Joseph Wayne Smith v. State

Opinion issued March 31, 2011.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO.

01-09-00634-CR

———————————

Joseph Wayne Smith , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 248th District

Court

Harris County, Texas

Trial Court Case No. 1161449

O P I N I O N

A jury convicted Joseph Wayne Smith of

murder and assessed his punishment at twenty-five years’ confinement. See Tex. Penal Code Ann. § 19.02(b) (West 2003). On appeal, Smith contends that: (1) the evidence is factually insufficient

to support his conviction; (2) the

evidence is legally

and factually insufficient to support the jury’s negative finding on the issue

of sudden passion during

the punishment phase; (3) the trial court erred in excluding testimony about

the complainant’s prior violent acts; (4) the trial court erred in sustaining

the prosecutor’s objections to a witness’s opinion that the complainant was a

violent person; and (5) the trial court deprived Smith of his constitutional

right to due process of law and his right to confront the witnesses by

excluding evidence of complainant’s tattoos .

We

hold that the evidence was legally and factually sufficient to support Smith’s

conviction, the evidence is legally and factually

sufficient to support the jury’s negative finding on the issue of sudden

passion, the trial court did not err in excluding the complainant’s prior

violent acts, any error by the trial court in sustaining the prosecutor’s objections

to the witness’s opinion was harmless, and the trial court did

not deprive Smith of due process or his right to confront the witnesses. We therefore affirm.

Background

The complainant, Anthony Hawkins, and

his fiancée, Trinet Fields, shared an apartment at the Los Arcos apartment complex with Smith and his girlfriend, Yereter Bernardez. In March, Hawkins and Fields told Smith and

Bernardez that they were moving out of the apartment because the environment in

the apartment was hostile. Fields moved

their things out of the apartment, and Fields, who was the named tenant on the

lease, turned her key in to the apartment office. The following day, the office manager at the

complex informed Smith and Bernardez that they also had to move out of the

apartment.

At

8:30 p.m. that evening, Hawkins, Fields, and Mary McNulty-Brown drove Fields’s rented

red Impala to visit Mary’s sister, Ashley McNulty-Brown, at the Stonegate

Apartment Complex. Upon arriving, they first

went to the apartment of Fields’s friend, Terrance Foley. Foley was also a friend of Smith. Upon leaving Foley’s apartment, Fields heard

a loud noise of something suddenly deflating and noticed that someone had

stabbed all four tires of her Impala.

Hawkins and Foley searched the area for the person who had stabbed the

tires. Mary, accompanied by Fields and Ashley,

drove the Impala toward the complex’s exit gate. Before the Impala reached the gate, Smith

blocked it with his purple Nissan Maxima.

Smith exited the Maxima, walked toward the Impala with an angry

expression on his face, and looked inside the car. Mary reversed the Impala and parked it in a

parking spot. Smith returned to his

Maxima and drove away. Fields used a

walkie-talkie to warn Hawkins that Smith was in the parking lot. She and the other women saw Hawkins run after

Smith’s Maxima and out of their view.

Minutes later, Hawkins ran back to the Impala. He told the women that Smith had stabbed

him. Following behind Hawkins, Smith

approached the Impala. He again attempted

to stab Hawkins with a knife he had in his hand. Hawkins jumped back and fell into the car. Mary placed him in the passenger-side

seat. According to Fields and the other

women, Hawkins was unarmed that evening.

Smith then ran away from the car.

Hawkins was bleeding from his left abdomen, and Fields called 911. Hawkins stopped breathing and died shortly

thereafter at the hospital.

Robert

Bailey, a security guard at Stonegate, observed some of the events associated

with Hawkins’s death. He saw the women

around the Impala, heard air coming out of the car’s tires, and saw holes or

slashes to the tires. He witnessed a

black car cut off the Impala as it moved to the exit of the apartment complex,

and heard male and female voices screaming.

He saw two men backing away from the Impala. One of these men held a knife in his

hand. He asked the two men to leave, and

they got into the black car and left the property. After he noticed a man in the Impala leaning

back in the car in pain, he called 911.

He testified that the man in the Impala did not have a knife in his

hand. Houston Police Officers J. Pena

and C. Abbondandolo investigated Hawkins’s death. They found no knives at the crime scene.

Dr.

Stephen Wilson, a medical examiner for the Harris County Medical Examiner’s

Office, performed an autopsy on Hawkins the day after his death. Hawkins’s only injury was a single stab wound

to the left side of the chest. He had no

other fresh abrasions or lacerations. He

concluded that the cause of Hawkins’s death was a single stab wound to the left

side of his chest which perforated his heart and penetrated his left lung. Hawkins had alcohol and methamphetamine in

his system when he died.

Smith

testified on his own behalf during trial.

Around 3:30 p.m. on the day of Hawkins’s death, Bernardez informed Smith

that they had to move out of the Los Arcos apartment by 5 p.m. because Fields

had argued with the apartment manager and had thrown her keys at the leasing

agent. Smith and Bernardez packed their

belongings with the help of Smith’s mother.

While they were packing, Smith’s mother had a loud phone conversation

with Fields. Hawkins then phoned and

spoke with Smith, but Smith hung up on Hawkins because Hawkins was hostile

during the call. According to Smith,

Hawkins was a very violent and aggressive person.

Around

8:30 or 9:00 p.m., Smith left the Los Arcos apartment in his Maxima with

Bernardez, her three-year-old son, and her friend, Keisha Dupree. While Smith was en route to Keisha’s friend’s

house, Foley called and asked whether Smith would help move things around his

apartment at Stonegate. Smith proceeded

to Stonegate and entered the complex’s gate using a key code Foley had

provided. When he entered the parking

lot, he noticed Fields’s red Impala parked near Foley’s apartment. Bernardez told Smith that they should leave

to avoid any further confrontation with Fields and Hawkins. As Smith’s Maxima approached the exit gate of

the complex at a slow rate of speed, Hawkins, looking “pissed off” and angry,

ran toward it and grabbed Smith’s steering wheel, causing the car to collide

with several vehicles parked near the gate.

Hawkins punched Smith in the face and tried to pull him out of the

Maxima.

Once

the Maxima came to a stop, Smith, shocked and scared, hit Hawkins with the

driver-side door, caught another blow to the face, and tackled Hawkins. Both men fell to the ground. Smith testified that it was necessary to exit

the Maxima and to fight Hawkins because: (1) he was being punched, hit, rushed,

and “aggressed”; (2) he “[k]new there was no other way [he] could get out of

the apartments because [he] had to stop at the gate still to push the code to

get out”; and (3) he had to protect the two women and the small child in the

car, as well as himself.

Smith

further testified that Hawkins swung a knife at his stomach. Smith dodged Hawkins’s knife and hit him

twice in the chin. Hawkins tried to stab

Smith in the neck, but Smith grabbed Hawkins’s arm, which held the knife. Smith pulled his own knife out of his pocket,

and stabbed Hawkins in the chest one time.

After he stabbed Hawkins, Smith ran and jumped over the apartment

complex fence. He denied that he

returned to Fields’s Impala after the fight.

He testified that he did not see anyone in or near the Impala when he

drove by it before his fight with Hawkins.

Smith found his Maxima parked on the street outside of the complex, with

Bernardez and Keisha waiting inside.

Shortly

after the incident, Smith fled to Victoria, Texas. When he found out that Hawkins had died, he

returned to Houston and turned himself in to the police. Bernardez and Keisha

also testified at trial. They testified

that Hawkins ran at the Maxima, grabbed the steering wheel, and hit several

parked cars. A fight ensued between Hawkins and Smith. Keisha testified that Hawkins held a knife in

his hand during the fight, but Bernardez testified that she only saw the two

men use their fists during the portion of the fight she witnessed. Neither Keisha nor Bernardez witnessed Smith

stab Hawkins. At some point during the

fight, Bernardez drove Smith’s car outside the apartment complex and parked it

on a nearby street. They stated that

Smith appeared shaken up when he returned to the Maxima after the fight.

Sufficiency of

the Evidence of Jury’s Rejection

of Smith’s

Defensive Claims

In his first issue, Smith contends that the evidence is

factually insufficient to support his conviction for murder because he acted in

self-defense and in the defense of a third person. See Tex. Penal

Code Ann. §§ 2.03, 9.02, 9.32, 9.33 ( West

2003) .

We disagree.

Standard of Review for

Self-Defense and Defense of a Third Person

“[T]he

Jackson v. Virginia legal sufficiency

standard is the only standard that a reviewing court should apply in

determining whether the evidence is sufficient to support each element of a

criminal offense that the State is required to prove beyond a reasonable

doubt.” Brooks v. State , 323 S.W. 3d 893, 895 (Tex. Crim. App. 2010)

(referring to Jackson v. Virginia ,

443 U.S. 307 (1979)). Under this

standard, evidence is insufficient to support a conviction if, considering all

the record evidence in the light most favorable to the verdict, no rational

fact finder could have found that each essential element of the charged offense

was proven beyond a reasonable doubt. See Jackson , 443 U.S. at 319 ;

In re Winship , 397 U.S. 358, 361 (1970); Laster v. State , 275

S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State , 235 S.W.3d

742, 750 (Tex. Crim. App. 2007). Viewed in the light most favorable to

the verdict, the evidence is insufficient under this standard when either:

(1) the record contains no evidence, or merely a “modicum” of evidence,

probative of an element of the offense; or (2) the evidence conclusively

establishes a reasonable doubt. See Jackson , 443 U.S. at

314 , 319 n.11, 320; Laster , 275 S.W.3d at 518 ; Williams , 235

S.W.3d at 750 . An appellate court may not re-evaluate the weight and

credibility of the record evidence and thereby substitute its own judgment for

that of the fact finder. Williams , 235 S.W.3d at 750 .

Self-defense and defense of a third person are defenses to

prosecution under Penal Code section 2.03.

See Tex. Penal Code Ann. §§

2.03, 9.02, 9.32, 9.33. A

defendant has the burden of producing some evidence to support a claim of a

section 2.03 defense. Zuliani v. State , 97 S.W.3d 589, 594

(Tex. Crim. App. 2003). Once the

defendant produces that evidence, the State bears the ultimate burden of

persuasion to disprove the raised defense.

Id. at 594–95. The burden of persuasion does not require that

the State produce evidence, but it requires that the State prove its case

beyond a reasonable doubt. Id. at 594 ; see also Saxton v. State ,

804 S.W.2d 910 , 912 nn. 3 & 4 (Tex. Crim. App. 1991) (holding that State

did not have to produce evidence disproving or refuting claim of self-defense,

even if all evidence supporting defense was uncontradicted and consistent); Tex. Penal

Code Ann. § 2.03( d)

(“If the issue of the existence of a defense is submitted to the jury, the

court shall charge that reasonable doubt on the issue requires that the

defendant be acquitted.”). If the jury

finds the defendant guilty, then it implicitly finds against the defensive

theory. Zuliani , 97 S.W.3d at 594 .

Because the State bears the burden of

persuasion to disprove a section 2.03 defense by establishing its case beyond a

reasonable doubt, we review

both legal and factual sufficiency challenges to the jury’s rejection of such

a defense under the Jackson v. Virginia standard. See

Brooks , 323 S.W.3d at 895 (holding that Jackson

v. Virginia sufficiency standard is only standard that reviewing court

should apply in determining whether evidence is sufficient to support each

element of criminal offense that State is required to prove beyond reasonable

doubt).

Applicable

Law

A person commits murder if he

intentionally or knowingly causes the death of an individual, or intends to

cause serious bodily injury and commits an act clearly dangerous to human life

that causes the death of an individual.

See Tex. Penal Code Ann.

§§ 19.02(b)(1),

19.02(b)(2) (West 2003). The Penal Code,

however, provides that “a person is justified in using force against another

when and to the degree the actor reasonably believes the force is immediately

necessary to protect the actor against the other’s use or attempted use of unlawful

force.” Tex. Penal Code Ann. § 9.31(a). Deadly force in self-defense is justified

when a person reasonably believes the force is immediately necessary to protect

the actor against the other’s use or attempted use of unlawful deadly force or

to prevent the other’s imminent commission of aggravated kidnapping, murder,

sexual assault, aggravated sexual assault, robbery, or aggravated robbery. Id. § 9.32; see also Schiffert v. State , 257 S.W.3d 6, 14 (Tex. App.—Fort Worth

2008, pet. ref’d).

Similarly, a person is justified under

section 9.33 in using force

or 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 [self-defense] or 9.32 [deadly force in defense of

person] 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. A person defending on the grounds of defense

of a third person stands in the shoes of the third person. Hughes v. State , 719 S.W.2d 560, 564 (Tex. Crim. App. 1986). “So long as the accused reasonably believes

that the third person would be justified in using [force] to protect himself,

the accused may step in and exercise [force] on behalf of that person.” Id.

Thus, the use of force to protect a third person is justified in any

situation in which the third person would be justified in using force to

protect himself. Id.

A “reasonable belief” is defined as

one that would be held by “an ordinary and prudent man in the same

circumstances as the actor.” Tex. Penal Code Ann . §

1.07(a)(42) (West Supp. 2010). “Deadly force” is force “intended or known by the actor to

cause, or in the manner of its use or intended use is capable of causing, death

or serious bodily injury.” Tex. Penal Code Ann. § 9.01(3) (West Supp.

2010). “Serious bodily injury” is an

injury that creates a “substantial risk of death or that causes death, serious

permanent disfigurement, or protracted loss or impairment of the function of

any bodily member or organ.” Id.

§ 1.07(a)(46).

Analysis

Smith admits that he stabbed

Hawkins in the chest. The medical

examiner concluded that the wound caused

Hawkins’s death. Smith maintains,

however, that he stabbed Hawkins in self-defense and in defense of Bernardez,

her child, and Keisha. Keisha, Bernardez,

and Smith testified that they tried to exit the apartment complex after they

saw Fields’s Impala in the parking lot.

Hawkins then initiated an altercation with Smith by grabbing the

steering wheel of Smith’s Maxima and forcing it to collide with several parked

cars. Smith testified that it was

necessary to exit his Maxima and to fight Hawkins because: (1) he was being

punched, hit, rushed, and “aggressed”; (2) he “[k]new there was no other way

[he] could get out of the apartments because [he] had to stop at the gate still

to push the code to get out”; and (3) he had to protect the two women and small

child in the car and himself. Keisha and

Smith testified that Hawkins held a knife in his hand during the fight. Smith claimed that he stabbed Hawkins only

after Hawkins attempted to stab him in the neck, and he feared for his life as

he jumped over the apartment complex fence.

He also observes that none of the State’s witnesses observed the fight

between Hawkins and him and the stabbing of Hawkins.

The

jury’s decision to reject Smith’s defensive claims, however, ultimately hinges

on the credibility of the witnesses. “As

factfinder, the jury is entitled to judge the credibility of witnesses, and can

choose to believe all, some, or none of the testimony presented by the parties.” Chambers

v. State , 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). The statements of the defendant and his

witnesses do not conclusively prove a claim of self-defense or defense of a third

party. See Denman v. State , 193 S.W. 3d 129 , 132–33 (Tex. App.—Houston

[1st Dist.] 2006, pet. ref’d) (finding evidence sufficient to support

conviction for aggravated assault under Jackson

v. Virginia standard despite defendant’s claim of self-defense, which was

based on testimony of defendant and other witnesses who stated that complainant

had assaulted or threatened defendant on prior occasions); see also Sells v. State , 121 S.W.3d 748, 754 (Tex. Crim. App. 2003)

(holding that only evidence weighing against jury finding that defendant

entered home with no specific intent to commit sexual assault was defendant’s

own statement, and this was not enough to render evidence insufficient).

Here, t he jury chose not to believe Smith and his witnesses’ testimony

that he had acted in defense, either of himself or third persons, when he

stabbed Hawkins. The testimony of Smith

and his witnesses, in light of the other evidence presented at trial, does not

render the evidence in this case insufficient to support the jury’s

verdict. See Chambers ,

805 S.W.2d at 461 ; see also Denman , 193 S.W.3d at 132–33.

The other evidence includes the State’s witnesses, the physical

evidence, and Smith’s flight after Hawkins’s death, all of which undermined

Smith’s defensive claims. Fields, Mary,

and Ashley testified that Hawkins did not carry any weapon on that night. The security guard testified that Hawkins did

not have a knife in his hand when he observed him sitting in pain in the

Impala. Officers Pena and Abbondandolo

found no weapons at the crime scene. Smith

denied the presence of anyone else at the Impala when he and Hawkins approached

it, but the security guard verified that the women were present. This testimony and the physical evidence were inconsistent

with Smith’s version of the events that took place. See

McClesky v. State , 224 S.W.3d 405, 409 (Tex. App.—Houston [1st Dist.] 2006,

pet. ref’d) (because only defendant’s gun was found at scene of shooting,

physical evidence was not consistent with defendant’s claims that complainant had

threatened her with his gun). Fields, Mary, and Ashley also testified

that Smith chased Hawkins after Smith stabbed him, and attempted to stab him

again when he returned to the Impala.

Based

on this other evidence, the jury could have reasonably concluded that Smith’s

conduct in chasing Hawkins and attempting to stab him a second time was

inconsistent with his defensive claims. See Cleveland v. State , 177 S.W.3d 374, 387 (Tex. App.—Houston

[1st Dist.] 2005, pet. ref’d), cert. denied, 547 U.S. 1073 , 126 S. Ct.

17742006 ) (finding that jury could have reasonably concluded that defendant’s

conduct in continuing to stab his wife’s back as she lay bleeding on floor was

inconsistent with his claim of self-defense).

Finally, Smith’s flight to Victoria after Hawkins’s death is

circumstantial evidence of his guilt. See Miller v. State , 177 S.W.3d 177, 184

(Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (finding that flight of

defendant, who claimed self-defense, immediately after shooting and his

attempts to hide evidence constituted circumstantial evidence of his

guilt). We conclude that the

jury rationally could have found that each element of the charged offense was

proven beyond a reasonable doubt, and rationally could have rejected Smith’s

claims of self defense and defense of a third party .

See Jackson , 443 U.S. at 319 ; see

also Zuliani ,

97 S.W.3d at 594 . Accordingly, we hold that the evidence

was factually sufficient to support Smith’s conviction for the murder of Hawkins.

Sufficiency of the Evidence of

Sudden Passion

at the Punishment Phase of Trial

In his fifth and sixth issues, Smith

asserts that the evidence is legally and factually insufficient to support the

jury’s negative finding on the issue of sudden passion at the punishment stage

of his trial. See Tex. Penal Code Ann. §19.02( a), (d). We disagree.

Standard of Review for Negative

Finding on Sudden Passion

At the

punishment phase of a murder trial, a defendant may reduce a murder charge from

a first-degree felony to a second-degree felony by proving by a preponderance

of the evidence that “he caused the death under the immediate influence of

sudden passion arising from an adequate cause.” See Tex. Penal

Code Ann. § 19.02(d) (West

2003); see also Hernandez v. State ,

127 S.W.3d 206 , 211–12 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d)

(holding that defendant bears burden at punishment phase to prove issue of

sudden passion by preponderance of evidence).

“‘Sudden passion’ means passion directly caused by and arising out of

provocation by the individual killed or another acting with the person killed

which passion arises at the time of the offense and is not solely the result of

former provocation.” Tex. Penal

Code Ann. § 19.02(a)(2). “‘Adequate cause’ means cause that would

commonly produce a degree of anger, rage, resentment, or terror in a person of

ordinary temper, sufficient to render the mind incapable of cool reflection.” Id. § 19.02(a)(1); see also Hernandez , 127

S.W. 3d at 211 (holding that ordinary anger or causes of defendant’s own making

are not legally adequate causes).

In Brooks , the Criminal Court of Appeals held that the Jackson v. Virginia standard is the only

standard that a reviewing court should apply in determining whether the

evidence is sufficient to support each element of a criminal offense that the

State is required to prove beyond a reasonable doubt. 323 S.W.3d at 895 . However, the civil standard, announced in Strener v. Marathon Oil Co ., 767 S.W. 2d 686, 690 (Tex. 1989), is

the proper standard to

apply in reviewing a criminal defendant’s legal sufficiency challenge to a

jury’s negative finding for an issue that a defendant has a burden of proof . Cleveland , 177 S.W.3d at 387–88 ; see also Nolan v.

State , 102 S.W. 3d 231 , 237 – 38 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d)

(applying civil standard to legal sufficiency challenge to jury’s rejecting

affirmative defense). The Strener

standard applies to a legal sufficiency review of a jury’s negative answer on

sudden passion during the punishment phase because a defendant bears the burden

to prove sudden passion by a preponderance of the evidence. See Cleveland , 177 S.W.3d at 390 .

We

examine the record for evidence that supports the negative finding. See id. at 387 ; Nolan , 102 S.W.3d at 238 . If no evidence supports the negative finding,

then we examine the entire record to determine whether it establishes the

contrary proposition as a matter of law.

Cleveland , 177

S.W.3d at 387 ; Nolan ,

102 S.W.3d at 238 . In reviewing the

record, we defer to the fact finder’s determination of the credibility of the

witnesses and the weight to give the evidence.

Cleveland , 177

S.W.3d at 388–89.

If the

evidence is legally sufficient, then we turn to factual sufficiency. As with legal sufficiency, the Jackson v. Virginia standard is not the

standard to use in reviewing a criminal defendant’s factual sufficiency

challenge to the jury’s negative finding of an issue that the defendant had to

prove by a preponderance of the evidence ;

rather, the factual sufficiency standard announced in Meraz is appropriate for review of issues, such as affirmative

defenses, on which the defendant has the burden of proof by the preponderance

of the evidence. See

Brooks , 323

S.W.3d at 924 n.67 ( Cochran, J., concurring); s ee also Meraz

v. State , 785 S.W.2d 146 , 154–55

(Tex. Crim. App. 1990) (holding that the proper standard for review of factual

sufficiency challenges to negative finding on issue that defendant had to prove

by preponderance of the evidence is not Jackson

v. Virginia standard) ; Zuniga v. State , 144 S.W.3d 477, 482

(Tex. Crim. App. 2004) (holding that Meraz

standard was suitable for sufficiency reviews regarding affirmative

defenses because burden of proof on defendant is preponderance of evidence), overruled on other grounds by Watson v.

State , 204 S.W.3d 404 , 416 – 17 (Tex. Crim.

App. 2006). Accordingly, we apply the Meraz

standard to situations when the appellate court conducts a factual sufficiency

review of a jury’s negative answer on sudden passion. Cleveland , 177 S.W.3d at 390–91 (applying the Meraz standard as cited in Zuniga ,

177 S.W.3d at 482) ; s ee also Brooks , 323

S.W.3d at 924 n.67.

For a factual

sufficiency challenge, the standard of review is whether after considering all

the evidence relevant to the issue at hand, the judgment is so against the

great weight and preponderance of the evidence so as to be manifestly

unjust. Meraz , 785 S.W.2d at 154–55. In the factual sufficiency review of the

evidence, we review all of the evidence neutrally, but we do not intrude on the

factfinder’s role as the sole judge of the weight and credibility given to any

witness’s testimony. Cleveland , 177 S.W.3d at 390–91.

Analysis

Smith contends

that he stabbed Hawkins only after Hawkins provoked him by (1) pulling on

his steering wheel as he exited the apartment complex; (2) forcing his car

to collide with three parked cars; (3) causing extensive damage to his

car; (4) punching Smith with his fists; and (5) threatening his

safety and the safety of three persons in his car. He points to two prior acts that provide

context for this provocation. First,

because Hawkins and Fields broke the lease of the apartment they shared with

him, Smith had to move his possessions on short notice. Second, Hawkins had called him that evening

with a hostile tone. Smith observes that

no witness contradicts his and his witnesses’ version of these events. Hawkins’s provocation shocked, surprised, and

scared him. He was afraid for his life. The jury rejected Smith’s contention.

Examining the record for evidence that

supports the jury’s negative finding on the issue of sudden passion, we conclude

that some evidence exists to support it.

A defendant may not rely on a cause of his own making, such as

precipitating a confrontation, to support his argument that he acted out of

sudden passion arising from adequate cause.

Naasz v. State , 974 S.W.2d

418, 420 (Tex. App.—Dallas 1998, pet. ref’d); see also Trevino v. State , 157 S.W.3d 818 , 822 n. 4 (Tex. App.—Fort Worth 2005, no pet.)

(noting that even if complainant fired pistol at defendant, that act would not

constitute adequate cause because defendant’s conduct precipitated

complainant’s action).

The jury here could have concluded

based on the State’s evidence that Smith precipitated the confrontation that

led to Hawkins’s death. Fields, Mary and Ashley stated that shortly

after they discovered that someone slashed all the tires of Field’s Impala in

the parking lot of Stonegate, Smith drove up in his Maxima with his high beams

on and blocked their car. He then got

out of his car and approached them. At

this point, Fields told Hawkins by walkie-talkie that Smith was in the parking

lot. Since some evidence exists that

Smith precipitated the confrontation that led to Hawkins’s death, the evidence is legally sufficient to

support the jury’s negative finding on the issue of sudden passion. See Perez v. State , 323 S.W.3d 298, 305 (Tex. App.—Amarillo 2010, no

pet.) (finding evidence factually sufficient to support jury’s negative finding

on issue of sudden passion because some evidence existed that defendant

initiated confrontation with complainant and others, and this confrontation

resulted in complainant’s death).

The evidence

is also factually sufficient to support the jury’s negative finding on the

issue of sudden passion. As noted, the

jury is the sole judge of the weight and credibility given to any witness’s

testimony. See Cleveland , 177 S.W.3d at 390–91; see also Trevino , 157

S.W.3d at 822 (holding that jury is free to make its own determination of

defendant’s credibility and reject defendant’s version of events if it did not

believe he was telling truth). The

jury’s finding on sudden passion here depended largely on accepting Smith’s and

his witnesses’ version of the events.

The jury could have doubted the story of Smith and his witnesses because

of the testimony of the State’s witnesses and the lack of physical evidence

supporting the version of events related by Smith and his witnesses. Testimony from the State witnesses concerning

events surrounding Hawkins’s death differed greatly from Smith’s version. Although Smith maintained that Hawkins

attempted to stab him with a knife after a fight in which the two exchanged

many punches to the face, the police found no knives at the crime scene, and

the medical examiner testified that Hawkins

had no fresh abrasions or lacerations except for the single stab wound to the

chest.

In addition

to the testimony he offered, Smith cites the damage to his Maxima and to the

other cars in the apartment parking lot and the fact that no witnesses

contradicted his version of how Hawkins provoked him by forcing his Maxima to collide

with the other cars. None of this

evidence, however, compelled the jury to find that Smith murdered Hawkins under

the influence of sudden passion, given the version of events that the State’s

witnesses offered—including Smith’s arrival at the scene, slashed tires, and

Smith’s blocking of the vehicle and chasing of an unarmed Hawkins with a

further attempt to stab him. See Trevino ,

157 S.W.3d at 822 (finding evidence sufficient under the Meraz standard even though: (1) defendant testified that he was in

state of terror during murder because complainant shot revolver at him; (2)

police recovered revolver from crime scene; (3) a bullet hole in wall was

present at scene; and (4) witness testified that complainant had previously

pointed gun at defendant when she was angry).

After

considering all the relevant evidence, we conclude that the judgment is not so

against the great weight and preponderance of the evidence so as to be

manifestly unjust. See Meraz , 785 S.W.2d at 54–55. We hold that the evidence is factually sufficient

to support the jury’s negative finding on the issue of sudden passion.

Prior Acts of

Violence

In

his second issue, Smith maintains that the trial court abused its discretion in

excluding the testimony of Keisha and her son, Terrell Dupree, relating to

Hawkins’s prior acts of violence. At

trial, defense counsel proffered the testimony of Keisha and Terrell outside

the presence of the jury. Terrell

testified that one month before Hawkins’s death, Hawkins hit Keisha in the

face. Terrell and his brother intervened

to protect their mother. A fight ensued

between Terrell and Hawkins. During this

altercation, Hawkins stabbed Terrell in the side. Terrell testified that he told Smith about

this incident sometime before Hawkins’s murder. The trial court refused to

allow the proffered testimony. On

appeal, Smith maintains this incident was admissible to show that Smith’s fear of Hawkins

was reasonable or to show that Hawkins was the first aggressor.

Standard

of Review and Applicable Law

A

defendant in a homicide prosecution who raises the issue of self-defense may

introduce evidence of the victim’s violent character. Tex. R. Evid. 404(a)(2); Torres v. State , 71 S.W.3d 758, 760 (Tex. Crim. App.

2002). This evidence may consist of opinion

or reputation testimony to prove the victim acted in conformity with his

violent nature. Tex. R. Evid. 404(a)(2), 405(a); Torres , 71 S.W.3d at 760 . It may also include proof of specific,

violent acts of misconduct to show the reasonableness of the defendant’s fear

of danger, or to show that the

victim was the first aggressor. Torres , 71 S.W.3d at 760 .

This general rule is not without

limitation, however. Rule 404(b)

provides for the admissibility of specific bad acts only to the extent that

they are relevant for a purpose other than to show character conformity. Tex.

R. Evid. 404(b); Torres ,

71 S.W.3d at 760 . If a victim’s

unambiguous, violent, and aggressive acts need no explanation, then evidence of

a victim’s extraneous conduct admitted in conjunction with his unambiguous act may

not be relevant apart from its tendency to prove the victim’s character

conformity, which weighs against admissibility. Tex. R. Evid. 404(b);

Reyna v. State , 99 S.W.3d 344, 347 (Tex. App.—Fort Worth 2003, pet. ref’d);

cf. Thompson v. State ,

659 S.W.2d 649 , 653–54 (Tex. Crim. App. 1983) (holding that when victim’s

conduct was ambiguously aggressive, prior, specific acts of violence are

admissible only so far as they tend to explain the victim’s conduct) superseded by rule , Tex. R. Evid . 404(a)(2), as recognized by , Mozon v. State , 991 S.W.2d 841 , 845–46 (Tex. Crim. App. 1999).

Accordingly, a trial court is within

its discretion to exclude prior violent acts if the victim’s conduct was

plainly aggressive and no explanation is necessary to show that the defendant

reasonably feared for his life. See

Torres , 71 S.W.3d at

762 . Compare Thompson , 659 S.W.2d at 653–54 (finding that defendant was entitled to establish

victim’s violent character to explain his ambiguously aggressive conduct of

walking toward defendant with arms outstretched) with Reyna , 99

S.W.3d at 347 (holding that trial court did not err in excluding proffered

testimony about victim’s prior violent acts because defendant’s account of victim’s

conduct during altercation with defendant consisted of unambiguous acts of

aggression and violence that needed no explanation—victim allegedly flashed gun

at defendant and allegedly shot him first) and

London v. State , 325 S.W.3d 197, 206

(Tex. App.—Dallas 2008, pet. ref’d) (concluding that trial court did not err in

excluding victim’s violent past—gang affiliation and terrorization of

neighborhood— because victim allegedly shot at defendant’s car, and his doing so

was unambiguous act of aggression and violence that needed no explanation).

Here, Smith testified that Hawkins

pulled a knife and attempted to stab him first— both unambiguous

acts of aggression and violence that need no explanation. See Reyna , 99 S.W.3d at 347 ; London ,

325 S.W.3d at 206 . Because of the

unambiguous nature of Hawkins’s alleged conduct, we conclude that the trial

court was within its discretion to exclude the evidence as offered solely to

show character conformity. See Tex.

R. Evid. 404(b); Torres , 71

S.W.3d at 762 .

Harm Analysis

E ven if we were to assume the trial court erred in excluding

the proffered testimony, we would conclude that any error was harmless.

Exclusion of evidence does not result in reversible error unless the exclusion

affects a substantial right of the defendant.

Alexander v. State ,

137 S.W.3d 127, 130 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (stating

that erroneous admission or exclusion of evidence does not result in reversible

error unless it affects substantial right of accused); see also Tex. R. App. P. 44.2(b). We must assess, from the context of the

error, whether the judgment requires reversal because the error affected

appellant’s substantial rights. See

Johnson v. State , 43 S.W.3d

1, 5 (Tex. Crim. App. 2001) . Error

affects a substantial right when it has a substantial and injurious effect or

influence in determining the jury’s verdict.

See id. at 4 . When we

assess the likelihood that the jury’s decision was adversely affected by the

error, we consider everything in the record, including any testimony or

physical evidence admitted for the jury’s consideration, the nature of the

evidence supporting the verdict, the character of the error, and how it might

be considered in connection with other evidence in the case. Motilla

v. State , 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).

Because it is countered by the direct evidence that the trial

court admitted,

we have fair assurance here that any error made in excluding Hawkins’s earlier

stabbing incident involving Keisha

and Terrell did not have a

substantial and injurious effect or influence in determining the jury’s

verdict. See Alexander , 137 S.W.3d at 130 ; see also Vega v. State , 898 S.W.2d 359,

363 (Tex. App.—San Antonio 1995, pet. ref’d) (holding that although evidence of

“bad blood” between defendant’s gang and the complainant’s gang was relevant to

defendant’s state of mind at time of murder, trial court’s erroneous exclusion

of evidence was harmless beyond reasonable doubt because record was replete with testimony concerning ill feelings

between defendant and complainant and two gangs). Smith offered other

direct evidence that Hawkins was the first aggressor, that he reasonably believed he was in danger

during the altercation with Hawkins, and that the force he used was immediately

necessary to protect his life. Smith, along with two other witnesses,

testified that Hawkins initiated the fight by grabbing Smith’s steering

wheel. Also, Smith said that Hawkins

punched him several times in the face.

He stated that he fought back only because it was necessary to protect the two

women and the child in his car. Smith

claimed he used his knife only after Hawkins attempted to stab him in his

stomach and was about to stab his neck with the knife. He testified that he stabbed Hawkins because

he wanted to get away from him and was scared for his life. Keisha too testified that Hawkins had a

knife. Finally, Smith stated that

Hawkins was a very violent and aggressive person while he lived with him. However, the State offered testimony and

physical evidence that undermined Smith’s defensive claims.

The jury chose to reject Smith’s and

his witnesses’ claims that he acted in self-defense and defense of third party,

as was its province. See Cain v. State , 958 S.W.2d 404 , 408–09

(Tex. Crim. App. 1997) (indicating that jury has sole province to decide what

weight is to be given to contradictory testimony as it turns on evaluation of

credibility and demeanor). We hold that

the trial court’s exclusion of Hawkins’s prior violent acts did not

substantially injure Smith’s rights, and the error, if any, was harmless.

Keisha Dupree’s Opinion Testimony

In

his third issue, Smith contends that the trial court abused its discretion in

sustaining the prosecutor’s objections to Keisha’s opinion that Hawkins was a

violent person. The relevant testimony

is as follows:

DEFENSE

COUNSEL: In your time period, I guess

December, January, February, of living with Mr.

Hawkins, were you able to establish

an opinion about his character for

being a peaceful or violent

person? Were you able to develop an

opinion?

KEISHA

DUPREE: Yes, I did.

DEFENSE

COUNSEL: What was your opinion?

KEISHA

DUPREE: My opinion was that he could

be violent any given time

if approached the wrong way.

PROSECUTOR: Objection, Your Honor, nonresponsive.

TRIAL

COURT: Sustained.

DEFENSE

COUNSEL: Either the word “peaceful” or

“violent,” what was your opinion?

PROSECUTOR: Objection Your Honor, asked and answered.

TRIAL

COURT: Sustained.

On

appeal, Smith argues that the trial court incorrectly sustained the State’s

objection to Keisha’s answer to defense counsel’s first question regarding her

opinion of Hawkins because it was a direct response to the question posed. Also, according to Smith, the second question

regarding her opinion of Hawkins’s character merely sought to simplify the

inquiry and remedy Keisha’s nonresponsive answer.

Assuming that the trial court abused

its discretion in sustaining the State’s objections, we find no reversible

error. Exclusion of evidence does not result in reversible error

unless the exclusion affects a substantial right of the defendant. Alexander , 137 S.W.3d at 130 ; see also Tex. R. App. P. 44.2(b). Generally, no harm results when a jury is not

instructed to disregard a witness’s answer after an objection is

sustained. See Johnson v. State,

925 S.W.2d 745, 750 (Tex. App.—Fort Worth 1996, pet. ref’d); Rodriguez v.

State, 903 S.W.2d 405, 410 (Tex. App.—Texarkana 1995, pet. ref’d); see

also Wiltz v. State , 827

S.W.2d 372, 374 (Tex. App.—Houston [1st Dist.] 1992), rev’d on other grounds , 863 S.W.2d 463 (Tex. Crim. App.

1993).

Here,

the error did not affect a substantial right of Smith. See Alexander , 137 S.W.3d at 130 . Keisha

answered the question whether Hawkins was a peaceful or violent person. She stated that he could be violent if a

person approached him in the wrong manner.

The State objected to the answer as non-responsive, but did not seek a

limiting instruction. Because the trial

court did not instruct the jury to disregard Keisha’s answer, the answer became

part of the general evidence, and no harm resulted from sustaining the

objection. See Johnson , 925 S.W.2d at 750 ; Rodriguez , 903 S.W.2d at 410 ; see also Wiltz , 827 S.W.2d at 374 . As Smith points out, the second question was

merely a simplified version of the first one.

Therefore, no harm resulted from the trial court sustaining the State’s

objection to the second question because Keisha’s answer to the first one was

already part of the evidence before the jury.

We also note that this testimony is cumulative of other evidence that

Hawkins was a violent person. Smith testified that Hawkins was a very

violent and aggressive person while he lived with him.

Exclusion of

Hawkins’s Tattoos

In his fourth issue, Smith maintains

that the trial court deprived him of his constitutional right to due process of

law and his right to confront the witnesses against him when it prohibited him

from offering evidence that Hawkins had tattoos depicting acts of violence and

the words “CRIP LIFE” and “GANGSTAFIED.”

He argues the erroneous exclusion was a constitutional error because the

tattoo evidence formed a “vital portion” of his self-defense and sudden passion

theories. See Potier

v. State , 68 S.W.3d 657, 665

(Tex. Crim. App. 2002) (holding that rulings excluding evidence might rise to

level of constitutional violation when

trial court erroneously excludes otherwise relevant, reliable evidence which

forms such vital portion of the case that exclusion effectively precludes

defendant from presenting defense).

During

the trial, the State asked the trial court to exclude evidence of Hawkins’s

tattoos depicting the words “CRIP LIFE” and “GANGSTAFIED” by redacting the

autopsy report, on the basis that the tattoos were irrelevant and more

prejudicial than probative within the meaning of Texas Rule of Evidence 403. The trial court excluded evidence of the

words depicted in the tattoos under Rule 403, but allowed the jury to consider

evidence on the existence and number of tattoos Hawkins had. Further, the trial court noted that it would

revisit its ruling if the content of the tattoos became relevant. After Smith testified that Hawkins was the

first aggressor, defense counsel again sought to introduce evidence of the

words depicted in the tattoos, and the trial court excluded the words.

Standard of Review

We review the court’s Rule 403 ruling for an abuse of

discretion. State v. Mechler ,

153 S.W.3d 435, 439 (Tex. Crim. App. 2005). Evidence is relevant if it has any

tendency to make the existence of any fact of consequence to the determination

of the action more or less probable than it would be without the evidence. Tex. R. Evid . 401. There is a presumption of admissibility of

relevant evidence. See Tex. R. Evid. 402; Erazo v. State , 144 S.W.3d 487, 499 (Tex. Crim.

App. 2004) (Cochran, J., concurring).

The trial court may exclude relevant evidence under Rule 403 “if its

probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue

delay, or needless presentation of cumulative evidence.” Tex. R.

Evid. 403. When a trial court

balances the probative value of the evidence against the danger of unfair

prejudice, a presumption exists that favors the evidence’s probative value. Feldman v. State , 71 S.W.3d 738 , 754–55 (Tex. Crim. App. 2002). The relevant criteria for determining whether

the prejudice of admitting the evidence substantially outweighs the probative

value include the following: (1) the probative value of the evidence; (2) the

potential the evidence has to impress the jury in an irrational but nevertheless

indelible way; (3) the time needed to develop the evidence; and (4) the

proponent’s need for the evidence to prove a fact of consequence. Mechler , 153 S.W.3d at 440–41.

Evidentiary rulings rarely rise to the

level of denying the fundamental constitutional right to present a meaningful

defense. Potier , 68

S.W.3d at 663 . Rulings excluding evidence might rise to the level of a

constitutional violation if: (1) the evidentiary rule categorically and

arbitrarily prohibits the defendant from offering otherwise relevant, reliable

evidence that is vital to his defense; and (2) a trial court’s clearly

erroneous ruling excluding evidence that forms such a vital portion of the case

effectively precludes the defendant from presenting a defense. Id. at

659–62; Wiley v. State , 74

S.W.3d 399, 405 (Tex. Crim. App. 2002).

In the first scenario, “the constitutional infirmity is in the arbitrary

rule of evidence itself.” Wiley ,

74 S.W.3d at 405 . In the second

scenario, “the rule itself is appropriate, but the trial court erroneously

applies the rule to exclude admissible evidence to such an extent that it

effectively prevents the defendant from presenting his defensive theory.” Id.

Analysis

Gang membership is admissible to show

bias, motive, or intent, or to refute a defensive theory. See Tibbs v. State , 125 S.W.3d 84, 89 (Tex.

App.—Houston [14th Dist.] 2003, pet. ref’d) (citations omitted); see also

Vasquez v. State , 67 S.W.3d

229 , 239–40 (Tex. Crim. App. 2002) (holding defendant’s Mexican Mafia

affiliation admissible to show defendant’s motive for killing victim); King

v. State , 29 S.W.3d 556,

565 (Tex. Crim. App. 2000) (holding extensive evidence of appellant’s hatred

for African-Americans, including his “graphic” tattoos and drawings was

evidence that appellant had motive to kill complainant because of complainant’s

race); Williams v. State ,

974 S.W.2d 324, 331 (Tex. App.—San Antonio 1998, pet. ref’d) (holding evidence

of defendant’s gang affiliation admissible to establish motive for robbery); Brosky

v. State , 915 S.W.2d 120 ,

134–35 (Tex. App.—Fort Worth 1996, pet. ref’d) (holding no error in admitting

racist propaganda as evidence that murder was committed by combination animated

by white supremacist beliefs); McKnight v. State , 874 S.W.2d 745, 747 (Tex. App.—Fort Worth 1994, no pet.)

(holding defendant’s and witness’s gang membership admissible to show

defendant’s bias).

Here, the words “ CRIP LIFE” and “GANGSTAFIED” indicate a

possible gang affiliation. Neither

party, however, adduced evidence that the altercation leading to Hawkins’s death was gang-related.

Hawkins’s tattoos and possible gang affiliation

did not explain the altercation. Under

Smith’s version of the events, the altercation arose out of a dispute between

Smith and Hawkins concerning their shared apartment .

Further, the record does not demonstrate that Smith was aware of the

tattoos or that Hawkins’s possible gang affiliation affected Smith’s state of

mind during the altercation. Accordingly, the trial court could reasonably

have concluded that the words had little, if any, probative value. See

Macias v. State , 959 S.W.2d 332, 339 (Tex. App.—Houston [14th Dist.] 1997 pet.

ref’d) (finding evidence of defendant’s gang affiliation not relevant under

Texas Rule of Evidence 401 because membership was not part of reason for murder

or part of explanation for why murder occurred as it did); see also Wachholtz v. State , 296 S.W.3d 855, 858 (Tex.

App.—Amarillo 2009 pet. ref’d) (holding that trial court did not err in

excluding evidence of victim’s brother’s gang tattoos because, although brother

was at crime scene, no evidence existed that defendant saw anyone with visible

gang tattoos or knew about anyone present having gang tattoos).

The use of the words depicted in the tattoos

to show Hawkins was a bad person and that he acted in conformity with his bad

character during the altercation with Smith also weighed against admission, as

this use of the tattoos would be improper.

See id. ; see also Galvez v. State , 962 S.W.2d 203, 206 (Tex. App.—Austin

1998, pet. ref’d) (“[G]ang membership is highly inflammatory character evidence

likely to cause an individual to be convicted for being a bad person apart from

sufficient indicia of guilt regarding this particular crime.”); Barlow v. State , 175 S.W.3d 839, 844

(Tex. App.—Texarkana 2005, pet. ref’d) (finding that evidence of four

witnesses’ gang affiliation was unfairly prejudicial).

Because the words depicted in the

tattoos have little probative value under the facts of this case and presented

a danger of unfair prejudice, we conclude that the trial court did not abuse its discretion

in excluding the evidence under Rule 403.

Mechler ,

153 S.W.3d at 440–41. Because the trial court did not

erroneously exclude the evidence, no constitutional error occurred. See Potier , 68 S.W.3d at 663 . We overrule Smith’s fourth issue on

appeal.

Conclusion

We

hold that the evidence is sufficient to support Smith’s conviction, and the evidence is sufficient to support the jury’s negative

finding on the issue of sudden passion. We

further hold that none of Smith’s challenges to the trial court’s evidentiary

rulings warrants reversal. Finally, the

trial court did not deprive Smith of due process or his right to confront the

witnesses. We therefore affirm the

judgment of the trial court.

Jane

Bland

Justice

Panel

consists of Justices Keyes, Higley, and Bland.

Publish.

Tex. R. App. P. 47.2( b).