No. 05-10-00279-CR
Opinion Filed May 2, 2011. DO NOT PUBLISH Tex. R. App. P. 47 100279F.U05
On Appeal from the County Court at Law No. 2 Collin County, Texas Trial Court Cause No. 002-84509-09.
Before Justices O'NEILL, FITZGERALD, and LANG.
Opinion By Justice O'NEILL.
A jury convicted appellant Michael Valjene Brison of misdemeanor assault causing bodily injury. He raises the following issues on appeal: (1) whether the trial court erred in admitting testimony in violation of the hearsay rules and the Confrontation Clause; (2) whether the court erred by allowing the complainant to assert her Fifth Amendment right against self-incrimination; (3) whether the court erred by denying his motion to suppress; (4) whether the jury charge should have included an instruction on "mutual combativeness"; (5) whether the court erred by denying his request for a directed verdict; and (6) whether the evidence is sufficient is support his conviction. We affirm the trial court's judgment.
Background
On May 25, 2009, paramedics responded to a 9-1-1 call and discovered the complainant, a young woman with a pacemaker, in the living room of the home in the fetal position in a chair. She was shaking, rocking back and forth, and breathing rapidly. Timothy O'Connor, the lead paramedic on the scene, also observed spoons and spatulas strewn about, and the area was in general disarray. O'Connor also saw a man about twenty feet away near the kitchen. The man, later identified as appellant, said the complainant fell in the shower. Complainant, however, said her boyfriend kicked her in the chest and hit her in the face. When asked if the man in the kitchen was her boyfriend, she said yes. O'Connor believed the situation was not simply a medical call, but a possible domestic dispute. He called the Plano police department for assistance. The paramedics were on the scene for approximately five to six minutes before taking the complainant to Medical City Plano for treatment. Officer Derrek Robinson was the lead officer at the scene. When he arrived, he saw a woman with bruises on her face. He briefly talked to appellant on the front porch. Appellant told him, "I know this may look like I assaulted her but that's not the case." Appellant again said her injuries occurred from a fall. He also said the fall happened during a Lakers game watching party; however, he was uncooperative about providing the names of anyone who may have witnessed the fall. After Officer Robinson went inside to continue his investigation, Officer Daniel Tyler continued to try and identify appellant, who was sitting in a chair on the front porch. Appellant finally provided his name and birth date, but he provided a year of birth one year off of his real birth year. Despite the incorrect information, dispatch identified appellant. At one point during Officer Tyler's interactions with appellant, appellant tried to get up. Officer Tyler repeatedly asked him to sit back down but when he ignored his instructions, he "put [his] hand on his shoulder and push[ed] him back into the chair." Appellant accused Officer Tyler of being a racist. Officer Robinson then returned to the front porch and arrested appellant. Appellant continued to act defiant and uncooperative. As Officer Tyler escorted appellant to the squad car, appellant's son arrived. Appellant yelled at his son to not cooperate with the police or tell them anything. A jury found him guilty of misdemeanor assault causing bodily injury to a family member, and the trial court sentenced him to one year county jail, probated for two years, and a $200 fine. This appeal followed. Directed Verdict and Sufficiency of the Evidence
In his fifth issue, appellant claims the trial court erred by denying his directed verdict because there is no evidence he acted voluntarily, intentionally, knowingly, or recklessly. Further, there is no evidence to support the manner and means of the complainant's injuries as alleged in the information. In his sixth issue, appellant claims the evidence is insufficient to support his conviction for the same reasons. The State responds the jury could infer appellant's intent from his acts, words, and conduct. To review a motion for directed verdict, a court uses the same standard of review it uses in reviewing the sufficiency of the evidence. Havard v. State, 800 S.W.2d 195, 199 (Tex. Crim. App. 1989); Balfour v. State, 993 S.W.2d 765, 768 (Tex. App.-Austin 1999, pet. ref'd). In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). We defer to the jury's credibility and weight determinations because it is the sole judge of the witnesses' credibility and the weight to be given their testimony. Id. at 326. The sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Thomas v. State, 303 S.W.3d 331, 333 (Tex. App.-El Paso 2009, no pet.). Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not necessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Thomas, 303 S.W.3d at 333. As applicable to the offense of assault causing bodily injury, the hypothetically correct jury charge would state whether appellant intentionally, knowingly, or recklessly caused bodily injury to the victim. Id.; see Tex. Penal Code Ann. § 22.01(a)(1) (West Supp. 2009). The manner and means of the bodily injury alleged is not an essential element of the offense and therefore is not included within the hypothetically correct jury charge. Id.; Phelps v. State, 999 S.W.2d 512, 515 (Tex. App.-Eastland 1999, pet. ref'd); see also Dunn v. State, 05-10-001960-CR, 2011 WL 227715, at *2 (Tex. App.-Dallas Jan. 26, 2011, no pet.) (not designated for publication). Therefore, with regard to the injury element of the offense, the State was only required to prove appellant caused the complainant to suffer bodily injury; whether it occurred while hitting her in the face and kicking her in the chest is immaterial. "Bodily injury" means "physical pain, illness, or any impairment of physical condition." Tex. Penal Code Ann. § 1.07(a)(8) (West Supp. 2009). A fact-finder may infer a victim actually felt or suffered physical pain because people of common intelligence understand pain and some of the natural causes of it. Randolph v. State, 152 S.W.3d 764, 774 (Tex. App.-Dallas 2004, no pet.) (concluding fact-finder could infer victim suffered bodily injury because she felt physical pain when defendant hit her on the back of the head); Goodin v. State, 750 S.W.2d 857, 859 (Tex. App.-Corpus Christi 1988, pet. denied) (although victim did not specifically testify he suffered "pain," the jury could infer bruises and muscle strain caused "physical pain" for purposes of section 1.07). Further, a jury may infer intent from any facts that tend to prove its existence, such as the acts, words, or conduct of the defendant. See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). Here, O'Connor testified that he found the complainant in the fetal position, shaking, rocking back and forth, and breathing rapidly. He further stated she was crying and seemed agitated. O'Connor said he watched complainant's nose swell to twice its size in a matter of minutes, which indicated a recent injury. Officer Robinson testified he saw the bruises on complainant's face. When he talked to her, he described her as hysterical, crying, and having breathing difficulties. Dr. Mark Gamber, the emergency room doctor that treated complainant, observed bruising and swelling of the left eye and nose, swelling of the lower lip, and swelling and bruising on her knuckles. He said the injury pattern was more consistent with an assault rather than a fall. He also said her hand wounds appeared defensive in nature. The State entered into evidence pictures of the complainant's injuries, which were consistent with a physical altercation. Based on the fact-finder's common understanding of pain, it could infer she suffered "physical pain." Randolph, 152 S.W.3d at 774. Viewing the evidence in the light most favorable to the verdict, a rational fact-finder could infer appellant inflicted bodily injury. Likewise, the evidence is sufficient to support an inference concerning appellant's mental state. When Officer Robinson first questioned appellant, he said her injuries were from a fall. He said, "I know this may look like I assaulted her but that's not the case." Further, appellant first lied to the officers regarding his birth date for identification purposes and acted defiant and uncooperative. The jury could infer appellant's lies reflected a guilty conscious. See King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000) (en banc) (false statements to media could be construed by jury as indication of guilt and an attempt to cover up crime). He also accused Officer Tyler of being a racist and told his son to not cooperate with the police. Based on his conduct, the jury could infer appellant intentionally, knowingly, or recklessly caused bodily injury. See Guevara, 152 S.W.3d at 50. Viewing the evidence in the light most favorable to the verdict, a rational fact-finder could have found appellant intended to cause bodily injury. Because the evidence was sufficient to support the jury verdict, appellant's sixth issue is overruled. Furthermore, because the evidence was sufficient, the trial court did not err by denying appellant's motion for directed verdict. Accordingly, we overrule appellant's fifth issue. Assertion of Fifth Amendment Right
In his second issue, appellant asserts the trial court erred by allowing the complainant to assert a blanket Fifth Amendment right against self-incrimination outside the presence of the jury and then not allow him to comment to the jury on her absence from the courtroom. Thus, the jury was left with a distorted view of the truth of the events on the night in question. The State responds appellant's argument is not preserved, and he had no right to force her to take the stand and invoke her right before the jury. During a pretrial hearing, the complainant's attorney met with the trial judge ex parte. After the conference, the trial judge ordered she was entitled to claim her Fifth Amendment right and that "neither attorney would be allowed to call her to the stand and have her take the Fifth in front of the jury." The order did not, however, prohibit appellant from telling the jury she asserted the privilege. Because he did not request to inform the jury in some other way of her decision, there is no trial court ruling from which to appeal. In order to preserve his argument for review, appellant needed to make a timely request or objection to the trial court stating his reasons why he should have been allowed to inform the jury of her asserting her Fifth Amendment right. See Tex. R. App. P. 33.1. This he failed to do. Thus, he has not presented anything for our review. He further complains the trial judge erred by not allowing the complainant in the courtroom during the guilt-innocence phase of the trial. Appellant's argument is without merit. The trial judge told the complainant to leave the courtroom only after appellant invoked the Rule. When defense counsel noticed she was still in the courtroom, counsel specifically brought it to the court's attention and asked the court to "order her to step outside the courtroom." Appellant induced the alleged error about which he now complains. A party who affirmatively seeks action by the trial court cannot later contend the action was in error. Druery v. State, 225 S.W.3d 491, 505-06 (Tex. Crim. App. 2007). Appellant's second issue is overruled. Admission of Non-Testifying Victim's Statements
In his first issue, appellant complains the trial court erred by allowing paramedic Timothy O'Connor to testify about statements the non-testifying victim made to him because such statements violated the hearsay rules and the Confrontation Clause. The State responds appellant failed to preserve his hearsay argument. Additionally, the statements were non-testimonial and therefore admissible. During a hearing held outside the presence of the jury, O'Connor testified he received a dispatch for a medical call regarding a woman with a pacemaker, who was having difficulty breathing. When he arrived at the home, he found the victim in the fetal position rocking back and forth. She was shaking and having difficulty breathing. He also noticed the living room was in disarray with spoons and spatulas scattered on the floor. He observed bruising on her face and watched her nose double in size from swelling within two minutes. He asked the victim what happened and she said her boyfriend kicked her in the chest and hit her in the face. When O'Connor asked if the man pacing back and forth in the kitchen was her boyfriend, she said yes. O'Connor then determined police involvement was necessary. When appellant briefly disappeared down a hallway, O'Connor motioned for the fire truck driver to come inside because he was concerned about safety. He testified the driver was approximately 6'4 and weighed 280 pounds. When the driver came inside, O'Connor briefly stepped out to call the police. The police arrived to the scene within minutes. At the conclusion of his testimony, the State argued complainant's statements regarding appellant kicking her, hitting her, and identifying him were non-testimonial and should be admitted. Appellant responded the statements were testimonial because her statements were "quite simply to get the police involved, get them there, so the investigation [could] go forward." The trial court determined the State could not use the word "assault" in its questions but was allowed to ask about the injuries and who caused them. The court ruled as follows: The court finds this is an initial confrontation with medical personnel with no time to reflect when she's confronted with people trying to treat her medically. The court determines that the EMS was already in its initial survey as first responders and that the questions that were asked . . . are extremely necessary for doing the initial survey and the subsequent survey. . . . The court finds that it's non-testimonial and the right to confrontation has not been offended under the cases applicable. In all criminal prosecutions, the accused has a right, guaranteed by the Sixth and Fourteenth Amendments of the U.S. Constitution, "to be confronted with the witnesses against him." U.S. Const. amend. VI; Lee v. State, 143 S.W.3d 565, 570 (Tex. App.-Dallas 2004, pet. ref'd). In Crawford v. Washington, the Supreme Court held the admission of a hearsay statement made by a non-testifying declarant violates the Sixth Amendment if the statement was testimonial, and the defendant lacked a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 68 (2004). Thus, a testimonial statement is inadmissible absent a showing the declarant is presently unavailable and the defendant had a prior opportunity for cross-examination, even if the statement "falls under a 'firmly rooted hearsay exception' or bears 'particularized guarantees of trustworthiness.'" Id. at 59-60, 68. The Court stressed if testimonial evidence is at issue, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. Id. at 68. The primary focus in determining whether a hearsay statement is testimonial is upon the objective purpose of the interview, not upon the declarant's expectations. Delapaz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008). Generally, a hearsay statement is testimonial when the surrounding circumstances objectively indicate the primary purpose of the interview is to establish or prove past events potentially relevant to later criminal prosecution. Id. (citing Davis v. Washington, 547 U.S. 813, 822-23 (2006)). However, the Texas Court of Criminal Appeals recognized in Langham that when officers respond to emergency situations, they often find it necessary to ask questions while discharging their duties that are likely to elicit responses about criminal behavior. Langham v. State, 305 S.W.3d 568, 579 (Tex. Crim. App. 2010). But as long as the emergency situation is still ongoing, the primary purpose of the communication is not to develop a factual predicate for later litigation; rather, it is to decide how to respond appropriately to the situation. Id. However, once the emergency is resolved, any continuing or subsequent interrogation may well provoke a testimonial response for Confrontation Clause purposes because at that point, ". . . the primary, if not the sole, purpose of the investigation [has become] to investigate a possible crime." Id. (citing Davis, 547 U.S. at 830). A non-exhaustive list of factors to consider when determining whether statements were made during an ongoing emergency include the following: (1) whether the situation was still in progress; (2) whether the questions sought were to determine what was presently happening as opposed to what happened in the past; (3) whether the primary purpose of the interrogation was to render aid rather than to memorialize a possible crime; (4) whether the questioning was conducted in a separate room, away from the alleged attacker; and (5) whether the events were deliberately recounted in a step-by-step fashion. See Vinson v. State, 252 S.W.3d 336, 339 (Tex. Crim. App. 2008) (citing Davis, 547 U.S. at 829-30). Although we defer to a trial court's determination of historical facts and credibility, we review a constitutional legal ruling de novo. Wall v. State, 184 S.W.3d 730, 743 (Tex. Crim. App. 2006). This is particularly so because the legal ruling of whether a statement is testimonial under Crawford is determined by the standard of an objectively reasonable declarant standing in the shoes of the actual declarant. Id. On that question, the trial judges are no better equipped than appellate judges, and the ruling itself does not depend upon demeanor, credibility, or personal observation. Id. By contrast, appellate courts review a trial court's determination of whether evidence is admissible under the excited utterance exception to the hearsay rule under an abuse of discretion. Id. As the proponent of the out-of-court statements, the State had the burden to show their admissibility. Mason v. State, 225 S.W.3d 902, 911 (Tex. App.-Dallas 2007, pet. ref'd). That is, the State had to establish the statements were non-testimonial or if testimonial, that the complainant was unavailable and appellant had been afforded a prior opportunity to cross-examine her. Id. (citing Crawford, 541 U.S. at 68). The record is clear the complainant was unavailable because the court accepted her assertion of her Fifth Amendment right to not testify. The State presented no evidence appellant had been afforded a prior opportunity to cross-examine her; therefore, the statements would be admissible only if they were non-testimonial. Id. Pursuant to Vinson, we base our analysis on whether the complainant's statements to O'Connor were during an ongoing emergency based on the factors identified in Davis. With regard to the first Davis factor, the record shows that at the time O'Connor made his inquiries, he had found the victim in the fetal position in a chair, shaking back and forth, and she could barely talk. A male was in the kitchen area, approximately twenty feet away, pacing back and forth. Thus, the situation was "still in progress." As to the second Davis factor, whether the questions sought were to determine what was "presently happening" as opposed to what happened in the past, O'Connor testified he sought information regarding appellant's identification and relationship to the complainant prior to calling the police, which indicates he was assessing the present situation. The third Davis factor is easily supported by the record because O'Connor repeatedly testified his main concern was to assess the situation and protect the safety of his other paramedics because "We're the fire department. We're not the police department. So I need[ed] to get some other help there just in case there was an issue." See, e.g., Davis, 547 U.S. at 829 (suggesting questions necessary to secure the safety of the public would be non-testimonial). His concern for their safety was further shown by him breaking protocol and asking the truck driver, a man of imposing size, to come inside the house until officers arrived. Further, as O'Connor noted, paramedics are not the police; therefore, he was not asking questions as part of a police investigation that could later be used to memorialize a possible crime. With regard to the fourth Davis factor, whether the questioning was conducted in a separate room away from the alleged attacker, O'Connor questioned the complainant while appellant was approximately twenty feet away near the kitchen area and pacing back and forth. While appellant may have technically been in another room, the area was certainly not separated enough where O'Connor and the complainant could not see him. And finally, as to the final Davis factor, the record does not indicate the victim deliberately recounted the events in a step-by-step fashion. She was asked if she was assaulted, and she answered yes. She said her boyfriend kicked her in the chest and hit her in the face. When asked if the man in the kitchen was her boyfriend, she said yes. O'Connor used his questions and her answers to assess the situation for safety purposes. It was not the type of detailed inquiry used to investigate a possible crime. Thus, the trial court could have reasonably found that until appellant was secured, an emergency situation was ongoing. On this record, we conclude the statements made by the victim were non-testimonial in nature. See, e.g., Vinson, 252 S.W.3d at 339-40 (concluding testimony regarding interrogation of witness involved in domestic disturbance was non-testimonial because statements happened before appellant was secured in patrol car and the emergency had ended). Therefore, statements that appellant kicked her in the chest, hit her in the face, and her identification of him, did not violate the Confrontation Clause of the Sixth Amendment. Appellant further argues the statements were inadmissible hearsay. However, we need not decide this issue because appellant did not object to the trial court on this basis. His complaint below focused on whether the statements violated the Confrontation Clause. Accordingly, appellant has waived this argument. Tex. R. App. P. 33.1; Valencia v. State, 946 S.W.2d 81, 82-83 (Tex. Crim. App. 1997). We overrule appellant's first issue. Motion to Suppress
In his third issue, appellant asserts the trial court erred by denying his pretrial motion to suppress officers' testimony regarding statements he made at the scene of the crime while in custody and without receiving Miranda warnings. The State responds he failed to preserve his argument as to one of the officers, and he was not in custody when talking to the second officer. A bifurcated standard of review is applied to a trial court's ruling on a motion to suppress evidence. Randolph v. State, 152 S.W.3d 764, 769 (Tex. App.-Dallas 2004, no pet.). This standard gives almost total deference to a trial court's determination of historical facts and applies a de novo review of the trial court's application of the law to those facts. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The trial court is the sole trier of fact, the judge of witness credibility, and the determiner of the weight given to witness testimony. Randolph, 152 S.W.3d at 769. We must sustain a trial court's decision to overrule a motion to suppress if the decision is reasonably supported by the record and is correct under any theory of law applicable to the case. See Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003). When as here the trial judge denies a motion to suppress and does not enter findings of fact, the evidence is viewed in the light most favorable to the trial judge's ruling, and we assume the trial judge made implicit findings of fact supporting his ruling as long as those findings are supported by the record. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Statements obtained as a result of custodial interrogation and without proper Miranda warnings, may not be used as evidence by the State in a criminal proceeding during its case-in-chief. Herrera v. State, 241 S.W.3d 520, 525 (Tex. Crim. App. 2007). The Supreme Court has defined "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, 384 U.S. 436, 444 (1966). When considering "custody" for Miranda purposes, we apply a "reasonable person" standard, meaning a person is in custody only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with formal arrest. Herrera, 241 S.W.3d at 525. The subjective belief of the law enforcement official about whether a person is a suspect does not factor into the determination unless the official's subjective belief is conveyed to the person being questioned. Id. at 525-26. Article 38.22 of the Texas Code of Criminal Procedure governs the admissibility of statements made by a defendant during custodial interrogation in a criminal proceeding. See Tex. Code Crim. Proc. Ann. art. 38.22 (West 2005). The court of criminal appeals has concluded the construction of "custody" for purposes of article 38.22 is consistent with the meaning of "custody" for purposes of Miranda. Herrera, 241 S.W.3d at 526. The defendant has the initial burden of proving the statements he wants to exclude were the product of custodial interrogation. Id. There are four general situations that may constitute custody for purposes of Miranda and article 38.22: (1) the suspect is physically deprived of his freedom of action in any significant way; (2) a law enforcement officer tells the suspect he is not free to leave; (3) law enforcement officers create a situation that would lead a reasonable person to believe his freedom of movement has been significantly restricted; and (4) there is probable cause to arrest the suspect and officers do not tell the suspect he is free to leave. Gardner v. State, 306 S.W.3d 274, 294 (Tex. Crim. App. 2009). Further, an officer may use reasonably necessary force to effect the goal of the detention, which includes investigation, maintenance of the status quo, or officer's safety. See Rhodes v. State, 945 S.W.2d 115, 117 (Tex. Crim. App. 1997). Additionally, the officer's testimony is a factor to be considered, along with the other facts and circumstances of the detention, in determining whether an arrest has taken place. Id. (holding defendant was not in custody despite officer placing him in handcuffs because officer testified he handcuffed defendant primarily out of concern for his safety based on the fact it was dark, a high crime area, and defendant was part of a car chase). We begin our analysis with appellant's complaint regarding Officer Robinson's statements. At the conclusion of the suppression hearing, appellant's counsel stated the following: Your honor, it appears that most of these statements were made voluntarily. While I don't — I mean, the officer's cursorily said he was not in custody, he was not allowed to leave. In fact, he was told to sit down. So I would say that's constructive custody. So if — that would be my legal argument to keep the statements out after he was seated and told to sit back down. But I'm going to leave it to your discretion. Thus, we agree with the State that appellant limited his objection during the hearing to those statements he made after Officer Tyler told him to sit down. Officer Robinson's interaction with appellant occurred prior to Officer Tyler telling him to sit down. Based on Officer Robinson's testimony, appellant did not make any statements to him after this time. Accordingly, appellant's objection on appeal regarding Officer Robinson does not comport with his trial objection, and he has failed to preserve this issue for review. See Delapaz v. State, 228 S.W.3d 183, 195 (Tex. App.-Dallas 2007, pet. ref'd); Tex. R. App. P. 33.1. We now turn to whether the trial court properly concluded Officer Tyler did not have appellant in custody when he put his hand on appellant's shoulder and pushed him back into the chair. When viewed in the light most favorable to the trial court's ruling, we conclude the trial court could have concluded appellant was not in custody at the time Officer Tyler pushed him back into the chair. Officer Tyler testified appellant was not in custody at the time, and officers were merely conducting an investigation to determine what had happened. He further testified he asked appellant repeatedly to sit back down; however, appellant did not follow his instructions and stood up, which indicated appellant did not feel his freedom of movement was being significantly restricted. Officer Tyler pushed him back into the chair because "domestic violence issues are very dangerous for law enforcement officers." He also wanted to ensure appellant was not going to flee the scene or try to attack him. Thus, Officer Tyler was using only the force necessary to continue the investigation, maintain the status quo, and protect officer's safety. See Rhodes, 945 S.W.2d at 117. Accordingly, the trial court's conclusion appellant was not in custody is supported by the record. Therefore, the trial court properly denied his motion to suppress. Appellant's third issue is overruled. "Mutual Combativeness" Instruction
In his fourth issue, appellant claims the trial court erred by overruling his request for a "mutual combativeness" instruction. The State responds there was no evidence the parties agreed to fight; therefore, the court correctly overruled his request. We agree with the State. The victim's effective consent or the actor's reasonable belief the victim consented to the actor's conduct is a defense to assault if the conduct did not threaten or inflict serious bodily injury. Tex. Penal Code Ann. § 22.06(a)(1) (West Supp. 2009). When a party claims the defense of "mutual combat" there must be evidence of an antecedent agreement to fight. See Lujan v. State, 430 S.W.2d 513, 514 (Tex. Crim. App. 1968); see also Miller v. State, 312 S.W.3d 209, 212 (Tex. App.-Houston [14th Dist.] 2010, pet. ref'd) (concluding evidence existed that teenager provoked father into a fight; therefore, trial court erred by refusing instruction). The evidence supporting a consent defense may be presented by the State or the defense. Miller, 312 S.W.3d at 212. When considering whether an instruction was warranted, we are concerned only with whether the evidence supports the defense of consent, not whether the evidence is believable. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). If the evidence viewed in the light most favorable to appellant supports the defense of consent, then an instruction is required. Id. Here, appellant claims he was entitled to the instruction because (1) the complainant had injuries on her hands consistent with hitting something hard, (2) appellant had blood on his shirt, and (3) while not disclosed to the jury, the State's notice of potential Brady evidence stated the complainant struck appellant with some cooking utensils causing him to bleed. However, none of these arguments establish evidence that the complainant agreed to engage in any time of altercation with appellant. This is particularly true of the State's Brady material because it was never before the jury; therefore, it was not evidence that could have been considered for raising the defensive issue. Furthermore, Dr. Gamber testified the injuries to her knuckles appeared defensive in nature. Accordingly, viewing the evidence in the light most favorable to appellant, the trial court did not err by denying his requested instruction on mutual combativeness. Appellant's fourth issue is overruled. Conclusion
Having overruled all of appellant's issues, we affirm the trial court's judgment.