NOAL PRICE JR APPELLANT v. THE STATE OF TEXAS APPELLEE (2026)

OPINION

Noal Price, Jr. appeals his conviction for murder. In seven issues, he challenges the trial court's exclusion of evidence, including expert testimony. We affirm.

BACKGROUND

Appellant was charged by indictment with the murder of Samuel Murrell, alleged to have occurred on May 8, 2023. Appellant pleaded “not guilty,” and this matter proceeded to a jury trial.

Josie Adams testified that in 2013 or 2014, she purchased a house located on Mitchell Street in Wells, Texas.¹ Appellant owned a vacant lot adjacent to Josie's property. At an unspecified time, Appellant placed a mobile home on his property. During the summer of 2022, Josie came to believe that the mobile home sat approximately ten feet over the property line and encroached on her land. Appellant refused to move the mobile home as Josie requested so she sought legal advice from Michael Kesler, an attorney officed in Jacksonville. Kesler assisted Josie in sending a demand letter to Appellant, asking that he remedy the encroachment by July 1, 2022, so that litigation would not be needed to resolve the dispute. Appellant took no action to contact Kesler or Josie regarding the issue, and did not move the mobile home. In January 2023, Josie filed a civil lawsuit against Appellant, seeking a court order requiring Appellant to remove the mobile home, monetary damages, and the issuance of a permanent injunction. On March 27, the trial court docketed the case for trial on May 4. On May 3, Appellant moved for a continuance of the trial, claiming that his recently-retained counsel lacked sufficient time to investigate and complete discovery. The following day, Kesler and Josie appeared for trial, as did Appellant's attorney, but Appellant did not appear.

Josie usually resided in Kansas City, Missouri, and while her son, Murrell, previously lived at the Mitchell Street house, he was not living there on May 8, 2023. However, they were both present that morning. Around 10:06 a.m., Josie heard “rapid gunfire.” She exited the house and encountered Appellant, who held a gun and said “words like durn lady, I tried to warn you about all of this bull, and he cursed.” Afraid that Appellant would kill her, Josie returned inside until she could not see him from the window. She then went back outside to check on Murrell and found him lying prone and unconscious in the yard. She unsuccessfully attempted to call 911, then drove to the police station to report the shooting.

Melanie Williamson, a secretary employed by the City of Wells, testified that she frequently served as a liaison between the city council and customers of the water department. In October 2022, Appellant came to city hall in an upset state and asked if Williamson knew the bounds of the properties on Mitchell Street. Williamson showed him the appraisal district's map and recommended that he obtain a survey. In December 2022, Appellant returned to city hall in an agitated state and asked questions about how far his property extended into the actual road, of which Williamson was not sure.

Trayce Magee testified that he worked at the Academy Sports and Outdoors store in Lufkin, Texas, as a certified firearm salesman, since August 2019. He verified that Appellant purchased a KelTec PMR30 .22 Magnum pistol on January 15, 2023, as well as two boxes of ammunition.

Harold Rapsilver, chief of the City of Wells Police Department, testified that on the morning of May 8, he heard a woman screaming in the foyer area. The woman kept repeating the phrase, “He shot Sam,” and specified that Appellant was responsible. Rapsilver went to the provided address where he encountered Appellant standing in his driveway, holding a cup of coffee. Rapsilver exited his vehicle and approached Appellant, who began speaking: “Don't shoot, Rapsilver, don't shoot, Rap. And I'm still walking toward him, and I – and I said, What's going on. He said, I think I messed up, I think I messed up. I shot him.” Appellant informed Rapsilver that the gun was on the hood of his truck; when Rapsilver examined the gun, he noted that it was a KelTec PMR30 and that the magazine was empty. He detained Appellant and requested that an Alto Police Department officer (who arrived to provide requested backup) place Appellant in his patrol car while he investigated. Rapsilver walked about 150 yards to the scene of the shooting and witnessed Murrell laying face down on the grass.

Dr. Jessica Dwyer, the director and chief medical examiner of the Southwestern Institute of Forensic Sciences in Dallas County, Texas, performed an autopsy of Murrell's body. Murrell suffered multiple gunshot wounds to his neck, torso, and right arm, including several clustered together so that she could not determine the exact trajectory. The bullets struck both of Murrell's lungs, as well as his aorta, heart, liver, stomach, spleen, and the left side of his spine. Dr. Dwyer could not determine the range from which the shots were fired because there was no soot or stippling present. However, she opined that the gunshots certainly caused Murrell's death and that the manner of death was homicide.

Detective Noah Acker of the Cherokee County Sheriff's Department testified that he executed a search warrant of Appellant's home on May 8. He located (1) a shotgun and a rifle near the front door, (2) a holstered Ruger handgun on the couch, (3) two .22 caliber ammunition boxes, one full and one empty, (4) a box for a KelTec .22 Magnum pistol with one magazine inside, and (5) three cell phones.

Nathan Tunnell, a firearms forensic scientist at the Texas Department of Public Safety Crime Lab in Tyler, testified that he test fired a KelTec PMR30 .22 Magnum caliber handgun and examined twelve shells. After creating two test fire shells and performing a comparative microscopic examination, Tunnell determined that the submitted handgun fired all twelve of the provided shells.

Randy Wilson, a special investigator with the Cherokee County Sheriff's Department, testified regarding the extraction he performed on one of the cell phones found in Appellant's house. The extraction contained an outgoing text message dated April 16, 2023, to Jana Boatman, stating that the sender was “also having to deal with asshole and asshole light gotta go to court on this shit soon[.]”

Detective Jason Mott, also of the Cherokee County Sheriff's Department, testified regarding his investigation at the scene of the shooting as well as his detailed examination of the doorbell camera footage from Josie's house. Mott noted that the sound of the lawn mower was audible at the beginning and that damage to tree roots at the scene indicate that the mower struck those roots. He described the occurrences in the footage (which was also played for the jury) as follows:

10:06:30: Appellant first appears in the video, then walks out of frame; a gun is visible in his hand.

10:06:51: An audible “sound like the lawnmower struck something.” 10:06:57: Appellant shouts “Hey,” twice.

10:06:58 – 10:07:11: A thirteen-second “unrecognizable exchange of words,” followed by the sound of the lawn mower striking something twice and then shutting off.

10:17:12: Murrell states “in a calm voice,” “You don't need to be talking to me like this․ That's not even my truck.”

10:07:13: Appellant repeats the phrase “***you,” “with an elevated voice.” Murrell repeats, “It's not my truck.

One second later, Appellant stated, “Okay, now,” followed by “immediately rapid gunfire” consisting of twelve to fifteen shots.

At the outset of Appellant's presentation of evidence, the trial court held a hearing outside the presence of the jury regarding the issue of self-defense and the admissibility of statements made to Appellant by Murrell and other parties. As discussed more specifically infra, the main issue was whether the statements constituted inadmissible character evidence. The trial court ruled that absent Appellant's knowledge about either Murrell's reputation in the community or specific acts of violence he committed, the statements about which Appellant wished to testify were not admissible.

Appellant elected to testify and stated in May of 2023, he lived at one end of Mitchell Street, and Josie resided at the other end. Appellant's daughter lived with her husband on the lot adjacent to Josie's property, and there was one vacant lot between Appellant's house and his daughter's residence. Appellant also owned a lot across the street from Josie's property. Appellant spoke to Josie only once, in 2020, regarding a survey he wished to review. He was more familiar with Murrell; when Appellant first moved to Wells, he and Murrell “used to be pretty decent friends” and spoke in passing about twice a week. Appellant affirmed that he became aware of a lawsuit filed against him by Josie in January 2023 and was agitated because he did not believe he should have to move the trailer. He purchased a handgun the same month but testified that he did not buy the gun because of the lawsuit.

On the morning of May 8, Appellant woke between 8:45 and 9:00 a.m. While dressing, he placed a .22 Magnum handgun in the waistband of his shorts, which he claimed was a regular part of his morning routine. Appellant looked out his kitchen window and saw that a gray truck, which he knew to be Josie's, was parked on the property across the street. He drank a cup of coffee, watched the news, and noticed that the truck was still there, after which he became irritated and decided to ask Murrell to move the truck. Appellant walked down the street, saw Murrell operating a lawn mower, and shouted, “Hey.” Appellant believed Murrell saw him but did not respond; Appellant shouted “Hey,” again, and Murrell then turned off the lawn mower. Appellant stated, “I'm going to need you to get that shit out of my driveway.” Murrell responded, “You're not going to address me in that manner, that's not my truck anyway.” Appellant responded by saying “F*** you” multiple times, after which Murrell “reached up, pulled his cap down, and bolted towards me.” Appellant believed that Murrell intended to harm him and feared for his life because he knew Murrell was “a fifth-degree black belt in martial arts.” Therefore, Appellant drew his handgun and fired one to three times while retreating backwards; Murrell continued advancing and “spun around as if though he were going to tried [sic] and kick me,” and Appellant continued firing until he ran out of bullets. Appellant then returned to his property, placed the gun on the hood of his truck, and waited for police to arrive.

The jury found Appellant “guilty” of murder as charged in the indictment. Following the presentation of evidence at the punishment phase, the jury found in the negative as to the special issue regarding sudden passion and imposed a sentence of life imprisonment. This appeal followed.

EXCLUSION OF EVIDENCE

In his first, second, third, fourth, and fifth issues, Appellant argues that the trial court erroneously excluded specific items of evidence.

We note that Appellant fails to cite any relevant legal authority in presenting his argument as to his first five issues. Rule of Appellate Procedure 38.1(i) requires that an appellant's brief contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. TEX. R. APP. P. 38.1(i). If an appellant's brief provides no argument or legal authority to support his position, we may properly overrule the issue as inadequately briefed. See id.; Lucio v. State, 351 S.W.3d 878, 896–97 (Tex. Crim. App. 2011). However, mindful of our duty to construe appellate briefs liberally, we consider Appellant's complaints regarding the exclusion of evidence.

Standard of Review

We review a trial court's decision to admit or exclude evidence for abuse of discretion. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016). A trial court abuses its discretion if the decision falls outside the zone of reasonable disagreement. Id. at 83. Before we may overrule a trial court's evidentiary decision, we must find that the trial court's ruling was so clearly wrong as to lie outside the zone within which reasonable people might disagree. See id. “[I]f the trial court's evidentiary ruling is correct on any theory of law applicable to that ruling, it will not be disturbed even if the trial judge gave the wrong reason for his right ruling.” Id. at 93 n.35.

Analysis – Chief Harold Rapsilver

Appellant sought to testify to specific statements he made to Chief Rapsilver when he arrived on the scene after the shooting. During the hearing outside the jury's presence, Appellant testified as follows:

Appellant's Counsel: ․ Do you remember what, if anything, you said to Chief Rapsilver when he was wearing those eyeglasses?

Appellant: Like I said, I had let him know that – the reason this happened. I tried to let him know that I – basically, what I'm trying to tell Chief Rapsilver is why I pulled the trigger.

Appellant's Counsel: On account of your knowledge of Sam Murrell knowing how to practice martial arts?

Appellant: Yes, sir.

․

Appellant's Counsel: Did you tell Chief Rapsilver that you were – did you – did you say anything about your knowledge of Sam Murrell having a skill of martial arts?

Appellant: I did.

Appellant's Counsel: Okay. Do you remember what exactly it was that you told him?

Appellant: I do not remember exactly what it was that I told him. I do know that I told him that he was capable of harming me, and that's why I pulled the trigger.

․

Appellant's Counsel: Did you and he talk about anything else while y'all were standing in front of your house?

Appellant: Like I said, we talked about the fact that Mr. Murrell was a martial artist, that I couldn't let him get close to me because I knew of his skills. Basically, I tried to tell him what had been going on with the families, about the lawsuit.

With the jury present, Appellant's counsel asked, “What happened after [Rapsilver] put the glasses on?” Appellant responded, “We walked to the truck. We spoke for a few minutes. I informed him—” The State objected to hearsay; the trial court sustained the objection, and Appellant's counsel continued without additional argument or comment.

“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” TEX. R. EVID. 801(d). Hearsay testimony is generally inadmissible at trial unless an exception applies. Id. R. 802, 803(2), (3). Once the opponent of hearsay evidence makes the proper objection, it becomes the burden of the proponent of the evidence to establish that an exception applies that would make the evidence admissible despite its hearsay character. See Taylor v. State, 268 S.W.3d 571, 578–79 (Tex. Crim. App. 2008).

It is axiomatic that to preserve error for appellate review, the record must show that the appellant's trial objection “stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.” TEX. R. APP. P. 33.1(a)(1)(A). In short, the argument made on appeal must comport with the objection made at trial. Griffin v. State, 740 S.W.3d 143, 164 (Tex. App.—Dallas 2025, pet. ref'd). The appellant must have conveyed to the trial court the particular complaint raised on appeal, including the precise and proper application of law as well as the underlying rationale. Fish v. State, 609 S.W.3d 170, 178 (Tex. App.—Houston [14th Dist.] 2020, pet. ref'd); see Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009).

Where a party complains of the exclusion of evidence, a “party must not only tell the [trial] judge that the evidence is admissible, but must also explain why the evidence is admissible.” State v. Villegas, 506 S.W.3d 717, 744 n.15 (Tex. App.—El Paso 2016, pet. dism'd). A party offering a statement that is challenged as hearsay must “specify which exception to the hearsay rule he was relying upon or to specify how the evidence was not hearsay” or else those grounds are waived. Id.; see Reyna v. State, 168 S.W.3d 173, 178 (Tex. Crim. App. 2005) (“In order to have evidence admitted under a hearsay exception, the proponent of the evidence must specify which exception he is relying upon.”).

When the State objected to Appellant recounting his post-shooting conversation with Rapsilver, Appellant did not allege that any hearsay exception applied to make the conversation admissible, let alone specify the exception upon which he intended to rely. Although he argues on appeal that the statements “related to his state of mind and obviously qualified as an excited utterance,” Appellant did not make these assertions before the trial court. See Griffin, 740 S.W.3d at 164. Therefore, Appellant failed to preserve these contentions for our review. TEX. R. APP. P. 33.1(a)(1)(A). Consequently, we overrule Appellant's first issue.

Analysis – Jana Wilson

Appellant sought the admittance of a transcript of the testimony of Jana Wilson from Appellant's prior trial for this offense (which ended in a mistrial).² The State objected to a portion of the transcript regarding Wilson's personal observations of Murrell practicing martial arts:

The question is, Regarding Samuel Murrell, did you have any personal knowledge or own knowledge of him having any kind of training or experience with any kind of martial arts or hand-to-hand combat. Everything after that through the rest of her testimony I object to․

[T]here's two different ways that character evidence can come in. One is reputation or opinion, and one is specific acts․ This is a specific act. The question was not asked in the form of an opinion or reputation. Did you ever see him practicing martial arts. The answer is yes. That is a specific act. Therefore we believe it's objectionable. It's improper character evidence. It's outside the Court's ruling. We would ask the Court to exclude it.

Appellant's counsel argued that the testimony did not address Murrell's character or reputation but instead described “a specific act that goes to an extraneous act.” The trial court sustained the State's objection, after which Appellant chose not to call Wilson as a witness.

Evidence of a person's character is generally not admissible to prove that a person acted in accordance with the character or character trait, and evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that the person acted in accordance with the character. TEX. R. EVID. 404(a)(1), (b)(1). Exceptions exist, but even when admissible, character evidence usually may be proven only through opinion or reputation evidence and not through specific instances of conduct. See id. 405; Sims v. State, 273 S.W.3d 291, 294 (Tex. Crim. App. 2008). Evidence of a crime, wrong, or other act—including a victim's prior specific acts of violence—is admissible when offered for a non-character purpose. TEX. R. EVID. 404(b)(1).

The rules of evidence permit the defendant to offer evidence concerning the victim's character for violence or aggression on two separate theories when the defendant is charged with an assaultive offense. Seidule v. State, 622 S.W.3d 480, 489–90 (Tex. App.—Houston [14th Dist.] 2021, no pet.). One theory is when the defendant attempts to show the reasonableness of the defendant's claim of “apprehension of danger” from the victim; a second rationale is to show that the victim was the first aggressor. Id.

Under the apprehension-of-danger theory, the defendant may offer reputation or opinion testimony, as well as evidence of specific prior acts of violence by the victim of which the defendant was aware, to demonstrate that the defendant had a reasonable apprehension that he was in danger at the time of the offense. Id. (citing Ex parte Miller, 330 S.W.3d 610, 618 (Tex. Crim. App. 2009)). “This is called ‘communicated character’ because the defendant is aware of the victim's violent tendencies and perceives a danger posed by the victim, regardless of whether the danger is real or not.” Miller, 330 S.W.3d at 618. This theory does not invoke Rule 404(a)(3) because Rule 404 bars character evidence only when offered to prove character conformity, such as that the victim acted in conformity with his violent character. Under this theory, the defendant offers the evidence to establish a “self-defensive state of mind and the reasonableness of that state of mind.” Id. at 619.

Specific instances of the victim's prior bad acts of which the defendant was aware may be admissible to show the defendant's reasonable apprehension of the danger at the time of the offense. Harris v. State, No. 12-24-00241-CR, 2025 WL 2492062, at *4 (Tex. App.—Tyler Aug. 29, 2025, no pet.) (mem. op., not designated for publication). This can be appropriate evidence to show the defendant's state of mind at the time of the offense, rather than showing the victim's character conformity. Id.

Additionally, the defendant may offer evidence of the victim's character trait for violence to demonstrate that the victim was, in fact, the first aggressor in a confrontation leading to the alleged offense. Seidule, 622 S.W.3d at 490. “Here, rule 404 is applicable and this evidence is called ‘uncommunicated character’ because it does not matter if the defendant was aware of the victim's violent character.” Id. Thus, when a witness testifies that the victim made an aggressive move toward the defendant, a witness may testify about the “victim's character for violence, but he may do so only through reputation and opinion testimony under Rule 405(a).” Miller, 330 S.W.3d at 619. Evidence of the victim's prior specific acts of violence is not permitted to show that the victim was the first aggressor. Id. at 620.

In this case, because Appellant raised the issue of self-defense, he could have offered reputation and opinion testimony about Murrell under either the apprehension-of-danger or first aggressor theory. However, Appellant testified outside the jury's presence that he was not aware of Murrell's reputation in general, or whether he had a reputation for violence specifically, at the time of the shooting:

State's Counsel: Had you ever seen Sam Murrell taking part in martial arts?

Appellant: No.

State's Counsel: Had you ever seen Sam fight another person?

Appellant: No, sir.

State's Counsel: Or heard about Sam fighting another person?

Appellant: No, sir.

State's Counsel: Being violent in any way?

Appellant: I didn't follow him that closely. Like I said, we were neighbors.

State's Counsel: Is that a yes or a no?

Appellant: No.

State's Counsel: Sam didn't have a reputation of fighting other people?

Appellant: I don't know what his reputation was, sir.

State's Counsel: So you don't know about Sam's reputation?

Appellant: I don't know what his reputation is. That's correct.

State's Counsel: So you had no reason to believe that Sam had a reputation for being violent?

Appellant: I never had any reason to believe he had a reputation for being violent.

State's Counsel: Or for fighting other people?

Appellant: Like I said, we never got into discussion of anything like that.

State's Counsel: Is that a no?

Appellant: I would suppose so, yes.

Appellant also specified that Murrell personally “had not told me of any altercations he had with anyone[.]”

Additionally, the trial court's ruling specifically permitted Appellant to testify “that in his opinion of the events, the decedent charged at him after lowering his hat as he said, he was in fear for his life, and that was based upon his knowledge of the defendant's background in martial arts” (emphasis added). Otherwise, Appellant could only offer evidence of (1) specific prior acts of violence (2) of which he was aware at the time of the offense, under the apprehension-of-danger theory. See Seidule, 622 S.W.3d at 489-90; Miller, 330 S.W.3d at 619. Our review of Texas jurisprudence reveals no opinions suggesting that the specific conduct of practicing a martial arts routine (here, independently and in the yard of one's residence) is a prior violent act that would serve to “establish a [defendant's] self-defensive state of mind and the reasonableness of that state of mind.”³ Miller, 330 S.W.3d at 619; see also Ex parte Welch, No. 05-19-01389-CR, 2021 WL 1731798, at *10 (Tex. App.—Dallas May 3, 2021, pet. ref'd) (mem. op., not designated for publication) (noting that “evidence that [the deceased] was a gang member is not a specific, violent act of misconduct”); Cadoree v. State, 810 S.W.2d 786, 791 (Tex. App.—Houston [14th Dist.] 1991, pet. ref'd) (testimony that complainant “was known to carry a weapon” was not per se a violent or aggressive act). On this record, we cannot conclude that the trial court abused its discretion by excluding Wilson's testimony. We overrule Appellant's second issue.

Analysis – Jason Adams

Appellant sought to testify regarding statements of Jason Adams, his former coworker and Murrell's uncle, regarding Murrell's fighting abilities. Appellant could not recall the exact date of this conversation but related outside of the jury's presence that Jason told him Murrell “knows that shit and he's not to be reckoned with either. I mean, he's not a guy that you would want to fool with․ And that he could really go, basically meaning that he could really fight.” The trial court ruled that these statements were hearsay and excluded same.

The Texas Code of Criminal Procedure provides:

In all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.

TEX. CODE CRIM. PROC. ANN. art. 38.36(a). Before this Court, Appellant makes no reference to hearsay but argues that Jason's statements were “significant information that factored into appellant's state of mind and perception at the time of Murrell's attack.” Lacking any citation to authority, the basis for Appellant's complaint is unclear. To the extent that Appellant claims the statements were admissible pursuant to Article 38.36, this statute “in no way broadens or otherwise affects the rules of evidence which apply, or the way in which they apply in any given homicide case.” Menefee v. State, 211 S.W.3d 893, 905 n.13 (Tex. App.—Texarkana 2006, pet. ref'd) (quoting Bush v. State, 958 S.W.2d 503, 505 (Tex. App.—Fort Worth 1997, no pet.)); see also Rogers v. State, 183 S.W.3d 853, 860 (Tex. App.—Tyler 2005, no pet.). Therefore, Appellant, as the proponent of the evidence, retained the burden to show that Jason's statements qualified under an exception to the hearsay rule, to the extent they constituted hearsay. See Menefee, 211 S.W.3d at 905 n.13.

However, even assuming that Jason's statements were not hearsay because they were offered to show their impact on Appellant rather than for their truth, the apprehension-of-danger theory still only permitted Appellant to introduce evidence of specific prior acts of violence by Murrell, of which Appellant was aware at the time of the shooting. See Seidule, 622 S.W.3d at 489-90. The statements Appellant attributed to Jason did not describe or reference any specific acts at all, violent or otherwise. The trial court's ruling excluding these statements was within the zone of reasonable disagreement, and we cannot conclude that the trial court abused its discretion in so ruling. Henley, 493 S.W.3d at 83. We overrule Appellant's third issue.

Analysis – Josie Adams

Appellant sought to admit three photographs showing Murrell's participation in martial arts through Josie's testimony. The photos were taken at competitions which occurred prior to Murrell moving to Texas in 2015. The State objected to the photographs as inadmissible character evidence, offered to show that Murrell acted in conformity with the activities depicted. Appellant's counsel argued that the photographs would show that Appellant did not fabricate the fact that “he knew of Samuel Murrell having a skill of martial arts,” and were not character or reputation evidence. The trial court sustained the State's objection.

As discussed above, Appellant testified that he had no knowledge of Murrell's reputation in general. And even assuming arguendo that the events shown in the photos— participation in martial arts competitions— could qualify as specific acts of violence, nothing in the record shows that Appellant was aware of those “acts” prior to the shooting. See Seidule, 622 S.W.3d at 489-90; Miller, 330 S.W.3d at 619; see also Neal v. State, No. 12-14-00158-CR, 2016 WL 1446138, at *8 (Tex. App.—Tyler Apr. 13, 2016, no pet.) (mem. op., not designated for publication) (explaining that “[the victim's] alleged gang affiliation could not cause Appellant to believe anything about [the victim] if he did not know about it”). Therefore, the trial court could reasonably have found that the competition evidence was not relevant to establish either that Appellant had a self-defensive mindset or that such a mindset was reasonable. The trial court did not abuse its discretion by excluding the photographs or Josie's testimony about the events shown therein. We overrule Appellant's fourth issue.

Analysis – Samuel Murrell

Appellant testified that prior to the property dispute related to the trailer, he and Murrell had a cordial relationship. At trial, Appellant sought to testify regarding statements by Murrell during a conversation which occurred over one year before the shooting that: (1) “[i]t only takes nine pounds of pressure to break a man's neck,” (2) Murrell began practicing martial arts “at a very young age,” (3) Murrell was “capable of kicking ass,” and (4) Murrell “was not one to be reckoned with.” Appellant specified that Murrell “had not told me of any altercations he had with anyone if that's what you're getting at.”

The State objected to this testimony on the basis of hearsay. Appellant argued that the statements were not hearsay because “they don't go to the truth of the matter asserted,” but show the basis for Appellant's opinion that Murrell was capable of violence and his claimed self-defensive state of mind. The trial court sustained the State's objection and ruled:

[Appellant] can give his opinion that he was in danger for his life. And under the apprehension of danger as well, the defendant is also allowed to tender an opinion, and the Court is going to allow this.

The Court's going to allow the defendant to testify to this extent, that he was in danger for his life when that charging – alleged challenging happened based upon his knowledge of the victim's background in martial arts. And the Court's going to limit the testimony to that instance of it. Mr. Adams, you're going to have a running objection as to the prior testimony of the four instances we referred to.

Appellant does not cite, and we do not find, any Texas jurisprudence addressing whether a deceased person's general statements to a murder defendant about his fighting ability, made more than one year before the incident, are admissible to show the defendant's state of mind at the time of said incident. However, Appellant argues that Murrell's statements were admissible to “establish the reasonable bases of appellant's belief that his actions were necessary in response to Murrell's deadly attack on him.” We note initially that Article 38.36 evidence must also meet the requirements of the rules of evidence. Thompson v. State, No. 12-24-00025-CR, 2024 WL 4706822, at *2 (Tex. App.—Tyler Nov. 6, 2024, pet. ref'd) (mem. op., not designated for publication) (citing Garcia v. State, 201 S.W.3d 695, 702-703 (Tex. Crim. App. 2006)). This Court previously concluded that the predecessor rule to Article 38.36 “would not extend the rules to admit hearsay testimony which would be otherwise inadmissible merely because it tends to show the accused's state of mind at the time of the offense.” Amis v. State, 910 S.W.2d 511, 520 (Tex. App.—Tyler 1995, pet. ref'd).

Assuming without deciding that the trial court erred in excluding this evidence, we nevertheless conclude the error was harmless. Errors in sustaining the State's objections to the admission of a defendant's evidence generally are nonconstitutional. See Easley v. State, 424 S.W.3d 535, 540 (Tex. Crim. App. 2014). Nonconstitutional errors that do not affect the defendant's substantial rights must be disregarded. See TEX. R. APP. P. 44.2(b); Green v. State, 589 S.W.3d 250, 261 (Tex. App.—Houston [14th Dist.] 2019, pet. ref'd) (citing Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000)). Error affects a substantial right when it has a substantial and injurious effect or influence in determining the jury's verdict. See Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005). Conversely, an error does not affect a substantial right if we have fair assurance that the error did not influence the jury or had only a slight effect. Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001).

When we assess the likelihood that the jury's decision was adversely affected by the error, we consider everything in the record, including all 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, the jury instructions, the State's theory and any defensive theories, closing arguments, and whether the State emphasized the error. Motilla v. State, 78 S.W.3d 352, 355-56 (Tex. Crim. App. 2002); see also Haley, 173 S.W.3d at 518-19.

The sole issue before the jury in this case was whether Appellant's use of deadly force against Murrell was justified; that is, whether Appellant reasonably believed the force was immediately necessary to protect himself against Murrell's use or attempted use of unlawful deadly force. See TEX. PENAL CODE ANN. §§ 9.31(a), 9.32(a), 9.33. The State's theory was that any such belief on Appellant's part was not reasonable under the circumstances. Appellant's defensive theory was that the size and age difference between himself and Murrell, in combination with Murrell's martial arts training, gave credence to a reasonable fear that Murrell could cause him serious bodily injury.

The jury heard Appellant's testimony that he knew of Murrell's martial arts training and feared for his life at the time of the shooting:

Appellant's Counsel: So was there something about Sam Murrell that made you think that his attempt to hurt – to hurt you was serious enough for you to need to shoot him?

Appellant: Mr. Murrell was a fifth-degree black belt in martial arts.

Appellant's Counsel: Did you know that at the time?

Appellant: Yes, I did.

However, as aforementioned, there was no evidence presented that Murrell ever behaved violently toward anyone. Appellant admittedly had no knowledge of any violent altercations or of Murrell having a general reputation for violence in the community. Appellant's testimony as to how he came to know that Murrell was a “fifth-degree black belt” would not have added any such evidence. See Walters v. State, 247 S.W.3d 204, 221–22 (Tex. Crim. App. 2007) (holding that the exclusion of the defendant's statement supportive of his self-defense theory was non-constitutional error because the defendant fully presented his self-defense theory when he testified).

The State did not dispute the truth of Appellant's testimony about Murrell's martial arts training but presented substantial evidence that would support a factfinder's decision to reject the defense. For instance, the jury heard the recording of the verbal altercation between Appellant and Murrell. The jury also heard testimony that Appellant and Josie were engaged in a legal battle regarding the bounds of their respective property, Appellant was “agitated” when he walked down the street to complain about the location of Josie's truck, and Appellant became more agitated when he believed Murrell was ignoring him.

During closing arguments, Appellant's counsel discussed Murrell's fighting ability without objection from the State:

Noal Price knew that Sam Murrell had a fifth degree black belt in martial arts. So it's not like I'm running toward him, some 53-year-old, out of shape dude who loves his Whataburger. We're talking about a guy who's a decade and a half younger than him who knows martial arts and who can harm somebody. Okay. Picture Chuck Norris.

The State's counsel disputed the characterization of Murrell as akin to Chuck Norris, but spoke to Murrell's physical condition in doing so rather than referencing martial arts:

Picture Chuck Norris? Okay. This is not Chuck Norris. This was Sam Murrell. He weighed 249 pounds. He was 41 years old. He was obese. Do you remember that testimony from the medical examiner? He had ninety percent blockage in one of the arteries of his heart. Do y'all remember that? That is a mischaracterization of the actual facts that are before you․ Sam was confronted by the defendant. That is it. It is uncorroborated. The only evidence from the defendant is that Sam bolted towards him. It is uncorroborated because Sam is dead[.]

Finally, the jury charge contains extensive instruction on self-defense, and Appellant does not contend before this Court that the instructions therein were insufficient or inaccurate.

We conclude that on this record, we have fair assurance that any error made in excluding Murrell's statements did not have a substantial and injurious effect or influence in determining the jury's verdict. We overrule Appellant's fifth issue.

DUE PROCESS

In his sixth issue, Appellant contends that he was denied his right to present a complete defense under the United States Constitution because of the trial court's exclusion of the evidence discussed above.⁴

As the Texas Court of Criminal Appeals has recognized, “[t]he Fifth, Sixth, and Fourteenth Amendments to the United States Constitution guarantee the accused in a criminal prosecution the right to a ‘meaningful opportunity to present a complete defense.’ ” Rogers v. State, 677 S.W.3d 705, 712 (Tex. Crim. App. 2023). A trial court's exclusion of evidence may violate this right if the ruling excludes otherwise relevant, reliable evidence which forms such a vital portion of the case that exclusion effectively prevents the defendant from presenting a defense. Wiley v. State, 74 S.W.3d 399, 405 (Tex. Crim. App. 2002); Young v. State, 358 S.W.3d 790, 804 (Tex. App.—Houston [14th Dist.] 2012, pet. ref'd). However, “[e]rroneous evidentiary rulings rarely rise to the level of denying the fundamental constitutional rights to present a meaningful defense.” Potier v. State, 68 S.W.3d 657, 663 (Tex. Crim. App. 2002). That the defendant was unable to present his case to the extent and in the form he desired does not rise to constitutional error if he was not prevented from presenting the substance of his defense to the jury. See id. at 666.

Further, when evidence comes in an objectionable form, neither the Texas nor the United States Constitutions require its admission. See Davis v. State, 313 S.W.3d 317, 329 n.26 (Tex. Crim. App. 2010) (observing that constitutional right to “meaningful opportunity to present a complete defense” is “qualified by requirement that the evidence be relevant and not excluded by an established evidentiary rule”); Renteria v. State, 206 S.W.3d 689, 697 (Tex. Crim. App. 2006) (concluding that admission of constitutionally relevant evidence is not required if it is otherwise objectionable under state law). To establish such a constitutional violation, the defendant must demonstrate that the trial court's ruling excluding the evidence was both erroneous and “effectively preclude[d] the defendant from presenting a defense.” Rogers, 677 S.W.3d at 725.

Although Appellant claims his first through fifth issues each independently present reversible error, he alleges that the cumulative effect of the exclusions deprived him of the ability to present his defensive theory.

On the record before us, Appellant was not “precluded from presenting a defense.” See id. Appellant was able to introduce evidence pertaining to his self-defense claim, including his theories that Murrell was the first aggressor, and that Appellant reasonably feared Murrell was dangerous. The jury heard Appellant's version of the events of May 8 via his live testimony, wherein he stated that (1) Murrell attacked him, (2) Appellant feared for his life because of Murrell's martial arts training, and (3) Appellant shot Murrell in self-defense. See Seidule, 622 S.W.3d at 493. That the evidence Appellant wished to admit might have corroborated or explained the source of his claims about Murrell's training and abilities does not mean that the evidence formed “such a vital portion of the case” that he was deprived of presenting the substance of his self-defense theory entirely. See Potier, 68 S.W.3d at 665; Walters, 247 S.W.3d at 222 (holding that the exclusion of the defendant's statement supportive of his self-defense theory was non-constitutional error because the defendant fully presented his self-defense theory when he testified and the excluded evidence would have only “incrementally furthered” said theory). Moreover, Appellant requested, and the jury charge contained, an instruction on the issue of self-defense. Cf. Mejia v. State, No. 03-23-00369-CR, 2025 WL 1240154, at *7 (Tex. App.—Austin Apr. 30, 2025, pet. granted) (mem. op., not designated for publication) (finding that appellant was prevented from presenting a defense when erroneously excluded self-defense evidence was the only evidence of defense theory). We overrule Appellant's sixth issue.

EXCLUSION OF EXPERT WITNESS

In his seventh issue, Appellant argues that the trial court erroneously excluded Douglas Deaton's expert testimony.

Standard of Review and Applicable Law

The Texas Rules of Evidence provide that a qualified expert “may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” TEX. R. EVID. 702. Three requirements must be met before expert testimony can be admitted: “(1) The witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist the fact-finder in deciding the case.” Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019). These conditions are commonly referred to as (1) qualification, (2) reliability, and (3) relevance. Id.

In a prosecution for murder, if a defendant raises as a defense a justification provided by Section 9.31․ Penal Code, the defendant, in order to establish the defendant's reasonable belief that use of force or deadly force was immediately necessary, shall be permitted to offer ․ relevant expert testimony regarding the condition of the mind of the defendant at the time of the offense[.]

TEX. CODE CRIM. PROC. ANN. art. 38.36(b). A trial judge's ruling on the admissibility of expert testimony is reviewed under an abuse-of-discretion standard and will not be disturbed if it is within the zone of reasonable disagreement. Wolfe v. State, 509 S.W.3d 325, 335 (Tex. Crim. App. 2017).

Rule 403 of the Texas Rules of Evidence favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Hall v. State, 663 S.W.3d 15, 34 (Tex. Crim. App. 2021). However, the trial court may exclude even relevant evidence if “its probative value is substantially outweighed by a danger of ․ unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” See TEX. R. EVID. 403. When conducting a Rule 403 analysis, a trial court must balance:

(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 [a] 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.

Hall, 663 S.W.3d at 32 (quoting Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006),.

Analysis

During the guilt-innocence phase of trial, the court held a hearing outside the presence of the jury as to the admissibility of Deaton's expert testimony. Appellant described Deaton as “an expert in the field of firearms, use of force and deadly force, action versus reaction, self-defense, and related issues.”

Deaton testified that he was a retired police officer and worked in law enforcement for over twenty-five years (mostly for the Plano Police Department), including service as a SWAT officer. He received extensive training related to active shooter situations, “[w]ith regard to use of force with regard to perception, reaction, decision-making, with regard to making use of force decisions that are obviously within, you know, the confines of the law[.]” He was personally present for one ongoing active shooter situation, but did not “become involved in the gun fight” because his “role was to be an investigations lieutenant.” Deaton continued to attend training and seminars after his retirement, including “interviewed interrogation classes,” and became certified as a firearms instructor and as a “force analyst.” He stated that his force analyst certification focused on “human reactions under stress,” including “the psychology of what occurs during high-stress encounters such as shootings[.]” He testified ten times as an expert witness following his retirement from law enforcement, although not all of the cases involved self-defense, and his testimony was excluded or limited by the court multiple times. Deaton further stated that he could testify about what “the everyman” might experience in a psychologically stressful situation and intended to testify as to the length of time Appellant spent firing at Murrell as compared to other violent incidents. However, he could not testify as to what Appellant thought or felt in the situation at issue and would not testify definitively as to whether Appellant's use of force was reasonable or justified:

My opinion is that a person who is older and frankly out of shape like the defendant was based on the age difference, size difference, athleticism difference, and the apparent training of the – of the decedent, that it might be reasonable for that person to genuinely fear that they were facing an attack which would lead to death or serious bodily injury.

At the conclusion of the hearing, the trial court ruled that Deaton was excluded from offering expert testimony, and explained the reasons for the ruling as follows:

[S]pecifically, the Court's going to make further findings in that some of the topics discussed, i.e., psychology or stressful situation, the witness was very ambiguous with the majority of his testimony today and kept repeating things such as would depend upon the questions asked. With that as to action and reaction time as well, the Court found his testimony to be ambiguous, and when further crossed about the issue, he was not really able to get into specific training as to how or how this would assist the factfinder in this case. Court further finds that a lot of his testimony especially of a reasonable person standard would go to the defendant's mental state which is prohibited from [sic].

Court further finds that the witness has not visited with the defendant or other witnesses in the case and has only reviewed evidence. He also stated to the State he would not limit himself to what he just said a couple of times during his testimony, again, making it ambiguous and hard for the Court to understand what he might state. He just kept repeating would depend upon the questions asked. The defendant – excuse me. The witness also testified that tunnel vision, what a every day, reasonable person might do does not go to the issue of the offense or to the defense of self-defense, and he doesn't know if it applies were his exact words. The shoot to kill phrase he admitted was a phrase from Hollywood. The Court further finds that to be ambiguous or to be confusing to the jury under 403. The typical speed of an encounter from the first shot to last shot, the witness testified he would like to give an opinion as typical of such an unexpected encounter but then again admitted that it does not go to the offense or to the defense in this matter.

․This Court is also basing a ruling in accordance with Galvan and Echavarria 362 S.W.3d 148 as well as the Texas Rules of Evidence 403 balancing test. And the Court finds a lot of the expert's testimony as presented today and yesterday would confuse some of the issues, potentially mislead the jury, and also present ambiguous or cumulative evidence in this case. And that's the Court's ruling on that matter.

An appellant must attack all independent grounds supporting a trial court's ruling. See Marsh v. State, 343 S.W.3d 475, 479 (Tex. App.—Texarkana 2011, pet. ref'd); see also Whitehorn v. State, No. 10-02-00263-CR, 2004 WL 1588266, at *2 (Tex. App.—Waco July 14, 2004, pet. ref'd) (mem. op., not designated for publication) (stating that “Appellant does not address the State's independent Rule 403 objection, and we may overrule his issue for that reason alone”). If on appeal the appellant does not challenge a theory of law applicable to the case that supports the trial court's ruling, a court of appeals will uphold the trial court's ruling without considering the merits of the unchallenged basis for the ruling. Gutierrez v. State, 585 S.W.3d 599, 614 (Tex. App.—Houston [14th Dist.] 2019, no pet.); Ortiz v. State, No. 03–02–00520–CR, 2004 WL 437772, *4 (Tex. App.—Austin Mar. 11, 2004, no pet.) (mem. op., not designated for publication) (“If relevant as presented, the trial court ruled that it did not meet the balancing test under Rule 403. Appellant acknowledges the Rule 403 decision but has not challenged that ruling by briefing the issue. We find no abuse of discretion on the part of the trial court.”).

Assuming arguendo that Deaton's testimony was relevant, we note that on appeal, Appellant acknowledges the trial court's ruling under Rule 403, but does not challenge the ruling by briefing the issue. None of his arguments contend that the trial court erred in finding that, even if the testimony was relevant, it should be excluded because the danger of confusing the issues, misleading the jury, or repeating evidence already admitted substantially outweighed its probative value. See Marsh, 343 S.W.3d at 162. Consequently, we overrule Appellant's seventh issue.

DISPOSITION

Having overruled each of Appellant's seven issues, we affirm the judgment of the trial court.

COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT

THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.

It is therefore ORDERED, ADJUDGED, and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance.

FOOTNOTES

1.   Because multiple witnesses in this case have the surname “Adams,” we refer to them by their first names.

2.   Wilson, Appellant's former neighbor, was deceased by the time of the trial at issue herein. Appellant does not cite, and we do not find, any legal authority supporting his contention that because Wilson's testimony was admitted in the previous trial for this incident, the State could not object to her testimony during the retrial.

3.   A Massachusetts appellate court determined in an assault case that “evidence of ․ the victim's generalized participation in boxing and martial arts” was inadmissible to prove that the victim was the first aggressor, “as they refer to general activities rather than specific acts, and participation in organized athletic activities, including boxing, martial arts, or other hard-hitting sports, is markedly different from the specific acts of illegal violence” contemplated by the relevant evidentiary standard. Com. v. Amaral, 78 Mass. App. Ct. 557, 559, 940 N.E.2d 1242, 1244 (2011).

4.   Appellant does not include argument as to Douglas Deaton's expert testimony in his discussion of this issue.

JAMES T. WORTHEN Chief Justice