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Click here for the full text of this decision FACTS:Appellant was convicted by a jury of the offense of murder. The jury assessed the statutory maximum punishment of life in prison plus a $10,000 fine. The trial court denied appellant’s request for the following additional instruction: “You are instructed that in connection with the law of self defense that if you find from the evidence that shortly prior to the killing, the defendant reasonably apprehended an attack upon his person by the deceased, then the fact that the defendant armed himself with a gun would in no wise impair or lessen his right of self defense because he would have a right to arm himself if he reasonably feared such an attack.” HOLDING:Affirmed. Appellant argues that he is entitled to the additional instruction under an old line of cases. No case cited by appellant establishes an entitlement to a charge on “the right to arm oneself in anticipation of an attack” such as appellant requested in this case. What those cases did establish was the right to a charge that the defendant could arm himself and seek an explanation, but such a charge was given only if the charge had already limited the right to self-defense by containing instructions about “provoking the difficulty.” In the instant case, there was a charge on self-defense but no limitation was contained about provoking the difficulty. Thus, even under this line of cases, appellant would not be entitled to any sort of “right to arm” charge. Additionally, as the state urges, the current statute on self-defense, which has been in effect since Jan. 1, 1974, expressly excludes from the self-defense justification the situation where the defendant seeks an explanation while armed but is illegally carrying the weapon. Texas Penal Code �9.31(b)(5)(A). The evidence was undisputed that appellant was unlawfully carrying the murder weapon at the time of the offense. Finally, in 1998 the Court of Criminal Appeals found inapplicable to a post-1974 Penal Code case a long line of cases which provided that a defendant was entitled to a jury instruction on the defense of alibi. Giesberg v. State, 984 S.W.2d 245 (Tex. Crim. App. 1998). Since the legislature had not expressly designated alibi as a statutory defense, there was no longer any basis for charging the jury on alibi. Two courts of appeals reasoned that the “right to arm” charge was not contained in the 1974 Penal Code and therefore a defendant is no longer entitled to a “right to arm” instruction under any circumstances. Fonseca v. State, No. 04-03-00398-CR, 2004 Tex. App. LEXIS 9916 (Tex. App. – San Antonio, Nov. 10, 2004, pet. dism’d) (mem. op.); Castaneda v. State, 28 S.W.3d 216 (Tex. App. – El Paso 2000, pet. ref’d). The court agrees with both of these courts. For a case under the 1974 Penal Code, since the Legislature did not expressly provide for it, no “right to arm” instruction should be given. Appellant’s first issue is overruled. In appellant’s next issue, he complains that his right of confrontation was violated when the trial court limited the scope of his cross-examination of a Waco police officer. The appellant argues that the state created a false impression with the jury that all the officer’s contacts with the victim were positive. The court finds that the fact that the officer knew the victim did not create a false impression. On cross-examination of a state’s witness, appellant elicited testimony that she had overheard part of a phone conversation between appellant and the deceased. The deceased had stated to appellant, “I know you don’t want to go to war over $50, [racial expletive deleted].” Because of this statement, appellant argues he should be entitled to impeach the deceased with the prior conviction. “We have significant doubts about the concept of eliciting a hearsay statement and then seeking to impeach the credibility of the witness who made the statement. We need not decide that issue because an examination of the purported statement indicates it was not offered for the truth of the matter asserted and therefore wasn’t hearsay.” OPINION:Anderson, District Judge; Gray, CJ, Vance, J., and Anderson, District Judge.

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