DAMEY LOUIS LOVER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued July 16, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00957-CR
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DAMEY LOUIS LOVER, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause No. F04-41019-L
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OPINION
Before Justices Morris, Whittington, and O'Neill
Opinion By Justice Whittington
        Damey Louis Lover appeals his conviction for the murder of J.D. Wright. After finding appellant guilty, the jury assessed punishment at ten years' imprisonment. In ten points of error, appellant claims the evidence is legally and factually insufficient to support his conviction and disprove he acted in self-defense, and the trial judge erred in refusing to instruct the jury on defense of third persons and instructing the jury on “seeking an explanation while armed.” We affirm the trial court's judgment.
Background
 
        On June 20, 2004, the police were called to LaCheryle Haggerty's home. Haggerty and her boyfriend, Ben Polk, had decided to end their relationship and were arguing. Before the police arrived, Haggerty called her aunt, Linda Lane, who arrived with her husband, Wright, their two children, Gabrielle and Je'Qualon, and Wright's brother, Deundray.   See Footnote 1  Polk agreed to leave and, after retrieving some items, left with the police. Wright, Lane, and Deundray left while the children stayed behind to play with Haggerty's children. Shortly thereafter, Polk returned with his brother, appellant, telling Haggerty he wanted his things, including the refrigerator, the washer, and the dryer. Haggerty again called the police who returned to the scene. After Haggerty and Polk agreed Polk could take the refrigerator, the police left. Lane, Wright, and Deundray returned to the house with Wright's cousin, Michael Weaver. Polk's nephews, Johnny Polk and Cedric Malone, also arrived. Wright, Lane, and appellant argued. Shortly thereafter, Wright left the house, followed by Deundray, Weaver, appellant, Polk, and Malone. Wright headed toward his car, walking around the rear of the car near the trunk. He was followed closely by appellant who then pulled out a gun and shot Wright in the head. Appellant was charged with and convicted of Wright's murder. This appeal followed.
Legal and Factual Sufficiency of the Evidence        
 
        Appellant challenges the legal and factual sufficiency of the evidence to support his conviction. In his first, second, third, and fourth points of error, he claims the State failed to prove he acted voluntarily and intentionally. In his fifth and sixth issues, he contends the State failed to disprove he acted in self defense.   See Footnote 2  For the reasons that follow, we disagree.
        When reviewing sufficiency of the evidence challenges, we employ well-known standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Garcia v. State, 57 S.W.3d 436, 441 (Tex. Crim. App. 2001). Under a legal sufficiency review, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The jury is the sole judge of the witnesses' credibility and the weight to be given their testimony and may accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).
        In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of evidence contradicts the jury's verdict. Id. at 417. We cannot conclude a conviction is “clearly wrong” or “manifestly unjust” simply because we would have voted to acquit. Id. The jury is in the best position to evaluate the credibility of the witnesses, and our factual-sufficiency jurisprudence still requires an appellate court to afford “due deference” to the jury's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied 128 S. Ct. 87 (2007). Although the reviewing court is permitted “to substitute its judgment for the jury's” when considering credibility and weight determinations, it may do so only “to a very limited degree.” Id. (citing Watson, 204 S.W.3d at 417).
        When the issue of self-defense is raised, a defendant has the burden of producing some evidence to support the claim. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). Once the defendant produces that evidence, the State bears the burden of persuasion to disprove the raised defense. Id. The burden of persuasion does not require the State to produce evidence; rather, it requires only that the State prove its case beyond a reasonable doubt. Id. The issue of self-defense is a fact issue to be determined by the jury, and the jury, as fact finder, is free to accept or reject the defensive issue. Saxton v. State, 804 S.W.2d 910, 913-14 (Tex. Crim. App. 1991). When reviewing the legal sufficiency of the evidence concerning the jury's rejection of self-defense, we look to whether any rational jury could have found against appellant on the self-defense issue beyond a reasonable doubt. See id. at 914; McClesky v. State, 224 S.W.3d 405, 409 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd). In a factual sufficiency review, we review all of the evidence in a neutral light to determine whether the State's evidence, taken alone, is too weak to support the jury's finding against appellant on the self-defense issue and whether the proof of guilt is against the great weight and preponderance of the evidence. Zuliani, 97 S.W.3d at 595; Williams v. State, 226 S.W.3d 611, 617 (Tex. App.-Houston [1st Dist.] 2007, no pet.).
        A person commits murder if he (i) intentionally or knowingly causes the death of an individual or (ii) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Penal Code Ann. § 19.02(b)(1), (2) (Vernon 2003). A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession. Tex. Penal Code Ann. § 6.01 (Vernon 2003). “A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.” Tex. Penal Code Ann. § 6.03(a) (Vernon 2003). “A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.” Tex. Penal Code Ann. § 6.03(b) (Vernon 2003). A person is justified in using deadly force against another when and to the degree the actor reasonably believes deadly force is immediately necessary to protect the actor against the other's use or attempted use of unlawful deadly force. Tex. Penal Code Ann.§§ 9.31(a), 9.32(a) (Vernon Supp. 2007). The use of force against another is not justified, however, if the actor “sought an explanation from or discussion with the other person concerning the actor's differences with the other person while the actor was” carrying a weapon in violation of section 46.02. Tex. Penal Code Ann. §§ 9.31(b)(5), 46.02.
        At trial, several Mesquite Police Department officers testified about the events of June 20, 2004. Officer Nathan Bell testified he and his partner responded to a call around 1:48 p.m. regarding a disturbance between a male and female at 2721 Stream Bend Avenue in Mesquite. Haggerty and Polk each complained to the officers of physical altercations but the officers saw no evidence of physical abuse. Ultimately, the officers asked Polk if he would be willing to leave. When he responded affirmatively, the officers agreed to take him to his brother's house. According to Officer Bell, that allowed the officers to “calm the situation down for [the day] and [Polk] would come back at [a] later time and resolve the issues of what they had to work out with their relationship.” Officer Bell testified Polk grabbed something for work the next day and they transported him to his brother's. Officer Brent Ehrenberger testified he responded to a call about a verbal altercation or disagreement at the same house around 3:00 p.m. that same day. Haggerty and Polk were arguing about a refrigerator. No one at the scene threatened any physical violence or made allegations that there had been any physical violence. By the time the officers left, things had calmed down. The couple, aided by the officers, agreed Polk could take the refrigerator and leave. Officer Ehrenberger received a call about a shooting at the same house around 3:48 p.m. When he arrived, he saw appellant in the street with his hands up. Appellant had a pistol case in his back left pocket of his pants. The gun was inside a white car parked in front of the house.
        Phyllis Gosnell testified that, in June 2004, she lived at 2713 Stream Bend Avenue, one house away from Haggerty's. She identified her house in the photograph admitted as State's exhibit number 10. The house, like Haggerty's, is on a slight hill with the front lawn sloping down to the street and the mailboxes. Haggerty's mailbox is attached to the mailbox belonging to the house at 2717 Stream Bend Avenue. Gosnell testified she could see Haggerty's mailbox from her front window. On June 20, Gosnell walked in the front sitting room and over to the window. Her son, who was in the room, asked if the police were still out there. When she asked what he meant, he explained that there had been a police car in front of the neighbor's house. Gosnell looked out the window and saw four men running from Haggerty's house down the hill toward the mailboxes. They stopped at the mailboxes and “started to talk a little bit.” She was trying to decide if they were arguing or joking. One of the men was agitated, and the other “just seemed kind of normal.” The agitated man had a gun and shot the man who had gone down the hill first. He fell to the ground, and Gosnell told her son to call 911. According to Gosnell, the man with the gun “kind of raised it above his head and started walking up and down the street . . . Actually, almost strutting at the time.” Gosnell described it as surreal and testified she decided “the window wasn't the right place to be.” Gosnell testified she uses eye glasses for reading but does not need them to see distances. She also testified no one tried to get in the trunk of the car before the shooting.
        Haggerty testified she and Polk had a confrontation on June 20, 2004, and she called the police. Haggerty also called Lane who drove to the house with her children, Wright, and Deundray. Haggerty and Polk each claimed physical violence by the other but neither showed any signs of injury. After a discussion with the police, Polk agreed to leave. He collected some of his things and left with the police. Haggerty believed the police told Polk to stay away “a couple [of] days.” According to Haggerty, Wright and Lane stayed outside the house and did not have any interaction with Polk or the police. The police took Polk to appellant's house, and Lane, Wright, and Deundray left. Gabrielle and Je'Qualon stayed at Haggerty's house.
        Approximately ten minutes later, Polk returned to the house with appellant. When Polk told Haggerty he was taking the refrigerator, she again called the police and told Polk he was not taking the refrigerator. Appellant came through the front door and told Gabrielle she needed to tell Wright to stay out of Polk's face or appellant was going to do something about him. Gabrielle told appellant he was “not going to do nothing to [her] daddy.” According to Haggerty, appellant indicated he wanted to fight Wright. Haggerty called Lane and, at some point, put Gabrielle on the phone. Gabrielle told her mother what appellant had said, and Lane asked to speak with appellant. In the meantime, Polk asked Haggerty if they could talk in the back bedroom. While they were talking, Haggerty heard voices arguing. Polk and Haggerty walked out of the bedroom to find Lane, Wright, Deundray, and Weaver arguing with appellant and Malone. The majority of the arguing involved Lane, Wright, and appellant. As far as Haggerty could remember, no one threatened another, but Wright and Lane were going to take the children and leave. Wright walked outside followed by appellant and the others. Haggerty walked over to the living room and looked out the window. She saw appellant with his arm around Wright's neck. The men were standing at the back of Lane's car, and appellant had a gun. The men struggled, and Haggerty heard a shot. She called 911 and ran outside. Haggerty testified the trunk of Lane's car was not open.
        Gabrielle testified she was twelve-years old on June 20, 2004. That day, Wright, Lane, Deundray, Je'Qualon, and Gabrielle drove to Haggerty's house in response to her call. When they arrived, the police were escorting Polk out of the house. Polk left in a police car with a police officer. Wright and Lane left, but Gabrielle asked to remain at Haggerty's house with her brother. Later, Polk arrived at Haggerty's house with appellant, saying the police told him he could get what he needed. While they were there, Lane called Haggerty. According to Gabrielle, appellant told Haggerty to tell Lane “to tell her husband that if he say something to his brother again, that he was going to do something where we couldn't see our daddy nomore.” Gabrielle told appellant he wasn't going to touch her daddy, that her daddy would have him back on crutches. Gabrielle explained that appellant had previously used crutches. Appellant told Gabrielle her “daddy ain't going to be do nothing to him.” Rather, appellant would have her “daddy where [they'd] be crying over him.” Gabrielle asked her mother to come pick her up because she did not want to be at Haggerty's house anymore.
        Gabrielle waited in the living room until Lane, Wright, Deundray, and Weaver came back to the house. They started arguing with Polk and appellant. Finally, Deundray said, “Let's go” and walked out. Gabrielle went to get her brother from the back room. Gabrielle had just reached the front door when she saw appellant grab Wright and shoot him. According to Gabrielle, her father had walked around the back of the car toward the driver's side door when appellant ran down and shot him. Gabrielle testified the trunk was cracked open and Wright closed it before walking toward the driver's side door. After the shooting, appellant told Lane he thought Wright was reaching for a gun and he was sorry.
        Lane testified she and Wright had been together nearly nine years. Haggerty called Lane but when Lane answered, she heard Haggerty say “I'm tired of you hitting on me,” and the phone line went dead. Lane told Wright she had to go see Haggerty, and Wright, Deundray, and the children accompanied her. When they arrived at Haggerty's house, Lane went inside. About fifteen minutes later, the police arrived. Ultimately, Polk said he would leave and drove off with the police. Lane denied Wright and Polk had any interaction or even spoke to each other. Wright, Lane, and Deundray left the children with Haggerty and went to the store.
        Lane spoke with Haggerty on the phone a short time later, and Haggerty told her Polk had returned with appellant who “had an attitude.” Haggerty also said appellant had said something to Gabrielle. Lane spoke with Gabrielle who told her appellant said “if your daddy come over here one more time messing with my brother, I'm going to kill him.” Gabrielle also said she told appellant he wasn't going to do anything to her daddy to which appellant responded “you-all gone be crying over your father.” When Lane told Wright what had happened, they decided to get their children from Haggerty's house. They took Deundray and Weaver in case appellant started something.
        When they first arrived at Haggerty's house, Wright told Lane that the house door was locked and they needed a way to get in the house to get their kids. The only thing in the trunk was the car jack handle. Wright said if they could not get in, he could break a window to get his kids. But Lane told him not to “take trouble to the door . . . because it was [Polk's] house . . . [and] if anything happened, [Lane and Wright would] be the one[s] in the wrong.” After they went in the house, appellant entered from the back door. Lane tried to stay in between Wright and appellant, saying she did not want them “to even come in contact with each other, after what [appellant] told [Gabrielle].” Lane asked appellant why he would say something like that to a child, and Wright added “Yeah, I don't appreciate it.” When appellant said they could take it outside, Deundray said, “It's not worth all that. Get your kids and let's go.”
        The men walked outside. As Lane was trying to get her son to put his shoes on, she heard someone yell, “He has a gun.” When she looked up, she saw Wright on the ground. She ran outside. Appellant tried to hand the gun to Polk and then to his own son, Jamal, but Lane told Jamal not to touch the gun. Polk told appellant, “Don't run. It's self-defense.” Appellant threw the gun in Polk's car. Lane asked appellant why he shot Wright, and he answered, “I thought he had a gun.” Lane told him that did not give him a reason to shoot Wright in the head. Lane denied that Wright had a temper or that he had threatened anyone inside the house.
        Weaver testified he did not know anyone at the scene other than Lane, Wright, their children, and Deundray. He did not know Polk or appellant. He rode over to Haggerty's house when Lane and Wright went to get their kids. When everyone was inside the house, people were arguing. Wright was upset with what appellant had said to Gabrielle. Appellant and Wright exchanged words, but Lane was also talking to appellant. Deundray said, “It's not worth it. Let's go.” So they all just turned around and left. They walked through the front yard to the cars. Wright was in front, followed by Weaver and Deundray. At some point, appellant passed Weaver. Wright walked over to the driver's side of his car. Because the trunk of the car was “open just a little bit,” Wright closed it. Weaver had walked to the trunk area when appellant grabbed Wright. The two men struggled, and appellant shot Wright in the head.
        Polk testified the police were called to Haggerty's house around 1 p.m. After discussing the situation with the police, Polk agreed to leave. The police gave him a ride to appellant's house which was a few miles away. According to Polk, the police did not tell him to stay away for a day or two but told him to “just let it blow over. Basically, just use your discretion.” Lane, Wright, and another man arrived before Polk left. Polk testified he and Wright had no interaction but stated they had a “mild confrontation in the past.” He described Wright as having a “hot temper.” He also stated Wright was “yapping” in the background but that he did not pay any attention to him. As the police were taking him to appellant's house, Wright said something negative but Polk “disregarded it. . . just blew it off” because he was not looking for a confrontation.
        About thirty-five to forty minutes after arriving at appellant's house, Polk decided to return to Haggerty's house, get his things, and move out. Polk testified he did not mention to appellant that Wright had been “mouthing off” to Polk. They arrived at Haggerty's, and Polk walked in. Haggerty “immediately started going off on” Polk and called the police. Appellant walked in the house and spoke with Haggerty. Polk described appellant as “calm” and “soft-spoken” and denied he threatened anyone. The police arrived, spoke to Polk and Haggerty, and negotiated an agreement. After the police left, Johnny arrived, followed by Lane, Wright, and two other males. Malone then arrived. In the meantime, Polk asked Haggerty if they could speak in the back bedroom. Polk told her she could keep the good refrigerator, the washer, and the dryer. They then heard loud voices and walked to the front of the house. According to Polk, “they” were just screaming at appellant, and Malone was trying to defuse the situation. Appellant suggested they call the police, taking out his cell phone and flipping it open. Wright flipped it closed and said, “We don't need to call the police. We can handle this shit ourself [sic].” He proceeded “to run out of the house.” Polk testified Wright said he was going to the trunk of his car and he was going “to deal with you-all today.” Appellant said, “Don't go to the trunk of your car.” According to Polk, both Lane and Gabrielle said, “Let's go.” One of the men who had arrived with Lane and Wright said, “Man, this ain't worth it. Let's go.” Malone suggested they go in the backyard and fight it out like men.
        Appellant followed Wright out of the house, and Polk followed appellant. Wright was “walking pretty fast, [an] angry walk, to his trunk.” Appellant was right behind him, “pleading with him all the way: 'Don't open the trunk. Don't open the trunk, Please, man, get away from the trunk.” According to Polk, Wright arrived at the trunk and was fumbling with his keys. Appellant pulled out a gun, and he and Wright started scuffling. Polk heard a gunshot. When asked whether he thought appellant overreacted, Polk responded, “No, not at all.” Polk then said he was in fear of his life because he thought Wright was going for a gun in the trunk. Polk took the gun from appellant and put it in his car.         On cross-examination, Polk denied that the police told him to not go back for a few days. He testified he called Malone and Johnny to have them help him move his things. He repeated that everyone was calm at the scene except Wright but conceded Malone said, “Let's take it outside. We're going to fight out in the back.” He testified appellant does not always carry a gun but claimed he sometimes did so because they worked late hours. He conceded that his written statement did not state he heard Wright say he was going to the trunk of his car, nor did his statement state appellant told Wright not to open the trunk. Polk conceded Wright did not have a weapon in his hands when appellant shot him and that the trunk of Wright's car was not open.
        Malone testified Polk called him about helping move his things out of Haggerty's house. Right after he arrived, a car pulled up with four people. He walked around the house looking for Polk. He eventually heard “a lot of cussing” and observed a heated discussion. Malone testified that because Wright continued using profanity toward the whole house, Malone asked him not to cuss in front of the children and whatever he had to say, could he step outside and say it. Appellant suggested calling the police, and Wright said they did not need the police, he would be the police. Wright then said he had “something for all you MFs” and left the house, headed for his car. Malone and the others followed Wright outside. Appellant asked Wright not to go to the trunk of his car. Malone saw the children coming out of the house, turned around, and yelled, “Hey, y'all get these kids back in the house.” He then heard a shot. Malone testified he believed Wright was going to his trunk to get a weapon. He conceded he did not put in his written statement that he told everyone to get the kids back in the house.
        Appellant testified he was taking a nap on Father's Day in June 2004 when Polk arrived and asked him to help move Polk's things from Haggerty's house. According to appellant, he did not know Wright before that day and Polk did not mention Wright. When they left to go to Haggerty's house, appellant had a gun in the pocket of his pants. He testified that ever since his brother, Edward, was killed in the mid-1980s, he was scared and carried a gun. When they arrived, Polk went inside. After a while, appellant went inside and told Haggerty that if she and Polk could not get along, they should “just split up.” Haggerty “went off on” appellant so he went back outside to his truck where he stood with his son, Jamal. Appellant's nephew, Johnny, arrived and asked if appellant wanted to get something to eat or drink. Eventually appellant agreed. He and Jamal got in Johnny's truck, and the three drove to the front of Haggerty's house.
        They stood in front of the house and chatted until they saw a police car driving up to the house. Haggerty came out the front door followed by Polk. Haggerty was “yelling and screaming” at Polk so one officer took her inside while the other talked to Polk outside. Someone walked up to appellant and handed him a phone. Although he did not recognize the voice of the person on the phone, that individual was “making threats and just cussing and screaming.” When asked whether the treats were general or made specifically at appellant, he responded, “Just cussing and screaming. I told the officer-I said, 'Someone is on the phone here making threats.' He immediately told me to hang the phone up and stuff. I did.” According to appellant, he told the officer it was “probably some of [Haggerty's] family” and that they were probably on their way over. Appellant asked the officer if they could stay while he and Polk loaded up his stuff but the officer said they had another call. The officers talked to Polk and Haggerty who then agreed to split the property. The officers left, and appellant walked through the house to the back where his truck was still parked.
        Shortly thereafter, appellant's other nephew, Malone, arrived. He and appellant visited briefly, then walked inside the house to get Polk. Wright was inside, “yelling and screaming at everybody in the house, cussing, making threats, talking about you-all don't want to see me. Cussing and stuff, talking about what he would do to people and stuff like that.” According to appellant, Malone tried to calm Wright down but was unable to do so. Appellant told Polk and Haggerty to call the police, but Lane told appellant it was not his house, he could not call the police. Wright then said “Fuck the police. I'm the police. I'll handle this shit. I got something for ya'll.” He ran out of the house, and appellant ran after him. Appellant testified he knew Wright was going to the trunk of his car because Wright had the keys in his hand. According to appellant, he actually believed in his mind that Wright was going for a gun. Wright got to the trunk of his car when appellant caught up with him and told him to “Hold up.” Wright turned and attacked appellant. They were “tussling over the gun” and the next thing he knew, he heard a shot and Wright was on the ground. Appellant clarified his testimony, stating that the trunk of the car was open and Wright was reaching in when appellant told him to “holt [sic].” Appellant was in shock and put the gun on the front seat of Polk's car.
        On cross-examination, appellant testified he did not know if he could have fired a warning shot or stayed in the house and called the police. He testified he was not familiar with the law requiring a permit to carry a handgun and conceded that, in the twenty years he has carried his gun, he did not take steps to get a permit. He did not know why Haggerty or Gabrielle testified he spoke to Gabrielle. He again testified Wright's trunk was open and that he was reaching in when appellant caught up with him. He denied trying to hand the gun to his son after the shooting.
        Viewed in the light most favorable to the verdict, the evidence shows Wright and Lane first showed up at Haggerty's house after she called them about Polk hitting her. Polk and Wright had no interaction during this visit. During the second visit, appellant interacted with Wright in what some witnesses termed an argument. Wright's cousin, who was present both times, told Wright it wasn't “worth it” and that he should get the kids and leave. Wright then left the house, walking to his car. He walked around the back of the car. Appellant, who had hurriedly followed Wright down the hill, pulled out a gun and shot Wright.
        After reviewing this evidence, we conclude a rational trier of fact could have found, beyond a reasonable doubt, appellant's actions were voluntary and that appellant intentionally or knowingly caused Wright's death or intended to cause serious bodily injury and committed an act clearly dangerous to human life that caused Wright's death. Although there was evidence supporting appellant's claim of self-defense, i.e., appellant's testimony that Wright was reaching in the trunk, appellant believed Wright was going for a gun, and appellant was scared, there was controverting testimony of several other witnesses that Wright was leaving, did not reach into the truck and, in fact, closed the trunk that was ajar. No witness testified Wright had a weapon in his hand at the time of the shooting. The jury was entitled to believe or disbelieve any or all witnesses' testimony, including appellant's. Thus, we conclude a rational jury was justified in finding against appellant, beyond a reasonable doubt, on the self-defense issue. See Cleveland v. State, 177 S.W.3d 374, 381 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd) (rational jury could have deadly force was not immediately necessary for appellant to defend himself). Therefore, we cannot conclude the jury was not justified in finding appellant guilty of Wright's murder. We overrule appellant's first, third, and fifth points of error.
        Furthermore, after reviewing all the evidence, we cannot conclude the jury's verdict was clearly wrong or manifestly unjust or against the great weight and preponderance of the evidence. See Watson, 204 S.W.3d at 417. Because the jury was rationally justified in finding guilt beyond a reasonable doubt, we conclude the evidence is factually sufficient to support appellant's murder conviction. See Williams, 226 S.W.3d at 617. We likewise conclude, after reviewing all the evidence in a neutral light, the evidence supporting the verdict is not so weak that the jury's implicit finding against appellant's claim of self defense is clearly wrong and manifestly unjust or against the great weight and preponderance of the evidence. We overrule appellant's second, fourth, and sixth points of error.
Jury Charge Error
 
        In his ninth point of error, appellant claims the trial judge erred in refusing appellant's requested instruction on the defense of third persons. Under this point, appellant contends the evidence showed he reasonably believed the children and other bystanders were in danger of being killed and he was therefore entitled to his requested instruction. We disagree.
        When reviewing an appellant's claim of jury charge error, we first consider whether the jury charge was erroneous. We then follow the standard pronounced in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g).
        A defendant is entitled to an instruction on every defensive issue raised by the evidence regardless of the strength of the evidence. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999); Brown v. State, 955 S.W.2d 276, 279 (Tex. Crim. App. 1997). A person is justified in using deadly force to protect a third person if
 
(1) under the circumstances as the actor reasonably believes them to be, the actor would be justified under Section 9.31 or 9.32 in using force or deadly force to protect himself against the unlawful force or unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect; and
 
 
 
(2) the actor reasonably believes that his intervention is immediately necessary to protect the third person.
 
Tex. Penal Code Ann. § 9.33 (Vernon 2003). Section 9.32 provides a person is justified in using deadly force against another (i) if he would be justified in using force against the other under section 9.31, (ii) if a reasonable person in the actor's situation would not have retreated, and (iii) when and to the degree he reasonably believes the deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force. Tex. Penal Code Ann. § 9.32.
        As detailed in our review of appellant's first six issues, there is no evidence in the record showing appellant was entitled to this instruction. Appellant did not testify he reasonably believed his intervention with deadly force was immediately necessary to protect any of the other people present at the scene. See Kennedy v. State, 193 S.W.3d 645, 653 (Tex. App.-Fort Worth 2006, pet. ref'd). Furthermore, although several defense witnesses testified they thought Wright was going to his trunk to get a gun and that they felt threatened, no one testified it was immediately necessary to shoot Wright to protect the people in and around Haggerty's house, nor did they testify that appellant appeared to believe such action was necessary. Cf. VanBrackle v. State, 179 S.W.3d 708, 714 (Tex. App.-Austin 2005, no pet.) (instruction on self defense should have been given when three witnesses testified of “observable manifestation” of appellant's belief that it was necessary to defend himself against victim's use or threatened use of deadly force). Because the evidence did not raise the issue of defense of third persons, we cannot conclude the trial judge erred in denying the instruction or that the jury charge was erroneous.   See Footnote 3  We overrule appellant's ninth issue.
        In his tenth point of error, appellant argues the trial judge erred in instructing the jury on the “seeking an explanation while armed” exception to self-defense. Under this point, appellant claims there was no evidence appellant sought an explanation from or had a discussion with Wright about any differences between them and, therefore, the instruction was erroneous. Again, we disagree.
        Although a person may be justified in using deadly force against another, such force is not justified if the actor “sought an explanation from or discussion with the other person concerning the actor's differences with the other person while the actor was” carrying a weapon in violation of section 46.02. Tex. Penal Code Ann. § 9.31(b)(5). Section 46.02 provides that a person commits the offense of unlawful carrying a weapon if he intentionally, knowingly, or recklessly carries on or about his person a handgun and the person is not on his own premises or premises under his control or inside of or directly en route to a motor vehicle that is owned or under the control of the person. Tex. Penal Code Ann. § 46.02(a). A charge limiting a defendant's right to self-defense under this section is properly given when (i) self-defense is an issue; (ii) there are facts in evidence that show that the defendant sought an explanation from or discussion with the victim concerning their differences; and (iii) the defendant was unlawfully carrying a weapon. Lee v. State, 2007 WL 3293775 *3 (Tex. App.-Houston [1st Dist.] Nov. 8, 2007, pet. ref'd) (citing Fink v. State, 97 S.W.3d 739, 743 (Tex. App.-Austin 2003, pet. ref'd) and Bumguardner v. State, 963 S.W.2d 171, 175 (Tex. App.-Waco, 1998, pet. ref'd)). If there is evidence raising the issue, an instruction should be submitted. See Bumguardner, 963 S.W.2d at 175 (citing Matthews v. State, 708 S.W.2d 835, 838 (Tex. Crim. App. 1986)).
        It is undisputed an instruction on self defense was given and that appellant was carrying a gun in violation of section 46.02. Thus, we need only address whether there was some evidence appellant sought an explanation from or discussion with Wright concerning their differences. Several witnesses testified Wright and appellant argued or had words before Wright left the house, followed closely by appellant. Haggerty's neighbor, Gosnell, testified the men went running down the hill in front of the house to the mailboxes. They stopped at the mailboxes and “started to talk a little bit.” Polk and appellant both testified appellant followed Wright to the car, asking him not to go to or open the trunk. Appellant testified he told appellant to “hold up” or “holt.” Because there is some evidence raising the issue, we conclude the trial judge did not err in instructing the jury on the law of seeking a discussion or an explanation as a limitation to self-defense. See Lee, 2007 WL 3293775 *4 (trial court properly instructed on law of seeking discussion or explanation; appellant was unlawfully carrying firearm, had prior dispute with deceased, and some evidence existed that appellant was seeking discussion with victim when appellant shot victim); Bumguardner, 963 S.W.2d at 175 (trial court properly submitted instruction when some evidence tended to show appellant sought explanation or discussion with deceased); cf. Fink, 97 S.W.3d at 743 (rational jury could infer from circumstantial evidence that appellant left apartment and went downstairs to look for victim). We overrule appellant's tenth point of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          MARK WHITTINGTON
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
070957F.U05
 
Footnote 1 The record does not reflect Deundray's last name.
Footnote 2 In his sixth and seventh points of error, appellant argues the State failed to disprove defense of a third person. The jury charge, however, did not instruct the jury on this justification. Because the jury was not instructed on defense of a third person, it made no findings on this issue. Therefore, we conclude we need not address appellant's sixth and seventh points.
Footnote 3 Furthermore, appellant was not harmed by the lack of an instruction on defense of a third person. As noted above, the jury found against appellant on his claim of self-defense. Because the jury did not believe appellant acted in self-defense, under the facts of this case, he could not have acted in defense of a third person.