Opinion
01-21-00253-CR
09-01-2022
WILLIE STEADMAN, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 178th District Court Harris County, Texas Trial Court Case No. 1574955
Panel consists of Justices Hightower, Countiss, and Guerra.
MEMORANDUM OPINION
Julie Countiss Justice
A jury found appellant, Willie Steadman, guilty of the felony offense of murder and assessed his punishment at confinement for fifteen years. In his sole issue, appellant contends that the trial court erred in excluding certain evidence during the guilt phase of trial. We affirm.
See Tex. Penal Code Ann. § 19.02(b), (c).
Background
Samantha Garcia ("Samantha") testified that she was in a relationship with the complainant, Antoine Adams, and he was the father of her two children. Samantha had three sisters, Audrey Steward ("Audrey"), Laura Steward ("Laura"), and Jacquelyn Rodriguez ("Jacquelyn"). In May 2017, she, the complainant, and their oldest child lived together in an apartment with Jacquelyn, and appellant, Jacquelyn's husband. Samantha, her child, and the complainant moved out of the apartment in September 2017 after an argument between the complainant and appellant.
Throughout the record, appellant is referred to as either Jacquelyn's boyfriend or common-law husband.
According to Samantha, the complainant was robbed "at gunpoint by five guys" and he gave the men his car and his set of keys. Included in his set of keys was the key to the apartment and the key to the apartment's mailbox. Samantha and the complainant planned to replace the keys, but they needed to wait until the complainant was paid at his job. Samantha conveyed this information to Jacquelyn. But after two days, Jacquelyn called Samantha and said, "I need y'all to hurry up and get the keys because they want to change out the lock system [for the apartment]." (Internal quotations omitted.) When Samantha told her that they had not discussed changing the "lock system" for the apartment, but only replacing the apartment and mailbox keys, Jacquelyn said, "[W]ell, [appellant] want[s] to change out the whole lock system because he d[oes] [not] want the guys to come back and . . . get inside the [apartment] because they ha[ve] [the] . . . key." When Samantha conveyed this information to the complainant, he said that he was "not going to be rushed to replace something that [he had] said [he] was already going to replace." (Internal quotations omitted.) The complainant and appellant then called each other on the telephone and got into "a little argument," after which Jacquelyn called Samantha and said that the complainant was "going to have to move out because it[] [was] not going to be a comfortable environment for everybody to live because they got into an argument." In short, there was "a lot of tension about th[e] key situation," and the "whole argument" was about "[r]eplacing the keys and [the] lock system" for the apartment. Samantha acknowledged that the complainant was upset with appellant about the key issue.
After the argument, Samantha and the complainant "just said basically let's go." Thus, when they moved out of the apartment, they only packed some clothing and some shoes. They left some of their belongings at the apartment, including a crib, a bed, a changing table, a gaming system, "a lot of baby food," and "a lot of clothes and a lot of shoes[] [and] hats." Samantha did not see Jacquelyn again until December 24, 2017.
On December 24, 2017, Samantha, her oldest child, and the complainant went to the home of Samantha's mother, Jacquelyn Steward ("Steward"), for her family's Christmas Eve party. The party happened every year, and it was for Steward's grandchildren. At the time, Samantha was pregnant, but she and the complainant had not told anyone else about the pregnancy. When they first arrived at Steward's house, Samantha helped Steward "prepare the food so she could cook" and "set up everything." Samantha's sisters, Audrey and Laura, were also at the house. Samantha only had with her enough formula or milk for one more bottle for her child, so she called Jacquelyn and asked her if "could bring a thing of milk from [the] apartment."
Jacquelyn and appellant were the last to arrive at Steward's house that night. When they arrived, it was dark outside, and Samantha noticed that Jacquelyn seemed "off." Jacquelyn also did not bring any milk for Samantha's child. When Samantha asked her about the milk, Jacquelyn said that she did not bring it, but Samantha was not upset about this. Samantha went to ask Steward if she could drive Samantha, her child, and the complainant to Jacquelyn and appellant's apartment to pick up the milk the next morning. While Samantha was having that conversation with Steward, Steward was standing outside, along with appellant. Appellant, in response to Samantha talking about getting milk from the apartment, told Samantha, "If you're trying to go and get your stuff, I threw everything away." (Internal quotations omitted.) Samantha did not respond to appellant, but she felt hurt and angry, and went inside the house to tell the complainant that Jacquelyn and appellant had "thr[own] all of [their] stuff away." Samantha had expected that Jacquelyn would not have thrown away their belongings. When the complainant heard about their belongings being thrown away, he said "What?" but not in yelling manner; he was surprised. (Internal quotations omitted.) The complainant was upset though, and he got up and walked outside with Samantha. Outside, he asked appellant, "[W]hat's up? Why would you throw away all of our stuff?" (Internal quotations omitted.) The complainant also told appellant, "You threw away all of your God-child's belongings, as well." (Internal quotations omitted.) According to Samantha, the complainant did not say, "You bitch-ass n[*]gga, why did you throw away our stuff?" (Internal quotations omitted.) Appellant and the complainant began arguing, but no one had to "hold [the complainant] back." The complainant did not try to hit anyone during the argument with appellant.
Samantha explained that she then walked into the yard and picked up a shovel. She said, "Since you want to throw away all of our stuff, I'm going to mess up your car," meaning appellant's car. (Internal quotations omitted.) Samantha was upset, but Samantha did not "mess up" appellant's car because Jacquelyn told her to not do so. Jacquelyn said, "Samantha, you better not touch his car because he's going to shoot you." (Internal quotations omitted.) Samantha did not respond, but walked away from appellant's car, and put the shovel back where she found it in the yard. She did not threaten anyone with the shovel. At that point, "arguing [was still] going on." Appellant and Jacquelyn then went to appellant's car, and the complainant, Samantha, and Audrey ended up in the street in front of Steward's house, where more arguing occurred. The complainant was yelling at appellant as appellant and Jacquelyn walked to appellant's car. Samantha saw appellant get a firearm from his car. Samantha did not know whether the complainant saw appellant's firearm.
According to Samantha, she was not arguing; the complainant and appellant were arguing. And then Jacquelyn started to yell and argue with the complainant. Samantha watched appellant "to see what [his] next move" was going to be. Samantha was mad, and Jacquelyn started arguing with Samantha. But Samantha did not say anything back to Jacquelyn. Samantha tried to get the complainant to go back to the yard. Samantha noted that a lot of people were yelling-Steward, Audrey, Jacquelyn, and the complainant. "Basically[,] everybody was yelling," but Samantha. Then, Samantha heard a gunshot, and everyone moved away from appellant, including Samantha. Samantha and Jacquelyn were not fighting with each other before the first gunshot, but after the first gunshot Jacquelyn tried to hit the complainant. Samantha got in front of Jacquelyn though, and Jacquelyn hit Samantha. When Jacquelyn hit Samantha, Samantha's glasses fell off her face. Samantha tried to hit Jacquelyn back and she pulled her shirt, but she was not able to hit Jacquelyn because Audrey got "in the way" and was "between" Samantha and Jacquelyn trying to "break . . . up" the fight. Samantha and Jacquelyn could not reach each other with Audrey standing in between them.
While all this was happening, the complainant was standing on the "right-hand side" of Samantha "a little bit away[]." Because the complainant knew that Samantha was pregnant, he "c[ame] and pick[ed] [Samantha] up." The complainant "picked [her] up from the side and maneuvered his body around" so that he was behind her. The complainant wrapped his arms around Samantha, picked her up, and began walking backwards away from the others with Samantha still in his arms.
As the complainant was walking backwards carrying Samantha, appellant began to walk toward them. When appellant was about two or three feet away from them, he shot in their direction. Samantha heard one gunshot and then two seconds later, she heard another gunshot. The first bullet hit Samantha on her thigh. She felt a burning sensation, but she did not realize that she had been shot. The second bullet hit the complainant, who immediately fell to the ground. Samantha fell to the ground as well and tried to get the complainant to talk to her. She asked him, "Where did you get hit? Please tell me where did you get hit. Where's it at?" (Internal quotations omitted.) And she heard appellant say, "Y'all think y'all going -- y'all think I'm going to let y'all beat up on my girl." (Internal quotations omitted.) Samantha looked up and saw appellant still pointing the firearm at her and the complainant. The complainant died while Samantha held him. After the complainant died, Samantha told Audrey that she had been shot.
According to Samantha, appellant and a family member put the complainant in appellant's car. Another family member took Samantha to the hospital.
Samantha further explained that she had seen appellant's firearm in the past. And the firearm that she saw on December 24, 2017 was appellant's firearm. Appellant kept his firearm in his car while he was driving, and when he was not driving, he kept it in the apartment with him. Samantha testified that she never hit Jacquelyn and the complainant never hit Jacquelyn. And no one hit appellant or threatened appellant with a weapon. Samantha did not know of any incident where the complainant had threatened to harm appellant. The complainant's shirt was off while at Steward's house because he was "a naturally hot-bodied person." The complainant did not have "intentions to fight."
Audrey testified that on December 24, 2017, she went to Steward's house for a Christmas Eve party. When she arrived, Samantha, her oldest child, the complainant, Laura, and Steward were at the house. Jacquelyn and appellant were not there yet. The atmosphere was "okay" before Jacquelyn and appellant arrived. After they arrived, Audrey was outside on the porch when Samantha came outside to ask Steward if she could "use her car to go get" the belongings that "she had left over at the apartment." She also asked Steward if Steward could "take [her] over there to go get the things." When Samantha asked that question, appellant said, "I'm sorry, baby girl, but . . . your stuff is no longer there. You know you had enough opportunity and time to get y'all's stuff." (Internal quotations omitted.) Samantha was upset by what appellant said, and she walked inside the house to tell the complainant what appellant had told her. Samantha and the complainant then came back outside, and the complainant began to argue with appellant about throwing away his and Samantha's belongings. The complainant yelled, "Why you did that? That's all we got. That's all the baby milk we've got." (Internal quotations omitted.) Audrey heard the complainant "cussing and yelling."
Samantha and Jacquelyn also got into an argument, and Audrey was "between them separating them from trying to fight each other." But trying to separate Samantha and Jacquelyn was "a struggle," and Audrey gave up. After that "there was yelling" and "someone got hit." But Audrey, who had been "right there" in between Samantha and Jacquelyn, did not see Jacquelyn "get hit repeatedly by blows [to] her head."
At some point, everyone ended up near each other in the street. According to Audrey, "there was arguing going on," Jacquelyn "sa[id] she got hit," and [s]ome[body] else . . . yell[ed] that they got hit." Then, "a gunshot went off in the air, and Audrey "hit the ground." When she got back up, she heard two more gunshots. After those gunshots, Samantha and the complainant, who was standing behind Samantha and holding her, fell backwards. Audrey saw that the complainant had been shot in the neck. And Samantha had been shot in the thigh. Audrey saw appellant fire the gunshots, but she did not see appellant go to his car and get his firearm. As far as she knew, appellant had his firearm on his person.
Audrey believed that appellant's actions were "wrong," and she did not believe that appellant had acted in defense of Jacquelyn. Appellant fired his firearm to intentionally harm the complainant. When appellant fired the second and third gunshots, he was about four or five feet away from the complainant.
After the complainant had been shot, appellant and Laura picked up the complainant, who was unconscious, and put him in appellant's car. The complainant's body was "flimsy and floppy," and appellant and Laura "struggle[ed] to put him in" the car. Audrey believed that appellant put the complainant in his car "to take him to the ambulance" because emergency assistance personnel "were taking forever to get" to Steward's house.
Audrey testified that during the entire argument, she never saw the complainant "put his hands on anybody." She did not see him "put his hands" on appellant or Jacquelyn or push either of them. And she did not see the complainant "rush anybody." But she acknowledged that while she was trying to separate Samantha and Jacquelyn, she was "not really able to see what else [was] going on." Yet, Audrey noted that the complainant did not get involved in the argument or fighting between Samantha and Jacquelyn. Instead, he stood behind them and tried to pull Samantha backwards. According to Audrey, during the incident, "there was a lot of cussing going on" and she heard the words, "Bitch-ass n[*]gga," yelled.
As to the relationship between Samantha, the complainant, Jacquelyn, and appellant, Audrey stated that at one point Samantha and the complainant had shared an apartment with Jacquelyn and appellant, but Samantha and the complainant moved out. Audrey was "aware that there was hostility between the two families because of what had happened at the apartment when [everyone] w[as] living together." When asked to characterize the complainant's and appellant's relationship, Audrey explained that she had "never seen them get into it" before that night.
Cody Popp, an emergency medicine technician ("EMT"), testified that in general when a shooting occurs and an ambulance responds, the EMTs are told "to stage away from the [shooting] location until it's cleared . . . by law enforcement" officers. In other words, the EMTs will not go directly to the house where the shooting occurred until a dispatch operator tells them that the scene is "secure." (Internal quotations omitted.) On December 24, 2017, Popp was dispatched with an ambulance in response to a shooting on Lauder Road, but he and his partner did not go directly to the location of the shooting. Instead, they "stage[d]" as required by protocol.
But, while Popp and his partner were "staging away from the actual [shooting] scene," "a car pulled up beside[] [them] and stopped." The people in the car were frantic and yelling. A man from the car approached Popp. The man was upset, yelling, and "kind of derogatory." Popp felt unsafe. When the people opened the back door of the car, there was "[a] patient" in the backseat. Popp "quickly assessed the patient." The patient did not have a pulse and was not breathing. He appeared to be deceased. There were no law enforcement officers present; it was just Popp, his partner, and their ambulance. Because the situation was not safe or secure, Popp and his partner decided to get the patient out of the car and "get to a safe location . . . away from the area."
During Popp's testimony, the trial court admitted into evidence a copy of the "EMS record," which stated, on December 24, 2017:
M92 dispatched to shooting call, advised to stage for law enforcement. M92 staged in a small church parking lot . . . . While
staging, M92 [crew] was approached by two people, [a] black male and [a] black female, in 4 door sedan, visibly agitated and screaming[,] "[H]e's been shot, help us!" M92 [crew] immediately advised dispatch of having shooting victim brought to M92 staging location and requested that [the Harris County Sheriffs Office ("HCSO")] step up response to M92 location. [The] [p]atient was lying supine across [the] back seat of [the] sedan, [with a gunshot wound] to [the] base of [the] right anterior neck, pulseless and apneic. The two people with [the] patient stated he had been shot approximately 15 minutes ago and they did not know who or where the shooter was but knew that others were shot at the same location, both were extremely agitated and yelling at M92 crew. [The] [m]ale stated to [the] female that he was just going to shoot them (M92 crew) and partially got back into the driver's seat of the [car]. M92 [crew] took [the] stretcher out of [the] ambulance, placed it next to door and began to pull [the] patient from [the car]. [The] [m]ale was asked by M92 crew to assist in pulling [the] patient from [the car]. [The] [p]atient [was] extricated from [the car] onto [a] stretcher, secured, [and] moved to unit without further incident. Transport immediately initiated - emergency traffic to [the] [h]ospital. Chest compressions and BVM ventilation performed throughout [the] entire transport without change in [the] patient['s] condition. . . . Upon arrival at [the hospital], [the] patient [was] moved from [the] unit to shock room 2. . . . CPR [was] taken over by [the hospital] trauma team. [The] [p]atient care and report [was] given to LBJ trauma team without change in [the] patient['s] condition.
HCSO Deputy Investigator E. Villarreal testified that on December 24, 2017, she was dispatched to a house on Lauder Road. At the house, there were a lot of people, and there appeared to have been a Christmas Eve party at the house. When Villarreal arrived, she spoke to appellant and asked him where the firearm was located. Appellant was distraught, but calmly said what happened. Through conversation, Villarreal found out that appellant was the person who had fired the firearm. Villarreal knew that a male had already been transported to a hospital by ambulance, and the dispatch operator notified her that a second person had also been shot and was at another hospital. Appellant told Villarreal that he "loaded up the [complainant] in his car and found [the ambulance], wh[ich] was actually staged" away from the scene because the ambulance "was taking too long."
HCSO Deputy T. Kirkley, a member of the crime scene unit, testified that on December 24, 2017, he was called out to a "shooting investigation" on Lauder Road. Kirkley took photographs of the scene that night. While looking at the photographs during his testimony, Kirkley testified that they showed "bloodstains actually in the roadway." Kirkley took photographs of Jacquelyn because he had been told that there was a "possible altercation" before the shooting. Kirkley did not see any injuries on Jacquelyn's face. Kirkley asked Jacquelyn if she had any injuries or any pain anywhere, and she said that she did not. As to the firearm used in the shooting, Kirkley stated that the firearm, after the shooting, could have had up to "three rounds missing." In the yard, Kirkley found a "fairly new" cartridge casing that matched the firearm used in the shooting.
Deputy Kirkley also went to the hospital where Samantha had been taken after the shooting because Samantha had a gunshot wound. Kirkley took photographs of Samantha's injuries and then went to another hospital to see the complainant, who was deceased. Kirkley took photographs of the complainant's injuries as well.
HCSO Deputy J. Stephens testified that on December 24, 2017, he was dispatched to the hospital where EMT Popp had transported a patient that night. At the hospital, he learned that the patient had died. Stephens did not see any weapons on the patient's person.
Dr. Dwayne Wolf, deputy chief medical examiner at the Harris County Institute of Forensic Sciences, testified that on December 25, 2017, he performed an autopsy on the body of the complainant. The complainant was over six feet tall, 224 pounds, and "a fit guy." A toxicology report showed that the complainant had alcohol and methamphetamine in his system, but there was no way to know whether the substances would have affected the complainant's behavior before his death.
The complainant's blood-alcohol concentration was ".036." See Tex. Penal Code. Ann. § 49.01(2)(B) (defining "[i]ntoxicated" as having a blood alcohol concentration of "0.08 or more" (internal quotations omitted)).
Wolf explained that the complainant "had a single gunshot wound" on his neck, "but it was a perforated gunshot wound, meaning the bullet entered one place and existed somewhere else." Based on the condition of the complainant's body, including "abrasions" and "stippling" on the skin, Wolf believed that the end of the firearm was somewhere between about two inches to two feet from the complainant's skin when it was fired. Wolf did not know if appellant was approaching the complainant when the complainant was shot or if the complainant was approaching appellant when the complainant was shot.
According to Wolf, the bullet that hit the complainant's body went from right to left and front to back, in a downward direction. "Th[e] bullet entered just above the [complainant's] right collarbone, went through the muscles at the base of the neck that[] [were] attached to the collarbone. And then it went down to the center of the chest and perforated through a number of major blood vessels," including the "arch of the aorta, which [was] the main blood vessel from the heart" and "a bunch of blood vessels . . . at the center of the chest." The bullet also went through "the upper lobe of the [complainant's] left lung," before exiting the chest through the fourth rib. The bullet "grazed the top of the left and fifth rib, and then exited the [complainant's] body [through] the [complainant's] back."
Wolf noted that an average-sized adult human has about five liters of blood circulating in his body, and the complainant, as a result of the gunshot wound, "ended up with two liters of blood inside [his] chest cavity" because his blood vessels were "no longer functionally circulating [his] blood." Also, because there was "so much damage to the [complainant's] major blood vessels," "blood flow to the [complainant's] brain would have stopped pretty quickly." The complainant was probably conscious for "no more than seconds" after being shot. And because of the hole in the complainant's lung, with each breath the complainant took, "air would [have] leak[ed] out from the inside of th[e] lung into th[e] chest cavity, which would [have] cause[d] the [complainant's] lung to collapse." The complainant had respiratory failure.
Wolf also stated that the complainant had "a little scrape mark right in the center of [his] forehead" and "scrapes or abrasions on the back of his left forearm." But the complainant did not have any injuries on his hands or knuckles. The cause of the complainant's death was a gunshot wound to the neck and chest.
For the defense, Jacquelyn testified that in May 2017, Samantha and the complainant moved into an apartment with her and appellant. While living at the apartment, the complainant was 'very disrespectful" and "not respecting the household." At some point, when Samantha and the complainant, were living at the apartment, the complainant was "robbed at gunpoint" and the men took his car and his set of keys, which included his apartment key. Jacquelyn was upset because she stayed at the apartment by herself most days with Samantha's oldest child, and the complainant's car that was stolen had mail inside of it with the apartment's address. This meant that the men that had stolen the complainant's car and apartment key knew the apartment's address, and Jacquelyn was afraid that they could break into the apartment easily. Jacquelyn and appellant asked Samantha and the complainant to replace the door lock for the apartment and to get a new key. But Samantha and the complainant "said they couldn't do it at that time." Jacquelyn and appellant ended up replacing the door lock and the apartment key themselves. They told Samantha and the complainant that the door lock and key had been replaced and asked them to "pay half of it." The complainant told them that "he wasn't going to pay it. He didn't have the money, and he wasn't going to pay." According to Jacquelyn, the complainant responded to the request 'very rudely" and in a "[v]ery nasty" manner.
Jacquelyn also testified that Samantha and the complainant "said they were going to do it," but it "just never happened."
When Samantha and the complainant moved out of the apartment, they came and got their belongings, but they "[l]eft the apartment a total wreck." Samantha and the complainant left their belongings "all over," and Jacquelyn put the remaining belongings "in the back [of the apartment] where the washer and dryer would have been." She only threw away trash.
On December 24, 2017, neither Jacquelyn nor appellant wanted to go to Steward's house for the Christmas Eve party. But Steward begged them to come, so they went for Steward. Samantha also called Jacquelyn and asked if she could bring baby formula to the house for Samantha's oldest child. Jacquelyn told Samantha that she could not bring it because the car was full. Jacquelyn and appellant arrived at Steward's house late that night.
As Jacquelyn was sitting inside Steward's house, she saw Samantha "fl[y] past [her] from outside." Samantha was yelling and cussing, and she went to tell the complainant something. The complainant then "hopped up" and "flew out of the house." Someone told Jacquelyn "to go outside and check and see what[] [was] really going on."
When Jacquelyn went outside, she heard Samantha "dragging something along the . . . ground." Samantha was "hollering about how she was going to destroy, MF-ing this, and MF-ing that." Jacquelyn yelled out to her, "Please, don't touch his car. Please don't mess up his car. . . . That's not even our car. It's sold. Please do not mess up that car." (Internal quotations omitted.) Jacquelyn did not say, "If you touch that car, [appellant] will kill you." (Internal quotations omitted.) Samantha then dropped what she was holding and turned toward Jacquelyn. She started yelling at Jacquelyn, "You put me out of the house. You put me and my baby out of the house." (Internal quotations omitted.) Jacquelyn responded, "Samantha, you're my little sister. I would never do that. I didn't kick you out. He had to go because he was very disrespectful." (Internal quotations omitted.) The complainant then started "yelling, screaming, [and] running back and forth." The complainant also took his shirt off and called Jacquelyn "a bitch."
While Jacquelyn and Samantha were "still exchanging words," Samantha "came at" Jacquelyn and "swung on [her] ready to fight [her]." Samantha brought up Jacquelyn "not being able to watch" Samantha's child, and she blamed it on appellant. Samantha and Jacquelyn ended up fighting. Samantha "swung at [her] first" and pulled Jacquelyn's shirt off. At that point, Jacquelyn did not know what was going on with appellant and the complainant because Samantha and Jacquelyn were focused on "pulling each other's hair." At the end of Jacquelyn's fight with Samantha, the complainant "came out of nowhere" and hit Jacquelyn "hard" in her chest. It shocked Jacquelyn and scared her. Then, a gunshot was fired. After the gunshot, the complainant stepped back, turned, and grabbed Samantha, and he "hit the floor." "[T]hat was the end."
Jacquelyn also stated that both Samantha and the complainant were "trying to fight" her.
On cross-examination, Jacquelyn stated that the complainant grabbed Samantha after he had been shot.
After the complainant was shot, Jacquelyn yelled, "Call 911." (Internal quotations omitted.) And she told appellant and Laura to put the complainant in appellant's car and take him to the hospital or to the ambulance. After appellant and Laura left with the complainant, Samantha was still laying on the ground.
According to Jacquelyn, after the gunshots were fired, appellant did not stand over Samantha and the complainant and say, "Y'all think y'all going to beat up on my wife[?]" (Internal quotations omitted.) Appellant did not "say much of any words that night whatsoever." At one point, appellant told the complainant "[t]o go get [his] girl," but that was the last thing that Jacquelyn could recall appellant saying. (Internal quotations omitted.) Jacquelyn described the complainant as "irate" and stated that he was ready to fight that night because he had his shirt off. Jacquelyn explained that she was afraid for her life because the complainant was "ten times bigger" than her. Jacquelyn believed that the complainant was about to hit her for a second time, but appellant "stopped him." When asked whether the complainant "t[ook] steps toward[] [appellant]," Jacquelyn stated that she did not know because she "was too focused" on Samantha.
On cross-examination, Jacquelyn denied telling law enforcement officers on the night of December 24, 2017 that she had been struck in the face. And she did not refuse medical treatment; it was never offered to her. At the scene, she told one law enforcement officer that she had "blacked out" and she suffered from "memory loss." Jacquelyn agreed that she had no injuries to her face that night and stated that appellant was a "a pretty big man" with "solid muscle[s]." Jacquelyn did not recall punching Samantha but stated that they "were fighting." Jacquelyn did not go with appellant to get a firearm out of appellant's car.
Laura testified that she had known appellant for about eight years, and he had a reputation of being a peaceful and law-abiding citizen. According to Laura, the complainant was an aggressive person.
Laura also testified that, on December 24, 2017, she went to Steward's house for a Christmas Eve party. Jacquelyn and appellant arrived at Steward's house late. About twenty or thirty minutes after their arrival, Laura and Jacquelyn heard commotion outside. Laura went outside and talked to the complainant, saying, "Calm down" and "What's going on?" (Internal quotations omitted.) Laura had seen the complainant drinking alcohol that night and "t[aking] some XOs." The complainant was "moving his hands" and "trying to get to [Jacquelyn]."
According to Laura, Jacquelyn and appellant did not want to come to Steward's house that night, but Steward begged them to come.
Laura further stated that Samantha was in the street arguing with Jacquelyn. And the complainant went toward Jacquelyn and Samantha and struck Jacquelyn in the face one time. Then Laura heard a gunshot fired by appellant. The first gunshot was a warning. Appellant then "came forward," and the complainant "c[ame] forward." Appellant fired his firearm. Laura felt that the complainant was moving aggressively toward appellant when appellant fired his firearm. Laura heard two other gunshots. After the gunshots, Laura ran toward the complainant and Samantha, while appellant "just st[ood] right there." But Laura did not hear appellant say, "Y'all going to be beating up my girl like that[?]" (Internal quotations omitted.)
Laura noted that when Jacquelyn and Samantha were struggling, Laura was not worried about Jacquelyn's safety because "they were just arguing" and "they don't really fight."
On cross-examination, Laura testified that she told a law enforcement officer that night that she had seen the complainant push Jacquelyn, not hit her. Laura did not remember telling a law enforcement officer that she did not see the shooting because she was inside the house watching the children.
Steward testified that she lived on Lauder Road, and her children are Audrey, Laura, Jacquelyn, and Samantha. According to Steward, appellant had a reputation of being a peaceful and law-abiding citizen.
As to December 24, 2017, Steward testified that she had family over to her house so that her grandchildren could receive their Christmas presents. It was cold that day, and different family members arrived at Steward's house at different times. Steward insisted that Jacquelyn and appellant come to her house, and they were the last people to arrive. When Samantha asked them if they had brought milk for Samantha's oldest child, Samantha "found out that all [of her and the complainant's] stuff [had been] thrown away." Samantha got angry and upset because "everything was thrown away," and she stormed into the house and screamed at the complainant. The complainant then came out of the house, and he yelled about his and Samantha's belongings that they had left at the apartment. Steward tried to stop the complainant from coming outside, but the complainant pushed his way out. The complainant "flew off the porch." He jumped around, screaming and yelling, and tried "to jump on" appellant, who was standing there calmly. Appellant did not yell back at the complainant. The complainant "tr[ied] to get to [appellant]." And Steward tried to keep the complainant away from appellant because appellant was "standing there not doing [anything" and "wasn't trying to fight him." The complainant "was persistent that he was going to jump on [appellant]." According to Steward, the complainant was behaving like a maniac and "was all over the place," and she was afraid for appellant's safety.
Steward further testified that Samantha, at the time, was "[j]ust arguing" with Jacquelyn. But Samantha and Jacquelyn started fighting and were holding onto each other's hair until someone "broke them up." Their fight did not last more than two or three minutes. While Samantha and Jacquelyn were fighting, the complainant tried to pull Samantha back because he was concerned about Samantha, as she was pregnant. But the complainant was also still yelling and wanting to fight appellant.
Steward heard a gunshot, like a warning shot. She then heard two more gunshots and saw "a body drop." Steward did not know what Samantha, Jacquelyn, or the complainant were doing at the time the gunshots were fired. Steward ran back into the house and did not come back out. Steward noted that she only saw Jacquelyn and Samantha hitting each other; she did not see the complainant hit anyone.
On cross-examination, Steward stated that she did not tell law enforcement officers that she had seen the complainant "trying to jump on" appellant, even though officers had asked her what had happened. Steward could not recall whether she had told law enforcement officers that the complainant was acting like a maniac that night.
Appellant testified that in April 2017 he got a new apartment, and Samantha and the complainant moved in with him and Jacquelyn in May 2017. At one point while they were all living together, Samantha and the complainant got into a fight at the apartment, and their "[b]elongings were thrown all over the balcony," including a television and clothes.
Another time while Samantha and the complainant were living at the apartment, the complainant was "robbed at [a] store behind the apartment complex." The men that robbed the complainant took his set of keys, including his key to the apartment, and his car, which contained mail with the apartment's address. Appellant was afraid that the men who had robbed the complainant would "come back" because they had a key to the apartment, and if they came back while appellant was at work, Jacquelyn, Samantha, and Samantha's oldest child would be the only people at the apartment. Appellant spoke to the complainant on the telephone and asked him and Samantha to have the lock to the apartment door changed. But they did not do so, and appellant ended up changing the lock. When appellant spoke to the complainant over the telephone about changing the lock, he felt threatened, and the complainant was "[v]ery hostile" toward him. According to appellant, the complainant said that "when he [saw appellant], he[] [was] going to see what's up." Appellant believed the comment from the complainant to be a threat.
In either late September 2017 or October 2017, Samantha and the complainant moved out of the apartment, but they did not take all of their belongings with them. They said that they were going to come back and get their belongings, but they did not. Then appellant's mother moved into the apartment, and she and Jacquelyn put all of Samantha and the complainant's belongings in the storage closet. The only thing that was thrown away was trash on the floor. After moving out, Samantha and the complainant stopped communicating with Jacquelyn and appellant.
Appellant stated that on December 24, 2017, he and Jacquelyn were supposed to go to Steward's house for a Christmas Eve party, but appellant did not want to go because he knew that Samantha and the complainant would be there. Appellant knew that if the complainant saw him, the complainant would probably do "what he told [him] over the [telephone," meaning the complainant was "going to see what's up." And appellant wanted to avoid that problem and any "drama."
After arriving at Steward's house, appellant went outside. It was not long before a disturbance occurred. Samantha came outside and asked about her and the complainant's belongings. Appellant told her that "everything was put up, and the trash that she left on the floor" had been thrown away. Appellant did not tell Samantha that he threw her and the complainant's belongings away, and he did not speak in a "loud, abusive-type voice." Samantha was upset and misunderstood what appellant had said, and she "stormed into the house." Then appellant heard the complainant say, "Oh, fuck, no." (Internal quotations omitted.) And Samantha and the complainant came outside. They were upset and "ready to fight." The complainant did not have a shirt on, even though it was cold that night. Appellant stood there while the complainant cussed, calling him a "[b]itch-ass n[*]gga" and "ho-ass n[*]gga." (Internal quotations omitted.) The complainant also said, "You threw all the stuff away." (Internal quotations omitted.)
According to appellant, Samantha "jumped off the porch, ran to the end of the driveway, [and] picked up a shovel." She told appellant that "she was going to bust the windows out of [his] car." Appellant asked the complainant to go get Samantha, and the complainant replied, "Fuck you, bitch-ass n[*]gga. I don't have to do a mother-fucking thing." (Internal quotations omitted.) Appellant then asked Jacquelyn to "go get" Samantha because she was "trying to bust the windows out of [his] car." (Internal quotations omitted.) Jacquelyn walked into the street, and Jacquelyn and Samantha started arguing. Appellant did not approach Jacquelyn and Samantha; instead, he remained on the porch. But the complainant walked to the street where Jacquelyn and Samantha were fighting, and he started yelling at Jacquelyn. Appellant then walked to the street to try and "break . . . up" Jacquelyn and Samantha's fight. He told the complainant, "Get your girl, and I'm going to get mine." (Internal quotations omitted.) The complainant responded, "Fuck you, bitch-ass n[*]gga. What's up." (Internal quotations omitted.)
At that point, Jacquelyn was up against Steward's car, and her shirt was "getting ripped off." The complainant then struck Jacquelyn in the chest, and appellant told him, "Don't hit her." (Internal quotations omitted.) Appellant tried to break up the fight, and the complainant approached appellant, saying, "What's up, bitch-ass, n[*]gga, what's up?" (Internal quotations omitted.) Appellant told appellant, "I'm not here for that. I'm not here to fight you. . . . My kids are here." (Internal quotations omitted.) Appellant felt like he was dealing with "[a] crazy person" who was "running around like a maniac." And appellant was afraid for his life and for Jacquelyn's life. Appellant "was saying stuff back" to the complainant because the complainant was "approaching" him.
When appellant would not fight the complainant, the complainant "jump[ed] into the fight" between Jacquelyn and Samantha and participated in their fighting. And appellant walked to his car to get his firearm, which he put in his pocket. When appellant walked back to where Jacquelyn and Samantha were fighting, the complainant saw him and said, "What's up" and "What's up, n[*]gga, what's up," like he was "trying to fight" appellant. (Internal quotations omitted.) Appellant responded, "I'm not here to fight you. Don't hit her." (Internal quotations omitted.) And the complainant said, "Fuck you, bitch-ass n[*]gga," and turned around and hit Jacquelyn again in the chest. Because Jacquelyn was backed against Steward's car, appellant got out his firearm and "came up" to the complainant trying to break up the fight. The complainant "approached" appellant and appellant took "steps back," saying, "Don't hit her again." (Internal quotations omitted.) The complainant kept saying, "What's up, bitch-ass n[*]gga, what's up?" (Internal quotations omitted). The complainant hit Jacquelyn again, and appellant fired his firearm because Jacquelyn was being "beat[en] . . . down." Appellant intended to shoot the complainant, but the complainant "wasn't stopping." After the first gunshot, the complainant "looked up at" appellant. The complainant then charged at appellant, and appellant fired a second gunshot, which caused the complainant to stop.
After appellant shot the complainant, he dropped the firearm and tried to help by calling for emergency assistance. The ambulance, however, never came to Steward's house, and appellant and Laura put the complainant in appellant's car to take him to the hospital. While driving, Laura saw the ambulance, and appellant pulled the car over to get help for the complainant. According to appellant, he did not tell EMT Popp, "If you don't help him, I will kill you." (Internal quotations omitted.) Appellant helped get the complainant out of the car and helped put him on a stretcher. After the ambulance left, appellant returned to Steward's house. Appellant explained that even though he shot the complainant, he still wanted to get the complainant help and he did not intend to kill anyone.
Appellant noted that he had felt fearful of the complainant on more than one occasion. And although appellant was a "big guy," he had diabetes, blood clots in his legs and lungs, and he was "not an athletic guy." According to appellant, he was "not a fighter." But the complainant was over six feet tall and "solid muscle." Appellant stated that he had "no criminal background" and had never been arrested.
Appellant acknowledged that he owned a firearm that he had purchased in 2020. He kept the firearm in his car or in the closet in the apartment. Appellant took his firearm with him to Steward's house on December 24, 2017 because he had children with him and "people [were] getting robbed in the apartment complex."
Appellant further explained that he only remembered firing two gunshots and he did not try to shoot Samantha, even though she was struck by a bullet. Appellant shot the complainant for his safety and Jacquelyn's safety. He felt it was immediately necessary to use deadly force because the complainant "wouldn't stop." Appellant did not know whether the complainant was carrying a weapon.
On cross-examination, appellant acknowledged that he chose to walk to his car, get his firearm, and return to the area where Jacquelyn and Samantha were fighting. He knew his firearm was loaded when he got it out of the car. He also stated that he never told law enforcement officers that he had been threatened by the complainant in the past. And he did not tell officers that he was afraid for his life that night. Appellant acknowledged that Jacquelyn did not have any injuries on her face from the altercation that night. And he could not recall whether he told law enforcement officers on the night of December 24, 2017 that he saw the complainant punch Jacquelyn in the face instead of in the chest. Appellant agreed to go to Steward's house on December 24, 2017, even though he was afraid of the complainant.
During appellant's testimony, the trial court admitted into evidence copies of certain Facebook posts made by the complainant, which appellant testified referenced gangs and made appellant believe that the complainant was a gang member. Appellant thought that one post referenced him and was a threat against appellant. That Facebook post, from September 17, 2017, stated:
Facebook, Inc. is an online social media and social networking service company. In general, the Facebook service can be accessed from devices with Internet connectivity, such as personal computers, tablets[,] and smartphones. After registering, users can create a customized profile [page] revealing information about themselves. Users can post text, photos and multimedia of their own devising and share it with other users as friends[.] Jeansonne v. State, 624 S.W.3d 78, 90 n.13 (Tex. App.-Houston [1st Dist] 2021, no pet.) (alterations in original); see also Woodhouse v. United States Gov't, No. 2:21-cv-06372-SB, 2021 WL 6333468, at *8 n.6 (CD. Cal. Nov. 24, 2021) (order) (noting Facebook, Inc. has changed its name to Meta Platforms, Inc.).
According to appellant, this Facebook post was "posted right after [the complainant] got off the telephone with appellant and "went hostile on [appellant]." Another Facebook post, dated September 16, 2017, stated:Wtf is wrong with in-laws. Like my dude I really don't even look at u as family. Stop testing me if u really don't want the outcomes of the test graded. U might think u want it at the time but when it's all said and done with it's not. I never got rid of the old me I just locked it up. I'm a peaceful man till I'm pushed. I want to keep it that way kuz I'm better that way. Please stay in ur lane kuz I'm going to 4eva stay in mine.
These n[*]ggas r no damn bloods. I dont see how u n[*]ggas dont understand that shit. And Mac 10 didnt put these n[*]ggas down[.] He from Englewood Queen st. Blood, im going to say it again
BLOOD not PIRU what them bitch ass n[*]ggas klaiming. The land dont except them n[*]ggas atleast the BLOODS dont. This n[*]gga Wayne let Spider Loc hoe him. The same Spider Loc that got smashed on by Game with one hand while he was recording the whole seen with the other hand. The same n[*]gga who got kicked in tha ass while running. N[*]gga b4 real. These n[*]ggas aint built 4 that Blood shit, thats y u here most of these n[*]ggas Screaming Piru. I bet money them n[*]ggas aint screamin that in Compton ether.
Appellant stated that "Wtf" means "[w]hat the fuck."
When appellant saw this Facebook post by the complainant, he took it to mean that the complainant was "a gang member," and appellant stated that "Blood means gang." According to appellant, the complainant's posts were talking about his gang activity. And the complainant was "a Blood." Appellant learned about gangs from the complainant. Appellant stated that the phrase "What's up" is a "Blood saying[]." (Internal quotations omitted.)
A third Facebook post, dated April 22, 2017, stated:
Dawg everyone and they mama knows lil Wayne or Bird Man not real Bloods. Most of these bitch ass n[*]ggas on Facebook screaming Blood or Crip not real. U n[*]ggas never put in work 4 the set, never been to the land where this shit originated from. These Piru n[*]ggas don't even know that they from the East side and these Hoova n[*]ggas putting Gangsta with Hoova man go to the land with that shit get ur head crack. N[*]ggas OGs the internet and these false claiming ass rap n[*]ggas. Y'all need to stop kuz most of u n[*]ggas making it a fad when it's really a way of life. And one last thing Bloods r not under the 5 and Pirus r not people's Nations. Don't have nothing to do with it. We u believe in something u study and follow it to the T. N[*]ggas get ur self right or always be blind.104 Mafia Lane. #WestSideAppellant stated that he knew that "104 Mafia Lane" was a "sect of [the] Blood gang" and "Westside is the side of town they're from" because the complainant had told him.
On cross-examination, appellant acknowledged that he did not mention the Facebook posts to law enforcement officers after the shooting and that the posts talked about "rappers." Appellant also did not tell law enforcement officers that the complainant was a gang member.
We note that several other witnesses testified for the defense and provided testimony about appellant's reputation for being a peaceful and law-abiding citizen. We have reviewed all testimony and exhibits admitted into evidence at trial.
Standard of Review
We review a trial court's decision to exclude evidence for an abuse of discretion. Jackson v. State, 160 S.W.3d 568, 574-75 (Tex. Crim. App. 2005); see also Nickerson v. State, 478 S.W.3d 744, 757 (Tex. App.-Houston [1st Dist] 2015, no pet.). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). We will not reverse the trial court's ruling unless it falls outside the zone of reasonable disagreement. Resendiz v. State, 112 S.W.3d 541, 544 (Tex. Crim. App. 2003); Montgomery, 810 S.W.2d at 391. If the trial court's ruling was correct on any theory of law applicable to the case, then we will uphold the trial court's ruling. State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000); Nickerson, 478 S.W.3d at 757.
Exclusion of Evidence
In his sole issue, appellant argues that the trial court erred in excluding, during the guilt phase of trial, evidence of the complainant's 2003 conviction for the felony offense of aggravated assault with a deadly weapon because the evidence went to appellant's "self-defensive state of mind and his reasonable apprehension that he and [Jacquelyn] were in danger of death or serious bodily injury when the [c]omplainant charged him in the dark causing . . . [a]ppellant to shoot at him." Appellant also asserts that evidence of the complainant's 2003 conviction was "admissible to clarify the issue of first aggressor" because the complainant engaged in "ambiguously aggressive conduct." (Internal quotations omitted.) And appellant's substantial rights were affected by the trial court's exclusion of evidence of the complainant's 2003 conviction.
In general, evidence of a person's character may not be used to prove that the person "behaved in a particular way at a given time." Tate v. State, 981 S.W.2d 189, 192 (Tex. Crim. App. 1998); see Tex. R. Evid. 404(a); see also Allen v. State, 473 S.W.3d 426, 444 (Tex. App.-Houston [14th Dist.] 2015), pet. dism'd, 517 S.W.3d 111 (Tex. Crim. App. 2017). This limit on character evidence, however, is not absolute. Allen, 473 S.W.3d at 444; see also Alfred v. State, No. 01-18-00222-CR, 2019 WL 2588102, at *2 (Tex. App.-Houston [1st Dist.] June 25, 2019, no pet.) (mem. op., not designated for publication). When a defendant in a murder prosecution raises the issue of self-defense, he may introduce evidence of the complainant's violent character in certain circumstances. See Tex. R. Evid. 404(a)(3); Ex parte Miller, 330 S.W.3d 610, 618-19 (Tex. Crim. App. 2009); Torres v. State, 117 S.W.3d 891, 894 (Tex. Crim. App. 2003).
For instance, the defendant may offer reputation or opinion testimony or evidence of specific prior acts of violence by the complainant to show the reasonableness of the defendant's claimed fear of danger from the complainant. See Ex parte Miller, 330 S.W.3d at 618-19; Green v. State, 589 S.W.3d 250, 258- 59 (Tex. App.-Houston [14th Dist.] 2019, pet. ref'd). This is called "communicated character" evidence because the defendant knows of the complainant's violent tendencies and sees a danger posed by the complainant, regardless of whether that danger is real. See Ex parte Miller, 330 S.W.3d at 618- 19 (internal quotations omitted); see also Green, 589 S.W.3d at 258-59. The defendant is not trying to prove that the complainant was actually violent, but that his fear of the complainant during their confrontation was reasonable. See Ex parte Miller, 330 S.W.3d at 618-19; see also Phillips v. State, No. 14-15-00870-CR, 2017 WL 2152452, at *4 (Tex. App.-Houston [14th Dist.] May 16, 2017, pet. ref'd) (mem. op., not designated for publication) ("Under this theory, a defendant is not trying to prove that the [complainant] actually [was] violent; rather, he is proving his own self-defensive state of mind and the reasonableness of that state of mind."). For example, when the complainant in a murder case is 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 [complainant's] reputation for violence." Fry v. State, 915 S.W.2d 554, 560 (Tex. App.-Houston [14th Dist.] 1995, no pet.). In short, communicated character evidence in the form of the complainant's specific act of violence is admissible to show the defendant's state of mind. Green, 589 S.W.3d at 259.
A defendant may also offer evidence of the complainant's character trait for violence to demonstrate that the complainant was, in fact, the first aggressor. Ex parte Miller, 330 S.W.3d 610, 619 (Tex. Crim. App. 2009). This is called "uncommunicated character" evidence because it does not matter if the defendant was aware of the complainant's violent character. See id. (internal quotations omitted); Phillips v. State, No. 14-15-00870-CR, 2017 WL 2152452, at *4 (Tex. App.-Houston [14th Dist] May 16, 2017, pet. ref d) (mem. op., not designated for publication) (internal quotations omitted). Under this theory, a witness testifies that the complainant made an aggressive move against the defendant; another witness then testifies about the complainant's character for violence, but he may do so only through reputation and opinion testimony under Texas Rule of Evidence 405(a). See Tex. R. Evid. 405(a); see also Ex parte Miller, 330 S.W.3d at 619; Phillips, 2017 WL 2152452, at *4. The defendant may not offer evidence of the complainant's prior specific act of violence to prove the complainant's violent character and hence that the complainant acted in conformity with that character trait at the time of the murder. See Ex parte Miller, 330 S.W.3d at 619-20; Phillips, 2017 WL 2152452, at *4. The parties agree that this theory would not support the admission of the complainant's 2003 conviction for the felony offense of aggravated assault with a deadly weapon in this case.
Additionally, under Texas Rule of Evidence 404(b), a defendant may introduce evidence of the complainant's "prior specific acts of violence when offered for a non-character purpose-such as his specific intent, motive for an attack on the defendant, or hostility-in the particular case." Ex parte Miller, 330 S.W.3d at 620; see Tex. R. Evid. 404(b); see also Allen, 473 S.W.3d at 444. "The proper predicate for the specific violent prior act by the [complainant] is some act of aggression that tends to raise the issue of self-defense, which the violent act may then help clarify." Torres, 117 S.W.3d at 895 (emphasis omitted). Under rule 404(b), a complainant's prior act of violence may be admissible to clarify the issue of first aggressor if the proffered act explains the complainant's ambiguously aggressive conduct. Allen, 473 S.W.3d at 446. "As long as the proffered violent act[] explain[s] the outward aggressive conduct of the [complainant] at the time of the killing, and in a manner other than demonstrating character conformity only, [a] prior specific act[] of violence may be admitted even though th[e] act[] w[as] not directed against the defendant." Torres v. State, 71 S.W.3d 758, 762 (Tex. Crim. App. 2002).
During the guilt-phase of trial, appellant sought to introduce into evidence a 2003 judgment showing that the complainant had pleaded guilty to the felony offense of aggravated assault with a deadly weapon and was sentenced to confinement for twenty years. Even if we were to presume, for purposes of this opinion, that the trial court erred in excluding such evidence, error in the exclusion of evidence constitutes non-constitutional error and will not support reversal unless such error affected a substantial right of appellant. Tex. R. Evid. 103(a); Tex.R.App.P. 44.2(b); see also Barshaw v. State, 342 S.W.3d 91, 93-94 (Tex. Crim. App. 2011) (non-constitutional error requires reversal only if it affects substantial rights of defendant). "A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). If the record as a whole provides fair assurance that the error in an evidentiary ruling did not influence the jury, or influenced the jury only slightly, reversal is neither required nor appropriate. Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim. App. 2001). In making this determination, we must consider the entire record, including the admitted evidence, the nature of the evidence supporting the verdict, the character of the alleged error, and how the error might be considered in connection with other evidence. Motilla v. State, 78 S.W.3d 352, 355-56 (Tex. Crim. App. 2002); Green, 589 S.W.3d at 261. We may also consider the jury instructions, the State's theory of the case and any defensive theories, closing arguments, and voir dire, if material. Motilla, 78 S.W.3d at 355-56; Green, 589 S.W.3d at 261.
Appellant, in his briefing, agrees that the alleged error in this case constitutes non-constitutional error. See, e.g., Potier v. State, 68 S.W.3d 657, 665-66 (Tex. Crim. App. 2002); Green v. State, 589 S.W.3d 250, 261 (Tex. App.-Houston [14th Dist] 2019, pet. ref d); see also Phillips, 2017 WL 2152452, at *5-6 (holding trial court's exclusion of evidence of complainant's "2009 misdemeanor assault of a family member conviction" constituted non-constitutional error).
Although the trial court did not allow appellant to introduce evidence of the 2003 judgment showing that the complainant had pleaded guilty to the felony offense of aggravated assault with a deadly weapon and was sentenced to confinement for twenty years, appellant was allowed to present other significant evidence in support of his theory of self-defense. See Green, 589 S.W.3d at 261-63; see also Phillips, 2017 WL 2152352, at *5-6; Sizemore v. State, No. 14-15-00786-CR, 2016 WL 6775595, at *4-5 (Tex. App.-San Antonio Nov. 16, 2016, no pet.) (mem. op., not designated for publication).
Appellant testified that before December 24, 2017, while Samantha and the complainant were living in an apartment with him and Jacquelyn, the complainant engaged in some volatile behavior. For instance, one time, Samantha and the complainant got into a fight at the apartment and their "[b]elongings were thrown all over the balcony." Also, when the issue of replacing the lock on the door to the apartment and the key to the apartment came up, appellant felt threatened by the complainant during a telephone conversation. The complainant was "[v]ery hostile" toward appellant and told appellant that "when he [saw appellant], he[] [was] going to see what's up." Appellant believed the comment from the complainant to be a threat.
Appellant also testified that he had felt fearful of the complainant on more than one occasion. And although appellant was a "big guy," he had diabetes, blood clots in his legs and lungs, and he was "not an athletic guy." According to appellant, he was "not a fighter." In contrast, the complainant was over six feet tall and "solid muscle." Appellant did not have a "criminal background" and had never been arrested.
Appellant further stated that the complainant had made several Facebook posts in 2017 which referenced gangs and made appellant believe that the complainant was a gang member. For instance, one Facebook post from September 16, 2017, stated:
These n[*]ggas r no damn bloods. I dont see how u n[*]ggas dont understand that shit. And Mac 10 didnt put these n[*]ggas down[.] He from Englewood Queen st. Blood, im going to say it again BLOOD not PIRU what them bitch ass n[*]ggas klaiming. The land dont except them n[*]ggas atleast the BLOODS dont. This n[*]gga Wayne let Spider Loc hoe him. The same Spider Loc that got smashed on by Game with one hand while he was recording the whole seen with the other hand. The same n[*]gga who got kicked in tha ass while running. N[*]gga b4 real. These n[*]ggas aint built 4 that Blood shit, thats y u here most of these n[*]ggas Screaming Piru. I bet money them n[*]ggas aint screamin that in Compton ether.
Another Facebook post from April 22, 2017, stated:
Dawg everyone and they mama knows lil Wayne or Bird Man not real Bloods. Most of these bitch ass n[*]ggas on Facebook screaming Blood or Crip not real. U n[*]ggas never put in work 4 the set, never been to the land where this shit originated from. These Piru n[*]ggas don't even know that they from the East side and these Hoova n[*]ggas putting Gangsta with Hoova man go to the land with that shit get ur head crack. N[*]ggas OGs the internet and these false claiming ass rap n[*]ggas. Y'all need to stop kuz most of u n[*]ggas making it a fad when it's really a way of life. And one last thing Bloods r not under the 5 and Pirus r not people's Nations. Don't have nothing to do with it. We u believe in something u study and
follow it to the T. N[*]ggas get ur self right or always be blind. 104 Mafia Lane. #WestSide
When appellant saw the Facebook posts by the complainant, he took them to mean that the complainant was "a gang member," and appellant testified that "Blood means gang." According to appellant, the complainant's posts were talking about his gang activity. And the complainant was "a Blood." Appellant learned about gangs from the complainant, who told him that "104 Mafia Lane" was a "sect of [the] Blood gang" and "Westside is the side of town they're from." Appellant stated that the phrase "What's up" was a "Blood saying[]." (Internal quotations omitted.)
Appellant also testified that the complainant threatened him in a Facebook post from September 17, 2017, "right after [the complainant] got off the telephone with appellant and "went hostile on [appellant]." That Facebook post stated:
Wtf is wrong with in-laws. Like my dude I really don't even look at u as family. Stop testing me if u really don't want the outcomes of the test graded. U might think u want it at the time but when it's all said and done with it's not. I never got rid of the old me I just locked it up. I'm a peaceful man till I'm pushed. I want to keep it that way kuz I'm better that way. Please stay in ur lane kuz I'm going to 4eva stay in mine.
Appellant stated that "Wtf" means "[w]hat the fuck."
As to the night of the shooting, appellant explained that he did not want to go to Steward's house because he knew that Samantha and the complainant would be there. Appellant knew that if the complainant saw him, the complainant would probably do "what he told [him] over the [telephone," meaning the complainant was "going to see what's up." And appellant wanted to avoid that problem and any "drama."
After arriving at Steward's house on December 24, 2017, appellant went outside, but it was not long before a disturbance occurred. Samantha came outside and asked about her and the complainant's belongings. Appellant told her that "everything was put up, and the trash that she left on the floor" had been thrown away. Appellant did not tell Samantha that he threw her and the complainant's belongings away, and he did not speak in a "loud, abusive-type voice." Samantha was upset and misunderstood what appellant had said, and she "stormed into the house." Then appellant heard the complainant say, "Oh, fuck, no." (Internal quotations omitted.) And Samantha and the complainant came outside. They were upset and "ready to fight." The complainant did not have a shirt on, even though it was cold that night. Appellant stood there while the complainant cussed, calling him a "[b]itch-ass n[*]gga" and "ho-ass n[*]gga." (Internal quotations omitted.) The complainant also said, "You threw all the stuff away." (Internal quotations omitted.)
According to appellant, Samantha "jumped off the porch, ran to the end of the driveway, [and] picked up a shovel." She told appellant that "she was going to bust the windows out of [his] car." Appellant asked the complainant to go get Samantha, and the complainant replied, "Fuck you, bitch-ass n[*]gga. I don't have to do a mother-fucking thing." (Internal quotations omitted.) Appellant then asked Jacquelyn to "go get" Samantha because she was "trying to bust the windows out of [his] car." (Internal quotations omitted.) Jacquelyn walked into the street, and Jacquelyn and Samantha started arguing. Appellant did not approach Jacquelyn and Samantha; instead, he remained on the porch. But the complainant walked out to the street where Jacquelyn and Samantha were fighting, and he started yelling at Jacquelyn. Appellant then walked out the street to try and "break . . . up" Jacquelyn and Samantha's fight. He told the complainant, "Get your girl, and I'm going to get mine." (Internal quotations omitted.) The complainant responded, "Fuck you, bitch-ass n[*]gga. What's up?" (Internal quotations omitted.)
At that point, Jacquelyn was up against Steward's car, and her shirt was "getting ripped off." The complainant then struck Jacquelyn in the chest, and appellant told him, "Don't hit her." (Internal quotations omitted.) Appellant tried to break up the fight, and the complainant approached appellant, saying, "What's up, bitch-ass, n[*]gga, what's up?" (Internal quotations omitted.) Appellant told appellant, "I'm not here for that. I'm not here to fight you. . . . My kids are here." (Internal quotations omitted.) Appellant felt like he was dealing with "[a] crazy person" who was "running around like a maniac." And appellant was afraid for his life and for Jacquelyn's life. Appellant "was saying stuff back" to the complainant because the complainant was "approaching" him.
When appellant would not fight the complainant, the complainant "jump[ed] into the fight" between Jacquelyn and Samantha and participated in their fighting. And appellant walked to his car to get his firearm, which he put in his pocket. When appellant walked back to where Jacquelyn and Samantha were fighting, the complainant saw him and said, "What's up" and "What's up, n[*]gga, what's up," like he was "trying to fight" appellant. (Internal quotations omitted.) Appellant responded, "I'm not here to fight you. Don't hit her." (Internal quotations omitted.) And the complainant said, "Fuck you, bitch-ass n[*]gga," and turned around and hit Jacquelyn again in the chest. Because Jacquelyn was backed against Steward's car, appellant got out his firearm and "came up" to the complainant trying to break up the fight. The complainant "approached" appellant, and appellant took "steps back," saying "Don't hit her again." (Internal quotations omitted.) The complainant kept saying, "What's up, bitch-ass n[*]gga, what's up?" (Internal quotations omitted). The complainant hit Jacquelyn again, and appellant fired his firearm because Jacquelyn was being "beat[en] . . . down." Appellant intended to shoot the complainant, but the complainant "wasn't stopping." After the first gunshot, the complainant "looked up at" appellant. The complainant then charged at appellant, and appellant fired a second gunshot, which caused the complainant to stop.
After appellant shot the complainant, he dropped the firearm and tried to help by calling for emergency assistance. The ambulance, however, never came to Steward's house, and appellant and Laura put the complainant in appellant's car to take him to the hospital. While driving, Laura saw the ambulance, and appellant pulled the car over to get help for the complainant. He did not tell EMT Popp, "If you don't help him, I will kill you." (Internal quotations omitted.) Instead, appellant helped get the complainant out of the car and helped put him on a stretcher. After the ambulance left, appellant returned to Steward's house. Appellant explained that even though he shot the complainant, he still wanted to get the complainant help and he did not intend to kill anyone.
Appellant testified that shot the complainant for his safety and Jacquelyn's safety. He felt it was immediately necessary to use deadly force because the complainant "wouldn't stop." Appellant did not know whether the complainant was carrying a weapon.
Appellant also presented testimony from Jacquelyn, Laura, and Steward to support his self-defense theory. Jacquelyn testified to the complainant's previous behavior when he lived at the apartment, describing him as "very disrespectful," "very rude[]," and "[v]ery nasty." And Laura described the complainant as an aggressive person.
Laura and Steward, as well as other defense witnesses, testified that appellant had a reputation of being a peaceful and law-abiding citizen.
As to December 24, 2017, Jacquelyn testified that neither she nor appellant wanted to go to Steward's house for a Christmas Eve party. After arriving, and while she was sitting inside Steward's house, Jacquelyn saw Samantha "fl[y] past [her] from outside." Samantha was yelling and cussing, and she went to tell the complainant something. The complainant "hopped up" and "flew out of the house." When Jacquelyn went outside, she heard Samantha "dragging something along the . . . ground." Samantha was "hollering about how she was going to destroy, MF-ing this, and MF-ing that." Jacquelyn yelled out to her, "Please, don't touch his car. Please don't mess up his car. . . . That's not even our car. It's sold. Please do not mess up that car." (Internal quotations omitted.) Jacquelyn did not say, "If you touch that car, [appellant] will kill you." (Internal quotations omitted.) Samantha then dropped what she was holding and turned toward Jacquelyn. She started yelling at Jacquelyn, "You put me out of the house. You put me and my baby out of the house." (Internal quotations omitted.) Jacquelyn responded, "Samantha, you're my little sister. I would never do that. I didn't kick you out. He had to go because he was very disrespectful." (Internal quotations omitted.) When Jacquelyn said that the complainant started "yelling, screaming, [and] running back and forth." The complainant also took his shirt off and called Jacquelyn "a bitch."
As Jacquelyn and Samantha were "exchanging words," Samantha "came at" Jacquelyn and "swung on [her] ready to fight [her]." Samantha and Jacquelyn ended up fighting, and Samantha "swung at [her] first" and pulled Jacquelyn's shirt off. At the end of Jacquelyn's fight with Samantha, the complainant "came out of nowhere" and hit Jacquelyn "hard" in her chest. It shocked Jacquelyn and scared her. Then, a gunshot was fired.
Jacquelyn also stated that both Samantha and the complainant were "trying to fight" her.
According to Jacquelyn, after the gunshots were fired, appellant did not stand over Samantha and the complainant and say, "Y'all think y'all going to beat up on my wife[?]" (Internal quotations omitted.) Appellant did not "say much of any words that night whatsoever." At one point, appellant told the complainant "[t]o go get [his] girl," but that was the last thing Jacquelyn could recall appellant saying. (Internal quotations omitted.) Jacquelyn described the complainant as "irate" and stated that he was ready to fight that night because he had his shirt off. And she testified that she was afraid for her life because the complainant was "ten times bigger" than she was. Jacquelyn believed that the complainant was about to hit her for a second time, but appellant "stopped him."
Laura similarly testified that while at Steward's house on December 24, 2017, she heard commotion outside after appellant and Jacquelyn arrived at the house. Laura went outside and talked to the complainant, saying, "Calm down" and "What's going on?" (Internal quotations omitted.) Laura had seen the complainant drinking alcohol that night and "t[aking] some XOs." The complainant was "moving his hands" and "trying to get to [Jacquelyn]."
Laura further stated that the complainant went toward Jacquelyn and Samantha, who were arguing in the street, and struck Jacquelyn in the face. Then, Laura heard a gunshot fired by appellant. The first gunshot was a warning. Laura felt that the complainant was moving aggressively toward appellant when appellant fired his firearm.
Steward testified that on December 24, 2017, she insisted that Jacquelyn and appellant come to her house. When Samantha asked Jacquelyn and appellant if they had brought milk for Samantha's oldest child, Samantha "found out that all [of her and the complainant's] stuff [had been] thrown away." Samantha got angry and upset because "everything was thrown away," and she stormed into the house and screamed at the complainant. The complainant then came out of the house, and he yelled about his and Samantha's belongings that they had left at the apartment. Steward had tried to stop the complainant from coming outside, but the complainant pushed his way out. The complainant "flew off the porch." He jumped around, screaming and yelling, and tried "to jump on" appellant, who was standing there calmly. Appellant did not yell back at the complainant. The complainant "tr[ied] to get to [appellant]." Steward tried to keep the complainant away from appellant because appellant was "standing there not doing [anything" and "wasn't trying to fight" the complainant. The complainant "was persistent that he was going to jump on [appellant]." According to Steward, the complainant was behaving like a maniac and "was all over the place," and she was afraid for appellant's safety. The complainant wanted to fight appellant.
During closing argument, appellant's trial counsel reiterated that there was "obvious hostility between" appellant and the complainant and the complainant "put [appellant] in a position where he was fearful." According to counsel, "that[] [was] the plain and simple of it. [Appellant] was fearful." Counsel explained that the complainant had threatened appellant after the key issue, on the telephone and through a Facebook post, and the complainant was a gang member, which appellant knew. Counsel also emphasized that on the night of the shooting, the complainant had "taken off his shirt," and was running around "like a maniac," while calling appellant a "bitch-ass n[*]gga." Counsel detailed the testimony of appellant, Jacquelyn, Laura, and Steward during his closing argument. And he stated that appellant only fired his firearm on December 24, 2017 because the complainant was hitting Jacquelyn and charging at appellant. See Phillips, 2017 WL 2152452, at *5-6 (when defense counsel's closing argument summarized evidence before jury and emphasized that complainant was "an aggressor towards [defendant]," counsel "minimized any effect the absence of [defendant's] desired evidence may have had on the jury" (internal quotations omitted)).
In short, the absence of the 2003 judgment showing that the complainant had pleaded guilty to the felony offense of aggravated assault with a deadly weapon and was sentenced to confinement for twenty years, did not preclude appellant from presenting his theory of self-defense at trial. See id.
Considering the entire record, including the nature of the evidence supporting the verdict, we have a fair assurance that the trial court's purported error in excluding a 2003 judgment showing that the complainant had pleaded guilty to the felony offense of aggravated assault with a deadly weapon and was sentenced to confinement for twenty years did not influence the jury or had but a slight effect. Thus, we hold that any error by the trial court in excluding evidence of the complainant's 2003 conviction for the felony offense of aggravated assault with a deadly weapon, during the guilt phase of trial, was harmless. We overrule appellant's sole issue.
We note that the jury, as the trier of fact, is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony, and reconciliation of conflicts in the evidence is within the exclusive province of the jury. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). The jury may choose to believe some testimony and disbelieve other testimony. Wyatt, 23 S.W.3d at 30; Davis v. State, 177 S.W.3d 355, 358 (Tex. App.-Houston [1st Dist.] 2005, no pet.). And when there is a conflict in the evidence, we presume that the jury, as the trier of fact, resolved the conflict in favor of the judgment. See Merritt v. State, 368 S.W.3d 516, 525-26 (Tex. Crim. App. 2012); see also Tatro v. State, 580 S.W.3d 740, 744 (Tex. App.-Houston [14th Dist.] 2019, no pet.).
Conclusion
We affirm the judgment of the trial court.