if the offer of proof is inadequate. Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998).
Here, appellant=s trial counsel told the trial court that he intended to ask Sergeant Gonzalez whether he performed a criminal background check on the complainant to show that the complainant had a history of violence. The trial court responded: AIt may be that you can call him back after she puts it in perspective. But there=s nothing to indicate that he knew anything about anything.@ Later in the trial, there was another discussion on this issue. In that discussion, appellant=s trial counsel stated that he wished to introduce evidence of the complainant=s criminal history through Sergeant Gonzalez. The trial court stated the evidence was not relevant because appellant was not aware of the complainant=s criminal history. The trial court then told counsel that he could put on the record what he would have asked Sergeant Gonzalez once the jury Agoes out.@ Just prior to the defense=s resting its case, appellant=s trial counsel asked about the offer of proof. The following exchange took place:
Appellant=s Trial Counsel: You said you were going to let me make my proffer with Officer Gonzalez. If I rest and close, then I don=t see how the Court B
The Court: But for your proffer.
Appellant=s Trial Counsel: Okay.
The Court: I=ll reserve specifically your right to put on the record so that I don=t have to send the jury out after they retire.
The offer of proof is not in the record. Texas Rule of Evidence 103(b) clearly states that the offering party must make its offer of proof Abefore the court=s charge is read to the jury.@ Tex. R. Evid. 103(b). This is not a case in which the trial court made an absolute refusal to allow appellant to make an offer of proof. See Spence v. State, 758 S.W.2d 597, 599 (Tex. Crim. App. 1988). Rather, the trial court indicated that trial counsel could make the offer of proof after the jury was deliberating. The burden to preserve error rests on appellant. See Tex. R. App. P. 33.1(a). It was defense counsel=s responsibility to insist on his right to make the offer of proof before the charge was read.
Because nothing in the record indicates what knowledge Sergeant Gonzalez had about the complainant=s convictions, the substance of the excluded testimony cannot be determined. Bundy v. State, B S.W.3d B, No. 2-07-189-CR, 2009 WL 112766, at *2 (Tex. App.BFort Worth, Jan. 15, 2009, no pet. h.); Garza v. State, 846 S.W.2d 936, 939 (Tex. App.CHouston [1st Dist.] 1993, pet. ref=d). Therefore, appellant failed to preserve error and we overrule her second issue.
3. Alleged False Impression Left by the Complainant=s Brother
In her third issue, appellant contends that the trial court erred when it did not allow her to cross-examine the complainant=s brother about the complainant=s criminal record during the punishment phase of trial. Specifically, appellant argues that Charles Washington, the complainant=s brother, created a false impression Aabout who the complainant was@ when he described the complainant as a good brother and a church-goer.
Victim-impact evidence may be admissible at the punishment phase of trial when it Ahas some bearing on the defendant=s personal responsibility and moral culpability.@ Salazar v. State, 90 S.W.3d 330, 335 (Tex. Crim. App. 2002). The Court of Criminal Appeals has criticized the use of negative victim-impact evidence to show that a decedent was not a valuable member of the community. See Goff v. State, 931 S.W.2d 537, 554-56 (Tex. Crim. App. 1996) (holding that evidence of victim=s homosexuality, offered with the assumption that jury would consider a homosexual a less valuable member of society, was inadmissible in capital-murder case); Clark v. State, 881 S.W.2d 682, 698-99 (Tex. Crim. App. 1994) (in dicta, disagreeing with defendant=s logic Ain suggesting that the decedent=s behavior indicated that she was not a particularly valuable member of the community and that her life might have had more value had she been of a different character@).
Here, appellant claims Washington Aopened the door@ to the complainant=s criminal history when he testified on direct examination that he and the complainant had a good relationship, that the complainant was protective of his brothers and sisters, and that the complainant taught him how to play basketball and cut hair. Later, in response to a question about whether he had ever met appellant, Washington stated:
A: She B it was a night that Joe and Tomika had come from church. And I guess she was their ride to church. And he stopped by the house to ask me if he could get gas money to give to her for taking them home.
These comments do not create a false impression that the complainant was without faults. The evidence of the complainant=s criminal record would not have rebutted Washington=s testimony that he had a good relationship with the complainant, that the complainant was protective of his brothers and sisters, or that the complainant taught him how to play basketball and cut hair. The testimony about the complainant=s going to church was merely to place in context how Washington knew appellant. Evidence of the complainant=s criminal record is essentially negative victim-impact evidence, and the trial court did not abuse its discretion in excluding it. See Richards v. State, 932 S.W.2d 213, 215-16 (Tex. App.BEl Paso 1996, pet. ref=d) (holding that evidence that victim was not a Amodel citizen@ was irrelevant to issue of appellant=s personal responsibility and moral guilt). We overrule appellant=s third issue.
B. Alleged Improper Jury Argument
In her fourth and fifth issues, appellant contends the prosecutor made improper statements during jury argument that warrant reversal of her conviction.
Appellant first contends the following comment by the prosecutor during closing argument was improper:
I promise you what happened out there is that her uncle was holding him down and she stabbed him to death and he couldn=t even defend himself. That=s why he has no marks on his hand, knife marks on his hand because they were behind his back while she stabbed him. He couldn=t defend himself.
Appellant admits that she did not object at trial to this argument. However, appellant argues that the above argument was so prejudicial that no objection at trial is required, citing Romo v. State for this proposition. In Cockrell v. State, the Court of Criminal Appeals overruled Romo and any other cases allowing an exception to normal error-preservation rules for improper and incurable jury argument. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (overruling Montoya v. State, 744 S.W.2d 15 (Tex. Crim. App. 1987) and Romo v. State, 631 S.W.2d 504 (Tex. Crim. App. 1982)). For appellant to complain on appeal about erroneous jury argument, appellant must show that she objected at trial and that she pursued her objection to an adverse ruling. See Mathis v. State, 67 S.W.3d 918, 926-27 (Tex. Crim. App. 2002) (reaffirming the holding in Cockrell that appellant must pursue to adverse ruling his objections to jury argument); Moreno v. State, 195 S.W.3d 321, 328-29 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d) (citing Cockrell for this proposition). Because appellant did not object to the argument she challenges in her fourth issue, appellant has not preserved the issue for appellate review. Accordingly, we overrule appellant=s fourth issue.
In her fifth issue, appellant argues the trial court erred in overruling her objection to the following jury argument:
Maximillian Sanchez told you what he saw. And he helped the police get a killer off the street on that day. And we have to thank him for what he did. He has been so inconvenienced by this case and by her killing Joseph Durousseau. He has been so inconvenienced by this woman, he=s not going to get up there and tell you anything unless it=s the truth. He doesn=t even like me. He=s not here to help anybody.
Appellant contends the prosecutor bolstered the credibility of an eyewitness by giving the jury her opinion about the truthfulness of the witness=s testimony.
Jury argument must fall within one of four areas: (1) summation of the evidence; (2) reasonable deduction drawn from the evidence; (3) answer to opposing counsel=s argument; or (4) plea for law enforcement. Bigby v. State, 892 S.W.2d 864, 889 (Tex. Crim. App. 1994). Wide latitude is permitted in drawing inferences from the evidence, so long as the inferences are reasonable, fair, legitimate, and offered in good faith. Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). To constitute reversible error, jury argument must be extreme or manifestly improper, or inject new and harmful facts into evidence. Id.
During his testimony, Sanchez stated that he did not want to be in court to testify, he had lost his job because he had to come to court several times, he was, and continued to be, mad at the prosecutor, and despite asking the prosecutor for a sentence reduction in exchange for his testimony, he never received it. Appellant=s trial counsel also questioned Sanchez about the lost job and sentence reduction.
Appellant cites Menefee v. State, in which the Court of Criminal Appeals held that improper jury argument warranted reversal because the prosecutor expressed his personal opinion about the witness=s credibility. 614 S.W.2d 167, 168 (Tex. Crim. App. 1981). The statement in Menefee was: AAnd Virse, I don=t believe I have ever seen anybody that I thought was any more honest than she is.@ Id. Virse Hayes was the only witness who could identify appellant as the person who committed the offense. Id. This case is distinguishable in that the prosecutor=s basis for the statement in Menefee was the prosecutor=s personal opinion of the honesty of the witness, whereas, in this case, the prosecutor=s basis was a summation of Sanchez=s testimony that he had been inconvenienced, was mad at the prosecutor, and did not receive a sentence reduction despite repeated inquiries. Her statement that Sanchez did not have a motive to lie was a reasonable deduction based on his answers to questions about any motive to testify. Therefore, appellant=s fifth issue is overruled.
C. Sufficiency of the Evidence
In her sixth and seventh issues, appellant argues the evidence is legally and factually insufficient to uphold her conviction for murder when the evidence failed to establish beyond a reasonable doubt that appellant intentionally caused the death of the complainant. Appellant also challenges the jury=s implicit rejection of her self-defense claim.
In a legal-sufficiency review, we view all of the evidence in the light most favorable to the verdict and determine whether a trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000). The jury is the exclusive judge of the credibility of witnesses and of the weight to be given to their testimony; it is within the exclusive province of the jury to reconcile conflicts in the evidence. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). Thus, when performing a legal-sufficiency review, we may not reevaluate the weight and credibility of the evidence and substitute our judgment for that of the fact-finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We must resolve any inconsistencies in the testimony in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
In a factual-sufficiency review, we consider all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006); Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether (1) the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the jury=s verdict seems clearly wrong and manifestly unjust, or (2) considering conflicting evidence, the jury=s verdict is against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414-15, 417; Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Additionally, we must give due deference to the jury=s determinations, particularly those concerning the weight of the evidence and the credibility of witness testimony. See Johnson, 23 S.W.3d at 8-9.
We measure the legal sufficiency of the evidence by the elements of the offense as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). We also measure the factual sufficiency of the evidence by using a hypothetically correct jury charge. Wooley v. State, 273 S.W.3d 260, 266-67 (Tex. Crim. App. 2008). ASuch a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State=s burden of proof or unnecessarily restrict the State=s theories of liability, and adequately describes the particular offense for which the defendant was tried.@ Malik, 953 S.W.2d at 240. Appellant was indicted under two theories of murder, and the jury was charged that it could convict appellant under either theory. In pertinent part, the statute states that a person commits murder if he intentionally or knowingly causes the death of an individual or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Penal Code Ann. ' 19.02(b)(1)-(2) (Vernon 2003). A person is generally justified in using deadly force against another if he reasonably believes that deadly force was necessary to protect himself against the other=s use or attempted use of unlawful deadly force, and a reasonable person in the actor=s situation would not have retreated. Tex. Penal Code Ann. '' 9.31(a), 9.32(a) (Vernon 1994).[3]
A defendant has the burden of producing some evidence to support a claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). Once the defendant produces some evidence, the State then bears the burden of persuasion to disprove the raised defense. Id. The burden of persuasion does not require the State to produce evidence; it requires only that the State prove its case beyond a reasonable doubt. Id. Thus, a determination of guilt by the fact-finder implies a finding against the defensive theory. Id. Self-defense is a fact issue to be determined by the jury, which is free to accept or reject the defensive evidence. Saxton v. State, 804 S.W.2d 910, 913-14 (Tex. Crim. App. 1991).
We begin by discussing the evidence that appellant contends supports her claim of self-defense and undermines the jury=s verdict. Appellant cites the testimony of Tomika Hall and Edward Neal that the complainant Asnatched@ the car keys from the ignition and had a confrontation outside the car with appellant to show his alleged aggressive actions. She points to the testimony of Edward and Efrem Neal, who stated that the complainant struck appellant first. Appellant herself testified that the complainant slapped her twice before she pulled out a knife and Aused it.@ At trial, appellant stated that she did not intend to kill the complainant, rather her intention was to Aget him off of me so he could quit hitting me.@ No witness testified to the use or attempted use of unlawful deadly force by the complainant. Even appellant testified only to the complainant=s slapping her before she used her knife. Ogas v. State, 655 S.W.2d 322, 324 (Tex. App.CAmarillo 1983, no pet.) (holding that a slap to the face did not constitute use or attempted use of deadly force).
The State produced two eyewitnesses. Maximillian Sanchez testified that he heard appellant screaming and yelling at the complainant about a set of keys, while two men were arguing and wrestling with the complainant. He witnessed the fight escalate to a physical level when one of the men punched the complainant. He did not see the complainant hit back. He testified that appellant was then making motions, looking for a spot to stab the complainant and eventually made three or four stabbing movements. He did not see the victim use any force or slap appellant. C.R., Tomika Hall=s eight-year-old daughter, testified that the complainant was stabbed with a knife by appellant. She stated that she did not hear any yelling or see the complainant slap appellant, although she later testified that she did hear fighting but did not know what the fighting was about. Hall testified that appellant did not appear fearful for her life and that she could have left the scene safely before she stabbed the complainant. Sergeant Guillermo Gonzalez, the lead detective, testified that appellant did not look like she was in any pain and did not appear injured or in need medical attention when he interviewed her. Dr. Lopez testified that the complainant had two main stab wounds to the chest and back as well as several abrasions and other injuries.
Appellant contends that Sanchez and C.R. are not credible witnesses because (1) Sanchez claimed that he observed appellant with a screwdriver making stabbing motions at the complainant, whereas, according to Dr. Lopez=s testimony, the murder weapon was a knife; (2) although C.R. claimed to have seen appellant stab the complainant, she could not recall any details about the incident; and (3) C.R.=s testimony that she did not see her grandfather and his brother fighting with the complainant contradicts Sanchez=s testimony that two men were assaulting the complainant.
Viewing the evidence in the light most favorable to the verdict, we hold that the jury could have concluded beyond a reasonable doubt that the complainant did not use unlawful deadly force against appellant and that, therefore, appellant was not justified in using deadly force to protect herself. See Saxton, 804 S.W.2d at 914.
The evidence is also legally sufficient for a rational trier of fact to find that appellant intentionally or knowingly caused the death of the complainant by stabbing him with a deadly weapon or intended to cause serious bodily injury and committed an act clearly dangerous to human life that caused the death of the complainant. The specific intent to kill may be inferred from the use of a deadly weapon. Flanagan v. State, 675 S.W.2d 734, 744 (Tex. Crim. App. 1984). A knife is not a deadly weapon per se. Tex. Penal Code Ann. ' 1.07(a)(17)(B) (Vernon 2003). Factors to consider in determining whether the knife qualified as a deadly weapon include (1) the size, shape, and sharpness of the knife; (2) the manner in which appellant used the weapon; (3) the nature of any inflicted wounds; (4) testimony concerning the knife=s life-threatening capabilities; and (5) the words appellant spoke. Banargent v. State, 228 S.W.3d 393, 398 (Tex. App.CHouston [14th Dist.] 2007, pet. ref=d). Both expert testimony and lay testimony may be independently sufficient to support a deadly weapon finding. Id.
Here, two witnesses saw appellant stab the complainant, and one of the witnesses, Sanchez, testified to her making motions as if looking for a spot to stab him before doing so. Dr. Lopez testified that the knife found in the complainant=s back was 4 : inches in length; the majority of it was inserted into the complainant=s skin with only 2 inch protruding from the wound. She testified that a large amount of force was used to penetrate the knife into the bone. The chest wound penetrated the chest wall as well as the heart, the diaphragm, and the liver. She stated that a large amount of force was used to penetrate the chest wall. In addition, appellant does not appear to challenge the sufficiency of the evidence regarding whether she intended to cause serious bodily injury and committed an act clearly dangerous to human life that caused the death of the complainant. The jury was instructed that it could find appellant guilty of murder under either theory. Huffman v. State, 267 S.W.3d 902, 905 (Tex. Crim. App. 2008) (stating that, with respect to homicide offenses, the court has held different legal theories involving the same victim are simply alternate methods of committing same offense).
We further conclude that the evidence is factually sufficient. Appellant=s argument on appeal is that the complainant was the first aggressor, that she feared him, and that appellant stabbed him because the complainant was striking her. Although Edward Neal, Efrem Neal, and appellant testified that the complainant struck appellant first, their testimony was contradicted by Sanchez, an eyewitness, who testified that he did not see the complainant strike appellant, and C.R., who testified that she did not remember seeing the complainant hit anyone. Although there was conflicting testimony as to who was the first aggressor, Hall testified that appellant could have left the scene safely before she stabbed the complainant. Sergeant Gonzalez stated that Edward Neal was reluctant to give him the whole story, and Efrem Neal was uncooperative. Officer Jim Adkins, who was at the scene, testified that appellant initially told him that (1) Tomika Hall had killed the complainant, (2) appellant did not indicate that she was afraid of the complainant, and (3) she did not state the complainant tried to hit or slap her. Finally, Dr. Lopez testified that the complainant was stabbed in the chest piercing the heart, liver, and diaphragm as well as in the back, where Dr. Lopez recovered the knife.
The jury is the sole judge of the credibility of the witnesses and the weight to be given the evidence. Jones v. State, 944 S.W.2d 642, 647-48 (Tex. Crim. App. 1996). The jury was free to reject appellant=s evidence that she was acting in self-defense and to accept the evidence to the contrary. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). Viewing the evidence in a neutral light, the evidence of guilt is not so weak that the jury=s verdict seems clearly wrong and manifestly unjust nor is the contrary evidence so strong that the jury=s verdict is against the great weight and preponderance of the evidence. See Watson v. State, 204 S.W.3d 404, 416-17 (Tex. Crim. App. 2006). Therefore, we hold that the evidence is factually sufficient to support the jury=s finding of guilt.
Accordingly, we overrule appellant=s sixth and seventh issues.
D. Admission of Allegedly Bolstering Testimony
In her eighth issue, appellant contends that the trial court erred in allowing Sergeant Gonzalez to bolster the statements of C.R. and Sanchez. She specifically criticizes his testimony that he found the statements of C.R. and Sanchez to be consistent. She also contends that this testimony invaded the province of the jury.
Following is the testimony in question:
Q: And when you interviewed her, did you find her story to be consistent with Mr. Sanchez=s statement?
Appellant=s Counsel: I object to that, Your Honor, to the relevance of that.
The Court: Anything else?
Appellant=s Counsel: Well, it=s also hearsay, Your Honor.
The Court: Sustained as to hearsay.
Q: Now, I don=t want you to tell me what the statement was, but did you find her story to be consistent?
Appellant=s Counsel: Your Honor, that=s for the jury. That invades the province of the jury, and it=s not relevant as to what this witness thought about the witness= story.
The Court: Overruled.
Q: You can answer the question.
A: Yes.
Q: You found her story to be consistent?
A. Yes.
Q: And was Tomika Hall helping her answer any questions at all?
A: No.
Q: And did you find her to be credible when you interviewed her?
Appellant=s Counsel: Objection, Your Honor.
The Court: That=s sustained.
The overruled objections lodged by appellant at trial were relevance and invading the province of the jury. Appellant is arguing on appeal that the testimony constituted bolstering and invaded the province of the jury. With regard to bolstering, because appellant did not object on this ground at trial, she has not preserved error for review. See Tex. R. App. P. 33.1; Stone v. State, 583 S.W.2d 410, 414 (Tex. Crim. App. 1979) (appellant waived bolstering issue when he objected on ground of invading the province of the jury and bolstering, but bolstering objection not made until after answer given).
With regard to appellant=s contention that Sergeant Gonzalez=s testimony invaded the province of the jury and allowed the officer to give his opinion that the witness was telling the truth, Sergeant Gonzalez did not offer an opinion regarding the veracity of the witnesses or infer that the information they gave was correct; he merely stated that C.R.=s story was consistent with Sanchez=s account. In doing so, Gonzalez was stating a fact objectively derived from the witnesses= statements. See Skruck v. State, 740 S.W.2d 819, 821 (Tex. App.CHouston [1st Dist.] 1989, pet. ref=d). Consequently, we do not believe Sanchez=s testimony implicates Texas Rule of Criminal Evidence 701, as appellant suggests, which governs the admissibility of opinion testimony by a lay witness.[4] See Tex. R. Evid. 701.
Even if Rule 701 were implicated, it is within the trial court=s discretion to determine whether an opinion meets the fundamental requirements of the rule, and that decision may be overturned only if the trial court abused its discretion. See Fairow v. State, 943 S.W.2d 895, 901 (Tex. Crim. App. 1997). If the record contains any evidence supporting the trial court=s decision to admit or exclude an opinion under Rule 701, there is no abuse of discretion, and an appellate court must defer to that decision. See id. Sergeant Gonzalez testified that he personally spoke with Maximillian Sanchez at the scene and interviewed C.R. at the police station. He then stated that C.R.=s statement was consistent with that of Sanchez. His testimony was based upon his personal observation and reasonable inferences from that observation, and was helpful in determining the events surrounding the complainant=s death. Consequently, we cannot say the trial court abused its discretion in admitting Gonzalez=s testimony. Accordingly, we overrule appellant=s eighth issue.
We affirm the trial court=s judgment.
/s/ Adele Hedges
Chief Justice
Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] According to Hall=s testimony, her mother and appellant=s father dated. She considered appellant her step-sister.
[2] The testimony differs as to whether Tomika Hall=s two children remained in the car or also exited the vehicle.
[3] Actors are no longer required to retreat, if reasonable, for conduct occurring on or after September 1, 2007. Act of Mar. 20, 2007, 80th Leg., R.S., ch. 1, '' 2-3, 5, secs. 9.31, 9.32, 2007 Tex. Gen. Laws 1, 1-2. However, appellant=s conduct occurred prior to September 1, 2007; therefore this change in law is not applicable in this case.
[4] Texas Rule of Evidence 701 states: AIf the witness is not testifying as an expert, the witness= testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness= testimony or the determination of a fact in issue.@