Appeal from the 248th District Court Harris County, Texas
Trial Court Cause No. 1541800
consists of Justices Wise, Zimmerer, and Spain.
found appellant guilty of murder and assessed punishment at
fifty years' confinement. In three issues, appellant
contends that (1) the trial court erred by excluding
communicated character evidence during the guilt-innocence
phase of the trial, (2) the evidence is insufficient to
support his conviction, and (3) the trial court erred by
admitting evidence of appellant's extraneous offenses
during the punishment phase. We affirm.
Sufficiency of the Evidence
first address appellant's second issue concerning the
sufficiency of the evidence. See, e.g., Price v.
State, 502 S.W.3d 278, 281 (Tex. App.-Houston [14th
Dist.] 2016, no pet.). Appellant contends that the evidence
is insufficient because the jury's rejection of his claim
of self-defense is not supported by the evidence.
sufficiency review, we consider all of the evidence in the
light most favorable to the jury's verdict to determine
whether, based on that evidence and reasonable inferences
therefrom, any rational juror could have found the essential
elements of the crime beyond a reasonable doubt. Balderas
v. State, 517 S.W.3d 756, 765-66 (Tex. Crim. App. 2016).
We defer to the jury's responsibility to resolve
conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate
facts. Id. at 766. The jury is the sole judge of the
credibility and weight to be attached to witness testimony,
and we must defer to the jury's resolution of conflicting
inferences that are supported by the record. See id.
actor is justified in using deadly force if, among other
things, the actor reasonably believes deadly force is
immediately necessary to protect the actor against
another's use or attempted use of unlawful deadly force.
See Morales v. State, 357 S.W.3d 1, 4 (Tex. Crim.
App. 2011) (citing Tex. Penal Code § 9.32(a)(2)(A)). A
defendant has the initial burden to bring forth evidence in
support of a claim of self-defense. See Dearborn v.
State, 420 S.W.3d 366, 372 (Tex. App.-Houston [14th
Dist.] 2014, no pet.) (citing Zuliani v. State, 97
S.W.3d 589, 594 (Tex. Crim. App. 2003)). Once this burden is
met, the State must disprove the defense beyond a reasonable
doubt. Hernandez v. State, 309 S.W.3d 661, 665 (Tex.
App.-Houston [14th Dist.] 2010, pet. ref'd) (citing
Zuliani, 97 S.W.3d at 594). A jury's verdict of
guilty is an implicit finding rejecting the defendant's
self-defense theory. Saxton v. State, 804 S.W.2d
910, 914 (Tex. Crim. App. 1991).
when an appellant challenges the sufficiency of the evidence
to support the jury's rejection of self-defense, we must
determine whether any rational trier of fact could have found
beyond a reasonable doubt (1) the essential elements of the
alleged offense, and (2) against appellant on the
self-defense issue. See Dearborn, 420 S.W.3d at 372.
"Defensive evidence which is merely consistent with the
physical evidence at the scene of the alleged offense will
not render the State's evidence insufficient since the
credibility determination of such evidence is solely within
the jury's province and the jury is free to accept or
reject the defensive evidence." Saxton, 804
S.W.2d at 914.
testified and admitted to shooting the unarmed decedent
during a drug deal. The decedent had been selling appellant
pills to satisfy appellant's drug habit. Initially,
appellant saw the decedent every day and would also give the
decedent rides about three times per week. Appellant claimed
to have witnessed the decedent becoming angry and aggressive
towards people who owed him money. On one occasion, the
decedent showed appellant that the decedent carried a gun on
to appellant, their relationship deteriorated after the
decedent sold appellant a car, and the decedent's car had
to be put in "the shop," leaving the decedent
without a car. The decedent wanted appellant to give the
decedent rides again or pay the decedent more money for the
car. Appellant refused. The decedent said threatening things
to appellant over the phone and showed up at appellant's
apartment. At the apartment, the decedent told appellant that
"bad things" might happen to appellant or his
family if appellant did not give the decedent his car back.
was not buying pills as often, and he bought some pills from
another dealer on the usual day that appellant would buy from
the decedent. The decedent called appellant and was upset
about the car and that appellant had not bought pills from
the decedent. A few days later, when appellant could not buy
pills from any other dealers he knew, he called the decedent
to set a meeting to buy pills. They planned to meet in the
parking lot of a strip mall.
time, appellant had been living with his girlfriend. She kept
a .38 revolver and about ten bullets in her nightstand.
Without telling his girlfriend, appellant took the gun,
loaded it, and brought it with him. He wore a fedora and a
trench coat, although it was a warm February day.
arrived at the strip mall before the decedent and went inside
a Jumpalooza-a "kids' playland" with
"bouncy houses." He asked employees about pricing
and for a flier. Appellant also went into a restaurant and
asked an employee if appellant could use the restroom. He was
captured on surveillance videos. Several witnesses noted
appellant's odd clothing choice for a warm day.
decedent called appellant when the decedent arrived, and
appellant got into the decedent's car. A family leaving
the Jumpalooza was getting into their own car nearby. The
father of that family testified that they crossed paths with
a man in a trench coat, and the man was inside the
decedent's car for five to ten seconds before the father
heard the gunshots. The father saw the decedent slump to the
middle of the car, and the man pushed the decedent towards
the driver's side door. When the man got out of the car,
the man fired additional shots at the decedent before getting
in his own car and leaving.
witness who was inside a nail salon testified that she saw a
man in a trench coat get into the decedent's car, but the
man stayed in the vehicle for one to two minutes before the
witness heard a loud banging sound. She did not see the man
fire shots into the car from the outside.
testified that when he got into the decedent's car, the
decedent was being aggressive and agitated. The decedent told
appellant, "I'm going to mess you up, I'm going
to get my F-ing money." After one to two minutes, the
decedent said, "I should F-ing kill you. I'm going
to F you up." Appellant testified that the decedent
started to reach down by his feet, and appellant thought the
decedent was going for a weapon to kill appellant. Appellant
shot the decedent five times with the revolver. Appellant
testified that he did not "give [the decedent] enough
time to see what he was reaching for." Appellant denied
touching the decedent, firing any shots while outside the
car, or stealing anything from the car.
medical examiner testified that several bullets entered the
side of the decedent, but several bullets also entered the
decedent's back at a downward trajectory. The wounds to
the decedent's back included soot, which indicated to the
medical examiner that the gun was pressed up against the
decedent's body or within an inch of his body. Police
officers did not find a gun at the scene.
the shooting, appellant called and texted the decedent
multiple times. He admitted that he tried to "make it
look like [he] wasn't there." But he did not think
about the existence of cell site location data at the time he
made the communications. After driving away, he threw the
shell casings out of his car window. He threw away his trench
coat at a gas station. When he got home, he hid the clothes
he was wearing and returned the gun to the girlfriend's
nightstand. When his girlfriend discovered that she was
missing bullets, he told her that her son had been going
through her drawers, so he hid the bullets elsewhere. He did
not turn himself in to the police. Although he claimed to
have spoken with an attorney, he did not tell anyone else
what had happened. When he became a suspect and people
started asking him about what happened, he told them he was
not involved. Appellant spoke with his mother often after the
shooting, but he never mentioned self-defense.
defensive evidence is merely consistent with the physical
evidence at the scene of the offense, and thus, cannot render
the State's evidence insufficient because the credibility
determination regarding his evidence is solely within the
jury's province, and the jury is free to accept or reject
the defensive evidence. See Saxton, 804 S.W.2d at
914. Appellant has not shown how the jury's credibility
determinations are irrational in this case, so we cannot
disturb the jury's credibility determinations. See
Braughton v. State, 569 S.W.3d 592, 611 (Tex. Crim. App.
jury heard evidence that the decedent had verbally threatened
appellant on a prior occasion, and yet appellant voluntarily
met with the decedent to buy drugs. The jury heard that
appellant brought a loaded gun to this meeting, shot the
unarmed decedent within five to ten seconds of entering the
car, shot the decedent in the side and back at close contact,
manipulated the decedent's body, fired shots into the car
after getting out, disposed evidence of the crime, attempted
to fabricate exculpatory evidence, and lied to his girlfriend
and others in an attempt to cover up his participation.
Furthermore, appellant testified that he fired the gun before
he could see what the decedent was reaching for.
rational jury could have found beyond a reasonable doubt that
appellant did not reasonably believe deadly force was
immediately necessary to protect appellant against the
decedent's use or attempted use of unlawful deadly force.
See Braughton, 569 S.W.3d at 611 (sufficient
evidence to reject self-defense despite defendant's and
his parents' testimony that the decedent made a verbal
threat to use a gun while reaching into the saddlebags of a
motorcycle, and uncontroverted evidence that the decedent had
just assaulted the defendant's father and knocked him to
the ground); Mendez v. State, 515 S.W.3d 915, 919,
921-22 (Tex. App.- Houston [1st Dist.] 2017) (sufficient
evidence to reject self-defense despite evidence that the
decedent had said he wanted to harm someone, the defendant
and decedent had a verbal altercation, the decedent fired a
gun near a nightclub on a prior occasion, and the decedent
had a reputation for violence; noting evidence that the
defendant hit the decedent first and then later threw away
his bloody clothes and the murder weapon and inquired about
destroying surveillance tapes), aff'd, 545
S.W.3d 548 (Tex. Crim. App. 2018); see also Granger v.
State, 3 S.W.3d 36, 39 (Tex. Crim. App. 1999) (noting
that the reasonableness of a defendant's belief that
deadly force was necessary is ordinarily a question of fact
for the jury).
second issue is overruled.
Admission of Evidence
first issue, appellant contends that the trial court erred by
excluding "communicated character" evidence, i.e.,
the decedent's bad acts known by appellant. In
particular, appellant contends that the trial court excluded
evidence that (1) the decedent had committed home burglaries
during which he stole firearms; (2) the decedent had verbally
threatened harm to appellant and his loved ones some time
before the shooting; (3) the decedent had been in previous
physical altercations; and (4) the decedent had numerous
tattoos that suggested affiliation with or membership in a
violent criminal street gang.
review a trial court's decision to exclude evidence for
an abuse of discretion. See Henley v. State, 493
S.W.3d 77, 82-83 (Tex. Crim. App. 2016). Under this standard,
we may not reverse a judgment unless we believe that the
trial court's ruling was so clearly wrong as to lie
outside the zone within which reasonable people might
relevant, character evidence is generally inadmissible.
Sims v. State, 273 S.W.3d 291, 294 (Tex. Crim. App.
2008). Evidence of a person's character is not admissible
to prove that a person acted in accordance with the
character, and evidence of a crime, wrong, or other act is
not admissible to prove a person's character in order to
show that the person acted in accordance with the character.
Tex. R. Evid. 404(a)(1), (b)(1). Even when character evidence
is admissible, usually this evidence may be proven only
through opinion or reputation evidence and not through
specific instances of conduct. See Tex. R. Evid.
405; Sims, 273 S.W.3d at 294.
in a case such as this one in which the defendant adduces
evidence of self-defense, the defendant may offer evidence of
the victim's reputation, opinion testimony, and evidence
of specific prior acts of violence by the victim to show the
reasonableness of the defendant's claim of apprehension
of danger from the victim. Ex parte Miller, 330
S.W.3d 610, 618 (Tex. Crim. App. 2009). "This is called
'communicated character' because the defendant is
aware of the victim's violent tendencies and perceives a
danger posed by the victim, regardless of whether the danger
is real or not." Id. (citing Mozon v.
State, 991 S.W.2d 841, 846 (Tex. Crim. App. 1999)). For
example, when the decedent in a homicide case was unarmed,
the defendant's claim of self-defense rests on a
perceived danger, which is "frequently based on a
furtive gesture that can only be regarded as a threat when it
is considered in light of the decedent's reputation for
violence." Fry v. State, 915 S.W.2d 554, 560
(Tex. App.-Houston [14th Dist.] 1995, no pet.), cited in
Ex parte Miller, 330 S.W.3d at 618 n.16.
short, communicated character evidence in the form of the
victim's specific acts of violence is admissible under
Rule 404 to show the defendant's state of mind.
Mozon, 991 S.W.2d at 846; see Tex. R. Evid.
404(b)(2). But even if communicated character evidence is
admissible under Rule 404, the trial court may still exclude
the evidence under Rule 403. See Mozon, 991 S.W.2d
at 846. And even if the trial court has erred by excluding
evidence, generally we may not reverse a conviction unless
the erroneous exclusion of evidence was harmful, i.e.,
affected the party's substantial rights. See
Tex. R. Evid. 103(a); Tex.R.App.P. 44.2(b); Walters v.
State, 247 S.W.3d 204, 218-19 (Tex. Crim. App. 2007).
trial, appellant's counsel proffered evidence that the
decedent had told appellant that the decedent had broken into
peoples' houses and taken some guns. The trial court,
agreeing with the State's argument, ruled that evidence
of the decedent's ...