Opinion filed February 26, 2021
In The
Eleventh Court of Appeals
__________
No. 11-18-00324-CR
__________
JUAN RAMON BARRON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 132nd District Court
Scurry County, Texas
Trial Court Cause No. 10592
OPINION
The grand jury indicted Appellant, Juan Ramon Barron, for the murders of
Joshua Hoover and Benjamin Bruns. See TEX. PENAL CODE ANN. § 19.02(b)(1)
(West 2019). After a contentious trial, the jury acquitted Appellant of Bruns’s
murder. However, the jury implicitly rejected Appellant’s claim of self-defense and
found him guilty of the murder of Hoover. The same jury found that Appellant
caused Hoover’s death while under the immediate influence of sudden passion that
arose from adequate cause and assessed his punishment at two years’ imprisonment
in the Institutional Division of the Texas Department of Criminal Justice. See id.
§ 19.02(d). The trial court sentenced Appellant accordingly.1
Appellant raises six issues on appeal. He contends that (1) the trial court erred
when it admonished Appellant’s trial counsel in the presence of the jury; (2) the trial
court erred when it admitted evidence that was located nine months after the murders
because it lacked relevancy; (3) the trial court erred when it admitted the same
evidence because it was unfairly prejudicial; (4) the evidence was insufficient to
support the jury’s rejection of his claim of self-defense; (5) the trial court erred when
it refused to admit Appellant’s proffered evidence of prior bad acts of violence
allegedly committed by the deceased victim (Hoover) against others to show motive;
and (6) the trial court erred when it refused to admit proffered evidence of prior bad
acts of violence allegedly committed by the deceased victim (Hoover) against others
to show that Hoover was the first aggressor. We affirm.
I. Factual and Procedural Background
A. Evidence at Trial
The murders of Bruns and Hoover arose from their encounter with Appellant
on January 24, 2016, at approximately 4:00 a.m. at Appellant’s trailer. Later,
Appellant and his wife, Nicole, provided law enforcement personnel with detailed
versions of what they claimed had occurred during the encounter. The substance of
their written statements and recorded interviews were presented to the jury. Neither
Appellant nor Nicole testified at trial.
1
We note that Appellant’s wife, Jamai Nicole Barron, was also indicted for the murders of Bruns
and Hoover, that Appellant and Nicole were tried together in a consolidated trial, and that the jury acquitted
Nicole of both murders. We note also that Appellant and Nicole were both subsequently convicted by a
different jury of the offense of tampering with physical evidence, a human corpse, and that the appeals of
those convictions are pending before this court in Cause Nos. 11-19-00125-CR and 11-19-00128-CR.
2
According to Appellant and Nicole, Amanda Smith, a friend, was with them
in their trailer at the time of this encounter. They were watching movies, drinking,
and using drugs—marihuana and cocaine. At approximately 4:00 a.m., they heard
someone knock on the back door. As Appellant approached the back door, he held
a knife in his hand because it was late and they were not expecting anyone. When
Appellant answered the door, he saw two men who were dressed in black clothing;
they were also wearing ski masks. Appellant said, “You ain’t going to rob me.” He
then rushed down the steps of the trailer toward the two men. Appellant stated that
Nicole was behind him, armed with two knives, and that one of the men struck her
in the face with a gun.
Appellant began fighting with the man, later identified as Benjamin Bruns,
who struck Nicole. According to Appellant, he stabbed Bruns repeatedly because
Bruns would not drop his gun. Appellant stated that Bruns eventually “popped one
round off” and then dropped the gun. Appellant heard Nicole screaming for him
from around the corner of the trailer. He then grabbed the gun that Bruns had
dropped and ran toward Nicole, who was fighting with the other man, later identified
as Joshua Hoover. Appellant stated that Hoover was on the ground trying to pull
Nicole to the ground. Appellant shot Hoover several times—he estimated four or
five—until he “knew [Hoover] was dead.” Appellant claimed to be approximately
eight to twelve feet from Hoover when he discharged the gun.
Nicole’s statement to law enforcement was essentially consistent with the
statement that Appellant made during his interview, although certain details differed.
In her statement to law enforcement personnel, Nicole said that, after she heard
Appellant say something to the effect of “oh hell no, you’re not going to rob me,”
she jumped up from the couch, retrieved two kitchen knives, and yelled at Smith to
grab Nicole’s daughter—who was asleep in her room—and to leave their trailer.
Smith did so. Nicole stated that, when she went outside, Appellant was already
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fighting one of the men (Bruns). The other man (Hoover) then appeared from around
the side of the trailer and attacked her. Nicole heard a gunshot and began calling for
Appellant because she thought he had been shot. Suddenly, Hoover punched Nicole
in the face. Nicole noticed that Hoover had something in his hand; Appellant then
shot Hoover. Although Nicole believed that Hoover was brandishing a gun, after
Appellant shot Hoover, she saw that the object in Hoover’s hand was a can of mace.
Bruns and Hoover both died from the wounds that Appellant inflicted upon
them. Appellant and Nicole stated that they did not recognize either man, even after
their masks were removed. Appellant and Nicole both stated that they were drunk
and high and that they had panicked.
After Appellant and Nicole moved the bodies of Bruns and Hoover to a spot
underneath the trailer, they attempted to clean up the crime scene. They dug up the
dirt where Bruns’s blood and Hoover’s blood had accumulated, and they used a
water hose to saturate those areas with water. They concealed all the “bloody stuff,”
including the knife used by Appellant. They also concealed their bloody clothing,
wrapped everything in blankets, and stored it all behind a nearby shed. Appellant
and Nicole also put two mason jars of marihuana behind the shed. Appellant stated
that the marihuana belonged to Nicole, who was a dealer, and that he did not believe
that either Bruns or Hoover had come to their trailer to purchase “weed.” Appellant
routinely worked sixteen- or seventeen-hour days, returned home, smoked some
marihuana or used cocaine, and then went to bed. According to Appellant, he did
not know why either Bruns or Hoover would want to rob him.
Eventually, after cleaning and tampering with the crime scene, Appellant and
Nicole decided to surrender to the police. As they left their trailer, Nicole noticed
an unfamiliar car parked near their trailer, by the mailboxes; the engine was running.
Upon their arrival at the Snyder Police Department, Appellant and Nicole
reported that they had killed two people who were trying to rob them. The officers
4
on patrol were notified of this incident and were dispatched to the crime scene.
Officer Nikki Gonzalez was nearby responding to an earlier report of a suspicious
vehicle in the area of Appellant’s trailer. Before she went to the crime scene,
Officer Gonzalez investigated the presence of a maroon Crown Victoria with its
engine running that was parked by the mailboxes near Appellant’s trailer. After she
arrived at the crime scene, Officer Gonzalez inspected the area around Appellant’s
trailer and eventually discovered two bodies hidden underneath the trailer.
Snyder Police Detective Mike Counts and Texas Ranger Phil Vandygriff were
in charge of the investigation. Ranger Vandygriff supervised the removal of two
bodies from under Appellant’s trailer. The bodies were later identified as Hoover
and Bruns. A large knife with a white handle, a bent blade, and a broken tip was
recovered from the crime scene, and a shell casing was located near Appellant’s
trailer. Officers at the crime scene observed a water hose stretched across
Appellant’s yard; they also discovered several wet and muddy spots in the yard.
Bloody clothing and two mason jars that contained marihuana were also collected
from behind a shed in Appellant’s yard.
Inside Appellant’s trailer, a gun, a can of mace, and five shell casings were
found on the kitchen table inside a pizza box. The gun had one bullet in the chamber
and one bullet remaining in the magazine. Although officers at the crime scene
observed blood smears and stains inside the trailer, Sergeant Lea Tarter of the Snyder
Police Department testified that the stains appeared to be from transfers and that she
did not believe that a wounded body or a person who was bleeding had been in the
trailer. During the search of the trailer, officers also seized two bloody knives and
trash bags containing bloody clothing.
Appellant stated in his first interview with law enforcement that he did not
recognize either Bruns or Hoover. However, during subsequent interviews,
Appellant stated that he had heard that someone named Hoover sold cocaine and had
5
robbed two other people in the area. Nicole advised law enforcement that she sold
drugs, that she had sold drugs to Hoover in the past, and that she had seen him at
parties. Nevertheless, both Appellant and Nicole stated that they did not know
Bruns. Nicole also told law enforcement that the only reason she could determine
as to why Hoover and Bruns would appear at her trailer in disguise would be to rob
her and take her two mason jars of “really good weed.”
Smith was with Appellant and Nicole that night. Smith testified that the three
of them were drinking, smoking marihuana, using cocaine, and watching movies.
She stated that Appellant and Nicole heard something at the back door around 4:00
a.m. Appellant then walked to the back door of the trailer. Suddenly, a man wearing
black clothing and a black mask burst through the front door of the trailer. The man
then walked out the back door of the trailer. Smith saw that Appellant was rolling
around on the ground with someone and that Nicole was fighting someone else.
Nicole eventually yelled at Smith to get Nicole’s daughter and leave. Smith
complied. According to Smith, Nicole called later to ask if her daughter was okay.
Smith asked Nicole if she and Appellant were alright. Nicole replied, “No, but we
will be.” Smith assumed that this meant that Appellant and Nicole had called the
police.
Dr. Thomas Parsons performed the autopsies on the bodies of Hoover and
Bruns. He determined Bruns’s cause of death to be from a single gunshot wound to
his head from an undetermined distance. Dr. Parsons concluded that Hoover’s death
was caused by multiple gunshot wounds to his chest and head. Dr. Parsons testified
that there was a single entry wound for the two bullets that were removed from
Hoover’s head. Dr. Parsons concluded that these two shots were fired from a range
of only a few inches to as much as thirty-six inches in distance from Hoover’s body.
The ski masks worn by Hoover and Bruns were placed on Styrofoam balls to
simulate how the masks were worn by them. According to Detective Counts, the
6
defects and holes in the masks were consistent with the head wounds inflicted upon
Hoover and Bruns. Although Bruns’s autopsy revealed that, in addition to his stab
wounds, he also had a head wound from the entry of a single bullet, Appellant
maintained that he only stabbed Bruns and that he did not shoot him. Appellant
claimed that he only shot Hoover.
During their search of the crime scene, officers located a hole in the side of
Appellant’s trailer near the area where Appellant said Bruns had “popped one round
off”; a bullet lodged in the stove inside the trailer was also discovered. Additional
bullets were found in the ground in the location where Appellant had shot Hoover.
Utilizing trajectory rods, Ranger Vandygriff testified that he was able to determine
the path of the bullet that Bruns had “popped off”; the trajectory of that bullet was
consistent with Appellant’s statement to law enforcement.
At trial, Appellant presented the testimony of Tim Tipton, a thirty-year
veteran of the Oklahoma Highway Patrol. Over the years, Tipton had studied the
methods used to evaluate the body’s reactions to high stress life-and-death situations
and had also trained other officers in this discipline. Based on his experience and
training, he testified that, when a person is in a high-stress situation, it would be
common for that person to express inconsistencies “in what the physical evidence
shows versus how somebody recalls it.” However, Tipton further testified that it
would not be unusual for a person to inaccurately recall the number of gunshots they
heard or the order in which events actually occurred. Tipton examined the evidence
in this case, determined that Appellant and Nicole had experienced a highly stressful
event, and suggested that the high level of stress could have affected their ability to
accurately recall and to provide precise details of what actually did occur at their
trailer that morning.
Officers at the crime scene determined that the maroon Crown Victoria that
was parked with the engine running near Appellant’s trailer belonged to Jesus
7
Garcia. The gun and the mace retrieved from the crime scene belonged to Josh
Zabala. Hoover, Bruns, Garcia, and Zabala had been together at the house where
Zabala lived on the night in question. They were hanging out and drinking whiskey.
At some point, Zabala went to bed. Zabala testified that he did not give either
Hoover or Bruns permission to take his gun. After Zabala was asleep, Hoover and
Bruns borrowed Garcia’s car to go buy cigarettes. Garcia testified that neither man
was wearing black clothing or a ski mask when they left Zabala’s home.
Eight months after the murders, workers from a trucking company that was
located next to Appellant’s trailer discovered a safe in the trucking company’s yard.
Law enforcement personnel took the safe but were unable to determine its rightful
owner. The safe was later opened by law enforcement officers. Among other things,
the safe contained a wallet that included Nicole’s identification, a jar of marihuana,
some baggies of cocaine, and drug paraphernalia (scales).
B. Evidentiary Rulings
Appellant, through his trial counsel, challenged certain evidentiary rulings
made by the trial court. Appellant’s trial counsel objected to the admission of the
items discovered in the safe, namely the drugs, the drug paraphernalia, and the wallet
containing Nicole’s identification, on the bases that the evidence was not relevant
and that its admission would be unfairly prejudicial to Appellant. The trial court
overruled Appellant’s objections and admitted the evidence. However, the trial
court did instruct the jury that any extraneous evidence was to be considered only
for “intent, knowledge, motive, state of mind[,] or the application of the laws related
to self-defense.”
Appellant’s trial counsel sought to admit the testimony of two witnesses—
Kaden McCarter and Ruth Ann Kerry—to show that Hoover had, on previous
separate occasions, committed the offense of aggravated robbery against each of
them. Appellant contended that this evidence was relevant to show motive and
8
would also show that Hoover was the “first aggressor.” Although Appellant raised
a claim of self-defense, the trial court denied the admission of either witness’s
testimony. The trial court concluded that, under Rules 403 and 404 of the Texas
Rules of Evidence, both instances were offered by Appellant for the impermissible
purpose of showing conformity with character and that, if admitted, the prejudicial
effect of this evidence would substantially outweigh any probative value.
C. The Jury Charge
The jury charge included instructions for self-defense, defense of third
persons, and defense of property. Appellant does not challenge the propriety of these
instructions. In response to the questions submitted in the guilt/innocence charge,
the jury acquitted Appellant of the murder of Bruns, but convicted him of the murder
of Hoover.
The offense of murder is typically a first-degree felony. PENAL § 19.02(c).
However, at the punishment phase of a trial, a defendant convicted of murder may
claim that he caused the death of an individual while under the immediate influence
of sudden passion arising from an adequate cause. Id. § 19.02(d). If the defendant
proves the issue of “sudden passion” in the affirmative by a preponderance of the
evidence, the punishment for the charged offense is reduced to a second-degree
felony range. Id.; McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005).
Here, the punishment charge included a “sudden passion” instruction. As we have
said earlier, the jury affirmatively found that Appellant acted under the influence of
“sudden passion” and assessed the minimum sentence of two years’ imprisonment
in the Institutional Division of the Texas Department of Criminal Justice. See PENAL
§ 19.02(a)(2), (d). The trial court sentenced Appellant accordingly. This appeal
followed.
9
II. Analysis
A. Sufficiency of the Evidence – Self-Defense
We first address Appellant’s fourth issue, whereby he challenges the
sufficiency of the evidence to support the jury’s rejection of his claim of self-
defense. A finding in his favor would result in an acquittal. We review a challenge
to the sufficiency of the evidence, regardless of whether it is framed as a legal or
factual sufficiency challenge, under the standard of review set forth in Jackson v.
Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet.
ref’d). Under the Jackson standard, we review all of the evidence in the light most
favorable to the verdict and determine whether any rational trier of fact could have
found the essential elements of the charged offense beyond a reasonable doubt.
Jackson, 443 U.S. at 319; Zuniga v. State, 551 S.W.3d 729, 732 (Tex. Crim. App.
2018); Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
Similarly, when a defendant challenges the sufficiency of the evidence to
support the rejection of a defense raised by him, such as self-defense, we examine
all of the evidence in the light most favorable to the verdict to determine whether a
rational jury could have found the defendant guilty of all essential elements of the
charged offense beyond a reasonable doubt and also could have found against the
defendant on the self-defense issue beyond a reasonable doubt. Saxton v. State, 804
S.W.2d 910, 914 (Tex. Crim. App. 1991); see also Braughton v. State, 569 S.W.3d
592, 609 (Tex. Crim. App. 2018) (reaffirming Saxton).
To support a claim of self-defense, the defendant bears the burden to produce
some evidence to support the claim; the State bears the burden of persuasion to
disprove the raised defense. Braughton, 569 S.W.3d at 608 (citing Zuliani v. State,
97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton, 804 S.W.2d at 913–14). Once
the defendant produces that evidence, the State’s burden does not require the
10
production of additional evidence to disprove the defense; instead, it requires only
that the State prove its case beyond a reasonable doubt. Zuliani, 97 S.W.3d at 594–
95.
When a defendant raises a justification defense, such as self-defense, a
determination of guilt by the jury is an implicit rejection of the defensive theory.
Zuliani, 97 S.W.3d at 594–95; Saxton, 804 S.W.2d at 914. As such, because a claim
of self-defense is a fact issue to be determined by the jury, the jury is free to accept
or reject the defensive theory, either version of the facts, and any part of a witness’s
testimony. Febus v. State, 542 S.W.3d 568, 572 (Tex. Crim. App. 2018); see Saxton,
804 S.W.2d at 912 n.3.
Viewing the evidence in the light most favorable to the verdict requires that
we consider all of the evidence admitted at trial, including improperly admitted
evidence. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder’s
credibility and weight determinations because the factfinder is the sole judge of the
witnesses’ credibility and the weight their testimony is to be afforded. Winfrey, 393
S.W.3d at 768; Brooks, 323 S.W.3d at 899. The Jackson standard is deferential and
accounts for the factfinder’s duty to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Jackson, 443 U.S. at 319; Zuniga, 551 S.W.3d at 732; Clayton, 235 S.W.3d at 778.
We may not reevaluate the weight and credibility of the evidence to substitute our
judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.
Crim. App. 1999). Therefore, when the record supports conflicting inferences, we
presume that the factfinder resolved the conflicts in favor of the verdict, and we defer
to that determination. Jackson, 443 U.S. at 326; Merritt v. State, 368 S.W.3d 516,
525–26 (Tex. Crim. App. 2012); Clayton, 235 S.W.3d at 778; Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007).
11
It is undisputed that Appellant killed Hoover. Under the Penal Code, a person
commits the offense of murder if he intentionally or knowingly causes the death of
an individual. PENAL § 19.02(b)(1). Here, the jury determined that Appellant
committed the offense of murder under this provision of the Penal Code, and there
is sufficient evidence in the record for the jury to have found the essential elements
of murder beyond a reasonable doubt. However, under appropriate circumstances,
a defendant may raise the claim of self-defense to justify his use of deadly force. As
such, deadly force used in self-defense is a defense to a prosecution for murder if
that use of force is “justified.” Braughton, 569 S.W.3d at 606.
In asserting self-defense, the use of force is justified “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.” PENAL § 9.31(a). In the
same manner, the use of deadly force against another is justified under the above
circumstances “if the actor would be justified in using force against the other” under
Section 9.31 and “when and to the degree the actor reasonably believes the deadly
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 . . . robbery[] or aggravated robbery.” Id. § 9.32(a). “‘Deadly force’
means force that is 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.” Id.
§ 9.01(3). A reasonable belief is a belief that would be held by an ordinary and
prudent person in the same circumstances as the actor. Id. § 1.07(a)(42) (West Supp
2020). Under certain conditions, an actor’s belief that deadly force was immediately
necessary is presumed to be reasonable. Id. § 9.32(b). One condition of the
presumption of reasonableness is that the actor was “not otherwise engaged in
criminal activity, other than a Class C misdemeanor that is a violation of a law or
ordinance regulating traffic at the time the force was used.” Id. § 9.32(b)(3).
12
Appellant contends that the evidence was insufficient for a rational trier of
fact to find against him on his claim of self-defense. Essentially, he asserts that the
jury was required to accept his claim of self-defense because there was some
evidence to support it and because no evidence was offered by the State to show that
he did not act reasonably under the circumstances. We disagree. The evidence to
support Appellant’s claim that he was acting in self-defense was derived primarily
from his own statements. As such, Appellant’s theory of self-defense was inherently
a credibility determination for the jury to resolve. Because the credibility of
Appellant’s claim of self-defense was solely within the jury’s province to determine,
the jurors were free to reject it. See Saxton, 804 S.W.2d at 914; see also Braughton,
569 S.W.3d at 611–13.
Additionally, there is ample evidence that supports the jury’s rejection of
Appellant’s claim of self-defense. It is undisputed that Bruns and Hoover
approached Appellant’s trailer at approximately 4:00 a.m. wearing ski masks and all
black clothing. Appellant shot Hoover, who had attacked Nicole, until he was
certain that Hoover “was dead.” Dr. Parsons testified that Hoover’s gunshot wounds
were inflicted from a distance of no greater than thirty-six inches, rather than
Appellant’s estimated distance of eight to twelve feet. Although Appellant’s
statements were somewhat consistent with the forensic and other evidence collected
and analyzed by law enforcement, the jury was not required to accept Appellant’s
claim and version of events as true simply because some evidence supported it. See
Braughton, 569 S.W.3d at 609; Saxton, 804 S.W.2d at 914. Rather, the jury was
free to judge the credibility and weight of all of the evidence presented. See Brooks,
323 S.W.3d at 899; Clayton, 235 S.W.3d at 778; Hooper, 214 S.W.3d at 13.
Furthermore, the evidence supports the jury’s rejection of Appellant’s claim
that his actions were reasonable under the circumstances. See Winfrey, 393 S.W.3d
at 767; Clayton, 235 S.W.3d at 778. Appellant stated that he and Nicole possessed
13
illegal drugs at the time of the incident, which rebuts the presumption of
reasonableness. See PENAL § 9.32(b)(3). Appellant’s and Nicole’s statements were
inconsistent on critical facts. In Dr. Parsons’s testimony, he addressed the
discrepancy in the distance between Appellant and Hoover when Appellant shot
Hoover. Dr. Parsons also addressed the significance of Hoover’s single-entry head
wound that was inflicted by Appellant and that appeared to be caused by two bullets.
Moreover, the actions of Appellant and Nicole to conceal the bodies of Hoover and
Bruns under Appellant’s trailer and their efforts to clean up and tamper with the
crime scene are not indicative of reasonable conduct and would tend to show a
“consciousness of guilt” on their part. See King v. State, 29 S.W.3d 556, 565 (Tex.
Crim. App. 2000); see also Miller v. State, 177 S.W.3d 177, 184 (Tex. App.—
Houston [1st Dist.] 2005, pet. ref’d) (defendant’s actions of burying gun and burning
clothes he was wearing supported jury’s rejection of self-defense); Valdez v. State,
841 S.W.2d 41, 43 (Tex. App.—Houston [14th Dist.] 1992, pet. ref’d) (defendant’s
actions of changing clothes, hiding gun, and disposing of the bullets supported jury’s
rejection of self-defense).
From the evidence presented at trial, a rational jury could have found that
Appellant’s use of force was neither reasonable nor justified. The jury was entitled
to disbelieve Appellant’s version of events, particularly in light of his and Nicole’s
inconsistent and conflicting statements. Indeed, the jury could have determined
from the evidence that Appellant’s belief that deadly force was immediately
necessary to protect himself, or Nicole, was not a reasonable belief. In the absence
of evidence in the record indicating that the jury was irrational in their rejection of
Appellant’s claim of self-defense, we decline to substitute our view of the witnesses’
credibility for that of the jury. See Saxton, 804 S.W.2d at 914. As we have said, it
was the jury’s function to assess the credibility of all witnesses and to weigh the
evidence. Here, the jury’s determination of Appellant’s guilt is tantamount to a
14
rejection of his claim of self-defense, and the jury was free to reject this defense and
Appellant’s version of events. See Braughton, 569 S.W.3d at 609; Saxton, 804
S.W.2d at 914; see also Febus, 542 S.W.3d at 572. Furthermore, the statements of
Appellant and his witnesses do not conclusively prove a claim of self-defense. See
Smith v. State, 355 S.W.3d 138, 146 (Tex. App.—Houston [1st Dist.] 2011, pet.
ref’d).
Viewing the evidence in the light most favorable to the jury’s verdict, we hold
that the State adduced sufficient evidence from which a rational trier of fact could
have found, beyond a reasonable doubt, all of the essential elements of murder and
also could have found against Appellant on his claim of self-defense. Accordingly,
we overrule Appellant’s fourth issue.
B. Judicial Commentary
In his first issue, Appellant complains that the trial court, in the presence of
the jury, directed several admonishments and other critical statements to Appellant’s
trial counsel. It is Appellant’s contention that those remarks improperly influenced
the jury’s decisions and unfairly prejudiced him. Appellant references several
instances in which the trial court either admonished or expressed displeasure with
Appellant’s trial counsel in the presence of the jury. As such, it is Appellant’s belief
that the trial court’s comments insinuated and created an impression with the jury
that Appellant’s trial counsel was dishonest and was manipulating the judicial
process. After a thorough review of the record, we disagree. See Trung The Luu v.
State, 440 S.W.3d 123, 129 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (“The
scope of our review is the entire record.” (citing Dockstader v. State, 233 S.W.3d
98, 108 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d))).
A defendant has a due process right to a fair and impartial trial before a neutral
and independent judge. Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App.
2006); see Ellason v. Ellason, 162 S.W.3d 883, 887 (Tex. App.—Dallas 2005, no
15
pet.). It is presumed that the trial court’s actions during trial were correct, and a clear
showing of bias is required to overcome this presumption. Brumit, 206 S.W.3d at
645. Therefore, to find reversible error on the ground of improper judicial conduct
or comments, we must conclude (1) that some form of judicial impropriety was in
fact committed and (2) that such impropriety resulted in probable prejudice to the
complaining party. Dockstader, 233 S.W.3d at 108.
“Judicial remarks during the course of a trial that are critical or disapproving
of, or even hostile to counsel, the parties, or their cases, ordinarily do not support a
bias or partiality challenge.” Trung The Luu, 440 S.W.3d at 129; see Jasper v. State,
61 S.W.3d 413, 421 (Tex. Crim. App. 2001) (“[A] trial judge’s irritation at the
defense attorney does not translate to an indication as to the judge’s views about the
defendant’s guilt or innocence.”). “Such remarks may constitute bias if they reveal
an opinion deriving from an extrajudicial source; however, when no extrajudicial
source is alleged, such remarks will constitute bias only if they reveal such a high
degree of favoritism or antagonism as to make fair judgment impossible.”
Dockstader, 233 S.W.3d at 108 (citing Markowitz v. Markowitz, 118 S.W.3d 82, 86
(Tex. App.—Houston [14th Dist.] 2003, pet. denied)).
As Appellant’s trial counsel began his cross-examination of Ranger
Vandygriff, the trial court sustained an objection asserted by the State. The trial
court then directed the following remarks to Appellant’s trial counsel in the jury’s
presence: “Ask your question. Do not do your jury arguments until jury argument
time. This is a time to ask questions. It’s not the time to continually try to stress
something that is not an evidentiary issue. Get to the evidence.” This interaction
led to further discussion in the presence of the jury between the trial court and
Appellant’s trial counsel:
[DEFENSE COUNSEL]: Your Honor, at this time I would ask
the Court to instruct the jury that any expression of anger or displeasure
16
with the Defense attorney should have no weight or bearing on their
decision on the case[.]
THE COURT: Then don’t raise the displeasure of the Court in
an intentional effort to misdirect or misguide this Court. Now, if you
want to proceed, you proceed. If not, we’ll let somebody else.
[DEFENSE COUNSEL]: Well, Judge, you just made a comment
that I made an intentional effort to misdirect, and that’s just not a true
statement. There was -- I’m not trying to misdirect anybody. I’m trying
to get at the truth and to justice in this case.
THE COURT: Then ask questions to establish evidence and do
not make your jury arguments during your questions. The objection is
sustained.
[DEFENSE COUNSEL]: Well, I would like to make -- have a
ruling on my request for you to instruct the jury that they’re not to use
your displeasure expressed towards me for any consideration
whatsoever in their deliberations.
THE COURT: Your motion is overruled. Sit down --
[DEFENSE COUNSEL]: Thank you.
THE COURT: -- and proceed.
Later, during the same cross-examination, and after the trial court had
sustained a series of hearsay objections raised by the State, Appellant’s trial counsel
asked Ranger Vandygriff another question and then immediately asked the
prosecutor: “Did you want to object to hearsay?” This comment by Appellant’s trial
counsel precipitated the following exchange in the jury’s presence:
THE COURT: Just a second. I’m going to object to hearsay.
That has nothing to do with anything. You told me last night you were
not going to ask questions that were not admissible for the sole purpose
of dragging things out. You told me this witness would be through very
shortly this morning as we discussed scheduling at your request. These
questions have --
17
[DEFENSE COUNSEL]: Your Honor, I object to this
admonishment in front of the jury talking about things that were talked
about outside the presence of the jury. It’s just not fair.
THE COURT: What’s not fair is to intentionally ask over and
over --
[DEFENSE COUNSEL]: That’s not what I’m doing, Judge.
That’s not fair for you to say that in front of the jury, and I make a
Motion for Mistrial.
THE COURT: Denied.
[DEFENSE COUNSEL]: I’m trying my best. This man is on
trial for his life, and I’m trying to defend him to the best of my ability.
And my ability may not be as good as some lawyers that you have, but
it’s the best I got.
THE COURT: Whether it’s your ability or not you are to comply
with the law, and the law of evidence does not permit somebody to ask
what did somebody else tell somebody else and you tell me. That’s
hearsay.
After this colloquy, the jury was excused for a break. Appellant’s trial counsel
thereafter re-urged his motion for mistrial and presented additional objections
claiming that the trial court had made these comments2 “out of [its] anger towards
[defense counsel]” and that, because “[t]his Judge is a Judge of a small town and a
small county and apparently carries a lot of power and influence,” these comments
could unfairly influence the jury and deny Appellant a fair trial. The trial court,
again, denied the motion for mistrial. The trial court reminded Appellant’s trial
counsel that they had previously discussed time management expectations for the
2
Appellant’s trial counsel also complained that the trial court had made various facial expressions
in the jury’s presence that were clearly indicative of its disapproval of trial counsel. Appellant’s trial
counsel requested a jury instruction that “any disapproval [the jury] may interpret from your facial
expressions” or “any perceived disapproval of me by the Court is not to be considered as a comment on the
weight of the evidence.” The trial court denied the request. As Appellant notes, this discussion occurred
outside the presence of the jury. Irrespective of the setting, we do not find that the trial court’s comments
in this instance reached the level of clear bias. See Jasper, 61 S.W.3d at 421.
18
examination of certain witnesses, which the trial court now believed that trial
counsel was flouting. The trial court then stated:
And then for you to ask questions that are totally irrelevant . . . . What
those witnesses say or said in statements to an officer or another officer
is obviously hearsay. Their testimony could possibly be admissible, but
there are ways for you to get that into evidence in a proper way rather
than to just drag out through inappropriate or improper questions. Drag
out the time involved with this particular witness. And then for you to
knowingly do so and evidence that by turning to the -- another attorney
in this case and let them know that you knew it was inappropriate by
saying, “Well, aren’t you going to object to hearsay?” was a point past
which I didn’t believe and I do not believe should have been taken, and
I admonished you not to do that.
“The trial court has great discretion in conducting the trial.” Haynes v. Union
Pac. R.R. Co., 598 S.W.3d 335, 350 (Tex. App.—Houston [1st Dist.] 2020, pet.
abated) (citing Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240–41 (Tex. 2001));
accord Jasper, 61 S.W.3d at 421. In his discretion, a judge may lawfully provide
guidance and manage the presentation of evidence without abandoning his role as a
neutral and independent arbiter. Strong v. State, 138 S.W.3d 546, 552 (Tex. App.—
Corpus Christi–Edinburg 2004, no pet.); see TEX. R. EVID. 611(a). Nonetheless,
even “a stern and short-tempered judge’s ordinary efforts at courtroom
administration” are “‘within the bounds’ of human imperfection” and will not
support a claim of judicial bias. Gonzalez v. State, No. AP-77,066, 2020 WL
6482409, at *55 (Tex. Crim. App. Nov. 4, 2020) (quoting Liteky v. United States,
510 U.S. 540, 556 (1994)).
Appellant relies on Blue v. State for the proposition that, in a trial setting, the
trial judge has significant influence over the jury. See Blue v. State, 41 S.W.3d 129,
131 (Tex. Crim. App. 2000) (plurality op.). In Blue, a plurality of the court
concluded that the trial court’s comments to the jury venire that suggested that the
trial court would have preferred for the defendant to plead guilty constituted
19
fundamental error and tainted the presumption of innocence. Id. at 131–32. We
agree with this proposition. However, unlike the scenario in Blue, Appellant’s
arguments in this case and his cited examples of alleged improper judicial
commentary cannot be characterized as one of the “few cases where the judge’s
statements when viewed objectively are so egregious as to render him biased.” Blue,
41 S.W.3d at 138 (Keasler, J., concurring).
Here, the trial court’s comments that the conduct of Appellant’s trial counsel
constituted “an intentional effort to misdirect or misguide this Court” and that “[y]ou
told me last night you were not going to ask questions that were not admissible for
the sole purpose of dragging things out,” when taken in context, are indicative of the
trial court’s frustration and the apparent misunderstanding as to how the trial court
and Appellant’s trial counsel believed the order of trial should proceed. The trial
court clearly expressed its impatience with the manner in which Appellant’s trial
counsel examined certain witnesses and the methods and purposes utilized by him
to offer evidence. It is also equally apparent that the trial court’s admonishments
and perceived irritation with Appellant’s trial counsel were related to and focused
on the presentation of evidence, the need for effective time management, and the
trial court’s intention of conducting an efficient trial, and not on the guilt or
credibility of Appellant or the defense that he and his trial counsel presented at trial.
See Jasper, 61 S.W.3d at 421; Wilson v. State, 473 S.W.3d 889, 903–04 (Tex.
App.—Houston [1st Dist.] 2015, pet. ref’d).
Notwithstanding Appellant’s complaints, we believe it should be noted that,
as a general rule of thumb, a trial court should refrain from expressing or directing
comments or admonishments of this nature to trial counsel in the presence of the
jury. See Joshlin v. State, 488 S.W.2d 773, 776 (Tex. Crim. App. 1972) (“If the
conduct of counsel is such that repeated admonishments are called for, it is perhaps
better practice to do so in the absence of the jury.”); see also Burris v. State, 276
20
S.W.2d 260, 263 (Tex. Crim. App. 1953). We understand the frustration that at
times is experienced by a trial court. We also understand that a trial court’s need to
admonish trial counsel may at times be invited, necessary, or even justified;
however, alternative methods exist, and should be considered, to effectively and
professionally address these situations. Here, although the trial court’s comments
did not reach the level of clear bias, the more appropriate manner and forum in which
to address such commentary would have been in a setting without the jury’s
presence. See Joshlin, 488 S.W.2d at 776; Burris, 276 S.W.2d at 263. Nevertheless,
the trial court’s failure to do so in this case, without more, did not render the trial
court’s commentary biased. See, e.g., Jasper, 61 S.W.3d at 421 (“[A] trial judge’s
irritation at the defense attorney does not translate to an indication as to the judge’s
views about the defendant’s guilt or innocence.”); Williams v. State, 191 S.W.3d
242, 252–53 (Tex. App.—Austin 2006, no pet.) (“The trial court may declare in the
jury’s presence that a statement is ‘not the law.’”); Watson v. State, 176 S.W.3d 413,
418–19 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (holding trial court’s
comments in the presence of the jury criticizing a pro se litigant’s decision not to be
represented by counsel did not vitiate the presumption of innocence).
Moreover, and importantly, we do not believe that the trial court’s challenged
commentary prejudiced Appellant or unfairly influenced the jury. See Dockstader,
233 S.W.3d at 108; Simon v. State, 203 S.W.3d 581, 595 (Tex. App.—Houston [14th
Dist.] 2006, no pet.) (“In assessing the impact of a trial court’s improper comments,
a reviewing court is concerned with whether the jury would be unfairly influenced
by additional comments from the bench.” (citing Strong, 138 S.W.3d at 553)).
Appellant killed Bruns and Hoover. He was acquitted of the murder of Bruns. Even
though the jury convicted him of Hoover’s murder, the jury also affirmatively found
that Appellant acted under the immediate influence of “sudden passion” and
assessed the minimum sentence of two years’ imprisonment. Unquestionably, for
21
Appellant, in the absence of being acquitted for Hoover’s murder, the result of this
trial could not have been more favorable.
In light of Appellant’s complaints of alleged judicial improprieties, we are
mindful that the guiding principles of our profession dictate that trial counsel and
judges should be courteous to and respectful of each other and should avoid the urge
to unnecessarily or improperly attack and criticize the other. See, e.g., TEX. CODE
JUD. CONDUCT, Canon 3(B)(4), reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G,
app. C (West 2019). Trial counsel and judges have an equal responsibility to protect
the dignity and independence of the court, the decorum of court proceedings, and
the legal profession. Neither trial counsel nor the trial judge should engage in
conduct that could be construed as offensive to the court, its proceedings, its rulings,
or the legal profession. Trial judges are gatekeepers and managers of the courtroom.
Above all else, they should be neutral arbiters. It is their primary role to effectively
manage trial proceedings, to rule on objections asserted by the parties, and to instruct
juries on the law applicable to each case. Similarly, trial counsel’s conduct should
adhere to the highest levels of professionalism. See, e.g., TEX. DISCIPLINARY RULES
PROF’L CONDUCT preamble ¶ 4, reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G,
app. A (West 2019) (Tex. State Bar R. art. X, § 9) (“A lawyer should demonstrate
respect for the legal system and for those who serve it, including judges, other
lawyers and public officials.”). As such, trial counsel should refrain from engaging
in conduct that is designed or intended to agitate or offend the court or impugn the
judicial process. See generally TEX. LAWYER’S CREED—A MANDATE FOR
PROFESSIONALISM (1989), reprinted in TEXAS RULES OF COURT 737 (West 2020).
Here, we conclude that, in context and in totality, the trial court’s challenged
comments did not demonstrate a high degree of favoritism or antagonism, nor did
they rise to such a level as to vitiate the impartiality of the jury or affect the
presumption of innocence due Appellant. See Liteky, 510 U.S. at 556; Jasper, 61
22
S.W.3d at 421; Dockstader, 233 S.W.3d at 108. We cannot discern from the record
the demeanor, the voice inflections, or the overt conduct exhibited by the trial court
and Appellant’s trial counsel during the challenged exchanges, or any other
characteristic that would be indicative of the trial court’s alleged anger or
impatience. Furthermore, we cannot determine from our review of the “cold” record
if Appellant’s trial counsel presented an argumentative or surly attitude toward the
trial court and the judicial process. If so, perhaps admonishments by the trial court
would have been appropriate. Trials, at times, can become contentious. Some may
even describe trials as battle or war. Regardless of the circumstance, civility should
rule the day, and the interactions between trial counsel and the trial court should
never become adversarial. Metaphors aside, we believe that the trial court in this
case did not cross the line, as Appellant suggests. Therefore, based on the record
before us, we cannot conclude that Appellant was deprived of his right to a fair and
impartial trial before a neutral and detached judge. Accordingly, we overrule
Appellant’s first issue.
C. Evidentiary Issues – Standard of Review
In his remaining four issues—Appellant’s second, third, fifth, and sixth
issues—Appellant asserts that the trial court erred when it admitted, or refused to
admit, certain evidence. We review the trial court’s decision to admit or exclude
evidence under an abuse of discretion standard. Rhomer v. State, 569 S.W.3d 664,
669 (Tex. Crim. App. 2019); Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App.
2010); Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007) (citing
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)); Walter v. State,
581 S.W.3d 957, 977 (Tex. App.—Eastland 2019, pet. ref’d). This same standard
applies when we review a trial court’s decision to admit or exclude extraneous
evidence. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009).
23
We will not reverse a trial court’s decision to admit or exclude evidence, and
there is no abuse of discretion, unless that decision lies outside the zone of reasonable
disagreement. Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018); De La
Paz, 279 S.W.3d at 343–44; Cameron, 241 S.W.3d at 19; Martin v. State, 173
S.W.3d 463, 467 (Tex. Crim. App. 2005); Walter, 581 S.W.3d at 977. Furthermore,
we will uphold a trial court’s evidentiary ruing if it is correct on any theory of law
that reasonably finds support in the record and is applicable to the case. Henley v.
State, 493 S.W.3d 77, 93 (Tex. Crim. App. 2016); Gonzalez v. State, 195 S.W.3d
114, 125–26 (Tex. Crim. App. 2006); Willover v. State, 70 S.W.3d 841, 845 (Tex.
Crim. App. 2002); Dering v. State, 465 S.W.3d 668, 670 (Tex. App.—Eastland
2015, no pet.).
1. Evidence in the Safe
As we have noted, approximately eight months after Bruns and Hoover were
killed, a safe was recovered on the property of a business adjacent to Appellant’s
trailer. Among other things, drugs, drug paraphernalia, and a wallet with Nicole’s
identification were found in the safe. In his second and third issues, Appellant
contends that the trial court erred when it admitted these items because such evidence
was not relevant and was unfairly prejudicial. We agree.
Evidence is relevant if it has any tendency to make a fact of consequence to
the determination of the action more or less probable than it would be without the
evidence. TEX. R. EVID. 401. “Generally, all relevant evidence is admissible.”
Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009) (citing TEX. R. EVID.
402). Because Rule 403 favors the admissibility of relevant evidence, it is presumed
that relevant evidence will be “more probative than prejudicial.” Montgomery, 810
S.W.2d at 389; see TEX. R. EVID. 403; see also De La Paz, 279 S.W.3d at 343. Even
“marginally probative” evidence should be admitted if “it has any tendency at all,
even potentially, to make a fact of consequence more or less likely.” Fuller v. State,
24
829 S.W.2d 191, 198 (Tex. Crim. App. 1992), abrogated on other grounds by
Riley v. State, 889 S.W.2d 290, 301 (Tex. Crim. App. 1993).
The trial court concluded that the evidence recovered from the safe was
relevant and admissible for impeachment purposes and because it pertained to
Appellant’s claim of self-defense. Appellant’s claim of self-defense required a
showing that his use of deadly force was reasonable. See PENAL § 9.32(a). In
connection with its trial strategy to prove that Appellant’s use of deadly force was
not reasonable under the circumstances, the State offered this evidence to show that
Appellant was involved in criminal activity, namely the possession of illegal drugs,
at the time he was engaged in his allegedly defensive actions. See id. § 9.32(b)(3).
Here, the admission of the evidence recovered from the safe did not tend to make it
more probable that Appellant was engaged in criminal activity by possessing illegal
drugs because Appellant, in fact, admitted to using illegal drugs that night. See
Fuller, 829 S.W.2d at 198. Furthermore, none of the evidence recovered from the
safe was directly linked to Appellant. Rather, the wallet contained Nicole’s
identification, not Appellant’s, and both Appellant and Nicole had stated that the
drugs belonged to her.
It is also apparent that the evidence that was recovered from the safe was not
relevant to Appellant’s claim of self-defense. Nor was this evidence relevant for
impeachment purposes because, as we have noted, none of it could be linked to
Appellant. Furthermore, because Appellant candidly admitted to using illegal drugs
on a daily basis, this evidence could not have been legitimately used for
impeachment purposes. See id. Therefore, we conclude that the evidence recovered
from the safe was not relevant to any issue in the case and should have been
excluded. See TEX. R. EVID. 402 (“Irrelevant evidence is not admissible.”); see also
Henley, 493 S.W.3d at 83. Because of our holding on this issue, we need not
25
determine whether the trial court abused its discretion when it found that this
evidence was not unfairly prejudicial. See TEX. R. APP. P. 47.1.
Although the trial court erred when it admitted this evidence, we find that such
error does not require reversal. See Perez v. State, 562 S.W.3d 676, 691 (Tex.
App.—Fort Worth 2018, pet. ref’d); see also TEX. R. APP. P. 44.2(b). The trial
court’s erroneous admission of evidence generally constitutes nonconstitutional
error. See Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002); Reese v.
State, 33 S.W.3d 238, 243 (Tex. Crim. App. 2000). We must disregard a
nonconstitutional error if it does not affect a litigant’s substantial rights. TEX. R.
APP. P. 44.2(b). “A substantial right is affected when the error had a substantial and
injurious effect or influence in determining the jury’s verdict.” Schmutz v. State,
440 S.W.3d 29, 39 (Tex. Crim. App. 2014). “[S]ubstantial rights are not affected by
the erroneous admission of evidence ‘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.’” Motilla, 78 S.W.3d at 355 (quoting Solomon v. State, 49 S.W.3d
356, 365 (Tex. Crim. App. 2001)). In assessing the likelihood that the jury’s decision
was adversely affected by the error, we must “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.” Id.
Despite our conclusion that the evidence recovered from the safe (the drugs,
the drug paraphernalia, and the wallet containing Nicole’s identification) was not
relevant to Appellant’s claim of self-defense or the State’s proffered theories, we
believe that we have fair assurance that the erroneous admission of this evidence did
not influence the jury’s decisions in this case or, if any, its admission had but a slight
effect. Appellant was acquitted of Bruns’s murder. As we have discussed, there is
sufficient evidence to support Appellant’s conviction for the murder of Hoover and
26
the jury’s rejection of his claim of self-defense. Whether this unfortunate event arose
from “a drug deal gone bad,” from an aggravated robbery, or from some other
reason, such an event could not be the logical distinguishing factor for the jury to
render a verdict of acquittal for one killing and a finding of guilt for the other.
Rather, the jury could have reasonably concluded that the distinguishing factor, or
factors, was the manner in which Appellant killed Hoover: that is, whether the jury
believed that Appellant’s use of deadly force against Hoover and Bruns,
respectively, was reasonable and justified. See PENAL § 9.32(a).
Here, Appellant’s description of the encounter indicates that he had gained
control of the situation when he stabbed and overpowered Bruns and seized the gun
from him. Furthermore, the discrepancies and inconsistencies in the evidence
concerning the distance from which Appellant shot Hoover, and the existence of a
single entry wound when two bullets were extracted from Hoover’s head, could
reasonably support the conclusion that is indicated by the jury’s verdict: that
Appellant, while perhaps acting in self-defense during his struggle with Bruns,
exceeded the bounds of reasonable force—and therefore the justification of self-
defense or the defense of others—when, using the only gun that was available at the
time, proceeded to shoot Hoover until he “knew [Hoover] was dead.” As such, the
jury could have reasonably believed, and did believe as shown by its verdicts, that
the force used by Appellant against Bruns was reasonable and justified but that the
force he used against Hoover, under the circumstances, was neither.
Additionally, we note that the trial court included a limiting instruction in the
guilt/innocence charge in which the trial court addressed the jury’s use and
consideration of any extraneous evidence admitted at trial so as to mitigate any
potential improper consideration of this evidence by the jury when it was deciding
Appellant’s guilt. Assuming, without deciding, that the jury considered this
evidence for any purpose in determining Appellant’s guilt, it is presumed that a jury
27
follows a trial court’s instructions regarding the consideration of evidence.
Therefore, any potential harm to Appellant would be further mitigated by the trial
court’s limiting instruction. See Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim.
App. 2009); Hutch v. State, 922 S.W.2d 166, 172 (Tex. Crim. App. 1996); Garcia v.
State, 592 S.W.3d 590, 598 (Tex. App.—Eastland 2019, no pet.); Hung Phuoc Le v.
State, 479 S.W.3d 462, 472 (Tex. App.—Houston [14th Dist.] 2015, no pet.).
In light of our discussion of this issue on appeal, and based on the record
before us, we hold that the trial court’s erroneous admission of the evidence
recovered from the safe did not affect Appellant’s substantial rights. See Motilla, 78
S.W.3d at 355; see also TEX. R. APP. P. 44.2(b). Accordingly, Appellant’s second
and third issues are overruled.
2. Bad Acts/First Aggressor
Finally, in his fifth and sixth issues, Appellant asserts that the trial court erred
when it refused to admit evidence proffered by his trial counsel concerning prior bad
acts of violence committed by Hoover against McCarter and Kerry. Appellant
contends that the proffered evidence was admissible to show motive and to show
that Hoover was the first aggressor in this instance. We agree.3
Generally, a party may not introduce evidence of specific past conduct of a
person to prove conformity of character. TEX. R. EVID. 404(b); Robbins v. State, 88
S.W.3d 256, 259 (Tex. Crim. App. 2002) (citing Montgomery, 810 S.W.2d at 386–
88); Mozon v. State, 991 S.W.2d 841, 846 (Tex. Crim. App. 1999); Tate v. State, 981
S.W.2d 189, 192 (Tex. Crim. App. 1998). Nevertheless, extraneous evidence may
be admissible for other purposes if it has relevance apart from character conformity.
Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011); Moses v. State, 105
3
We address these issues together because, under these facts, the issue of motive is only relevant to
whether the victim was the first aggressor. See Torres v. State, 117 S.W.3d 891, 894–95 (Tex. Crim. App.
2003); Torres v. State, 71 S.W.3d 758, 760–61 (Tex. Crim. App. 2002); see also TEX. R. APP. P. 47.1.
28
S.W.3d 622, 626 (Tex. Crim. App. 2003); Hernandez v. State, 426 S.W.3d 820, 825
(Tex. App.—Eastland 2014, pet. ref’d). For instance, such evidence “may be
admissible for another purpose, such as proving motive,” among other things.
TEX. R. EVID. 404(b)(2). Under Rule 405(b), specific instances of conduct are a
permissible method to present character evidence in cases in which “a person’s . . .
character trait is an essential element of a charge, claim, or defense.” TEX. R.
EVID. 405(b). Although a victim’s character trait is generally not an essential
element of a claim of self-defense, Tate, 981 S.W.2d at 192–93, there are exceptions.
One such exception is applicable here.
A defendant who raises the issue of self-defense may introduce evidence of a
deceased victim’s character trait for violence and other prior violent acts committed
by the victim to show that the victim was the first aggressor; to be admissible, the
defendant need not be aware of the act. Ex parte Miller, 330 S.W.3d 610, 619 (Tex.
Crim. App. 2009) (referring to former Rule 404(a)(2), which is now
Rule 404(a)(3)(A)); Torres v. State, 71 S.W.3d at 758, 760 (Tex. Crim. App. 2002);
Tate, 981 S.W.2d at 193; see also TEX. R. EVID. 404(a)(3)(A), 404(b)(2), 405(a).
The prior specific acts of violent conduct may be offered to show, among other
things, the deceased victim’s state of mind, intent, or motive. See Ex parte Miller,
330 S.W.3d at 619; Torres v. State, 117 S.W.3d 891, 894–95 (Tex. Crim. App.
2003); Torres, 71 S.W.3d at 761.
When evidence of a deceased victim’s character trait for violence is
admissible, it may be proved by reputation or opinion testimony. Ex parte Miller,
330 S.W.3d at 619; Torres, 71 S.W.3d at 760; see TEX. R. EVID. 405(a). Here, the
evidence Appellant sought to admit concerned Hoover’s alleged commission of
separate incidents of aggravated robberies against McCarter and Kerry. Although
McCarter’s and Kerry’s testimony about these events would not be characterized as
either reputation or opinion testimony, under Rule 404(b), “a victim’s prior acts of
29
violence also may be admissible to clarify the issue of first aggressor if the proffered
act explains the victim’s ambiguously aggressive conduct.” Allen v. State, 473
S.W.3d 426, 446 (Tex. App.—Houston [14th Dist.] 2015, pet. dism’d); see Torres,
117 S.W.3d at 894–95; Torres, 71 S.W.3d at 762 (“As long as the proffered violent
acts explain the outward aggressive conduct of the deceased at the time of the killing,
and in a manner other than demonstrating character conformity only, prior specific
acts of violence may be admitted even though those acts were not directed against
the defendant.”).
To support a claim that the deceased victim was the first aggressor, the
defendant must first offer evidence of an actual act of aggression by the victim at the
time of the offense. Dudzik v. State, 276 S.W.3d 554, 560 (Tex. App.—Waco 2008,
pet. ref’d). As such, with respect to the “first aggressor” issue, the victim’s prior
violent conduct is only admissible (1) if there is some ambiguous or uncertain
evidence of a violent or aggressive act by the victim that tends to show the victim
was the first aggressor and (2) if the proffered evidence tends to dispel the ambiguity
or explain the victim’s conduct at the time of the incident. James v. State, 335
S.W.3d 719, 728 (Tex. App.—Fort Worth 2011, no pet.) (citing Mai v. State, 189
S.W.3d 316, 321 (Tex. App.—Fort Worth 2006, pet. ref’d); Reyna v. State, 99
S.W.3d 344, 347 (Tex. App.—Fort Worth 2003, pet. ref’d)); see also Torres, 71
S.W.3d at 762 (“For purposes of proving that the deceased was the first aggressor,
the key is that the proffered evidence explains the deceased’s conduct.”).
Furthermore, the victim’s prior specific acts of violent conduct need not be directed
against the defendant to be admissible. Torres, 71 S.W.3d at 761–62 (citing
Jenkins v. State, 625 S.W.2d 324, 325–27 (Tex. Crim. App. [Panel Op.] 1981)).
By bill of exception, Appellant proffered evidence of two separate, prior
incidents of aggravated robbery that Hoover allegedly committed against McCarter
and Kerry, respectively. Both testified that Hoover had brandished either a knife or
30
a gun to rob them in the past. McCarter testified that Hoover climbed through his
window one night, threatened him with a knife, and took $300 from him, which
Hoover claimed he needed to pay for drugs. Kerry, who is an alleged drug dealer,
testified that, approximately three months before Hoover’s death, two men wearing
masks entered her home without her consent, threatened her with a gun, and robbed
her. Kerry further testified that she thought Hoover was involved because, during
the offense, one of the men called the other “Hoover.” After considering Appellant’s
proffers, the trial court determined that the testimony of McCarter and Kerry should
be excluded because their testimony would tend to show character conformity and
because the prejudicial effect of its admission would substantially outweigh any
potential probative value. See TEX. R. EVID. 403, 404(b)(2); Mozon, 991 S.W.2d at
846.
In this case, given the applicable presumptions and standard of review, we
conclude that the trial court abused its discretion when it excluded the proffered
testimony of McCarter and Kerry. This evidence, if admitted, could arguably have
supported Appellant’s theory that, in light of Hoover’s alleged history of violent
conduct, Hoover was the first aggressor in this instance. Hoover’s unannounced
appearance at Appellant’s home at 4:00 a.m., wearing a ski mask and dressed in all
black clothing, could be construed as an act of aggression. See Torres, 117 S.W.3d
at 895. In Torres, the Court of Criminal Appeals held that the deceased victim’s
“action of climbing up the second-story balcony, uninvited and unannounced, at 6:30
a.m. constitute[d] an act of aggression” that tended to raise the issue of self-defense.
Id. The court in Torres also concluded that, because the person who saw the
deceased victim climbing onto the balcony perceived this action to be aggressive,
such evidence was relevant to the determination that the action of the deceased
victim was, in fact, aggressive. Id. Here, the manner in which Hoover appeared at
Appellant’s trailer is similar to that of the deceased victim’s actions in Torres.
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Appellant posits that, if the trial court had admitted the proffered testimony of
McCarter and Kerry, the jury could have reasonably concluded that Hoover’s
appearance at Appellant’s trailer was an aggressive act. Appellant further claims
that the jury could have considered this evidence to determine if Hoover’s actions
that morning, and his pattern of aggressive behavior, justified Appellant’s use of
deadly force and tended to support his claim of self-defense. See id. Because the
jury could have reasonably concluded that Hoover’s conduct at Appellant’s trailer
was aggressive in nature, the trial court erred when it refused to permit Appellant to
introduce the proffered testimony of the prior, similar acts of alleged violent conduct
committed by Hoover against McCarty and Kerry. Arguably, such evidence could
have clarified Hoover’s ambiguously aggressive conduct on the night in question in
a manner other than to demonstrate character conformity. See Ex parte Miller, 330
S.W.3d at 620; Torres, 117 S.W.3d at 895–96; Torres, 71 S.W.3d at 762 (citing Tate,
981 S.W.2d at 193); James, 335 S.W.3d at 728; Reyna, 99 S.W.3d at 347.4
The same harm standard we discussed in addressing Appellant’s second and
third issues applies equally here, and we need not repeat it. Notwithstanding
Appellant’s assertions, based on our review of the record as a whole, we conclude
that the trial court’s erroneous exclusion of the proffered testimony of McCarty and
Kerry did not affect Appellant’s substantial rights. See Motilla, 78 S.W.3d at 355;
Perez, 562 S.W.3d at 691; see also TEX. R. APP. P. 44.2(b). As we have said, the
jury was not required to accept Appellant’s version of events or any of the evidence
4
Furthermore, a trial court may, under Rule 403, exclude evidence that is otherwise admissible
under Rule 404 if the court finds, on balance, that the prejudicial effect of such evidence substantially
outweighs its probative value. TEX. R. EVID. 403; see also Casey v. State, 215 S.W.3d 870, 880 (Tex. Crim.
App. 2007); Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). Here, the trial court
expressly stated that the basis for its Rule 403 exclusion was because neither episode proffered by Appellant
proved motive. Because we have concluded that Appellant’s proffered evidence would be admissible to
show motive with reference to the question of whether Hoover was the first aggressor, we also conclude
that the trial court’s Rule 403 balancing analysis, as expressly characterized by the court, was erroneous.
32
offered by him at trial. As such, in light of the record before us, we believe that we
have fair assurance that the trial court’s exclusion of this evidence did not influence
the jury’s decisions in this case or, if any, its exclusion had but a slight effect.
Accordingly, we overrule Appellant’s fifth and sixth issues.
III. This Court’s Ruling
We affirm the judgment of the trial court.
W. STACY TROTTER
JUSTICE
February 26, 2021
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
33