OPINION
A jury found Darrius Eugene Spearman guilty of murder and assessed punishment at confinement in prison for fifty years. Spearman challenges the legal and factual sufficiency of the evidence to support the jury’s guilty verdict and rejection of his self-defense claim. He also argues the trial court erred in allowing a witness’s statement to be read to the jury. We conclude the evidence is sufficient to support the verdict, and although the eviden-tiary ruling did not strictly follow a Court of Criminal Appeals’ opinion construing the applicable hearsay exception, we conclude any error did not affect substantial rights. Accordingly, we affirm the judgment of the trial court.
The Sufficiency StandaRds of Review
Spearman first challenges the sufficiency of the evidence supporting the jury’s finding that he intentionally caused the victim’s death by shooting him with a firearm.
See
Tex. Pen.Code Ann. § 19.02(b)(1) (Vernon 2003). In reviewing the legal sufficiency of the evidence, an appellate court reviews all of the evidence in a light most favorable to the verdict, and must decide if any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt.
Evans v. State,
Spearman specifically challenges the jury’s rejection of his self-defense claim. Spearman asserts the record “is wholly void of any evidence that the defendant acted intentionally in causing the death of the victim; but, in fact was acting in self-defense to prevent himself from being shot.” He also states that the record demonstrates that “the pistol accidentally discharged in the struggle wherein the defendant was attempting to restrain the victim from shooting the defendant.”
When a defensive issue under section 2.03 of the Penal Code is contemplated, the defendant bears the burden of producing some evidence that supports the particular defense and, once accomplished, the State then bears the burden of persuasion to disprove the raised defense.
See
Tex. Pen. Code Ann. § 2.03(d) (Vernon 2003);
Adelman v. State,
The Evidence
Meyoshia Carter-Smith testified that she was at Tiffany’s, a club in Port Arthur, on the night of the shooting. The club was extremely crowded. Carter-Smith described some of the attendees as “gang-bangers.” At about 1:30 in the morning, the disc jockey played a song that encouraged the club patrons to “throw your sets up[J” and some of the patrons began “making [gang] signs” and “throwing their [gang] rags up.”
Carter-Smith was leaning on a railing near the dance floor. She noticed a man she knew as “Fish,” later identified as Marcus Allen, dancing with a girl on the dance floor. The girl was about “two, three big steps” away from Carter-Smith. When the lyrics to the song said to “throw your sets up,” Allen did not “throw his set up” but kept his hands on the hips of the girl.
Spearman made a hand gesture and approached Allen. The witness could not hear what was being said because of the noise level at the club. Allen tried to waive Spearman off. Carter-Smith then heard song lyrics which said to “put your guns in the air.” She saw Spearman approach Allen with a gun covered by a red bandana. She did not hear a distinct gunshot, because the song included the sound of gunshots, but she saw a flicker “[l]ike a little firecracker[.]” She knew Allen had been shot. Just before Alen fell to the floor, she saw the gun in Spearman’s hand. She later testified that she “never actually” saw a gun — “I seen, like, a flashlight and I seen somebody drop. So, I assumed that it was a gun covered.”
When Allen fell to the floor, people started kicking him. Spearman was out of sight. She identified one of the people kicking Allen as a man referred to as “KT” by others that night, and she later found out KT’s name is “Korwin.” The club owner and a bouncer broke up the fight and took Alen out of the club. Carter-Smith “could tell that he was unconscious because ... he wasn’t moving.” The club was shut down.
Carter-Smith called 911, went outside the club, and saw Alen lying near the club’s door. Ater determining his pulse was weakening and he was not breathing, she began administering CPR. Alen’s eyes began “rolling back in his head[.]” The police and EMS arrived; the police asked Carter-Smith to leave.
At the time of the shooting, Carter-Smith had been at the club for about three and a half hours and had consumed four mixed drinks containing tequila. She testified she was “tipsy,” but she claimed she was not intoxicated and “not under the influence that I didn’t see what I seen.”
Easton Washington, a bouncer at the club that night, was the only employee searching the patrons for weapons as they entered the club. Washington testified that when the disc jockey announced there was a fight, Washington ran to the dance floor. Gerald Hatch, the club owner, was holding one man, and another man was “balled up in a knot” on the floor while others were “[kicking him and stomping him.” Washington threw some people off the man balled up on the floor, picked the man up, and began helping him out the door. The man told Washington, “ ‘Call *467 my mama.’” Washington got the man outside. He saw no blood. A woman then walked up, examined Allen, and said “ ‘it look[s] like he’s been shot or stabbed[;]’ ” she began administering CPR.
Hatch testified he had been drinking alcohol that evening, but he was not intoxicated. When he heard of the fighting, he ran to the dance floor and grabbed a man attacking Allen. Once Hatch got him to the door, the man “took off running.” Spearman did not look like the man that he escorted out of the club. Hatch observed Washington helping someone to the outside that appeared injured.
Quavonn White, who at the time of trial was serving a sentence for aggravated robbery, testified that he had known Spear-man for five or six years. White went to Tiffany’s that night after “smoking weed” earlier that day. As he was about to enter the club, Spearman asked him for a ride home. Spearman did not tell him anything that happened at the club. When White returned to the club, everyone was outside, and the club was closed.
Korwin Thomas, Spearman’s friend and former fellow gang member, testified he arrived at Tiffany’s around midnight. He was high on PCP. Thomas told the police that when a rap song came on, Allen and his friends started waving their blue flags and Thomas and others started waving red flags. A fight broke out. According to Thomas’s statement to the police, prior to the shooting Spearman had said in Thomas’s presence that he planned to kill Allen if he saw him at the club. Thomas said in his statement that he saw Spearman pull out a 9 millimeter and Thomas left because he knew Spearman was about to shoot Allen. Thomas explained in his statement that he heard a shot, ran back to the dance floor, and saw Allen lying on the dance floor.
In custody on a felony charge at the time of trial, Thomas testified that he did not remember making the statement to the police, and that he was under the influence of narcotics when he gave his statement. He testified at trial he did not see Spear-man with a gun at the club that night.
When Officer Matthew Bulls of the Port Arthur Police Department arrived at Tiffany’s that night, he found a big crowd outside the club. A woman had tried to administer CPR to the victim. EMS arrived shortly thereafter and could not successfully resuscitate Allen. Bulls noted Allen suffered a gun-shot wound but he saw a “minimal” amount of blood. He spoke with Hatch and Washington. No spent shells, weapons, or blood were found in the club.
Detective Herbert Otis with the Port Arthur Police Department testified that he assisted in the investigation. He was asked to look for the suspect in an area of Port Arthur. He and Detective Savoie found Spearman driving a car in that area. Spearman was taken into custody on an unrelated matter.
When interviewed, Spearman initially denied' being at the club. He later admitted he was at the club and described what happened. Spearman told Otis that while a gang song was playing, Allen “stood in [Spearman’s] face” and was “throwing up signs” and “waving stuff.” Spearman shot him. Spearman did not tell Otis of any other threatening action by Allen, nor did he claim that he saw Allen with a weapon.
Spearman told Otis he was prepared to give a formal written statement. He gave that statement to Detective Savoie. Spearman’s statement to Savoie stated that Allen pulled a handgun on Spearman. Spearman grabbed the gun by putting his hand on top of Allen’s, then turned the gun towards Allen, and pulled the trigger.
*468 Otis obtained a statement from Korwin Thomas. Thomas appeared tired at times, but his responses were cogent and he did not claim to be under the influence of any narcotics.
Tommy Brown, a forensic pathologist, performed the autopsy on Allen. Brown testified that a single gunshot wound caused Allen’s death. Based on the direction the .22 caliber bullet traveled, Brown believed Allen was shot in the back. Brown did not examine Allen’s hands for gunshot residue. There was nothing on Allen’s body to indicate the gunshot was a close-range shot. The bullet went through the heart.
Spearman testified in his defense. He denied saying that he was going to kill Allen. He knew Allen. They had attended the same high school. They were members of rival gangs. Before the night of the shooting, he and Allen had not fought each other, but anytime their respective gangs “met up in the club[,]” there was a fight between the gangs.
Spearman arrived at Tiffany’s around 11:00 p.m. the night of the shooting. He had been smoking marijuana. He was searched at the door for weapons. Once inside, he heard a song that “g[ot him] fired up.” He liked the song. Spearman approached the dance floor and began “throwing up [his] signs.” He testified that the “song gets me fired up and at that time when I was claiming my set, I just felt like I was a gangsta and I threw up— representing my set at the time.” He explained that he saw “Fish” on the dance floor, and “we started throwing up our signs; and he was throwing up his. So, we was, like, right next to each other. He was throwing up his and I start throwing up mine and when you’re throwing up signs, it’s a sign of disrespecting another set and we start fighting.”
After Spearman hit Allen, Allen fell back into someone. Spearman testified that when Allen “came [back] up, he had a gun ... in his left hand.” Spearman grabbed the gun with his right hand over Allen’s left hand and while they wrestled with the gun, the gun discharged. Allen fell to the ground, leaving the gun in Spearman’s hand. Spearman dropped the gun, kicked it, and quickly walked out of the club. He saw Quavonn White outside the club. Spearman told White to take him home. The next day, the police obtained a statement from Spearman. Spearman denied Korwin Thomas’s written statement that Spearman pulled out a 9 millimeter on Allen, but acknowledged that he saw “KT” at the club that night.
Marcus Allen’s father testified in rebuttal that his son was right-handed.
The Self-Defense Claim
The only testimony at trial in support of Spearman’s claim that he acted in self-defense was his own. He testified as follows:
Q. Well, you said you grabbed the gun when you saw it in Fish’s hand?
A. Yes, sir.
Q. What did you think he was getting ready to do?
A. I thought he was fixing to shoot me.
Q. Why didn’t you turn and run away?
A. It was too packed to run.
Q. Did you — why did you grab the gun?
A. That’s the only thing I thought would have helped me out.
Q. Did you want to stop him from shooting?
A. I really was trying to take it from him, but he was yanking back.
Q. Well, in your statement, do you remember telling the police what happened?
*469 A. Yes, sir.
Q. And what did you tell them happened?
A. I told them that I had my hand on it, and I was trying to — I was — I said I had my hand on it and I was, like, trying to turn it towards him, like, trying to take it out of his hand.
Q. Now did you apply pressure on it too?
A. On his hand. I had my hand over his hand.
Q. And did you tell police that?
A. Yes, sir.
Q. Did you know the gun went off at some point?
A. Yes, sir.
On cross-examination, Spearman elaborated on his actions that night:
Q. If you’re trying to take [the gun] from him, how come you’re pushing on it instead of pulling it out of his hand?
A. I don’t know.
Q. I mean, when you try and take something from somebody, don’t you try and pull it out of their hand?
A. But at the same time, I’m trying to turn it on him because he got — it’s a gun facing towards me.
Q. So, you’re trying to — now you’re certain not only are you trying to defend yourself, but you’re trying to turn the gun on him. That is your intention; is that correct? Because that’s what you just said.
A. I guess so.
Sufficiency of the Evidence
The jury, as trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given the testimony, and may accept or reject all or any part of a witness’s testimony.
See Lancon v. State,
The EvidentiaRY Ruling
In his third issue, Spearman challenges the trial court’s decision to allow Thomas’s statement to be read to the jury. Spearman argues the statement was inadmissible hearsay because the State failed to lay the proper predicate for the statement’s admission under Texas Rule of Evidence 803(5). Rule of Evidence 803(5) provides that
[t]he following are not excluded by the hearsay rule, even though the declarant is available as a witness:
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(5) Recorded Recollection. A memorandum or record concerning a matter about which a witness once had personal knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ *470 memory and to reflect that knowledge correctly, unless the circumstances of preparation cast doubt on the document’s trustworthiness. If admitted, the memorandum of record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
Tex.R. Evid. 808(5).
The State, as proponent of the evidence, had the burden of showing that Thomas’s statement was admissible under the hearsay exception.
See Cofield v. State,
In this case, the judge heard Thomas testify he did not remember all the things the prosecutor asked him about and that he was high on PCP “24/7 at that time.” Although Thomas testified to some recollection of that night, the trial court could reasonably conclude that he was not able to testify “fully” because of insufficient recollection. The witness acknowledged his signature on the statement, and the officer said the witness read the statement after the officer typed it and before the witness signed it. The judge therefore could reasonably conclude the statement was “made or adopted” by Thomas.
See Phea v. State,
Concerning the fourth requirement— that the recorded recollection must “reflect” the witness’s prior “knowledge correctly” — the trial court found that although the substance of Thomas’s testimony was that he did not remember making the statement, “he did acknowledge that he must have made it,” because his signature and initials were on the document. In the sworn statement, Thomas said he was at the club that night and witnessed the shooting; he admitted that after Allen was shot, Thomas and others kicked Allen. His statement also indicated that prior to the night of the shooting, Thomas had overheard Spearman say he was planning to kill Allen. At trial, Thomas admitted being at the club and seeing Allen taken out of the club, but he denied seeing the shooting or seeing Spearman with a gun. He denied kicking Allen after he had been shot. He also denied hearing Spearman say he would kill Allen.
Thomas signed the sworn statement on a “suspect” form and provided it to the police after he had initialed and acknowledged his rights. Officer Otis testified he asked Thomas to review the statement and then sign it. Thomas identified his signature and initials on the statement at trial, and testified that although he did not remember making the statement, he “must have had.” Otis testified Thomas answered his questions in a cogent manner. *471 Although Thomas claimed at trial that he did not remember making the statement because he was under the influence of drugs “24/7,” he did not tell Otis he was under the influence of drugs.
Under the circumstances in this case, the trial court could reasonably conclude that the witness’s purported lack of recollection on certain matters, along with the inconsistencies between the statement and the witness’s testimony, reflected an attempt to avoid hurting a friend and former fellow gang member.
See, e.g., U.S. v. Insana,
The Rule has been construed more restrictively, however. In
Johnson,
A trial court ruling admitting evidence for a wrong reason will not require reversal if a valid reason for the admission exists.
See Romero v. State,
Appellant argues in his brief in this Court that “[i]n fact, the colloquy between the prosecutor and the witness totally informs the jury of the contents of the statement prior to its introduction, which was admitted in error.” No objection was made when the prosecutor read key portions of the statement while questioning Thomas, and no limiting instruction was requested or provided.
See Goodman v. State,
In deciding whether a new trial is required, we must determine whether the error affected “substantial rights.”
See
Tex.R.App. P. 44.2(b);
see also King v. State,
The judgment is affirmed.
AFFIRMED.