Opinion
NO. 14-15-00775-CR
01-10-2017
TOMEKA CHERRIE BATTLES, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court Harris County, Texas
Trial Court Cause No. 1392512
MEMORANDUM OPINION
A jury found appellant Tomeka Cherrie Battles guilty of the offense of aggravated assault involving family violence. See Tex. Penal Code Ann. § 22.02(a), (b)(1) (Vernon 2011); Tex. Fam. Code Ann. § 71.0021(b) (Vernon Supp. 2016). A different jury assessed punishment at 20 years' confinement. We affirm.
BACKGROUND
Appellant and her fiancé Ron Gordon were entertaining several of appellant's cousins and one of Gordon's friends at their apartment on the evening of June 15, 2013. At some point late in the evening, Gordon told appellant that it was time for the guests to leave. An argument ensued between appellant and Gordon, but the situation was defused and the guests left.
Appellant and Gordon resumed their argument after the guests left. Gordon decided to leave the apartment. Because it was very late and he was intoxicated and could not drive, Gordon attempted to call his ex-wife to pick him up. After numerous unanswered calls, Gordon eventually left his ex-wife a voicemail.
Appellant became angry when she overheard Gordon leaving a voicemail for his ex-wife. The argument turned into a physical altercation during which appellant and Gordon exchanged blows.
Appellant's two teenage sons and younger daughter were staying at the apartment at the time. The two sons were in the living room where the altercation took place. After Gordon hit appellant, the two sons — ages 13 and 15 at the time — began attacking Gordon.
While Gordon was fending off appellant's sons, appellant retrieved a knife from the kitchen and stabbed Gordon. Appellant's 13-year-old son also retrieved a knife and stabbed Gordon.
Gordon fled the apartment and called 911 from a gas station across the street. Paramedics arrived and took Gordon to the hospital where he was treated for six stab wounds, including one that punctured and collapsed his lung; one that perforated his intestine; one to his head; and one in his back as he was attempting to retreat from the apartment. Gordon testified that, of the six stab wounds, appellant stabbed him four times and the 13-year-old son stabbed him twice.
A jury convicted appellant of aggravated assault involving family violence. After the jury returned its verdict, the parties advised the trial court that appellant mistakenly had elected to have the trial court assess punishment based on the erroneous advice of counsel that the trial court could assess probation in appellant's case. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (Vernon Supp. 2016) (prohibiting a judge from ordering community supervision where a deadly weapon was used in the commission of the felony). The trial court assessed punishment at 10 years' confinement, but then granted appellant's "Agreed Motion for New Trial and Motion in Arrest of Judgment," which requested a new trial as to punishment only.
Aggravated assault is a first-degree felony if the defendant both uses a deadly weapon during the commission of the assault and causes serious bodily injury to someone with whom the defendant is in a "dating relationship." See Tex. Penal Code Ann. § 22.02(b)(1); Tex. Fam. Code Ann. § 71.0021(b).
A second jury was selected, heard evidence, and assessed appellant's punishment at 20 years' confinement. Appellant appealed.
ANALYSIS
In six issues, appellant contends that the trial court erred by: (1) denying appellant's motion to quash the indictment; (2) refusing to include an instruction on defense of third persons in the jury charge; (3) denying appellant's Batson challenge; (4) denying appellant's motion for new trial on guilt/innocence; (5) limiting the scope of voir dire; and (6) limiting the scope of cross-examination. In a seventh issue, appellant contends that the cumulative effect of the trial court's errors rendered appellant's trial fundamentally unfair.
I. Motion to Quash Indictment
In her first issue, appellant contends the trial court erred by denying her motion to quash the indictment. The indictment alleged that on or about June 16, 2013, appellant:
did then and there unlawfully, intentionally and knowingly cause serious bodily injury to RON GORDON, a person with whom the Defendant had a dating relationship[,] hereafter styled the Complainant, by STABBING THE COMPLAINANT with a deadly weapon, namely, an UNKNOWN SHARP OBJECT.Appellant filed a motion to quash the indictment before trial, contending that use of the phrase "unknown sharp object" in the indictment (1) failed to provide adequate notice of the charges against appellant so that she could prepare a defense; and (2) failed to allege the offense with sufficient certainty to prevent a second prosecution for the same offense.
The trial court held a hearing on the motion to quash the indictment and subsequently denied the motion.
A. Law Regarding the Sufficiency of an Indictment
The accused is entitled to fair notice of the charged offense. Tex. Const. art. I, § 10. An indictment is sufficient if it charges the commission of an offense "in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged . . . ." Tex. Code Crim. Proc. Ann. art. 21.11 (Vernon 2009). The indictment must be sufficiently certain so as to "enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense." Id. art. 21.04 (Vernon 2009). "Everything should be stated in an indictment which is necessary to be proved." Id. art. 21.03 (Vernon 2009).
"Subject to rare exceptions, an indictment tracking the language of the statute will satisfy constitutional and statutory requirements; the State need not allege facts that are merely evidentiary in nature." State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998); see also Daniels v. State, 754 S.W.2d 214, 218 (Tex. Crim. App. 1988) ("The State, however, is not required to plead evidentiary facts which are not essential to provide the required notice to the accused.").
A trial court must decide the merits of a motion to quash an indictment from the four corners of the indictment; it cannot be supported or defeated by evidence presented at pretrial or trial. See State v. Rosenbaum, 910 S.W.2d 934, 947-48 (Tex. Crim. App. 1994) (op. on reh'g). A motion to quash should be granted only when the language in the indictment is so vague or indefinite that it denies the defendant effective notice of the crime he is charged with. Daniels, 754 S.W.2d at 217. We review the trial court's ruling on a motion to quash an indictment de novo. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).
B. The Indictment was Sufficient
The indictment included the statutorily required elements for the offense of aggravated assault involving family violence. See Tex. Penal Code Ann. § 22.02(b)(1); Tex. Fam. Code Ann. § 71.0021(b). The indictment alleged that appellant (1) intentionally and knowingly caused serious bodily injury to Gordon; (2) was in a dating relationship with Gordon; and (3) used a deadly weapon — an unknown sharp object — in the commission of the offense.
Alleging commission of the offense with an "unknown sharp object" does not render the indictment defective. See, e.g., Perez v. State, 261 S.W.3d 760, 769-70 (Tex. App.—Houston [14th Dist.] 2008, pet. ref'd) (indictment alleging that defendant caused serious bodily injury to complainant "by causing forceful trauma to the Complainant's head in a manner and means unknown to the Grand Jury" and using a deadly weapon, "the nature and description of which is unknown to the Grand Jury," sufficiently informed the defendant of the nature of the accusations against him to allow him to prepare a defense at trial); Peña v. State, 864 S.W.2d 147, 151 (Tex. App.—Waco 1993, no pet.) (indictment alleging that appellant cut the victim's throat with a "sharp object" was sufficient to provide notice of the alleged act and instrument used); Edlund v. State, 677 S.W.2d 204, 208 (Tex. App.—Houston [1st Dist.] 1984, no pet.) ("[A]llegations that an instrument or exact description of an instrument is 'unknown to the grand jury' does not render an indictment fundamentally defective."); see also Mixon v. State, 781 S.W.2d 345, 346-47 (Tex. App.—Houston [14th Dist.] 1989), aff'd, 804 S.W.2d 107 (Tex. Crim. App. 1991) (upholding finding that "unknown object" was a deadly weapon where the evidence demonstrated that absent, unidentified weapon caused victim's death). The indictment provided sufficient notice of the alleged offense to allow appellant to prepare a defense.
Appellant contends additionally that when, as here, an indictment alleges that an unknown weapon was used but the evidence at trial identifies the weapon, the State must prove that the grand jury used due diligence in determining the weapon used in the crime. Appellant relies on a "due diligence" rule announced in Hicks v. State, 860 S.W.2d 419 (Tex. Crim. App. 1993), requiring the State to prove that the grand jury used due diligence in attempting to ascertain the weapon used where the indictment alleged an unknown weapon but the evidence at trial identified a particular weapon. See id. at 424. The Court of Criminal Appeals has since overruled Hicks. See Sanchez v. State, 376 S.W.3d 767, 772-73, 772 n.4 (Tex. Crim. App. 2012); see also Fagan v. State, 89 S.W.3d 245, 249 (Tex. App.—Texarkana 2002, pet. ref'd) ("The Texas Court of Criminal Appeals has expressly disavowed the 'due diligence' rule set out in Hicks.") (citing Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999)). Accordingly, we reject appellant's due diligence argument because it is predicated on Hicks.
Likewise, the indictment's allegation that appellant caused serious bodily injury to Gordon on June 16, 2013, using some type of "sharp object" was sufficiently specific to bar a subsequent prosecution based on the same offense. See, e.g., McKinney v. State, 59 S.W.3d 304, 310 (Tex. App.—Fort Worth 2001, pet. ref'd) (indictment alleging that appellant caused serious bodily injury by causing child "to contact a hot liquid" was "sufficient to bar a subsequent prosecution for Appellant's causing serious bodily injury to D.F. by causing him to contact any form of liquid in any manner, whether by immersion, pouring, splashing, dipping, plunging, sinking, submerging, bathing, or any other conceivable manner of causing contact").
The trial court did not err by denying appellant's motion to quash the indictment. Appellant's first issue is overruled.
II. Requested Instruction on Defense of Third Persons
In her second issue, appellant contends that the trial court erred by denying a requested jury charge instruction on defense of third persons. Appellant contends that the evidence indicated she was defending her son from Gordon.
A. Law Regarding Defense of Third Persons
A defendant is entitled to a jury instruction on a defensive issue if it is raised by the evidence regardless of the strength or credibility of that evidence. Farmer v. State, 411 S.W.3d 901, 906 (Tex. Crim. App. 2013). The defendant bears the burden of producing evidence supporting the defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003).
A person is justified in using force or deadly force against another to protect a third person if: (1) under the circumstances as the actor reasonably believes them to be, the actor would be justified in using force to protect herself against the unlawful force she reasonably believes to be threatening the third person she seeks to protect; and (2) the actor reasonably believes that her intervention is immediately necessary to protect the third person. Tex. Penal Code Ann. § 9.33 (Vernon 2011). "In other words, a defendant is justified in defending a third person if, under the circumstances as the defendant reasonably believes them to be, the third person would be justified in defending himself." Henley v. State, 493 S.W.3d 77, 89 (Tex. Crim. App. 2016).
Defense of third persons is a "justification" or "confession and avoidance" defense. See Tex. Penal Code Ann. § 9.33 ("A person is justified in using force or deadly force against another to protect a third person if . . . .") (emphasis added); see also Juarez v. State, 308 S.W.3d 398, 401-02 (Tex. Crim. App. 2010) (noting that doctrine of confession and avoidance applies to self-defense); Young v. State, 991 S.W.2d 835, 838 (Tex. Crim. App. 1999) (noting that chapter nine of the Texas Penal Code is titled "Justification Excluding Criminal Responsibility" and includes justification defenses for conduct that would otherwise be criminal).
Under the confession and avoidance doctrine, a defensive instruction is proper only when the defendant admits to every element of the offense and interposes the justification to excuse the otherwise criminal conduct. See Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007). Accordingly, a jury instruction on defense of third persons is required only where the defendant admits to the charged offense but contends she committed the act in defense of a third person. See In re M.C., 237 S.W.3d 923, 927 (Tex. App.—Dallas 2007, no pet.) ("In order to raise this defense, however, the defendant must admit he committed the charged offense and then offer defense of a third person as a justification for his otherwise criminal conduct."); see also Hill v. State, 99 S.W.3d 248, 250-51 (Tex. App.—Fort Worth 2003, pet. ref'd) ("Because self-defense is a justification defense, the defendant is essentially required to admit committing the conduct giving rise to the indictment in order to be entitled to the charge."); Anderson v. State, 11 S.W.3d 369, 372 (Tex. App.—Houston [1st Dist.] 2000, pet. ref'd) ("Self-defense is a justification for one's actions, which necessarily requires admission that the conduct occurred. Self-defense is inconsistent with a denial of the conduct.") (citations omitted).
B. The Evidence did not Support the Requested Instruction
Appellant relies on her statements in a recorded phone interview, the testimony of the interviewing police officer, and the testimony of one of her sons in support of her contention that an instruction on defense of third persons was warranted.
In her recorded phone interview with a police officer, which was played for the jury, appellant admitted to getting a knife from the kitchen but denied using the knife: "When he act like he wanted to swing on one of my sons before he left out the door, I went in the kitchen and got a knife to him, and I said, 'If you touch my son, you gonna get this,' but I didn't have to use it because he left out of the house." The officer then asked appellant: "When you grabbed the knife and put it in his face, did you at any time use it?" Appellant responded, "No, I didn't." The officer then asked, "Okay, so you just scared him with it?" Appellant responded: "Yeah I just scared him, because once he got off of the floor, he went up into my kid's face, my younger son, like he was gonna put his hands on him, and that's when I went into the kitchen and I just put it in his face, and I said, 'If you touch him,' you know, basically, 'this is what's gonna happen to you.'"
The interviewing officer likewise testified that appellant told him she retrieved a knife to defend her son and threatened Gordon with it, but that she did not discuss actually using the knife.
Finally, appellant's son testified that he feared for his family's life during the altercation, which he testified was why he retrieved a knife from the kitchen. Appellant's son admitted to stabbing Gordon twice, but denied that appellant stabbed Gordon. Appellant's son testified, "I was the only one with the knife that night."
None of the testimony or evidence cited by appellant demonstrates an admission that appellant stabbed Gordon — a necessary prerequisite to obtaining an instruction on defense of third persons. See In re M.C., 237 S.W.3d at 927. Instead, all of the defensive testimony was to the effect that appellant did not commit the alleged act. Although appellant admitted to waiving a knife at Gordon — which by itself could be a type of aggravated assault — appellant was charged with the more specific offense of using a deadly weapon during the commission of an assault that caused serious bodily injury to Gordon. Appellant's admission to waiving the knife at Gordon thus does not constitute a confession to the charged offense. See, e.g., McGarity v. State, 5 S.W.3d 223, 227 (Tex. App.—San Antonio 1999, no pet.) ("The improper conduct with which McGarity was charged in the indictment was assault causing bodily injury by 'striking Woodard with the hand of defendant,' not assault causing bodily injury by throwing Woodard on the bed. McGarity may have reasonably believed that throwing Woodard on the bed prevented her from committing conduct with impending harm. However, this was not the conduct with which McGarity was charged. McGarity never admitted to hitting Woodard in the face. Because McGarity did not admit to the offense, the evidence submitted failed to raise a defensive issue."). The trial court properly denied appellant's requested instruction on defense of third persons.
Appellant's second issue is overruled. III. Appellant's Batson Challenge
In her third issue, appellant contends the trial court erred by denying her Batson challenge that three prospective jurors were struck on the basis of their race.
A. Law Regarding Batson Challenges
The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution forbids the State from exercising its peremptory strikes based solely on the race of a potential juror. Batson v. Kentucky, 476 U.S. 79, 89 (1986); Nieto v. State, 365 S.W.3d 673, 675 (Tex. Crim. App. 2012); see U.S. Const. amend. XIV, § 1. A single impermissible strike for a racially motivated reason invalidates the jury selection process and requires a new trial. See Snyder v. Louisiana, 552 U.S. 472, 478 (2008); Jones v. State, 431 S.W.3d 149, 154 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd).
A Batson challenge is evaluated under a three-step process. Hernandez v. New York, 500 U.S. 352, 358 (1991); Nieto, 365 S.W.3d at 675-76. First, the defendant must make a prima facie showing of racial discrimination. Batson, 476 U.S. at 96-97.
If the defendant makes the requisite showing, the burden shifts to the State to articulate a race-neutral explanation for the strike. Id. at 97; Shuffield v. State, 189 S.W.3d 782, 785 (Tex. Crim. App. 2006). The race-neutral explanation does not have to be "persuasive, or even plausible." Purkett v. Elem, 514 U.S. 765, 768 (1995). Rather, "the issue is the facial validity of the [State]'s explanation. Unless a discriminatory intent is inherent in the [State]'s explanation, the reason offered will be deemed race neutral." Id. (quoting Hernandez, 500 U.S. at 360).
Finally, the trial court must determine if the defendant has established purposeful discrimination. Batson, 476 U.S. at 98; Nieto, 365 S.W.3d at 676. The trial court's ruling must be sustained unless it is clearly erroneous. Nieto, 365 S.W.3d at 676. We defer to the trial court's ruling in the absence of exceptional circumstances. Id.
B. The Trial Court's Ruling was not Clearly Erroneous
At the conclusion of voir dire of the second jury at the punishment hearing, appellant challenged the State's use of peremptory strikes on three of the prospective jurors. Appellant contended that venire members 6, 12, and 16 were struck because they were African-American.
Regarding venire member 6, the State responded that it chose to strike him "because we did not believe he would be able to make up his mind in punishment. He said, during in [sic] my voir dire, that he could not consider the full range of punishment and we attempted to strike him for cause because of that, and that was denied." The State also contended that, "when I asked my question about the use of deadly force, [venire member 6] agreed that a female could use deadly force on a male if the male simply used force." The trial court denied the Batson challenge as to venire member 6.
Regarding venire member 12, the State contended that it "chose to strike [him] because he was disinterested during voir dire. He was slouching the entire time. He's also uneducated. He's not married. He doesn't have any children. And he doesn't have a very good job, also." The trial court denied the Batson challenge as to venire member 12.
Regarding venire member 16, the State contended that it "chose to strike her because[,] from the beginning of voir dire, she was having a hard time following along. She was confused about the questions." The State elaborated that "[s]he's the one that had me stop during voir dire because she couldn't understand my question and I had to further explain it to her." Defense counsel and the trial court both stated that they did not remember that instance, but the trial court nevertheless denied the Batson challenge as to venire member 16.
It is unclear whether appellant established a prima facie case of racial discrimination. The record does not indicate whether the jury as selected included any African-American jurors. The record also does not reflect whether the State used peremptory strikes only on African-American venire members, or whether the State also struck venire members of other races. Nor does the record indicate whether the three African-American venire members struck by the State formed a small or large percentage of African-Americans in the jury pool.
Appellant contends that the three African-American potential jurors struck by the State were the only African-Americans in the jury pool. Appellant bases this assertion on the following exchange:
[APPELLANT'S COUNSEL]: I want to make a Batson challenge.The State responds that the exchange indicates only that appellant was challenging all of the strikes the State had used on African-Americans, not that the three African-Americans constituted all of the African-Americans in the jury pool. The State further contends that "[f]or a 60-member venire in Harris County to comprise only 3 African-Americans seems demographically improbable. Had the State actually struck every single African-American from the panel defense counsel would probably have noted such an event more explicitly in his Batson challenge, and the trial court would probably not have been surprised by the defense's Batson challenge."
THE COURT: A what?
[APPELLANT'S COUNSEL]: A Batson challenge.
THE COURT: You're going to make a Batson challenge right now?
[APPELLANT'S COUNSEL]: Yes, I am, Judge.
[THE STATE]: What numbers?
[APPELLANT'S COUNSEL]: As to Juror No. 16, as to Juror No. 12. And, obviously, all the others that were moved on during the general voir dire.
THE COURT: All right.
[APPELLANT'S COUNSEL]: Excuse me. And 6, Judge.
THE COURT: I can't hear you.
[APPELLANT'S COUNSEL]: Basically, all of the African-Americans, which would be Jurors 6, 12, and 16.
We cannot discern from the record whether the three African-Americans constituted the entire representation of African-Americans in the jury pool, but such a determination is unnecessary to our disposition, as discussed below.
We need not determine whether appellant made a prima facie case for racial discrimination, however, because the State offered an explanation for its strikes to the trial court. See Simpson v. State, 119 S.W.3d 262, 268 (Tex. Crim. App. 2003) ("If, as here, the State offers a race-neutral explanation before any inquiry on the prima facie case, the issue of a prima facie case is moot.").
The State provided race-neutral explanations for each of the three challenged venire members. The State's explanation that venire member 6 had said that a female was justified in using deadly force in response to non-deadly force by a male is supported by the record. The State's explanations that venire member 12 was "disinterested during voir dire" and "was slouching the entire time" and that venire member 16 was "having a hard time following along" and "was confused about the questions" were not rebutted by appellant — appellant responded only that "there's nothing in the record" to support those assertions. "A prospective juror's demeanor may give rise to a legitimate, racially neutral peremptory challenge." Blackman v. State, 414 S.W.3d 757, 769 (Tex. Crim. App. 2013). Although there may not have been any reason for the record to reflect the prospective jurors' demeanors prior to the Batson hearing, the State's description of the demeanor of potential jurors is considered proved where defense counsel does not rebut the observation. See Nieto, 365 S.W.3d at 680.
Viewing the record in the light most favorable to the trial court's ruling, we cannot say that the trial court's denial of appellant's Batson challenges was clearly erroneous. See id. at 676. Appellant's third issue is overruled.
IV. Denial of Motion for New Trial
In her fourth issue, appellant contends the trial court erred by denying her motion requesting a new trial on guilt/innocence.
After the trial court granted a new punishment hearing, appellant hired new counsel who filed a motion for reconsideration of the scope of the trial court's order granting a new trial only as to punishment. In the motion, appellant requested a new trial also be granted as to guilt/innocence in the interests of justice. After a brief hearing, the trial court denied the motion.
We review a trial court's denial of a motion for new trial under an abuse of discretion standard. Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014). A trial court abuses its discretion in denying a motion for new trial when no reasonable view of the record could support the court's ruling. Id.
The mistake prompting the grant of a new trial as to punishment was the incorrect advice of counsel that the trial court could assess probation in appellant's case. That error affected only the punishment appellant might receive. "[A] court must grant only a new trial on punishment when it has found a ground that affected only the assessment of punishment." Tex. R. App. P. 21.9(a); see also Grimes v. State, 807 S.W.2d 582, 587 (Tex. Crim. App. 1991) ("[A] defendant has no vested right to an entirely new trial when errors relating only to the assessment of his punishment are committed.").
Neither appellant's motion for reconsideration nor counsel's arguments during the hearing on the motion identified any legal errors affecting the jury's verdict and requiring a new trial on guilt/innocence. Appellant contended only that she would be prejudiced by having a new jury determine her punishment because she would be limited in her ability to present defensive justification evidence during a trial solely on punishment. Because appellant's motion for new trial was not premised on any error affecting the first jury's verdict, the trial court did not err in denying it. Cf. State v. Stewart, 282 S.W.3d 729, 741 (Tex. App.—Austin 2009, no pet.) ("The trial court erred by granting Stewart an entirely new trial on a ground that affected only the assessment of punishment.").
Appellant's fourth issue is overruled.
V. Limitation on Scope of Voir Dire
In her fifth issue, appellant contends the trial court erred by prohibiting appellant from questioning prospective jurors on the concepts of self-defense and defense of third persons during the voir dire for the punishment jury trial.
Appellant has not cited any case law addressing whether a defendant may discuss defenses not raised during guilt/innocence when conducting voir dire of a second jury that will consider only punishment. Accordingly, appellant has waived the issue. See Tex. R. App. P. 38.
Moreover, appellant has not directed us to an instance in the record where a requested voir dire question was denied by the trial court. "To preserve error regarding the manner of voir dire, the record must reflect a proper question which the trial court has not allowed to be answered." Dhillon v. State, 138 S.W.3d 583, 589 (Tex. App.—Houston [14th Dist.] 2004, pet. struck). Appellant's counsel's general request during the pre-voir dire hearing that he be allowed "to tell the jury that they can believe that these acts are justifiable" was not sufficient to preserve error. See id. ("The question, as stated by counsel, presents only a general topic for discussion, indicating counsel merely wanted to 'talk about aggressive drunk driving.' The question is not narrowly tailored in scope and could contain proper and improper inquiries. . . . Thus, appellant failed to preserve this question for our review."); Godine v. State, 874 S.W.2d 197, 200-01 (Tex. App.—Houston [14th Dist.] 1994, no pet.) (no error preserved where attorney "merely narrated a series of topics he wanted to investigate further" because the "trial court should not be expected to . . . cull out potentially valid subject matters from overly broad topic descriptions, and anticipate the form in which a specific question emanating from a topic will be asked").
Appellant's fifth issue is overruled.
VI. Limitation on Scope of Cross-Examination
In her sixth issue, appellant contends the trial court abused its discretion by limiting appellant's cross-examination of a witness during the punishment phase.
Appellant does not identify any specific questions the defense sought to ask that were prohibited by the trial court, but instead reproduces 11 pages of trial testimony including a number of objections. It appears from the testimony cited that appellant contends the trial court improperly prohibited her from cross-examining a police officer regarding whether appellant's stabbing of Gordon was justified under a theory of self-defense or defense of a third person. Appellant further contends that, "[d]uring the first trial, the evidence in the record established a valid self-defense or defense of third party justification and the [punishment] jury was absolutely entitled to hear evidence of a justification defense, even if the question was not guilt/innocence."
As we noted previously, appellant did not admit to the charged offense during the guilt/innocence trial. In fact, appellant specifically denied committing the offense in her recorded interview. As a result, appellant was not entitled to a requested instruction on defense of third persons in the guilt/innocence phase, nor would she have been entitled to an instruction on self-defense had she requested one. Accordingly, any questions concerning justification defenses such as self-defense or defense of third persons were not relevant in the punishment phase and the trial court did not abuse its discretion in prohibiting them. Moreover, while questions concerning mitigating factors such as sudden passion might be relevant during the punishment phase, see, e.g., Beltran v. State, 472 S.W.3d 283, 290 (Tex. Crim. App. 2015) ("A jury's rejection of self-defense at the guilt/innocence phase does not preclude submission of a sudden passion issue at the punishment phase."), questions concerning justification defenses are not proper during the punishment phase once a defendant's guilt has already been decided. See, e.g., Patterson v. State, 788 S.W.2d 220, 221 (Tex. App.—Fort Worth 1990, pet. ref'd) ("We know of no requirement that the jury be instructed as to a defense after a defendant has already been convicted and the jury is assessing punishment. We hold that there is none."); Martinez v. State, 727 S.W.2d 133, 134 (Tex. App.—Fort Worth 1987, no pet.) ("The court did not err in failing to submit the instruction on self-defense at the punishment stage because consideration of self-defense by the jury is inappropriate during the punishment stage of the trial.")
Appellant's sixth issue is overruled.
VII. Cumulative Effect of Alleged Errors
In her seventh issue, appellant argues that the cumulative effect of the errors merits reversal even if no single error is harmful. In light of our disposition of appellant's foregoing points of error, we overrule appellant's seventh issue.
CONCLUSION
Having overruled all of appellant's issues, we affirm the trial court's judgment.
/s/ William J. Boyce
Justice Panel consists of Justices Boyce, Christopher, and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).