OPINION
A jury convicted Joseph Wayne Smith of murder and assessed his punishment at twenty-five years’ confinement. See Tex. Penal Code Ann. § 19.02(b) (West 2003). On appeal, Smith contends that: (1) the evidence is factually insufficient to support his conviction; (2) the evidence is legally and factually insufficient to support the jury’s negative finding on the issue of sudden passion during the punishment phase; (3) the trial court erred in excluding testimony about the complainant’s prior violent acts; (4) the trial court erred in sustaining the prosecutor’s objections to a witness’s opinion that the complainant was a violent person; and (5) the trial court deprived Smith of his constitutional right to due process of law and his right to confront the witnesses by excluding evidence of complainant’s tattoos.
We hold that the evidence was legally and factually sufficient to support Smith’s conviction, the evidence is legally and factually sufficient to support the jury’s negative finding on the issue of sudden passion,
Background
The complainant, Anthony Hawkins, and his fiancée, Trinet Fields, shared an apartment at the Los Arcos apartment complex with Smith and his girlfriend, Yereter Ber-nárdez. In March, Hawkins and Fields told Smith and Bernárdez that they were moving out of the apartment because the environment in the apartment was hostile. Fields moved their things out of the apartment, and Fields, who was the named tenant on the lease, turned her key in to the apartment office. The following day, the office manager at the complex informed Smith and Bernárdez that they also had to move out of the apartment.
At 8:30 p.m. that evening, Hawkins, Fields, and Mary McNulty-Brown drove Fields’s rented red Impala to visit Mary’s sister, Ashley McNulty-Brown, at the Stonegate Apartment Complex. Upon arriving, they first went to the apartment of Fields’s friend, Terrance Foley. Foley was also a friend of Smith. Upon leaving Foley’s apartment, Fields heard a loud noise of something suddenly deflating and noticed that someone had stabbed all four tires of her Impala. Hawkins and Foley searched the area for the person who had stabbed the tires. Mary, accompanied by Fields and Ashley, drove the Impala toward the complex’s exit gate. Before the Impala reached the gate, Smith blocked it with his purple Nissan Maxima. Smith exited the Maxima, walked toward the Impala with an angry expression on his face, and looked inside the car. Mary reversed the Impala and parked it in a parking spot. Smith returned to his Maxima and drove away. Fields used a walkie-talkie to warn Hawkins that Smith was in the parking lot. She and the other women saw Hawkins run after Smith’s Maxima and out of their view.
Minutes later, Hawkins ran back to the Impala. He told the women that Smith had stabbed him. Following behind Hawkins, Smith approached the Impala. He again attempted to stab Hawkins with a knife he had in his hand. Hawkins jumped back and fell into the car. Mary placed him in the passenger-side seat. According to Fields and the other women, Hawkins was unarmed that evening. Smith then ran away from the car. Hawkins was bleeding from his left abdomen, and Fields called 911. Hawkins stopped breathing and died shortly thereafter at the hospital.
Robert Bailey, a security guard at Stonegate, observed some of the events associated with Hawkins’s death. He saw the women around the Impala, heard air coming out of the car’s tires, and saw holes or slashes to the tires. He witnessed a black car cut off the Impala as it moved to the exit of the apartment complex, and heard male and female voices screaming. He saw two men backing away from the Impala. One of these men held a knife in his hand. He asked the two men to leave, and they got into the black car and left the property. After he noticed a man in the Impala leaning back in the car in pain, he called 911. He testified that the man in the Impala did not have a knife in his hand. Houston Police Officers J. Pena and C. Abbondandolo investigated Hawkins’s death. They found no knives at the crime scene.
Dr. Stephen Wilson, a medical examiner for the Harris County Medical Examiner’s Office, performed an autopsy on Hawkins the day after his death. Hawkins’s only
Smith testified on his own behalf during trial. Around 3:30 p.m. on the day of Hawkins’s death, Bernárdez informed Smith that they had to move out of the Los Arcos apartment by 5 p.m. because Fields had argued with the apartment manager and had thrown her keys at the leasing agent. Smith and Bernárdez packed their belongings with the help of Smith’s mother. While they were packing, Smith’s mother had a loud phone conversation with Fields. Hawkins then phoned and spoke with Smith, but Smith hung up on Hawkins because Hawkins was hostile during the call. According to Smith, Hawkins was a very violent and aggressive person.
Around 8:30 or 9:00 p.m., Smith left the Los Arcos apartment in his Maxima with Bernárdez, her three-year-old son, and her friend, Keisha Dupree. While Smith was en route to Keisha’s friend’s house, Foley called and asked whether Smith would help move things around his apartment at Stonegate. Smith proceeded to Stonegate and entered the complex’s gate using a key code Foley had provided. When he entered the parking lot, he noticed Fields’s red Impala parked near Foley’s apartment. Bernárdez told Smith that they should leave to avoid any further confrontation with Fields and Hawkins. As Smith’s Maxima approached the exit gate of the complex at a slow rate of speed, Hawkins, looking “pissed off’ and angry, ran toward it and grabbed Smith’s steering wheel, causing the car to collide with several vehicles parked near the gate. Hawkins punched Smith in the face and tried to pull him out of the Maxima.
Once the Maxima came to a stop, Smith, shocked and scared, hit Hawkins with the driver-side door, caught another blow to the face, and tackled Hawkins. Both men fell to the ground. Smith testified that it was necessary to exit the Maxima and to fight Hawkins because: (1) he was being punched, hit, rushed, and “aggressed”; (2) he “[k]new there was no other way [he] could get out of the apartments because [he] had to stop at the gate still to push the code to get out”; and (3) he had to protect the two women and the small child in the car, as well as himself.
Smith further testified that Hawkins swung a knife at his stomach. Smith dodged Hawkins’s knife and hit him twice in the chin. Hawkins tried to stab Smith in the neck, but Smith grabbed Hawkins’s arm, which held the knife. Smith pulled his own knife out of his pocket, and stabbed Hawkins in the chest one time. After he stabbed Hawkins, Smith ran and jumped over the apartment complex fence. He denied that he returned to Fields’s Impala after the fight. He testified that he did not see anyone in or near the Impala when he drove by it before his fight with Hawkins. Smith found his Max-ima parked on the street outside of the complex, with Bernárdez and Keisha waiting inside.
Shortly after the incident, Smith fled to Victoria, Texas. When he found out that Hawkins had died, he returned to Houston and turned himself in to the police. Ber-nárdez and Keisha also testified at trial. They testified that Hawkins ran at the Maxima, grabbed the steering wheel, and hit several parked cars. A fight ensued between Hawkins and Smith. Keisha testified that Hawkins held a knife in his hand during the fight, but Bernárdez testi
SUFFICIENCY OF THE EVIDENCE OF JURY’S REJECTION OF SMITH’S DEFENSIVE CLAIMS
In his first issue, Smith contends that the evidence is factually insufficient to support his conviction for murder because he acted in self-defense and in the defense of a third person. See Tex. Penal Code Ann. §§ 2.08, 9.02, 9.32, 9.38 (West 2003). We disagree.
Standard of Review for Self-Defense and Defense of a Third Person
“[T]he
Jackson v. Virginia
legal sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.”
Brooks v. State,
Self-defense and defense of a third person are defenses to prosecution under Penal Code section 2.03.
See
Tex. Penal Code Ann. §§ 2.03, 9.02, 9.32, 9.33. A defendant has the burden of producing some evidence to support a claim of a section 2.03 defense.
Zuliani v. State,
Applicable Law
A person commits murder if he intentionally or knowingly causes the death of an individual, or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.
See
Tex. Penal Code Ann. §§ 19.02(b)(1), 19.02(b)(2) (West 2003). The Penal Code, however, provides that “a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force.” Tex. Penal Code Ann. § 9.31(a). Deadly force in self-defense is justified when a person reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful deadly force or to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.
Id.
§ 9.32;
see also Schijfert v. State,
Similarly, a person is justified under section 9.33 in using force or deadly force to protect a third person if:
(1) under the circumstances as the actor reasonably believes them to be, the actor would be justified under Section 9.31 [self-defense] or 9.32 [deadly force in defense of person] in using force or deadly force to protect himself against the unlawful force or unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect; and
(2) the actor reasonably believes that his intervention is immediately necessary to protect the third person.
Tex. Penal Code Ann. § 9.33. A person defending on the grounds of defense of a third person stands in the shoes of the third person.
Hughes v. State,
A “reasonable belief’ is defined as one that would be held by “an ordinary and prudent man in the same circumstances as the actor.” Tex. Penal Code Ann. § 1.07(a)(42) (West Supp.2010). “Deadly force” is force “intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury.” Tex. Penal Code Ann. § 9.01(3) (West Supp.2010). “Serious bodily injury” is an injury that creates a “substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Id. § 1.07(a)(46).
Analysis
Smith admits that he stabbed Hawkins in the chest. The medical examiner concluded that the wound caused Hawkins’s death. Smith maintains, however, that he
The jury’s decision to reject Smith’s defensive claims, however, ultimately hinges on the credibility of the witnesses. “As factfinder, the jury is entitled to judge the credibility of witnesses, and can choose to believe all, some, or none of the testimony presented by the parties.”
Chambers v. State,
Here, the jury chose not to believe Smith and his witnesses’ testimony that he had acted in defense, either of himself or third persons, when he stabbed Hawkins. The testimony of Smith and his witnesses, in light of the other evidence presented at trial, does not render the evidence in this case insufficient to support the jury’s verdict.
See Chambers,
The other evidence includes the State’s witnesses, the physical evidence, and Smith’s flight after Hawkins’s death, all of which undermined Smith’s defensive claims. Fields, Mary, and Ashley testified that Hawkins did not carry any weapon on that night. The security guard testified that Hawkins did not have a knife in his hand when he observed him sitting in pain in the Impala. Officers Pena and Abbon-dandolo found no weapons at the crime scene. Smith denied the presence of anyone else at the Impala when he and Hawkins approached it, but the security guard verified that the women were present. This testimony and the physical evidence were inconsistent with Smith’s version of the events that took place.
See McClesky v. State,
Based on this other evidence, the jury could have reasonably concluded that Smith’s conduct in chasing Hawkins and attempting to stab him a second time was inconsistent with his defensive claims.
See Cleveland v. State,
SUFFICIENCY OF THE EVIDENCE OF SUDDEN PASSION AT THE PUNISHMENT PHASE OF TRIAL
In his fifth and sixth issues, Smith asserts that the evidence is legally and factually insufficient to support the jury’s negative finding on the issue of sudden passion at the punishment stage of his trial. See Tex. Penal Code Ann. § 19.02(a), (d). We disagree.
Standard of Review for Negative Finding on Sudden Passion
At the punishment phase of a murder trial, a defendant may reduce a murder charge from a first-degree felony to a second-degree felony by proving by a preponderance of the evidence that “he caused the death under the immediate influence of sudden passion arising from an adequate cause.”
See
Tex. Penal Code Ann. § 19.02(d) (West 2003);
see also Hernandez v. State,
In
Brooks,
the Criminal Court of Appeals held that the
Jackson v. Virginia
standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.
We examine the record for evidence that supports the negative finding.
See id.
at 387;
Nolan,
If the evidence is legally sufficient, then we turn to factual sufficiency. As with legal sufficiency, the
Jackson v. Virginia
standard is not the standard to use in reviewing a criminal defendant’s factual sufficiency challenge to the jury’s negative finding of an issue that the defendant had to prove by a preponderance of the evidence; rather, the factual sufficiency standard announced in
Meraz
is appropriate for review of issues, such as affirmative defenses, on which the defendant has the burden of proof by the preponderance of the evidence.
See Brooks,
For a factual sufficiency challenge, the standard of review is whether after considering all the evidence relevant to the issue at hand, the judgment is so against the great weight and preponderance of the evidence so as to be manifestly unjust.
Meraz,
Analysis
Smith contends that he stabbed Hawkins only after Hawkins provoked him by (1) pulling on his steering wheel as he exited the apartment complex; (2) forcing his car to collide with three parked cars; (3) causing extensive damage to his car; (4) punching Smith with his fists; and (5) threatening his safety and the safety of three persons in his car. He points to two prior acts that provide context for this provocation. First, because Hawkins and Fields broke the lease of the apartment
Examining the record for evidence that supports the jury’s negative finding on the issue of sudden passion, we conclude that some evidence exists to support it. A defendant may not rely on a cause of his own making, such as precipitating a confrontation, to support his argument that he acted out of sudden passion arising from adequate cause.
Naasz v. State,
The jury here could have concluded based on the State’s evidence that Smith precipitated the confrontation that led to Hawkins’s death. Fields, Mary and Ashley stated that shortly after they discovered that someone slashed all the tires of Field’s Impala in the parking lot of Stonegate, Smith drove up in his Maxima with his high beams on and blocked their car. He then got out of his car and approached them. At this point, Fields told Hawkins by walkie-talkie that Smith was in the parking lot. Since some evidence exists that Smith precipitated the confrontation that led to Hawkins’s death, the evidence is legally sufficient to support the jury’s negative finding on the issue of sudden passion.
See Perez v. State,
The evidence is also factually sufficient to support the jury’s negative finding on the issue of sudden passion. As noted, the jury is the sole judge of the weight and credibility given to any witness’s testimony.
See Cleveland,
In addition to the testimony he offered, Smith cites the damage to his Maxima and to the other cars in the apartment parking lot and the fact that no witnesses contradicted his version of how Hawkins provoked him by forcing his Maxima to collide with the other cars. None of this evidence, however, compelled the jury to find that Smith murdered Hawkins under the
After considering all the relevant evidence, we conclude that the judgment is not so against the great weight and preponderance of the evidence so as to be manifestly unjust.
See Meraz,
PRIOR ACTS OF VIOLENCE
In his second issue, Smith maintains that the trial court abused its discretion in excluding the testimony of Keisha and her son, Terrell Dupree, relating to Hawkins’s prior acts of violence. At trial, defense counsel proffered the testimony of Keisha and Terrell outside the presence of the jury. Terrell testified that one month before Hawkins’s death, Hawkins hit Keisha in the face. Terrell and his brother intervened to protect their mother. A fight ensued between Terrell and Hawkins. During this altercation, Hawkins stabbed Terrell in the side. Terrell testified that he told Smith about this incident sometime before Hawkins’s murder. The trial court refused to allow the proffered testimony. On appeal, Smith maintains this incident was admissible to show that Smith’s fear of Hawkins was reasonable or to show that Hawkins was the first aggressor.
Standard of Review and Applicable Law
A defendant in a homicide prosecution who raises the issue of self-defense may introduce evidence of the victim’s violent character. Tex.R. Evid. 404(a)(2);
Torres v. State,
This general rule is not without limitation, however. Rule 404(b) provides for the admissibility of specific bad acts only to the extent that they are relevant for a purpose other than to show character conformity. Tex.R. Evid. 404(b);
Torres,
Accordingly, a trial court is within its discretion to exclude prior violent acts if the victim’s conduct was plainly
Here, Smith testified that Hawkins pulled a knife and attempted to stab him first — both unambiguous acts of aggression and violence that need no explanation.
See Reyna,
Harm Analysis
Even if we were to assume the trial court erred in excluding the proffered testimony, we would conclude that any error was harmless. Exclusion of evidence does not result in reversible error unless the exclusion affects a substantial right of the defendant.
Alexander v. State,
Because it is countered by the direct evidence that the trial court admitted, we have fair assurance here that any error made in excluding Hawkins’s earlier stabbing incident involving Keisha and Terrell did not have a substantial and injurious effect or influence in determining the jury’s verdict.
See Alexander,
The jury chose to reject Smith’s and his witnesses’ claims that he acted in self-defense and defense of third party, as was its province.
See Cain v. State,
KEISHA DUPREE’S OPINION TESTIMONY
In his third issue, Smith contends that the trial court abused its discretion in sustaining the prosecutor’s objections to Keisha’s opinion that Hawkins was a violent person. The relevant testimony is as follows:
DEFENSE COUNSEL: In your time period, I guess December, January, February, of living with Mr. Hawkins, were you able to establish an opinion about his character for being a peaceful or violent person? Were you able to develop an opinion?
KEISHA DUPREE: Yes, I did.
DEFENSE COUNSEL: What was your opinion?
KEISHA DUPREE: My opinion was that he could be violent any given time if approached the wrong way. PROSECUTOR: Objection, Your Hon- or, nonresponsive.
TRIAL COURT: Sustained.
DEFENSE COUNSEL: Either the word “peaceful” or “violent,” what was your opinion?
PROSECUTOR: Objection Your Honor, asked and answered.
TRIAL COURT: Sustained.
On appeal, Smith argues that the trial court incorrectly sustained the State’s objection to Keisha’s answer to defense counsel’s first question regarding her opinion of Hawkins because it was a direct response to the question posed. Also, according to Smith, the second question regarding her opinion of Hawkins’s character merely sought to simplify the inquiry and remedy Keisha’s nonresponsive answer.
Assuming that the trial court abused its discretion in sustaining the State’s objections, we find no reversible error. Exclusion of evidence does not result in reversible error unless the exclusion affects a substantial right of the defendant.
Alexander,
Here, the error did not affect a substantial right of Smith.
See Alexander,
EXCLUSION OF HAWKINS’S TATTOOS
In his fourth issue, Smith maintains that the trial court deprived him of his constitutional right to due process of law and his right to confront the witnesses against him when it prohibited him from offering evidence that Hawkins had tattoos depicting acts of violence and the words “CRIP LIFE” and “GANGSTAFIED.” He argues the erroneous exclusion was a constitutional error because the tattoo evidence formed a “Vital portion” of his self-defense and sudden passion theories.
See Potier v. State,
During the trial, the State asked the trial court to exclude evidence of Hawkins’s tattoos depicting the words “CRIP LIFE” and “GANGSTAFIED” by redacting the autopsy report, on the basis that the tattoos were irrelevant and more prejudicial than probative within the meaning of Texas Rule of Evidence 403. The trial court excluded evidence of the words depicted in the tattoos under Rule 403, but allowed the jury to consider evidence on the existence and number of tattoos Hawkins had. Further, the trial court noted that it would revisit its ruling if the content of the tattoos became relevant. After Smith testified that Hawkins was the first aggressor, defense counsel again sought to introduce evidence of the words depicted in the tattoos, and the trial court excluded the words.
Standard of Review
We review the court’s Rule 403 ruling for an abuse of discretion.
State v. Mechler,
Evidentiary rulings rarely rise to the level of denying the fundamental constitutional right to present a meaningful defense.
Potier,
Analysis
Gang membership is admissible to show bias, motive, or intent, or to refute a defensive theory.
See Tibbs v. State,
Here, the words “CRIP LIFE” and “GANGSTAFIED” indicate a possible gang affiliation. Neither party, however, adduced evidence that the altercation leading to Hawkins’s death was gang-related. Hawkins’s tattoos and possible gang affiliation did not explain the altercation. Under Smith’s version of the events, the altercation arose out of a dispute between Smith and Hawkins concerning their shared apartment. Further, the record does not demonstrate that Smith was
The use of the words depicted in the tattoos to show Hawkins was a bad person and that he acted in conformity with his bad character during the altercation with Smith also weighed against admission, as this use of the tattoos would be improper.
See id,.; see also Galvez v. State,
Because the words depicted in the tattoos have little probative value under the facts of this case and presented a danger of unfair prejudice, we conclude that the trial court did not abuse its discretion in excluding the evidence under Rule 403.
Mechler,
Conclusion
We hold that the evidence is sufficient to support Smith’s conviction, and the evidence is sufficient to support the jury’s negative finding on the issue of sudden passion. We further hold that none of Smith’s challenges to the trial court’s evi-dentiary rulings warrants reversal. Finally, the trial court did not deprive Smith of due process or his right to confront the witnesses. We therefore affirm the judgment of the trial court.