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William HALL, Appellant v. The STATE of Texas, Appellee
Appellant William Hall appeals his conviction of murder. In his first issue appellant contends that the trial court erred in admitting testimony from a rebuttal witness. In his second issue appellant argues that the evidence was insufficient to sustain the jury's implicit rejection that appellant acted in reasonable self-defense. We affirm.
On the evening of May 31, 2017, the complainant stopped at a post office to retrieve his mail. The post office was closed, and the parking lot was empty. Although he did not possess a handicapped parking placard, the complainant parked in a handicapped parking space near the entrance doors to the post office. While the complainant was inside, appellant arrived at the post office to drop off some mail. Appellant parked next to the complainant's car in the other designated handicapped spot. Appellant had a handicapped placard for his vehicle and became irritated that the complainant parked in a handicapped space without having a handicapped license plate or placard. Appellant walked to the front of the complainant's car to take a picture of the complainant's car in the handicapped space. While appellant was in the process of taking the picture, the complainant walked out of the post office, past appellant, and to the driver-side door of his car. The complainant asked whether appellant had a problem with his parking in the handicapped space to which appellant responded that he did have a problem with it. The complainant yelled at appellant and appellant responded. The verbal altercation escalated into a physical altercation between the two men.
The complainant slapped or struck appellant's jaw with his hand. Appellant then used his hand to hit the complainant's right hand, causing the complainant to turn away from appellant. When the complainant turned back to face appellant, he appeared “really mad” and clenched his fists in an “aggressive” stance. Appellant then drew his gun and shot the complainant a single time in the lower chest, upper abdominal area. Appellant waited to see if the complainant would attempt to get up or continue fighting, and when he remained on the ground, appellant called 9-1-1 to request the police and paramedics. The complainant was also able to call 9-1-1 to request assistance.
The complainant was taken to the hospital by ambulance and, over the course of two weeks, underwent numerous surgeries in an attempt to remove the bullet fragments and repair the internal damage to his liver, kidneys, and other tissues. The complainant never recovered or awakened from his surgeries, and his family decided to remove life support as the complainant's condition was “irreversibly futile.” The complainant died on June 13, 2017.
At trial, in appellant's opening statement, appellant's trial counsel stated that “we're here today because a disabled man was attacked and he was forced into a life or death struggle where he defended himself in the only way he was able to defend himself.” Appellant stated his intent to put on evidence of his medical history and records to show the extent of his disability and why it made him more vulnerable or susceptible to fatal injury. Appellant also stated that he would put on evidence that he has had a license to carry a firearm for twenty years and carries his firearm every day, but did not give any indication of why he carries a firearm daily during opening statement.
The State put on testimony from eleven witnesses, including the officers that responded to the scene, the complainant's son, an emergency room trauma surgeon, and an attorney who knew the complainant. The State also introduced into evidence multiple photographs of the parking lot, the recordings of the 9-1-1 calls made by the complainant and appellant, the autopsy photographs, and the complainant's and appellant's medical records.
Officer Garza with the Houston Police Department testified that on the night of the shooting, he and his partner responded to a “high priority” call at the post office. During Officer Garza's testimony, the State admitted and played the recordings of the complainant's and appellant's 9-1-1 calls. The State also admitted photographs of the map location of the post office and an aerial photograph of the post office building and parking lot. Officer Garza testified that when he arrived on the scene it was different from other shooting-in-progress scenes he had been to because there was “no chaos whatsoever.” There were three people in the parking lot—the complainant, appellant, and a witness. The witness was crouching next to the complainant, trying to give him first aid. Appellant had one hand in the air and the other was on his phone. The State then introduced into evidence photographs of the scene from an officer's body cam. The photographs depicted some of the images that the officers witnessed after pulling into the parking lot, including the complainant lying on the ground and bleeding. Officer Garza's role in responding to the shooting was to secure the scene, “get information about the suspects,” and render aid. Officer Garza testified that the complainant did not have a weapon of any kind, was lying on the ground, and was crying out for help. In securing the scene, the officer talked with appellant and testified that appellant was “very calm” and “cooperative, he volunteered information.” Officer Garza placed appellant in the backseat of his police car. Officer Garza testified that he did not notice any injuries on appellant. He also observed that appellant walked slowly but did not stumble and that appellant was able to get himself in and out of the police car without assistance.
On cross-examination Officer Garza testified that he would describe the area around the post office as dangerous, a seven on a scale from one to ten, and that he would encourage people to get their license to carry and carry a handgun in “all of Houston.” Officer Garza testified that he had investigated assault cases previously and that while he is aware of assaults where the use of fists has inflicted death or serious bodily injury, he had never seen or investigated one personally. Appellant's counsel then asked whether the officer would reconsider his prior testimony that the complainant did not have any “deadly weapons” on him because the complainant had fists and feet. Officer Garza responded that under the right circumstances, hands and feet “can be considered deadly weapons,” but in his opinion the complainant's hands and feet were not deadly weapons.
Officer Vaughn with the Houston Police Department testified about what she witnessed at the scene and her interactions with appellant. Officer Vaughn did not observe any injuries on appellant or that his face was swollen, red, cut, or bruised in anyway. Appellant indicated to Officer Vaughn that his face hurt and that he was struck by the complainant. She also indicated that appellant walked slowly but did not limp. Officer Vaughn transported appellant to and from the police department and testified that appellant was very calm the entire time. Appellant never asked her about the complainant or his condition. Upon transporting appellant back to his car and returning his belongings to him, appellant became agitated and upset because she did not return his knife. Officer Vaughn testified that appellant got within a foot from her and was yelling at her about returning his knife. Appellant continued in this manner despite Officer Vaughn's direction to him to stop and step back. Officer Vaughn's partner also told appellant to step back. Officer Vaughn found this behavior surprising because of how different it was from appellant's calm and cooperative demeanor and that he just “switched.”
On cross-examination, Officer Vaughn testified that appellant was not agitated when he exited her police car and upon arriving back at his car, it was only after discovering that his knife was not returned that he became very frantic and frustrated. Before placing appellant in the vehicle at the post office, she asked appellant multiple times whether appellant was ok, and appellant confirmed that he was ok. It was only after appellant had been in the back of the police car in handcuffs that he began to complain about feeling nauseated, that his face hurt, that he was uncomfortable, and that he had a medical condition. Officer Vaughn testified that she has investigated assault cases and that some assaults do not result in red marks, scrapes, or bruises, but are still considered assaults. In her personal experience if someone is “hit in the face with a fist there's going to be a physical mark.” When asked whether she believed the area of the post office to be dangerous, Officer Vaughn testified that “it can be” with crime, especially violent crime, going up at night.
An emergency room trauma surgeon testified that he treated the complainant when the complainant was brought into the emergency room. The complainant was a Level I patient, or the “highest level of trauma.” The bullet damaged the complainant's liver. The complainant underwent six “major operations,” his condition never improved, he never regained consciousness, and he was on life support for his entire stay in the hospital. The hospital recommended that the complainant be removed from life support because his condition was “irreversibly futile” due to a lack of brain function. Ultimately, the complainant's cause of death was that his liver failed from the gunshot wound.
The surgeon also testified about appellant's neuropathy and abdominal aortic aneurysm. The surgeon had reviewed appellant's medical records and testified that given the small size of appellant's abdominal aortic aneurysm, appellant was not at risk of a rupture from a modest amount of blunt force trauma, like a punch. On cross-examination, the surgeon testified that surgery to repair an abdominal aortic aneurysm is considered when the risk of the surgery outweighs the risk of rupture, which usually occurs when the abdominal aortic aneurysm reaches about 5.5 centimeters—appellant's was around 3.6 centimeters according to his most recent medical records prior to the shooting. The surgeon testified that appellant's aortic aneurysm was more likely to rupture from blood pressure than from blunt force trauma and it was likely ten to fifteen years before his aortic aneurysm was large enough to consider surgery to repair. In the surgeon's experience, a healthy individual who has received “blunt force trauma” from hand or feet can potentially be very serious. “In extreme circumstances” this sort of trauma could lead to death. He testified that in terms of being punched, being elderly is “not necessarily” more indicative of serious injury, but instead the medication that elderly patients may be taking could put them at a higher risk. But generally, their bodies are not at a higher risk of injury just because they're older. The surgeon agreed that it typically takes older individuals longer to heal than younger ones.
A homicide detective with the Houston Police Department testified that on the night of the shooting he did not see any physical indication on appellant's face to show he had been struck; there were no obvious signs of any injury. On cross-examination when asked whether the planters would be an “obstruction to anybody trying to get around,” the detective testified that the large planters outside of the post office “would be an object to move around.” The detective had previously investigated many assault cases, including misdemeanor assault cases where there was bodily injury but no mark or redness on the assaulted person, but those cases were “lesser assaults.”
The complainant's youngest son testified that his father had been a lawyer for thirty-five years and a criminal defense lawyer for at least fifteen years. Around the time of the shooting, the son described the complainant as healthy and that he loved to play golf. The son testified that the complainant was “known as a kind individual, a peacemaker.” In the afternoon on the day of the shooting, the son had lunch with the complainant and testified that the complainant seemed to be “in high spirits” when they last saw one another. On cross-examination, appellant's trial counsel asked whether the son knew whether the complainant “had a lot of friends in this courthouse.” The son answered that he was not sure about “this particular courthouse” but that the complainant had been practicing in Houston for a long time.
An attorney testified that he had known the complainant both professionally and personally, that they golfed together regularly, and that they often referred clients to one another. The attorney testified that he had seen the complainant with clients, other attorneys, and judges “all the time.” He testified that over “the course of a criminal defense attorney's career” they have to learn to “deal with situations” of “aggravation, aggression and irritation” and that generally the complainant's personal and professional reputation was one of peacefulness. On cross-examination the attorney testified that he and the complainant would often golf together with many other attorneys.
The jury further heard appellant's 9-1-1 call recording where appellant can be heard yelling “you attacked me, I shot you” repeatedly, while the complainant called out for “help” and said “I'm sorry sir.”
After the State rested its case, the defense put on three witnesses: the witness who arrived on the scene right after appellant shot the complainant, a forensic criminologist, and appellant. The witness who arrived on the scene after the complainant had been shot testified that appellant appeared to be elderly, possibly early to mid-seventies, and “sickly,” while the complainant appeared to be a fit male in his thirties or forties.
Appellant testified that the neighborhood where he lives is dangerous and that there is a huge gang problem. Appellant knew of instances in the neighborhood where individuals had been robbed and shot. Appellant testified that as a result of his cancer treatments he had developed an abdominal aortic aneurysm and neuropathy of the hands and feet. He testified that the most strenuous thing he does is mow his lawn but that he does not run, jog, or workout. Appellant also has shortness of breath and cannot walk very fast, and his walk is “more like a shuffle.” Appellant educated himself at the public library about abdominal aortic aneurysms when his father was diagnosed with one. Appellant felt extremely concerned when he was diagnosed with the abdominal aortic aneurysm and “knew how dangerous they were and if when they got bigger they could rupture; or if something—if you got into a bad accident or something, they could rupture and you would die, bleed to death internally in probably less than three minutes.” Appellant testified that no doctor had ever told him that his aneurysm was not at risk of rupturing because of its small size. In 2017, prior to the day of the shooting, appellant testified he was “feeling a lot better” and was starting to gain a little weight and be able to get around. He had recently returned to maintaining his own yard and doing yard work. Appellant described the area of the post office as very dangerous and described some of the violent incidents that had taken place in the general vicinity. Appellant testified that he carried a gun due to the general dangerousness of the area.
Appellant testified that when he pulled into the handicapped space at the post office, he noticed the complainant's car did not possess a handicapped placard but was parked in a handicapped space. Appellant went to take a picture of the complainant's car to document how “inconsiderate” this person was. His goal was to collect these types of images to place on the internet to embarrass those individuals and discourage them from continuing to park in handicapped spaces.
Appellant was standing on the passenger side of his car next to the passenger door, and the large planter was only two feet directly behind him, while appellant attempted to photograph the complainant's car. The complainant came out of the post office and walked past appellant to the driver's side door of his own car. Appellant did not know and had never seen the complainant before and thought he looked to be at least twenty years younger than himself. Appellant described the complainant as a “big guy, over 200 pounds” and in “pretty good shape.” The complainant went to his car door and then turned to appellant and asked appellant “you got a problem with that?” Appellant responded, “Now that you mention it, yes, I do.” Appellant testified that he did not yell, curse, or scream at the complainant, and it was not his intent to pick a fight with anybody. He testified, “I'd have to be suicidal to pick a fight.” Appellant testified that the complainant “instantly got enraged and charged up to me and got his nose about half inch away from mine and began to scream and yell at me” and repeatedly asked appellant, “What are you going to do?” Finally appellant responded, “Well, what are you going to do?” At that point the complainant struck appellant on the jaw. Appellant was not sure which hand had hit him because the complainant was so close to him—it could have been a backhand or a punch.
Appellant testified, “When he hit me my instinctive reaction was when he knocked me sideways a little bit, and I struck back at him like this.”
A. And do you remember what you were feeling at that point?
Q. Yes, I was scared to death. I had a great big man a lot younger than me charge up to me, started screaming at me and then hit me in the face.
Q. Now, what did [the complainant] do next?
A. ․ I struck at him like this and he spun away from me, which would have been he would turn to his right, and spun all the way around 360, turned his back to me and then turned back around towards me.
A. ․ I could see it in his face, he was really mad now. He was really mad now.
Appellant could see the complainant's hand formed into fists and he had them up “like he was going to come in and beat me some more.” Appellant testified that through the complainant's actions and lack of communication to the contrary, appellant had no indication that the complainant was intending to stop this encounter or back down. Appellant testified that he believed that if the complainant beat him that appellant would die because he thought that his aneurysm would easily rupture if he sustained any blunt force trauma to his abdomen. Appellant also believed that the complainant could have killed him or caused serious bodily injury even in the absence of his aneurysm. Appellant testified that the complainant “was coming back in on me and all I could do was I reached down and pulled my shirt up with this hand and got my gun out and as he's coming into me, I shot him.” Appellant did “not have time” to show the complainant the gun prior to shooting him or to warn the complainant that he was armed and would shoot. Appellant “thought [the complainant] was going to beat me to death or beat me so severely that I would end up probably never be normal again.” Appellant testified that he could not back away due to the problems in his feet and because there was a “10-ton concrete planter right behind me.”
After shooting the complainant, appellant observed the complainant take a few steps backward before falling to the ground. He observed the complainant for “a second” to make sure that he wasn't going to pull a gun or a knife before calling emergency services to the scene.
At the conclusion of appellant's case-in-chief, the State asked to call a rebuttal witness. The State argued that the witness, a criminal court judge and friend of the complainant, was personally familiar with the area surrounding the location of the shooting and the State was offering the witness's testimony to rebut appellant's testimony about how dangerous the area was. The witness would also provide testimony as to the layout of the parking lot and sidewalk at the post office where the altercation occurred. Appellant objected and argued that (1) the evidence was duplicative of evidence already put on by the State, the photographs of the area, and the officers’ testimony about the scene and dangerousness of the general area, (2) the evidence could have been put on by the State in their case-in-chief, (3) it was “bolstering” because none of the facts that this rebuttal witness would testify to were new facts, (4) appellant did not “know what this rebuttal witness has to offer to this case at all,” and (5) the presentation of the evidence would cause “unnecessary delay.” Appellant also argued that “the purpose of the current judge is to convince the jury that this person is somehow more credible than anyone else that anyone can put up on the stand.”
After listening to arguments, the trial court allowed the State to call the witness to testify as to the dangerousness of the area and as to the physical characteristics of the parking lot at the post office. Appellant requested and received a running objection to the judge's testimony.
With regard to his professional background as a judge and his relationship with the complainant, the judge testified as follows:
Q. Explain to the jury your current occupation.
A. I'm currently the presiding judge of Harris County Criminal Court at Law No. 13.
Q. How long have you been presiding judge?
A. I've been -- I was elected November of 2018, I've been presiding judge since January 1st of this year.
Q. We're not going to talk at length about [the complainant], but were you personal friends of [the complainant]?
A. Yes, I was.
Q. For how long?
A. I've known [the complainant] for about 20 years.
Q. Did you also know him in his professional capacity?
A. I do. (sic)
The judge testified that prior to becoming a judge, for twenty-four years his law practice had an office directly across the freeway from the post office where the shooting occurred. He went to that post office once or twice every month and was familiar with the layout of the parking lot. Since 2006, the judge had lived in a townhome “very close” to that post office. The judge testified that “[i]n my opinion, it is no more dangerous than any other area of Houston” and that he never carried a gun or felt the need to carry a gun. He never felt “any danger at all” when at that post office, and he would go there late at night without concern for his safety. The judge also testified about the characteristics of the parking lot, focusing on the area where the shooting occurred. He testified that if someone was standing in front of the large circular planter located on the sidewalk in front of the handicapped spaces, they would not face any obstruction “between the parking spot and the planter” other than the wall behind the planter and that there was approximately four to five feet of walkway between the planter and any other obstruction.
The jury returned a verdict of guilty on the charge of murder.
II. Rebuttal Witness Testimony
Appellant argues that the trial court abused its discretion in allowing the State to reopen its case-in-chief to present rebuttal evidence from a sitting County Criminal Court at Law judge who was a friend of the complainant because the purpose of his testimony was to improperly “bolster” evidence presented in the State's case-in-chief and it did not rebut any new evidentiary issues presented in appellant's case-in-chief. Appellant also complains that the evidence was “more prejudicial than probative.”
A. General Legal Principles
We review the trial court's decision to admit or exclude evidence under an abuse of discretion standard. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018); Seidule v. State, 622 S.W.3d 480, 489 (Tex. App.—Houston [14th Dist.] 2021, no writ). “A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement.” Gonzalez, 544 S.W.3d at 370. “We may not substitute our own decision for that of the trial court.” Id.
Generally, relevant evidence is admissible, while irrelevant evidence is not. Tex. R. Evid. 402; Gonzalez, 544 S.W.3d at 370. Evidence is relevant when it has any tendency to make the existence of any fact of consequence more or less probable than it would be without the evidence. Tex. R. Evid. 401. The evidence offered does not need to prove or disprove a certain fact by itself to be relevant; it is sufficient if the evidence “provides a small nudge toward proving or disproving a fact of consequence.” Gonzalez, 544 S.W.3d at 370. Generally, the State is entitled to present on rebuttal any evidence that tends to refute a defensive theory and the evidence introduced to support that theory. See Flannery v. State, 676 S.W.2d 369, 370 (Tex. Crim. App. 1984).
Even if the relevant evidence is offered and admissible, a trial court may nonetheless exclude the evidence if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403; Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990); Bargas v. State, 252 S.W.3d 876, 892–93 (Tex. App.—Houston [14th Dist.] 2008, no pet.). A trial court must balance the following factors when making a Rule 403 analysis:
(1) the inherent probative force of the proffered item of evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). When the record is silent as to the trial court's balancing of these factors, we presume the trial court conducted the balancing test. Id. at 893. We review a trial court's ruling under Rule 403 for an abuse of discretion. Montgomery, 810 S.W.2d at 391.
To determine whether the erroneous admission of evidence was harmless, we assess whether it affected appellant's substantial rights. Gomez v. State, 380 S.W.3d 830, 836–37 (Tex. App.—Houston [14th Dist.] 2012, pet. ref'd). Error affects a substantial right when it has a substantial and injurious effect or influence in determining the jury's verdict. Id. at 837. In assessing the likelihood that the error adversely affected the jury's decision, we consider everything in the record, including all testimony and evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error, and how the error might have been considered in connection with other evidence in the case. Id.
Appellant first argues that the State did not need to put on rebuttal evidence because, in the State's case-in-chief, a police officer testified that the area surrounding the post office was dangerous and had a lot of gang-related activity. Appellant argues that the testimony was duplicative of other testimony put on by the State. However, the testimony from the officers about the dangerousness of the area was elicited on cross-examination, not on direct examination from the State. Cross-examination is not always sufficient to raise a defense in support the of introduction of other evidence that would be otherwise inadmissible. See Walker v. State, 588 S.W.2d 920, 922 (Tex. Crim. App. [Panel Op.] 1979) (“[C]ross-examination of a State's witness will not in itself support the introduction of extraneous transactions on the issue of identity.”). Later, in appellant's case-in-chief, appellant testified that he believed the area to be very dangerous and that was why he carried a gun. The State then sought to introduce evidence in rebuttal of dangerousness of the area. The facts of consequence going to part of appellant's self-defense theory—his reason for carrying a gun and his state of mind—was due to the dangerousness of the area. The judge's testimony about his familiarity of the area and whether it was dangerous was, therefore, relevant to rebut appellant's defensive theory. See Tex. R. Evid. 401; Gonzalez, 544 S.W.3d at 370. This evidence was different from the police officers’ testimony because it offered the view of someone that lived and worked in that community for a long period of time. The State did not need much time to develop this testimony, and it did not consume an inordinate amount of time. Given appellant's testimony about the area and the violent crime that occurred there, the State had a need for the evidence to show appellant's perception was unreasonable.
Appellant next argues that the judge “lacked Rule 602 ‘capacity’ to testify in rebuttal” because he was not present at the time of the incident and was unfamiliar with the specifics of the altercation. Appellant contends that because the judge lacked the “requisite capacity,” his testimony was not relevant and should have been excluded. The judge testified about his familiarity with the area and with the post office specifically, whether he considered the area to be dangerous, and the physical characteristics of the post office parking lot. The judge did not need details of the altercation between the parties to provide testimony about the physical characteristics of the post office parking lot or the dangerousness of the area. The State established the foundation to support the judge's testimony about the physical characteristics of the post office parking lot and the dangerousness of the area, namely that the judge had lived and worked in the same area as the post office for more than twenty years and had visited that post office at least two to three times monthly, at varying times of day and night, over that twenty-year period. Thus, the State provided the proper foundation for the judge's testimony. See Osbourn v. State, 92 S.W.3d 531 (Tex. Crim. App. 2002) (“Perceptions refer to a witness's interpretation of information acquired through his or her own senses or experiences at the time of the event (i.e., things the witness saw, heard, smelled, touched, felt, or tasted)․ This also incorporates the personal knowledge requirement of Rule 602 which states that a witness may not testify to a matter unless he or she has personal knowledge of the matter.”).
Appellant also contends that the trial court “allowed detailed testimony about the personal relationship between” the complainant and the judge and that there was no permissible or legitimate reasons for the State to elicit such testimony. Appellant contends that “other than improperly influencing the jury, nothing of evidentiary value was to be gained from informing the jury that the rebuttal witness is a sitting judge and a personal friend” of the complainant. We disagree with appellant that the trial court allowed detailed testimony about the personal relationship between the judge and the complainant. Even assuming the admission of this portion of the judge's testimony was erroneous,1 we conclude any error is harmless.
The brief testimony about the judge's professional and personal background was elicited but is not detailed. The judge's testimony also did not detail the personal relationship between himself and the complainant. The judge did not provide any character testimony about the complainant and was the last witness before the jury charge was read and the closing statements were made. The State did not focus on the judge's testimony in closing statements and only mentioned the judge's testimony once, briefly, regarding appellant's ability to retreat.2 Appellant brought up the judge's testimony to argue that appellant's prosecution was politically motivated. The jury was aware from the testimony of the complainant's son and the complainant's friend that the complainant was a criminal defense attorney and had “friends” in the legal community, including other lawyers as well as judges.
Having reviewed the entire record, we conclude the admission of this evidence did not have a substantial or injurious effect or influence on the verdict. The police officers that testified all indicated that they did not see any indication that appellant had been assaulted, and there was no bruising, markings, or redness on his face. The officers indicated that they had seen “lesser” or minor assaults that had resulted in no markings or bruising. While the officers were aware that a person could kill another with just their hands and feet, each testified that they had not seen it occur. At least one officer testified that he did not believe that the complainant could inflict that type of harm upon appellant. An officer testified that appellant just “switched” from calm and collected to aggressive and agitated very quickly and without warning. The jury also heard the 9-1-1 call recordings where appellant can be heard yelling at the complainant aggressively while the complainant calls out for help. Additionally, the jury heard from the complainant's son and a friend of the complainant that the complainant had many friends and a reputation for peacefulness in the community. The judge's testimony did not significantly add to this evidence in a way that would have a substantial or injurious effect or influence on the verdict.
We overrule appellant's first issue.
III. Sufficiency of the Evidence
In appellant's second issue he argues that the evidence is insufficient to sustain the jury's rejection of his self-defense theory.3 Appellant concedes that he shot the complainant, but that he presented unrefuted evidence supporting his self-defense theory. Appellant argues that because the prosecution “did not present any evidence that refuted” appellant's self-defense theory, the jury's verdict was “irrational, unreasonable, and not supported by legally sufficient evidence.”
A. General Legal Principles
We review the legal sufficiency of the evidence to support the jury's rejection of a self-defense theory, in addition to our usual review for legal sufficiency of the evidence, we ask whether any rational jury would have found, beyond a reasonable doubt, against appellant on the self-defense issue. Williams v. State, 226 S.W.3d 611, 616–17 (Tex. App.—Houston [1st Dist.] 2007, no writ). “[W]e look not to whether the State presented evidence which refuted appellant's self-defense testimony, but rather we determine whether after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of murder beyond a reasonable doubt and also would have found against appellant on the self-defense issue beyond a reasonable doubt.” Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).
The jury is the exclusive judge of the facts proved, and of the weight to be given to the testimony. Tex. Code Crim. Proc. arts. 36.13, 38.04. We do not act as a thirteenth juror and must not disregard, realign, or reevaluate the weight and credibility of the evidence. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). Therefore, we accord great deference to the jury to “resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). When the record supports conflicting inferences, the reviewing court presumes the jury resolved the conflicts in favor of the prosecution and defers to that determination. Id. at 326, 99 S.Ct. 2781. We may only overturn a verdict if it is irrational or unsupported by more than a “mere modicum” of the evidence. Moreno, 755 S.W.2d at 867.
As relevant in this case, a person is justified in using deadly force against another if, among other things, 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 § 9.32(a)(2)(A). “Deadly force” is defined as “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).
We must view the evidence in the light most favorable to the verdict. See Saxton, 804 S.W.2d at 914. The evidence shows that appellant was hit once by the complainant, that the complainant was “really mad” after appellant struck back at him, and that the complainant looked ready to strike appellant again. There was no evidence that the complainant made any verbal threats of violence to appellant, and appellant admitted that he did not warn the complainant that he was armed.
The officers testified that there was no physical evidence of an assault on appellant and, in their experience, that indicated a “lesser” or “minor” assault. Appellant did not sustain any lasting injuries from his encounter with the complainant—the strike to appellant's face did not leave a mark or break the skin. Additionally, the State presented evidence that appellant's condition, his reason for fearing any strike landing in his abdominal region, was not as dire as appellant's testimony made it seem given the testimony of the emergency room trauma surgeon. While appellant testified that his research led him to believe that his aneurysm was at risk of rupturing relatively easily, the jury was free to reject this testimony as not credible.
From the evidence presented, the jury could have reasonably and rationally rejected appellant's testimony and concluded that appellant's belief, that the complainant would use or attempt to use unlawful deadly force, was unreasonable. See Bundy v. State, 280 S.W.3d 425, 434–35 (Tex. App.—Fort Worth 2009, pet. ref'd) (“[A]ppellant's deadly force was not a justifiable response to [the complainant's] attempt to punch appellant, which was not deadly force.”); Schiffert v. State, 257 S.W.3d 6, 14 (Tex. App.—Fort Worth 2008, pet. ref'd) (where the complainant punched the defendant in the face “a reasonable jury ․ could not have found that [the defendant] was justified in using deadly force ․ [the defendant] provoked the altercation, and even [the defendant's] ․ descriptions of the fight show that [the complainant] did not use or attempt to use deadly force.”).
The jury also heard evidence of appellant's aggressiveness immediately after the shooting, which the jury was permitted to consider in determining what weight to give to appellant's testimony about the events and how they unfolded.
Deferring to the jury, as we must, we cannot say that the jury's rejection of appellant's self-defense theory is irrational, unreasonable, or unsupported by evidence. We overrule appellant's second issue.
Having overruled both of appellant's issues on appeal, we affirm the judgment of the trial court.
Allowing a judge to testify as a fact witness in a case when he has facts directly relevant to the charged offense is accepted in Texas courts. See, e.g., Jackson v. State, No. 14-19-00739-CR, 2021 WL 3576151, at *1 (Tex. App.—Houston [14th Dist.] Aug. 12, 2021, no pet.) (mem. op., not designated for publication) (judge testified about incident where the defendant spit on him); Brock v. State, 495 S.W.3d 1, 4 (Tex. App.—Waco 2016, pet. ref'd) (judge testified about incident where the defendant threatened him). It is a clear abuse of discretion, however, to allow a judge to testify as an expert witness in a case. See Joachim v. Chambers, 815 S.W.2d 234, 238 (Tex. 1991) (“A judge who testifies as an expert witness for a private litigant provides more than evidence; the judge also confers the prestige and credibility of judicial office to that litigant's position, just as a judge who testifies to the litigant's character.”); see also id. (allowing a judge to testify as an expert puts the cross-examining lawyer in an awkward position).
In this case, the judge was testifying as a quasi-expert — he had no direct knowledge of the facts underlying the criminal charge but had practiced for 20-plus years near the post office where the altercation happened and visited it twice a month. The testimony concerning the relative safety of this location was elicited on rebuttal by the State in an attempt to contradict Appellant's testimony that he considered the area to be dangerous. Because the testifying judge had no unique knowledge concerning the facts of the case itself, allowing him to testify as a judge was an abuse of discretion. But Appellant did not specifically object to the witness identifying himself as a judge; therefore, the relevant issue on appeal was not preserved.
Further, the State's case likely received a significant benefit by presenting this information through a judge (who identified himself as a judge on the stand in response to a question from the State). See id. at 238. Therefore, I cannot agree with the majority that the testimony was harmless.
However, because the relevant objection was not preserved, I concur with the majority that the judgment of the trial court should be affirmed.
1. See Comm'n for Lawyer Discipline v. Cantu, 587 S.W.3d 779, 782 (Tex. 2019) (“Generally, a judge is competent to testify in any trial except one over which he is presiding.”) (citing Joachim v. Chambers, 815 S.W.2d 234 (Tex. 1991) (discussing generally the dangers and concerns of allowing a judge to testify)).
2. The State also alluded generally to the fact that the complainant had friends in the courthouse because of his profession, including the State's attorney. No objection was made to this argument.
3. Appellant does not argue that the evidence is legally insufficient to support the elements of murder.
Ken Wise, Justice
(Hassan, J., concurring).
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Docket No: NO. 14-19-00902-CR
Decided: January 20, 2022
Court: Court of Appeals of Texas, Houston (14th Dist.).
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