COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00543-CR
MONTREY LAMAR WAGGONER APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
----------
MEMORANDUM OPINION 1
----------
A jury convicted Appellant Montrey Lamar Waggoner of aggravated
assault with a deadly weapon and assessed his punishment at fifteen years’
confinement and a $10,000 fine. The trial court sentenced him accordingly. In
two points, Appellant complains about (1) the exclusion of evidence showing his
state of mind at the time of the incident and that the complainant was the
1
See Tex. R. App. P. 47.4.
aggressor and (2) the trial court’s refusal to include a charge on necessity for
uncharged conduct in the jury charge. Because we hold that the trial court did
not reversibly err, we affirm the trial court’s judgment.
Background Facts
On January 12, 2010, Appellant was at home playing videogames with
friends. Matthew Taylor, an acquaintance also known as M.T., arrived
unexpectedly. Appellant admitted to speaking with Taylor earlier that day when
both were in vehicles stopped in traffic but testified that he and Taylor were not
friendly enough for Taylor to drop by without an invitation, which Appellant did not
extend. Appellant testified that Taylor had acted strangely after entering the
home, and then Appellant caught Taylor trying to steal videogames and money.
They exchanged words, and Appellant told Taylor to leave. But the situation
escalated, Taylor talked about fighting, and Appellant retrieved a gun. Friends
talked Taylor down, and he was persuaded to leave.
Thirty minutes later, Taylor returned. Appellant testified that Taylor was
yelling and banging on the door to the house, stating that he wanted to fight.
Appellant’s friend, Bryan Smith, calmed Taylor down and convinced him to leave.
Later in the day, Taylor returned a third time and again banged on the front
door. Appellant testified that he was concerned because his children were in the
home. Smith testified that he thought Taylor was going to kick in the door.
Appellant’s neighbor, Taylor Tidwell, testified that he heard what sounded like
someone punching the door.
2
The banging stopped, and Appellant went outside with his gun drawn.
Taylor was now ten to twelve feet from the front door of the home, according to
Appellant and Smith. Appellant testified that he pointed the gun at Taylor and
told him not to take another step forward, but Taylor continued to approach.
Appellant stated that Taylor’s right hand was under his untucked shirt and not
visible, leading Appellant to believe that Taylor was armed. The two spoke for a
time lasting two to twenty-five minutes, depending on the testimony. A mutual
friend, Shawron Carr, arrived and tried to get Taylor to leave. Appellant testified
that when Taylor continued to move forward toward him, he fired three warning
shots at the ground. At this point, Appellant could see that Taylor did not have a
gun in his hand. Appellant said that Taylor continued to advance, so he shot
him. Taylor fell to the ground; Appellant said that he stopped shooting.
Other eyewitnesses gave conflicting versions of the shooting. Appellant’s
neighbor, Chelsey McClintock, said that she saw him continue to shoot Taylor
after he fell to the ground. Carr testified that Appellant shot Taylor when he
charged Appellant, that the impact of the shots spun Taylor around, resulting in
wounds to his back, and that Appellant did not shoot Taylor after he had fallen to
the ground. Tidwell also saw the shooting. Tidwell testified that Taylor was
challenging Appellant and stepped forward like he was going to charge him;
Appellant then began firing his gun and stopped shooting when Taylor hit the
ground.
3
Taylor was shot four times: in the base of his skull at the junction with the
back of the neck, in his lower right back, in his upper right back, and in the back
of his upper arm. There were no exit wounds. Police said that he was unarmed.
Officers did not find any damage to the home to indicate that someone had
tried to break in. The police found eight shell casings in the front yard and a
bullet lodged in a drum set located inside a garage attached to a home across
the street. The Fort Worth Police Department firearms and tool mark examiner
testified that the shell casings and the bullet found across the street were all fired
from the same gun, the nine-millimeter Ruger handgun found inside Appellant’s
home under the love seat. She also testified that the cartridge casings in a
functioning nine-millimeter Ruger handgun shot in the normal position would
eject to the right behind the shooter. One shell casing was found seventeen feet
from the front door; the rest were even further away from the house. Taylor’s
bloody shirt was found forty-eight feet from the home.
Evidence of the Complainant’s Past Conduct
In his first point, Appellant contends that the trial court abused its discretion
by excluding evidence regarding Taylor’s prior acts because that evidence was
admissible to show Appellant’s reasonable apprehension and fear of Taylor and
that Taylor was the first aggressor.
Appellant has not preserved for appeal his argument that he offered the
evidence to show that Taylor was the first aggressor. To preserve a complaint
for our review, a party must have presented to the trial court a timely request,
4
objection, or motion that states the specific grounds for the desired ruling if they
are not apparent from the context of the request, objection, or motion. 2 Further,
the trial court must have ruled on the request, objection, or motion, either
expressly or implicitly, or the complaining party must have objected to the trial
court’s refusal to rule. 3 Below, Appellant repeatedly indicated to the trial court
that he wanted to use the evidence to show his state of mind at the time of the
offense. He directs us to no place in the record, nor have we found such
instance, where he unsuccessfully offered the evidence to show that the
complainant was the first aggressor. We overrule this portion of Appellant’s first
point.
Appellant tried to present evidence of Taylor’s past behavior in order to
explain his own state of mind at the time of the shooting. As the Texas Court of
Criminal Appeals has explained,
[T]he defendant may offer reputation or opinion testimony or
evidence of specific prior acts of violence by the victim to show the
“reasonableness of defendant’s claim of apprehension of danger”
from the victim. This is called “communicated character” because
the defendant is aware of the victim’s violent tendencies and
perceives a danger posed by the victim, regardless of whether the
danger is real or not. This theory does not invoke Rule 404(a)(2)
because Rule 404 bars character evidence only when offered to
2
Tex. R. App. P. 33.1(a)(1); Landers v. State, 402 S.W.3d 252, 254 (Tex.
Crim. App. 2013); Sample v. State, 405 S.W.3d 295, 300 (Tex. App.—Fort Worth
2013, pet. ref’d).
3
Tex. R. App. P. 33.1(a)(2); Pena v. State, 353 S.W.3d 797, 807 (Tex.
Crim. App. 2011).
5
prove conduct in conformity, i.e., that the victim acted in conformity
with his violent character. Here, the defendant is not trying to prove
that the victim actually is violent; rather, he is proving his own self-
defensive state of mind and the reasonableness of that state of
mind. 4
But rule 403 of the rules of evidence states that otherwise relevant
evidence nevertheless may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence. 5 Thus, in conducting a rule 403 analysis, a
court must balance the probative force of the evidence and the proponent’s need
for it against any tendency it may have to lead the jury to resolve an issue on an
incorrect ground “or [to] distract the jury from the main issues.” 6 The court must
also evaluate how long the proponent would need to develop the evidence,
whether the evidence is repetitive of evidence already admitted, and whether the
jury is in a position to fairly consider the evidence. 7
4
Ex parte Miller, 330 S.W.3d 610, 618–19 (Tex. Crim. App. 2009) (citations
omitted).
5
Tex. R. Evid. 403.
6
Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006).
7
Id. at 641–42.
6
We review a trial court’s decision to exclude evidence under an abuse of
discretion standard. 8 A trial court does not abuse its discretion as long as the
decision to exclude the evidence is within the zone of reasonable disagreement. 9
Appellant asked to testify about seven specific acts of Taylor’s. One of
them was an arrest for the possession of drug paraphernalia. Appellant
abandoned his proffer of the drug paraphernalia evidence; we therefore hold that
he forfeited that part of his point on appeal. 10 We consequently confine our
analysis to the remaining six acts.
Appellant wanted to introduce evidence that Taylor told him that “a dude
was at his car, and he came out and assaulted the dude. He got charged for
assaulting—beating a dude up—beating him down bad.” “He said the guy was at
his car, trying to break into his car, and he caught him.” “[I]t was aggravated
assault, but it wasn’t with no weapon or nothing. It was with his hands.”
Appellant also wanted to introduce evidence that he had learned from
Taylor “out of his own mouth, telling [Appellant] a couple of other occasion[s],
where he got caught for theft or robbing or stealing and a couple of cases where
he was caught with theft or robbery or whatever.” “He didn’t say nothing about
8
Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).
9
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op.
on reh’g).
10
See Bland v. State, 417 S.W.3d 465, 472–73 (Tex. Crim. App. 2013).
7
no aggravated robbery or theft. He just let [Appellant] know he had gotten [in]to
some trouble for that.”
Appellant also testified on voir dire that he saw Taylor “with an AK-47, a—a
little-bitty one.” Appellant said that he and a friend had stopped by the house
“where [Taylor] was staying at the time over on the east side of Fort Worth.”
Taylor “came out of the bedroom and showed [Appellant and the others] this
weapon.” “It was like—more like—like showing off like, look what I have. He
was showing everybody in the house.”
Appellant also offered,
I have personal knowledge of two other incidents that I was around.
One incident took place at my house probably, I want to say, two
months prior to all this happening.
....
He came over to my house one day, stopped by. We—it was
just me and my—one other friend over there. And at the time I’m not
knowing him, and the other friend done had words or had a problem
or something. And so when I—when I . . . let him in, we sitting there
talking, playing a game like usually, him and another guy had some
little words, and I had to stop it because we was in my house.
And I told him, I say, No, this ain’t the place for that, man.
Y’all do that on y’all own time.
And he—he had came in. He was actually trying to get the
other dude riled up to fight him. He tried to fight him in my house,
and I had to ask him—ask him to leave then. But he left, you know,
and I told the other dude, don’t—don’t worry about that, man. I met
you—I met him through y’all, so what I’m going to look like sitting
with two of y’all, y’all supposed to be friends. Why I’m going to sit
back and witness y’all fighting and this my house. Y’all have to
respect me. If I don’t want y’all fighting, you need to respect that.
8
....
And the other incident happened at my one friend’s, Shawron
Carr cousin, house. M.T. had came by there. I don’t know what the
specific incident was between M.T. and Shawron’s cousin, but M.T.
had came through there and had—he had left, and when me and
Shawron had came by and while we visiting Shawron’s cousin, M.T.
had returned, and he had returned in the same aggressive mode
saying little—little things, threats toward Shawron’s cousin.
....
Shawron had told M.T.—was like, Man, you know you not
right, man. You just need to go on, leave, get away from here, and if
this how you going to be acting around us, you don’t need to come
around us no more.
Appellant also testified on voir dire that at clubs, Taylor’s “attitude—the
way he carry hisself, he—he real like aggressive, you know, jumps in people
face, throws gang signs, all that type of stuff.” Appellant further stated that he
had “pictures with M.T. on there and other witnesses that was there. Everybody
has pictures from when we was in the club and stuff with M.T. on there throwing
them gang signs and holding money, too.” Finally, Appellant offered testimony
that at the time of the shooting, he believed that M.T. was from Westside Como
and that the Como area gang affiliation was “mainly like the Crips.”
Defense counsel told the court:
The purpose of this testimony is [to show] what [Appellant]
believed on the date this offense happened, whether he had reason
to believe. We’re not looking to make—you know, impeach and
make this guy look terrible, but we are looking to show what my
client’s state of mind was on that date as to whether or not he knew
Matthew Taylor’s potential for being violent.
9
The trial court excluded all the evidence, stating that it was not relevant for
a claim of self-defense and that its probative value was substantially outweighed
by its prejudicial effect. The trial court also stated,
[M]any of them are not relevant. In specifics, with regard to the
aggravated assault with a serious bodily injury situation, most of this
information is not from personal knowledge that he . . . observed . . .
the victim engaging in.
It is with regard to some other information, and in addition to it,
the possession of a weapon by an individual in their own home is
permissible. Now, whether or not the person’s known to carry the
weapon out and about would be pertinent, but that is not what has
been discussed or presented in the . . . proffer.
And so, therefore, that information is highly prejudicial under
those . . . particular circumstances. That is not what’s been alleged
in the events thus far, and based upon the totality of the record, in
addition to my knowledge from seeing the . . . three days of trial,
those matters shall not be gone into.
None of the evidence took very long to develop, and it was not repetitive or
confusing. While Appellant contends that the evidence that he personally
observed was particularly relevant and necessary to his defense, none of it would
directly contribute to his alleged belief that Taylor was armed when Appellant
shot his gun eight times, hitting Taylor four times on the back of his body. The
only evidence tying Taylor to a weapon did not portray him as violent, just as a
braggart. And while the evidence of Taylor spoiling for a fight in two different
homes is similar to the facts of the case before us, Appellant offered no evidence
that Taylor had exhibited or used a weapon in those other instances. The
evidence Appellant sought to admit was relevant to show Taylor’s tendency to
10
provoke fights. The evidence already admitted in the case at bar, however,
demonstrated more strongly that Taylor was being combative and aggressive
with Appellant on the day in question than the evidence of prior episodes could
have.
Nevertheless, the evidence that Taylor was a gangbanger with a rap sheet
and a penchant for starting trouble did lend support to Appellant’s claim that he
believed Taylor was armed and gives rise to the question of whether Appellant
believed Taylor’s perceived aggression and penchant for violence rose to a level
justifying deadly force. After balancing the rule 403 factors, we hold that the trial
court abused its discretion by excluding the proffered evidence.
Applying the proper standard of review for harm, 11 however, we note that
the jury was allowed to hear evidence of Taylor’s conduct during the three
encounters with Appellant on the day of the shooting. Given the record before
us, there is little question that Appellant was justified in going outside armed in
order to get Taylor to leave his property. Based on Appellant’s knowledge of
Taylor that the jury did not hear, Appellant could legitimately have claimed the
fear to which he testified. But the fear was equally legitimate based on the
evidence before the jury. Once Taylor turned to leave, however, and once it was
clear that he was unarmed, neither the excluded evidence nor the evidence
before the jury nor any combination thereof justified the shooting. We therefore
11
See Tex. R. App. P. 44.2(b).
11
hold that any error in excluding the proffered evidence was harmless because it
did not affect Appellant’s substantial rights. 12 We overrule the remainder of
Appellant’s first point.
Charge on Necessity
In his second point, Appellant contends that the trial court erred by refusing
to charge the jury on necessity to justify uncharged conduct. The jury charge
provides,
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:
(1) if he would be justified in using force against the other in
the first place, as set out above; and
(2) when and to the degree he reasonably believes the
deadly force is immediately necessary to protect
himself or a third person against the other person’s
use or attempted use of unlawful deadly force; or to
prevent the other’s imminent commission of
robbery or aggravated robbery.
12
See Tex. R. App. P. 44.2(b); Solomon v. State, 49 S.W.3d 356, 365 (Tex.
Crim. App. 2001); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.
1998); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing
Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)).
12
(3) By the term “reasonable belief” as herein used is meant
a belief that would be held by an ordinary and prudent
person in the same circumstances as [Appellant].
(4) By the term “deadly force” is meant force that is
intended or known by the person using it to cause, or in
the manner of its use or intended use is capable of
causing, death or serious bodily injury.
(5) The actor’s belief that deadly force was immediately
necessary as described above is presumed to be
reasonable if the actor:
a. Knew or had reason to believe that the person
against whom the deadly force was used:
i. Unlawfully and with force entered, or was
attempting to enter unlawfully and with
force, the actor’s occupied habitation;
....
iii. Was committing or attempting to prevent
the other’s imminent commission of robbery
or aggravated robbery;
b. The actor did not provoke the person against
whom the force was used; and
c. The actor was not otherwise engaged in
criminal conduct activity other than a Class C
misdemeanor that is a violation of the law or
ordinance regulating traffic at the time the
force was used.
“Habitation” means a structure or vehicle that is adapted for
the overnight accommodation of persons.
You are instructed that a person commits an offense if he
knowingly discharges a firearm at or in the direction of a
habitation or vehicle and is reckless as to whether the
habitation or vehicle is occupied. This offense is a third degree
felony.
13
You are instructed that a person commits an offense if the
person recklessly discharges a firearm inside the corporate
limits of a municipality having a population of 100,000 or more.
This offense is a Class A misdemeanor.
....
Now, if you find from the evidence beyond a reasonable doubt
that on the occasion in question, [Appellant] committed the offense
of aggravated assault, but you further find from the evidence, or
have a reasonable doubt thereof, that [Appellant] reasonably
believed, as viewed from his standpoint at the time, that from the
words or conduct, or both, of Matthew Taylor, it reasonably
appeared to [Appellant] that his life or person or the li[ves] or
person[s] of [his] children were in danger and there was created in
[Appellant’s] mind a reasonable expectation of fear of death or
serious bodily injury from the immediate use of unlawful deadly force
at the hands of Matthew Taylor to himself or [his] children, and that
acting under such apprehension and reasonably believing that the
use of deadly force on his part was immediately necessary to
protect himself or [his] children against Matthew Taylor’s use or
attempted use of unlawful deadly force, he shot Matthew Taylor
with a firearm, then you should acquit [Appellant] on the grounds of
self defense, or if you have a reasonable doubt as to whether or not
[Appellant] was acting in self defense on said occasion and under
the circumstances, then you should give [Appellant] the benefit of
that doubt and say by your verdict Not Guilty.
However, if you find from the evidence beyond a reasonable
doubt:
(1) that at the time and place in question [Appellant] did not
reasonably believe that he or [his] children [were] in danger of death
or serious bodily injury; OR
(2) that [Appellant], under the circumstances, and viewed 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 or [his] children against Matthew Taylor’s use or
attempted use of unlawful deadly force, then you will find
against [Appellant] on the issue of self defense.
14
You are instructed that if there is any testimony before you in this
case regarding [Appellant’s] having committed bad acts other than
the offense alleged against him in the indictment in this case, you
cannot consider said testimony for any purpose unless you find and
believe beyond a reasonable doubt that [Appellant] committed such
other bad acts, if any, . . . and even then you may only consider the
same in determining the intent of [Appellant] if any, in connection
with the offense, if any, alleged against him in the indictment in this
case, and for no other purpose. [Emphasis added.]
Even though the trial court charged the jury on self-defense and defense of
third persons, Appellant argues that the trial court erred by refusing a charge on
necessity because of the additional jury charge instructions on the uncharged
offenses of discharging a firearm in the city limits and recklessly discharging a
firearm at a habitation. Appellant contends that these “two charges effectively
removed [him] from the protection of the Castle Doctrine.” He therefore
requested a charge on necessity to combat them. He did not request and is not
arguing that he was entitled to a necessity charge for the charged offense of
aggravated assault.
We note that the jury was not charged on the presence or absence of a
duty to retreat; “retreat” is not mentioned in the jury charge. We therefore
construe Appellant’s argument as a complaint that the presence of the two
instructions on uncharged conduct could have caused the jury to find that he was
engaging in otherwise unlawful conduct when he shot Taylor and that he
therefore needed the necessity defense charge to legitimate that conduct and
15
trigger the presumption that his belief that deadly force was imminently
necessary was reasonable. 13
In light of the evidence that a projectile was found in the garage of another
house, and the fact that the shooting occurred within the Fort Worth city limits,
the additional instructions appear to eviscerate any hope of a successful self-
defense claim. At best, the conflicting instructions are confusing. But on appeal,
Appellant does not contend that the trial court erred by giving these additional
instructions, although he objected to the instructions below. Instead, he
complains solely of the denial of a necessity instruction regarding the uncharged
conduct.
A step-by-step analysis is necessary. Necessity, self-defense, and
defense of a third person are all justification defenses. 14 Self-defense and
defense of a third person are justification defenses that exclude criminal
responsibility for using deadly force. 15 It was established at least as early as
1854 that the right of self-defense is based upon and limited by necessity; when
the necessity arises, the right instantly accrues, and when the necessity, real or
13
See Tex. Penal Code Ann. § 9.32(b) (West 2011).
14
See id. §§ 9.22, 9.31, 9.32.
15
See id. §§ 9.31, 9.32.
16
apparent, ceases, the right no longer exists. 16 All acts in furtherance of the
justified killing or assault are likewise justified. 17 That portion of section 9.32
providing that “[t]he actor’s belief under Subsection (a)(2) that the deadly force
was immediately necessary . . . is presumed to be reasonable if the actor: . . .
was not otherwise engaged in criminal activity” 18 refers only to criminal activity
that is not an essential part of the justified murder or assault. 19 Displaying the
weapon, attempting to commit the murder or assault, or firing the weapon
intentionally or recklessly in the course of the assault, the murder, or the
attempted assault or murder are all included within the justification defense. 20 It
is error for the trial court to separate out components of the greater assaultive
offense and instruct the jury that those components are criminal acts that deprive
the defendant of the presumption that his belief that the force was immediately
necessary is reasonable. 21
16
See Lander v. State, 12 Tex. 462 (1854); see also Brendendick v. State,
34 S.W. 115, 115 (Tex. Crim. App. 1896).
17
See Villa v. State, 370 S.W.3d 787, 792–93 (Tex. App.—Eastland 2012),
aff’d, 417 S.W.3d 455 (Tex. Crim. App. 2013).
18
Tex. Penal Code Ann. § 9.32(b)(3).
19
See Morales v. State, 357 S.W.3d 1, 7–8 (Tex. Crim. App. 2011).
20
See Alonzo v. State, 353 S.W.3d 778, 781–82 (Tex. Crim. App. 2011);
Burd v. State, 404 S.W.3d 64, 74–75 (Tex. App.—Houston [1st Dist.] 2013, no
pet.).
21
See Alonzo, 353 S.W.3d at 781–83.
17
To summarize, self-defense and defense of a third person are necessity
defenses that justify all aspects of the assaultive conduct justified by the defense.
A defendant is not entitled to a separate necessity defense regarding
independent components of the assaultive conduct justified by self-defense and
defense of a third person. The trial court errs in instructing the jury that
components of the justified assaultive conduct are criminal acts that deprive the
defendant of the presumption of reasonableness. But Appellant did not complain
here about the instructions on uncharged conduct, and the trial court did not err
in refusing Appellant’s requested necessity instruction because the jury charge
already included instructions on self-defense and defense of a third person,
justification defenses steeped in necessity, and those justification defenses
already applied to all components of the charged conduct, including firing a
weapon in a municipality and recklessly firing a gun at a habitation. We therefore
overrule Appellant’s second point.
Conclusion
Having overruled Appellant’s two points, we affirm the trial court’s
judgment.
18
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 8, 2014
19