Taylor v. State

Full title: DERWIN WAYNE TAYLOR, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Tenth District, Waco

Date published: Mar 10, 2004

No. 10-01-00109-CR (Tex. App. Mar. 10, 2004)

Opinion

No. 10-01-00109-CR.

Opinion delivered and filed March 10, 2004. DO NOT PUBLISH.

Appeal From the 82nd District Court, Robertson County, Texas, Trial Court # 00-08-16,864-CR. Affirmed.

Vanessa P. Muldrow, Oak Park, IL; Jim W. James, Bryan, TX, for appellant/relator. John C. Paschall, Robertson County District Attorney, Franklin, TX, for appellee/respondent.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

MEMORANDUM OPINION

TOM GRAY, Chief Justice.

Appellant Derwin Wayne Taylor was convicted of the murder of Kenneth Jones and sentenced to sixty years' imprisonment. See TEX. PENAL CODE ANN. § 19.02(b) (Vernon 2003). Appellant appeals, presenting six issues: that the trial court erred in (1) overruling Appellant's motion for new trial alleging that a juror failed to disclose his acquaintance with the victim and State's witnesses, (2) overruling Appellant's motion for new trial alleging that the jurors received outside evidence during their punishment deliberations, (3) overruling Appellant's requests for limiting instructions at the times that the court admitted extraneous-offense evidence, (4) overruling Appellant's objection to victim-impact evidence in the punishment stage, (5) overruling Appellant's objection to impeachment of his character witnesses in the punishment stage, and (6) overruling Appellant's request for a "sudden-passion" jury instruction in the punishment stage. We will affirm. We first address Appellant's first and third issues. These issues, concerning error in the guilt-or-innocence stage of trial, if sustained, would give Appellant the greatest relief by reversing the trial court's judgment of guilt. See TEX. CODE CRIM. PROC. ANN. art. 44.29(a) (Vernon Supp. 2004). Appellant's other issues concern only error in the punishment stage and, if sustained, would only call for reversal of the punishment judgment and remand for new punishment proceedings. See id. art. 44.29(b) (Vernon Supp. 2004); Carson v. State, 6 S.W.3d 536, 538-39 (Tex.Crim.App. 1999).

JUROR'S FAILURE TO DISCLOSE INFORMATION

In Appellant's first issue, he complains that the trial court erred in overruling his motion for new trial. One ground of the motion alleged that juror John White failed to disclose his acquaintance with the victim and with several of the State's witnesses during voir-dire examination. "A trial court's ruling denying a defendant's motion for new trial is reviewed under an abuse of discretion standard." Salazar v. State, 38 S.W.3d 141, 148 (Tex.Crim.App. 2001); accord Keeter v. State, 74 S.W.3d 31, 37-39 (Tex.Crim.App. 2002). The appellate court does not substitute its judgment for that of the trial court, but only determines whether the trial court's judgment was "arbitrary or unreasonable." Salazar, 38 S.W.3d at 148. "[T]he trial court acts within its discretion so long as the record provides some basis for" the court's action. Keeter at 38. Where the trial court hears conflicting evidence on the motion, the trial court does not abuse its discretion. Salazar, 38 S.W.3d at 148. "When a juror withholds material information, the parties' use of challenges and peremptory strikes is hampered." Franklin v. State, 12 S.W.3d 473, 477-78 (Tex.Crim.App. 2000). Thus, "error occurs where `a prejudiced or biased juror is selected without fault or lack of diligence on the part of defense counsel, such counsel acting in good faith on the juror's responses and having no knowledge of their inaccuracy.'" Gonzales v. State, 3 S.W.3d 915, 916-17 (Tex.Crim.App. 1999) (quoting Brandon v. State, 599 S.W.2d 567, 577 (Tex.Crim.App. 1979) (op. on orig. submission) (en banc), vacated on other grounds sub nom. Wilder v. Texas, 453 U.S. 902 (1981)) (emphasis in Gonzales); accord Franklin at 478. It is not the case, however, that "an appellant is entitled to a reversal of his conviction in any case in which he discovers that a juror withheld information during voir dire. Where the information is not material and the juror can state that it will not affect his deliberation or verdict, an appellant may be unable to show harm." Gonzales, 3 S.W.3d at 917 n. 2 (quoting Salazar v. State, 562 S.W.2d 480, 482 n. 5 (Tex.Crim.App. [Panel Op.] 1978)). The materiality of information concerning a venireperson's acquaintance with a victim or witness is a matter of degree. For example, where a venireperson's undisclosed acquaintance with the complaining witness "was only that — an acquaintance through employment," and the two "merely worked at the same job site," the information was not material. Decker v. State, 717 S.W.2d 903, 907 (Tex.Crim.App. 1983) (op. on orig. submission). But had there been evidence that juror and witness "hadever socialized together or had any kind of friendship," the information might be material. See id. at 907. Throughout the voir-dire examination, counsel for Appellant and for the State questioned the voir-dire panelists about their relationship with Jones and with potential witnesses. The reporter's record does not show that White testified that he knew Jones or the witnesses. White was seated on the jury. At the conclusion of voir dire, the trial court permitted Appellant's counsel to interview Andy Taylor concerning Taylor's expected extraneous-offense testimony. According to counsel's trial testimony, he first learned of White's acquaintance with Andy Taylor in that interview. During the State's case in chief, the State called Audrie Fuller, Raymond Tucker, and Ray Anthony Burleson, who were eyewitnesses to the murder. During the State's rebuttal case, the State called Andy Taylor, who testified that Appellant committed an extraneous offense against him. After the close of evidence, Appellant moved to remove White from the jury on the grounds of White's relationship with Andy Taylor. The trial court overruled the motion. Appellant does not complain of this action. First, as to Andy Taylor, Appellant forfeits his complaint of the trial court's overruling the motion for new trial. In order to preserve a complaint for appellate review, "an objection is required as soon as the ground for an objection becomes apparent." Simpson v. State, 119 S.W.3d 262, 272 n. 9 (Tex.Crim. App. 2003); accord Aguilar v. State, 26 S.W.3d 901, 905-906 (Tex.Crim.App. 2000). "That subsequent events may cause a ground for complaint to become more apparent does not render timely an otherwise untimely complaint." Wilson v. State, 7 S.W.3d 136, 146 (Tex.Crim.App. 1999). At the hearing on Appellant's motion to disqualify White, Appellant's counsel stated that he had been aware of White's acquaintance with Andy Taylor since early in the trial, but had waited until after the witness had testified, near the end of the State's rebuttal case, before moving to remove White. Indeed, counsel waited through Andy Taylor's testimony, through the rest of the State's rebuttal case, and through Appellant's entire rebuttal case, until both sides had closed, before moving to remove White. By delaying, Appellant forfeited his complaint as to the witness Andy Taylor. The State argues, moreover, that the record does not affirmatively show that Appellant pursued questioning of jurors so as to demonstrate his claim.¹ In particular, the State argues that Appellant did not pursue individual voir dire of some panelists who testified that they knew the victim or the State's witnesses. White might have been among these unnamed panelists. The State is correct that in voir-dire examination, "defense counsel ha[s] an obligation to ask questions calculated to bring out that information that might be said to indicate a juror's inability to be impartial," must "ask specific questions, not rely on broad ones," and must "ask follow-up questions." See Barajas v. State, 93 S.W.3d 36, 41 (Tex.Crim.App. 2002) (quoting Gonzales, 3 S.W.3d at 917). Here, however, the record shows that Appellant's counsel properly relied on the State's voir-dire examination, and that counsel for the State and for Appellant, with very few exceptions, put into the record the names of the panelists being examined. We assume without deciding that Appellant used due diligence in examining the panel. Next, as to White's acquaintance with Jones, Fuller, Tucker, and Burleson, the trial court did not abuse its discretion in denying Appellant's motion for new trial. At the hearing on the motion, White testified unequivocally, if conclusorily, that his acquaintance with Jones and these witnesses did not affect his verdict. White's testimony concerning the closeness of his relationship with Jones and the witnesses, and his trust in the witnesses, however, was much less clear. Appellant developed evidence that White had a long-standing acquaintance with Jones and the witnesses, but little evidence that the relationships were close. White testified that he had known Fuller and Tucker as long as thirty-five years, and had known Burleson at least ten years. White testified conclusorily that Fuller was a "close friend" and Burleson a friend, and that White was a friend of Jones's family. When asked whether he had drunk beer with Jones, White testified, "I drank beer with him and everybody in Hearne that I know. There's nothing special." When asked whether Jones had been a "close friend," White testified, "I've just been knowing him all of his life." Throughout White's testimony, he emphasized that he was no closer to Jones's family than he was to Appellant's family. Likewise, the evidence was not that White's acquaintance with the witnesses would have affected favorably his opinion of their credibility. White testified conclusorily that he trusted Tucker and Burleson. When asked whether he trusted Fuller, White said, "Yeah, I don't have no reason not to distrust him" [sic]. But White also reluctantly testified as to the witnesses' credibility:

Q. If [the witnesses] told you something, you'd have a tendency to believe it, wouldn't you?

A. Well, I don't know about that now. It depends on what they're telling me.

Q. You do know them and trust them. Is that right?

A. Yes, I know them.

Q. And you trust them?

A. I guess.

In light of this evidence, the trial court would have had some basis for finding that White was not biased or prejudiced, and thus overruling the motion for new trial. Accordingly, the court did not abuse its discretion in overruling the motion. Appellant's first issue is overruled.

EXTRANEOUS-OFFENSE LIMITING INSTRUCTIONS

In Appellant's third issue, he complains that the trial court overruled his requests for instructions limiting the jury's consideration of extraneous-offense evidence contemporaneous with the admission of the evidence. The trial court erred in part, but the error was harmless. During the guilt-or-innocence stage of trial, Appellant admitted shooting Jones, but raised self-defense. See TEX. PENAL CODE ANN. §§ 9.31-9.32 (Vernon 2003). In order to rebut that issue or to prove Appellant's intent, the State offered evidence of extraneous offenses committed by Appellant, including threatened and attempted murders. See TEX. R. EVID. 404(b); Rogers v. State, 105 S.W.3d 630, 633 (Tex.Crim.App. 2003). This evidence was that Appellant verbally threatened to kill Ralph Lamar, and attempted to shoot Andy Taylor. Although Appellant carefully objected to the extraneous-offense evidence, his requests for contemporaneous limiting instructions, at least as to the incident involving Lamar, are less clearly preserved. Generally, of course, a party must object to objectionable material each time the material is presented in order to preserve the objection. See Geuder v. State, 115 S.W.3d 11, 13 (Tex.Crim.App. 2003); Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App. 1991); Reeves v. State, 99 S.W.3d 657, 658 (Tex. App.-Waco 2003, pet. ref'd) (limiting instruction). In one case, at least, Appellant requested the instruction after the witness had testified, and the trial court purported to deem the request timely. We assume without deciding that Appellant consistently preserved his requests for limiting instructions. But see Gone v. State, 54 S.W.3d 27, 32 (Tex. App.-Texarkana 2001, pet. ref'd) (complaint concerning limiting instruction not preserved where first raised after witness had finished testifying). The Texas Rules of Evidence, of course, make evidence of a criminal defendant's extraneous offenses inadmissible "to prove the character of a person in order to show action in conformity therewith," but make such evidence admissible for other, limited purposes. TEX. R. EVID. 404(b); see Hernandez v. State, 109 S.W.3d 491, 494 (Tex.Crim.App. 2003); Moses v. State, 105 S.W.3d 622, 626 (Tex.Crim.App. 2003). In particular, as here, "when the accused claims self-defense . . ., the State, in order to show the accused's intent, may introduce evidence of other violent acts where the defendant was an aggressor." Rogers, 105 S.W.3d at 633. The Rules of Evidence provide that when "evidence which is admissible . . . for one purpose but not admissible . . . for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly." TEX. R. EVID. 105(a); see Hammock v. State, 46 S.W.3d 889, 892 (Tex.Crim.App. 2001). "[T]he language of Rule 105(a) require[s], upon proper request, a limiting instruction to be given at the time the evidence [i]s admitted." Hammock at 894; accord Rankin v. State, 974 S.W.2d 707, 713 (Tex.Crim. App. 1996) (op. on orig. submission)). "[A] trial court does not have discretion to postpone giving a properly requested limiting instruction when that request is made at admission of the evidence." Hammock at 894; accord Rankin at 711-13. Appellant first requested limiting instructions during the State's cross-examination of him in his case in chief. Appellant unequivocally denied the verbal threat to Lamar. There was thus no evidence of such an extraneous offense, and the trial court did not err in denying an extraneous-offense instruction. As to the attempted murder of Andy Taylor, however, while Appellant denied attempting to shoot him, Appellant did admit to pointing the gun at him. The trial court thus erred in denying Appellant's requested instruction limiting to its proper purpose this evidence that Appellant pointed a gun at Andy Taylor. Appellant next requested limiting instructions during the State's rebuttal case. Appellant requested an instruction concerning the testimony of his girlfriend, Demetrius Henderson, who identified his voice in connection with the verbal-threat incident concerning Lamar. But Henderson did not testify as to what Appellant said, or otherwise provide evidence of any extraneous offense. Thus, the trial court did not err in not giving an instruction limiting the jury's consideration of her testimony. The State also put on testimony of the victims of the extraneous offenses in rebuttal. Lamar testified that Appellant threatened to kill him, and Andy Taylor testified that Appellant attempted to shoot him. Appellant timely requested limiting instructions at the time that the witnesses testified. The trial court erred in denying those requests. However, the trial court's error was harmless. The failure to give a timely limiting instruction pursuant to Rule 105(a) is nonconstitutional error. Jones v. State, 119 S.W.3d 412, 424 (Tex. App.-Fort Worth 2003, no pet.). Other than constitutional error, "[a]ny other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." TEX. R. APP P. 44.2. "A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." Burnett v. State, 88 S.W.3d 633, 637 n. 8 (Tex.Crim.App. 2002) (quoting King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997)). "[A] criminal conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect." Routier v. State, 112 S.W.3d 554, 577 (Tex.Crim.App. 2003), petition for cert. filed, 72 U.S.L.W. 3422 (U.S. Dec. 9, 2003) (No. 03-866) ( Routier quoting Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998)) (alteration in Routier). "In assessing the likelihood that the jury's decision was adversely affected by the error, the appellate court should 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 alleged error and how it might be considered in connection with other evidence in the case." Motilla v. State, 78 S.W.3d 352, 355-56 (Tex.Crim.App. 2002) (internal footnotes omitted). "[A]n appellate court can and should consider overwhelming evidence of guilt in a harm analysis." Id. at 353. "The reviewing court may also consider the jury instructions, the State's theory and any defensive theories, closing arguments and even voir dire, if applicable." Id. at 355. Also, "whether the State emphasized the error can be a factor." Id. at 356. In particular, relevant factors in analyzing the harm from the denial of a timely request for an extraneous-offense limiting instruction are:

I. "[T]he extent of other evidence introduced." Jones v. State, 944 S.W.2d 642, 654 (Tex.Crim. App. 1996).

II. Whether the trial court gave a limiting instruction in the charge. Id.

III. The length of time between the introduction of the extraneous-offense evidence and the charge limiting instruction. Jones, 119 S.W.3d at 424-25.

IV. Whether the extraneous offenses were "more heinous or inflammatory" than the charged offense. Id. at 425.

Here, the trial court's errors were harmless. The evidence that Appellant knowingly killed Jones was conclusive. Appellant gave a written statement to that effect, and so testified at trial. Appellant shot Jones several times with a .22-caliber rifle. Several eyewitnesses corroborated this. The medical examiner who performed the autopsy on Jones's body testified that Jones was hit by seven bullets, and that those wounds caused Jones's death. Police officers, acting on information from Appellant, recovered the rifle from a relative's property where he had hidden it. A ballistics expert identified at least four of the bullets recovered from Jones's body as having been fired from the rifle. Appellant's theory of the case was self-defense. The evidence of self-defense was very weak, and the ways in which the jury likely disbelieved that theory were many. The theory of self-defense assumes "that there is a natural right to preserve oneself from any kind of threat made against person or property with whatever force seems necessary at the time." Boget v. State, 74 S.W.3d 23, 27 (Tex.Crim.App. 2002). As codified in Texas, generally "a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force." TEX. PENAL CODE ANN. § 9.31(a) (Vernon 2003); see Boget at 30. Among the exceptions to this rule relevant to this case are:

The use of force against another is not justified:

(1) in response to verbal provocation alone;

. . . [or]

(4) if the actor provoked the other's use or attempted use of unlawful force. . . .

TEX. PENAL CODE ANN. § 9.31(b) (Vernon 2003). "Provoked," in the sense of the defendant's provocation of the use of force in Section 9.31(b)(4), means:

(1) that the defendant did some act or used some words which provoked the attack on him, (2) that such act or words were reasonably calculated to provoke the attack, and (3) that the act was done or the words were used for the purpose and with the intent that the defendant would have a pretext for inflicting harm upon the other.

Smith v. State, 965 S.W.2d 509, 513 (Tex.Crim.App. 1998). The use of deadly force in self-defense, as relevant to this case, is further limited:

A person is justified in using deadly force against another:

. . .

(2) if a reasonable person in the actor's situation would not have retreated; and

(3) when and to the degree he reasonably believes the deadly force is immediately necessary:

. . . to protect himself against the other's use or attempted use of unlawful deadly force. . . .

TEX. PENAL CODE ANN. § 9.32(a) (Vernon 2003); see Boget at 30. The evidence of self-defense was very weak. For some time before the murder, Appellant and Jones had been fighting over Demetrius Henderson. Appellant knew that Jones had a reputation for being violent and carrying a gun. Appellant believed that Jones had shot and blinded a man. There was evidence that early in the morning of the day before the murder, after a fight between Appellant and Jones had been broken up, Jones came back carrying a pistol. Later that morning, Jones pulled a shotgun out of his truck and pointed it at Appellant. Appellant testified that Jones frequently threatened to kill him, both by words and by gestures. On the morning of the day of the murder, according to Appellant, Jones called him on the telephone and said, "It ain't over. I'm going to get you." Appellant testified that when he approached Jones at a club Jones again threatened to kill Appellant, and ran inside the club. Appellant believed that Jones was going to get a gun. Appellant testified that when Jones emerged from the club and Appellant shot him, Jones was running toward his truck, where Appellant believed Jones had a gun. The evidence contrary to self-defense, however, was extremely strong. Appellant had the strong motive of jealousy: he testified that he felt "used" when he learned that Henderson was also seeing Jones. One witness testified that in the days before the murder, Appellant drove past Jones and the witness slowly several times and looked at them menacingly. As Appellant puts it in his written statement, "I decided I would find Kenneth [Jones] and shoot him before he shot me." Appellant prepared to confront Jones by arming himself with a rifle. There was evidence that Appellant had telephoned the club in advance to make sure that Jones was there. Appellant's brother and cousin drove to the club when they learned that Appellant had left his mother's house with a rifle, because they believed that Appellant intended to confront Jones. There was some evidence that Appellant took the rifle with him to the front of the club, where he confronted Jones. After Appellant verbally confronted Jones, and Jones ran inside the club, Appellant did not run to his nearby car. Rather, Appellant ran around the outside of the club and began to shoot Jones as soon as Jones ran out the back door and Appellant cleared the corner of the building. Appellant shot Jones seven times in the back while Jones was running away. Appellant shot at Jones from a distance; one witness put the two at thirty-five feet apart. A witness testified that after shooting Jones, Appellant said, "Let him die." Apart from Appellant, his brother, and his cousin, the witnesses testified uniformly that Jones was running away from the club when Appellant shot him, and not toward his truck. Indeed, Appellant's written statement also states that Jones was running away. In any case, Jones was not near his truck and had no weapon. On the basis of this evidence, it is reasonably likely that a jury would have found against Appellant on the issue of self-defense. The jury was likely to have found that Jones did not use or attempt to use force, much less deadly force; that Appellant provoked Jones's use of force; that Appellant unreasonably failed to retreat; or that Appellant could not have reasonably believed that deadly force was immediately necessary, or necessary to the degree that Appellant used it. Further, Appellant's extraneous offenses, namely attempted murder and threatened murder, are not as heinous as the murder for which Appellant was on trial. Moreover, the trial court did give a limiting instruction in its charge in the guilt-or-innocence stage of trial, and Appellant does not complain of that instruction. The State's clearest and most direct evidence of Appellant's extraneous offenses came in the State's rebuttal case relatively late in the trial, so that relatively little time elapsed between the admission of the evidence and the court's instruction. The State did emphasize Appellant's criminal history in closing argument, most pointedly by arguing, "A person with his history does not need to be walking the streets of Robertson County." Appellant also points to the trial court's overruling Appellant's objections to the State's closing argument. The objections were, "direct violation of the Charge and limiting instruction." Appellant does not complain that the trial court erred in overruling those objections. Nor is it clear that the jurors would have taken anything from the overruling of these objections. Furthermore, the effect, if any, of these references to Appellant's extraneous offenses in closing argument is attenuated by the fact that they took place after the court gave its instruction limiting the purposes for which the jury could consider those offenses. Considered in light of these factors, we have fair assurance that the trial court's error had no more than a slight effect on the jury's verdict. Accordingly, the error was harmless. Appellant's third issue is overruled.

JURY'S RECEIPT OF OUTSIDE EVIDENCE

In Appellant's second issue, he contends that the trial court erred in overruling his motion for new trial. One ground of the motion alleged that the jurors received outside evidence during their punishment deliberations. The Texas Rules of Appellate Procedure provide that it is a ground for granting a new trial in a criminal case "when, after retiring to deliberate, the jury has received other evidence." TEX. R. APP. P. 21.3(f). Under this rule, "a two-prong test must be satisfied for the defendant to obtain a new trial: (1) the evidence must have been received by the jury, and (2) the evidence must be detrimental or adverse to the defendant." Bustamante v. State, 106 S.W.3d 738, 743 (Tex.Crim.App. 2003). "In determining whether evidence was `received' by the jury, a court may consider how extensively the evidence was examined by the jury. . . ." Id. The trial court did not abuse its discretion in denying the motion for new trial. The court heard conflicting evidence on the motion. See Salazar, 38 S.W.3d at 148. Appellant offered a newspaper article published the day on which the jury found Appellant guilty, which reported that the district attorney's "office had offered Taylor a plea bargain that would have resulted in a 40-year prison sentence, but the defendant had declined the offer." Appellant also offered the affidavit of a friend of juror Bernard Mikalajewski, which stated that Mikalajewski had told the affiant that Mikalajewski had read the article, told the other jurors about it during the jury's punishment deliberations, and argued that the jury should use forty years' imprisonment as the "base line" for punishment deliberations. One juror testified that another juror had mentioned the article once, but that the jury had used forty years' imprisonment as a minimum because the State had argued in closing argument that Appellant had stolen forty years from Jones's life. On the basis of this evidence, the trial court could have found that the jury did not examine the evidence extensively enough to have received it for purposes of granting a new trial. Accordingly, the court did not abuse its discretion in overruling the motion for new trial. Appellant's third issue is overruled.

VICTIM-IMPACT PUNISHMENT EVIDENCE

In Appellant's fourth issue, he contends that the trial court erred in overruling Appellant's objection to certain testimony of Kenneth Jones's widow during the punishment stage of trial. Appellant argues that the testimony constituted improper victim allocution. See Tex. Code Crim. Proc. Ann. art. 42.03, § 1(b) (Vernon Supp. 2004); see generally Keith D. Nicholson, Comment, Would You Like More Salt with That Wound? Post-Sentence Victim Allocution in Texas, 26 ST. MARY'S L.J. 1103 (1995). During the punishment stage, the following colloquy took place on direct examination of Nicole Jones by the State, with objections by Appellant's lead counsel, Jim W. James:

Q. Mrs. Jones, if you had an opportunity to say something to the person who is responsible for the loss that you have experienced, that you continue to experience, what would that be?

MR. JAMES: I object. This has its place, but not at this phase of the trial. That is a proper thing, and I understand that, but not at this point.

THE COURT: Overruled.

. . .

A. (Crying.) Just that basically I feel like we have been robbed, and I have been robbed of a husband. My children have been robbed of their father. He won't get an opportunity to see them grow up, anything that they might achieve. Just — I don't think you had a right to take my husband away from me. Since you have been here, you haven't shown any remorse or regret. (Crying.)

MR. JAMES: Judge, this is not proper.

. . .

A. You have taken my husband away from me. (Crying.)

MR. JAMES: Judge, this is not proper.

THE COURT: Overruled.

. . .

A. I just feel like I would have never in a million years imagined that I would have to go through such a thing. (Crying.) At 28 years old to be married and a widow, and my children without a father, and they have to grow up without a father, and it just makes us a statistic and my husband another statistic, and it was worthless. It was worthless. It was worthless. (Crying.)

On appeal, Appellant contends: "the foregoing statement is the equivalent of a victim statement as contemplated by Article 42.03 of the Texas Code of Criminal Procedure. As such, its admission prior to sentencing constitutes a violation of that article as well as Article 37.07 and Rule 403 of the Texas Rules of Evidence." These contentions manifestly do not comport with Appellant's complaints at trial. See TEX. R. APP. P. 33.1(a); Resendiz v. State, 112 S.W.3d 541, 547 (Tex.Crim.App. 2003). Accordingly, Appellant fails to preserve his complaint. Appellant's fourth issue is overruled.

PUNISHMENT EVIDENCE OF APPELLANT'S DISTRIBUTION OF COCAINE

In Appellant's fifth issue, he contends that the trial court erred in overruling objections to the State's cross-examination of Appellant's character witnesses by evidence of Appellant's convictions for the distribution of cocaine. Prior to the punishment stage of trial, Appellant objected to cross-examination of Appellant's character witnesses as to their knowledge that Appellant had distributed cocaine. See TEX. HEALTH SAFETY CODE ANN. § 481.112 (Vernon 2003). Appellant contended that his character evidence was limited to evidence of his character for nonviolence, and argued that the distribution of cocaine was not a crime of violence. The State argued that evidence that Appellant had distributed cocaine was relevant to Appellant's character. During the punishment stage, Appellant called two witnesses who testified as to their opinion that Appellant was not violent. The trial court overruled Appellant's objections before the jury, and the State asked the witnesses whether they knew that Appellant had distributed cocaine. Appellate courts "review the trial court's decision to admit evidence under an abuse of discretion standard." Allen v. State, 108 S.W.3d 281, 284 (Tex.Crim.App. 2003), cert. denied, 2004 U.S. LEXIS 1147 (U.S. Feb. 23, 2004); accord Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (op. on reh'g). Courts "reverse the trial court's decision only if it is outside the zone of reasonable disagreement." Id. "A witness who testifies to a defendant's good character may be cross-examined to test the witness's awareness of relevant `specific instances of conduct.'" Wilson v. State, 71 S.W.3d 346, 350 (Tex.Crim.App. 2002) (quoting TEX. R. EVID. 405(a)). Such questions "test the character witness' familiarity with the defendant's character or demonstrate that the witness has a low standard for what he considers good character by inquiring into prior specific instances of conduct that are inconsistent with the particular character trait." Wheeler v. State, 67 S.W.3d 879, 887 (Tex.Crim.App. 2002). Among other limitations, "the incidents inquired about must be relevant to the character traits at issue." Wilson, 71 S.W.3d at 351. The trial court did not abuse its discretion in overruling Appellant's objections. The distribution of controlled substances is a crime of violence. "[W]eapons and violence are frequently associated with drug transactions. . . ." Carmouche v. State, 10 S.W.3d 323, 330 (Tex.Crim.App. 2000). "Possession, use, and distribution of illegal drugs represent `one of the greatest problems affecting the health and welfare of our population' and . . . any suggestion that such crime is nonviolent or victimless is false to the point of absurdity." Davis v. State, 119 S.W.3d 359, 363 (Tex. App.-Waco 2003, no pet.) (quoting Harmelin v. Michigan, 501 U.S. 957, 1002 (1991) (Kennedy, J., concurring)). Appellant's fifth issue is overruled.

SUDDEN-PASSION INSTRUCTION

In Appellant's sixth issue, he contends that the trial court erred in overruling Appellant's requested sudden-passion instruction in the punishment stage of trial. The trial court erred, but the error was harmless. Murder is generally a first-degree felony. Tex. Penal Code Ann. § 19.02(c) (Vernon 2003). But the Texas Penal Code provides for a punishment issue on sudden passion in murder cases, which, if found by the finder of fact, has the effect of reducing the punishment range:

[T]he defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree.

Id. § 19.02(d) (Vernon 2003); see Trevino v. State, 100 S.W.3d 232, 236 (Tex.Crim.App. 2003). The Penal Code defines "sudden passion" as "passion directly caused by and arising out of provocation by the individual 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) (Vernon 2003). The Code defines "adequate cause," in turn, as "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) (Vernon 2003). "A defendant is entitled, upon a timely request, to an instruction on any defensive issue raised by the evidence. . . ." Rogers, 105 S.W.3d at 639. In particular, "a sudden passion charge should be given if there is some evidence to support it, even if that evidence is weak, impeached, contradicted, or unbelievable." Trevino at 238. The question is "whether there was any evidence from which a rational jury could infer sudden passion." Moore v. State, 969 S.W.2d 4, 11 (Tex.Crim.App. 1998). "[E]xamples of evidence which can raise the sudden passion issue are `running, striking inanimate objects without any apparent rational purpose, shouting, screaming, crying, and facial expressions.'" Trevino at 239 n. 21 (quoting Moore at 15 (Keller, J., concurring dissenting)). Appellant testified that Kenneth Jones had frequently threatened to kill him, including on the day of the murder. Appellant testified that a few days before the murder, Jones had removed a shotgun from his car and pointed it at Appellant. Appellant testified that before the murder, when he approached Jones at the front of the club, Jones again threatened to kill Appellant, and ran into the club. Several witnesses testified that Appellant knew of Jones's reputation for violence and for carrying a gun. Appellant testified that he believed Jones was running to get a gun to kill Appellant. Appellant testified that he then suddenly became terrified. Appellant could not explain why he then ran around the outside of the club and then shot Jones seven times. On the basis of this evidence, albeit weak and contradicted, the trial court erred in denying a sudden-passion instruction. The State correctly argues that a claim of mere fear is not enough to raise the issue of sudden passion. See Nobles v. State, 843 S.W.2d 503, 511 (Tex.Crim.App. 1992) (citing Jenkins v. State, 740 S.W.2d 435 (Tex.Crim.App. 1983) (op. on orig. submission)); Gonzales v. State, 717 S.W.2d 355, 357 (Tex.Crim.App. 1986). Rather, for fear to rise to the level of terror that may constitute sudden passion, "the defendant's mind must be rendered incapable of cool reflection." Gonzales, 717 S.W.2d at 357. The evidence must also show that the defendant became "terrified immediately prior to the shooting." See id. Appellant testified that he became suddenly terrified when Jones again threatened to kill Appellant and ran into the club. This evidence, though very weak, does tend to show more than a mere general fear: it tends to show that a specific act by Jones suddenly aroused an extreme terror in Appellant. Though the trial court erred in overruling Appellant's charge objection, the error was harmless. "[W]hen a defendant properly object[s] to the charge, the applicable statutory standard is whether `the error appearing from the record was calculated to injure the rights of the defendant,' or in other words, whether there was `some harm.'" Trevino, 100 S.W.3d at 242 (quoting TEX. CODE CRIM. PROC. ANN. art. 36.19 (Vernon 1981); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh'g)). "[T]he actual degree of harm [concerning jury charge error] must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." Marvis v. State, 36 S.W.3d 878, 880 (Tex.Crim.App. 2001) (quoting Almanza at 171) (alterations in Marvis). The trial court's error was harmless. As to the entire jury charge, the punishment charge as a whole was unexceptional, and Appellant does not otherwise complain of it. As to the state of the evidence, the punishment evidence consisted largely of evidence of Appellant's and Jones's characters. Moreover, the evidence against sudden passion was very strong. There was evidence of motive in the form of evidence that Jones was having an affair with Appellant's girlfriend, and that Appellant felt "used" by this. Appellant had confronted Jones, prepared to fight, at least twice in the days before the murder. Appellant resolved to confront Jones, and armed himself in preparation. According to Appellant's statement, he sought out Jones in order to kill him before Jones killed Appellant. Appellant testified that he shot Jones because he reasoned that otherwise Jones would kill him. After the murder, Appellant was calm and unexcited. Appellant testified that he fired the rest of the bullets in his rifle into the ground and hid the rifle on a relative's property. As to the argument of counsel, Appellant urged community supervision, and the State argued the severity of the offense and urged a lengthy prison sentence. In light of the relevant considerations, Appellant did not suffer harm from the trial court's denial of a sudden-passion instruction. To show harm, Appellant points to the fact that, had the jury received the sudden-passion instruction, and had the jury found for Appellant on that issue, Appellant's punishment would have been limited to twenty years' imprisonment rather than the sixty years that he received. See TEX. PENAL CODE ANN. § 19.02(d); id. § 12.33 (Vernon 2003). But under this evidence, it is not reasonably likely that the jury would have so found. Appellant's sixth issue is overruled.

CONCLUSION

This Court having overruled all of Appellant's issues, the trial court's judgment is affirmed.