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Click here for the full text of this decision Valdez’s action of climbing up to the second-story balcony outside a bedroom window, unannounced and uninvited at 6:30 a.m., was an act of aggression. Testimony would have provided evidence to explain this conduct and was therefore admissible and relevant at the time it was offered. FACTS:The decedent, Franklin Valdez, and Roxanne Espinosa dated for several years. Both lived in a second-floor apartment with Roxanne’s aunt, Diane. Roxanne and Valdez’s relationship was turbulent. Valdez had assaulted Roxanne before because he suspected she was seeing other men. The week of Valdez’s death, Roxanne broke up with him and moved out of the apartment because of another assault. While she was not living in her aunt’s apartment, Roxanne stayed with friends, including the appellant. During this time, the appellant learned from Roxanne that Valdez had assaulted her on previous occasions and was currently looking for the appellant. Although Roxanne did not think that Valdez would attack the appellant, she thought that if he were to look for the appellant, he would look for him in the appellant’s home. Since Roxanne did not think Valdez would return to her aunt’s apartment, she convinced the appellant to stay with her there. Roxanne did not tell the appellant that Valdez might come to her aunt’s apartment; nevertheless, the appellant brought a gun with him. Roxanne testified that she did not sleep well the night before the killing and woke up repeatedly. The next morning, the appellant awoke and went to the bathroom to prepare for work. Around 6:30 a.m., upon returning to the bedroom, he and Roxanne heard a noise coming from outside. Roxanne saw Valdez climbing up the balcony, yelled, “It’s him,” and then ran into Diane’s room and called 911. While Roxanne was on the phone with the police, she heard a thump and two gunshots. Roxanne remained in Diane’s bedroom until the police arrived. The police found Valdez in a sitting position on the commode with a fatal bullet wound to his face and a superficial bullet wound to his abdomen. The police did not find the appellant at the scene, but later apprehended him in Colorado. HOLDING:Reversed and remanded. Valdez’s action of climbing up a balcony, uninvited, at 6:30 a.m. was aggressive, and it tends to raise the issue of self-defense. It is therefore appropriate to allow the appellant to introduce the previous act of climbing in the window and threatening Diane and her children because it may help clarify Valdez’s purpose in climbing up the balcony. Diane testified that Valdez entered her bedroom window and threatened her. This behavior is remarkably similar to the deceased’s behavior of climbing up the balcony to gain entry to the apartment and may shed light on Valdez’s motive in entering the apartment. It was therefore relevant and should have been admitted at trial. Because the Court of Appeals misconstrued Torres v. State, 71 S.W.3d 758 (Tex. Crim. App. 2002) ( Torres II), their analysis regarding the importance of the actual entry of Valdez and the proof of a fray are inappropriate. Under Penal Code �30.05, a person commits criminal trespass if he enters a building of another without the owner’s consent when he had notice that entry was forbidden. Texas Penal Code �30.05(a). The term “building” is defined by �30.01(2), in part, as “any enclosed structure intended for use as a habitation . . .” A habitation includes “each structure appurtenant to or connected with the structure.” �30.01(1). The balcony of the apartment is part of the habitation, and, thus, Valdez entered the habitation when he climbed onto the balcony for purposes of the criminal trespass statute. The court holds that when Valdez climbed up to the balcony he performed an act of aggression; he entered the apartment without permission. The court of appeals further concluded that, at the time the testimony was introduced, there was no proof of a “fray between the appellant and the deceased, and therefore, no testimony could be offered to determine who was the aggressor in the fray, because it was not yet before the jury. The court of appeals concluded that the appellant was required to testify to the existence of the fray. The court disagrees. It is unnecessary for there to be evidence of a fray when there is evidence of an act of aggression by the deceased. The court finds that there was ample evidence in the record to demonstrate the existence of a fray when Diane was called to the stand. Before offering Diane’s testimony, the state introduced evidence from police officers, Roxanne, and Valdez’s family and friends. Valdez’s father and friends testified that he was planning on returning to the apartment to pick up the rest of his belongings. Police officers testified that Valdez was shot in the face when they found his body in the bathroom. Police officers also testified that they found the shower curtain rod displaced in the bathroom. In addition, Roxanne testified that she saw the deceased climbing up the balcony, that she heard a thump and two gunshots, and that she called 911 because she was afraid. The combination of this testimony provides sufficient evidence for a jury to conclude that a fray did in fact occur. OPINION:Price, J.; Meyers, Womack, Johnson, Keasler, Hervey, Holcomb and Cochran, JJ., join. Keller, P.J., dissents.

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