# S5Y-/5 GINAL (NO. 02-13-00556-CR)

IN THE TEXAS COURT OF CRIMINAL APPEALS,AUSTIN "•v n i

COURTOFCRIMINALAPPEALS 

### ARTIS LEON POLK, JR. OCT 08 2015 v Appellant, 

### v Abel Acosta, Clerk

THE STATE OF TEXAS Appellee, 

### On appeal from the 432nd Judicial District Co. of Tarrant County, Texas, Trial Court Case no. 1305834D

PETITION FOR DISCRETIONARY REVIEW OF ARTIS LEON POLK


### FILED IN 0RAL ARGUMENT REQUESTED COURTOFCRIMINALAPPALS 

### OCT 08 2L.5 AbelAcosta, GierK Artis leon Polk Jr. MCConnell Unit 3001 S. Emily Dr., Beeville,Tx. 78102TABLE OF CONTENTS Identity of the Parties A. Table of Contents B:> Index of Authorities C. Statement Regarding Oral Argument D. Statement of the Case .E. Statement of Procedural History F. Grounds and Questions for Review G. Question for Review #1 1 Did the court of appeals misconstrue the Court of Criminal Appeals reasoning and decision 

### concerning 'what constitutes agrression' 'at the time of the killings', and did that misunderstanding conflict with established law and rules set out by the CCA? Question for Review #2 6 Did the court of appeals abuse its discretion by upholding the trial court's ruling by not allowing a very important witness to the defense to answer questions, which the state objected would eithe not have been hearsay or would have been an exception to the rule against hearsay? Question for Review #3 9 Did the court of appeals improperly decide that appellant did not preserve his objection to the state's use of his prior agg. robb. during its case in chief after he stipulated? Question for Review #4 12 Did the court of appeals decide the issue of sudden passion in an uninformed way toward the appellant? Question for Review #5 13 Was the court of appeals decision claiming appellant waived his complaints for not continuing to object against appellant's right to a fair trial? Prayer & Appendix 

# kIndex., of Authorities STATE PG. Cockrell v. St. 933Sw2d 73,89(Tex.CrimApp.1996) 13 

### Fielder,v. St. 848 SW2d 85 (Tex.CrimApp.1992) 13 

### Gipson v. St. 383 SW3d 152 (Tex. Crim.App.2012) 14 James v. St. 335 SW3d 719 (Tex.Crim.App.2012) 5 Tamez v. St. 11 SW3d 198,202 (Tex.CrimApp2000) 9 Torres v. St. 117 SW3d 891 (Tex.Crim.App.2003) 1,2,3,4,5 

### Walker v. St. 644 SW2d 891 (Tex.Crim.App.1984) 14

Federal Thompkins v. Cyr 202 F.3d 770,779n.3 (5thCir.2000) 8 Old Chief v. uS 519,172,174(1997) 10

Texas Code of Criminal Procedure 

### TCCP Art. 38.36(a) ' 1

Texas Rules of Evidence 33.1(a)(1) H 44.2(b) 7 61.1 5 404(a)(2) 9 801 8 803(3) 8Identity of parties and Counsel 

### Appellant, Artis leon Polk jr.

Appellee, State of Texas Joe Shannon, Tarrant CT. D.A. 

### Judge, Hon. Rueben Gonzalez,jr.
Statement Regarding Oral Argument 

### Oral argument should be granted becasue the appellant feels it is pertinent that this court understands that the Court of appeals has simply disregarded this courts rulings.

Statement of the Case 

### This case is an appeal for a murder and an unlawful possession of a firearm convictions, which stem from a domestic situation 

## whereas the appellant was the boyfriend of Sharrell Wright, and resided with her. Wright shared custody of her children with the decedents in the case, Charles knighten, who was the first aggressor, in that he came to the home of the Appellant with 

### the intent to do harm, either to the appellant or Wright, whom 

## he had already, in the pas, assaulted. Records of his criminality were never introduced. The appellant, with knowledge of the 

### decedents history of violence toward the mother of his children, initially tried physically restaining the decedent from his 

## family. The decedent then brandished aweapon, resulting in the appellant retretrieving his own in the defense of his home and especially his family.STATEMENT OF PROCEDURAL HISTORY
The Appellant was found guilty of unlawful possession of a firearm and for murder, 20yrs for firearm and 99yrs for murder. Appellant filed a timely notice of appeal on November 8,2013. The Court of Appeals, 2nd District of Texas, Fort Worth affirmed the convictions on April 23, 2015 thru its memorandum opinion. The appellant properly filed a Motion for Rehearing with an extension to May 21, 2015. Appellant received an ORDER from the Court of Appeals undated, however, it denied the motion for rehearing.QUESTION FOR REVIEW #1 Did the court of appeals misconstrue the Court of Criminal Appeals reasoning and decision concerning 'what constitutes aggression' 'at the time of the killings', and did that misunderstanding conflict with established law and rules set out by the Court of Criminal Appeals? First of all, it is bovious that this issue was preserved being that there were no challenges from the state or the Court of appeal. now, it is firmly established that the Texas Code of Criminal Procedure, art. 38.36(a) and the Texas Rules of Evidence 404(a)(2) permits a defendant the right to offer testimony as to all relevant facts and evidence of a pertinent 'trait of character' of the victim. Specifically, under Rule 404(a)(2),'evidence of a victim's character for violence remains admissable to show the victim
was the first aggressor.' Mozon v. St. 99lSW2d 841, 845-46(Tex. Crim. App. 1999) Mere lies the premise of the appellant's claim of error on the part of the court of appeals for citing well-known caseelaw but using only quotes from the- case to support its decision, which, as it turns out, was in conflict withethe decision of the Court of Criminal Appeals', the authors of the deciding opinion of the case. The appellant pleads with this court to seriously consider its decisions and reasonings wisely put forth in Torress v. St., 117 SW 3d 891(Tex. Crim. App. 2003). Although there were multiple decisions in Torres, three from the court of Appeals and two from this court, The CCA, it was precedent that was established in Torres 117 SW 3d 891. This precedent, which twice reversed the opinions of the court

1.of appeals, the appellant asserts it is needed to settle the exact same issue this court resolved in Torres. To simplify and clarify the appellant's argument, the appellant will point this honorable court to pages 12, 13, and 14 of the court of appeals' Memorandum Opinion. Step by Step, the appellant will show that the court ofaappeals quoted authority, cited sound reasoning, but at the end, it diverted from the very authority and reasoning it cited just as it did in the case it now claims it based its decision on, Torres. On page 12 it cites article 38.36(a) of the C.C.P and Rule 404(a)(3) of the Tex. Rule of Evi.. It even gives an explanation of this court concerning the matter: Pg.12- "if offered to show the reasonableness of the defendant's claim fo apprehension of danger, it must be shown that the acts of violence were know to the defendant at the time of the homicide;if offered to show that the deceased was in fact the first aggressor, the witness must know, but the defendant need not have known of the violent acts at the time of the homicide. Beecham v. St. 580 SW2d 588(TexCriml979) "Evidence of a victim's character for violence remains

admissable to.s^how the victim was the first aggressor. A victim's extraneous acts of violence also remain admissable to show the defendant's state of mind. Mozon 99lSW2d 841 The appellant, at this point, will bring to the court's attention to the next two cites and quotes, which would plainly show where the court of appeals mindset swayed. -"the prior acts of violence by the decease must be relevant to the ultimate confrontation between the defendant and the deceased." -"For Diane's testimony to be admissable 'at the time it was offered,1 there must, have been evidence of an act of aggression by the deceased that tends to raise the issue of self-defense." -Torres 117 SW 3d 891-
tt is well-known that the reason for five different decisions in Torres was due to these quotes and an issue of 'timing.' Justlike in Torres, the appellant here was a boyfriend of Sharrel Wright, the ex-girlfriend of the decedent, Charles Knighten. The decedent had on several occassions physically assaulted Wright. At the time in question, Knighten, who became angry that this ex-girlfriend and mother to his children had the appellant at the home in the presence of his children. It/was he who drove to the home of the appellant, two cities over, exited his vehicle and when he was restrained by his mother and friends from being able to physically assault the appellant, he then brandished a weapon, namely a pistol. The appellant, in fear of his life and that of his girlfriend Wright and all others inside their home, hurriedly went to retrieve the only wepaon he had access to to protect his family, which is definately allowable by any law in Texas. To be specific, the appellant directs this honorable court's attention to page 13, the last paragraph of the court of appeals memorandum opinion, and the firstr.5 lines of pg. 14: "Second, we cannot hold that the evidence was admissable to show

Knighten's character for violence because at the time of the trial court's rulings, there was no evidence of any aggression by Knighten 'at the time of the killing'...which could give rise to appellant's claim of self-defense. At the time of the rulings, witnesses had testified that Knighten had acted aggressively before arriving at the apartment and upon arriving but no witness had testified that he was still outwardly aggressive at the moment of the killing." After this discourse, the court of appeals goes on to explain away the fact that Knighten, the decedent, had already acted out and had not left the vicinity of the apartment while the appellant went to get his weapon in defense of his family. The court's lone reasoning for not holding knighten's past acts of violence admissablewas that testimony at trial from Porter Lewis and John Reed (RR005,205) and (RR004,103) respectively, that the victim was walking away empty handed when the appellant shot him. This court has only to go to its own reasoning in Torres 117 SW3d 891 to see why the appellant complains that the 'act of aggression' by the victim who attemted to fight him and then pulled out a pistol, regardless that it became known later that it may or not have been a BB gun would give any normal person rise to fear that his life was in danger. The court of appeals used this same line of reasoning in Torres, whereas the victim in that case, climbed up the second story balcony outside a bedroom window, unannounced and uninvited at 6:30 am, before being shot in the face and abdomen. The victim was not found outside where he acted aggressively in climbing the balcony, but inside the apartment, in the bathroom. The justices here, erroneously decided that because the decedent was not shot and killed at the very exact moment that the acted in an aggressive manner, that the defendant did not have the right to bring his past unlawful acts to the attention of the jury. The Court of Criminal Appeals in that case reversed the judge ment of the court of appeals stating; "Here, the proffered testimony revealed that, two days before

he was killed, Valdez entered the apartment by climbing thru a window. He threatened Diane and her children that 'he would do something to hem' if she did not tell him where Roxanne was. This shows a mind set of violence against those who might stand between him and Roxanne. it could also explain Valdez's unorthodox entry by demonstrating the intent or motive of getting back with Roxanne one way or another, or keeping others away from Roxanne by violence if necessary. Because the

4.profferred testimony was probative of the deceased's state of mind, intent, and motive, we hold that the court of appeals erred in concluding that the evidence was relevant only to character conformity." Applying the holding of the Courts', decision in Torres to this present case, the decedent's repeated acts of violence directed at Wright, the girlfriend and the fact that he threat ened her the day he was killed show a mindset of violence against not only Wright, but 'anyone' who might stand between him and Wright, or anyone who he :;deems not .f it to associate with his children. It is undisputed that Knighten acted aggressively. The "court of appeals concedes this point on page 14, top paragragh: "At the time of the rulings, witnesses had testified that

Knighten acted aggressively before arriving at the apartment complex and upon doing so, but no witnesses had testified that he was still outwardly aggressive at the moment of the killing." This is exactly why this court decided the way it did, because the court of appeals is confusing the phrase, 'at the time of the killing' to mean the very second the defendant pulls the trigger. The Court of Criminal Appeals refused the court of appeals reasoning and made it clear that these acts of the victim,
once it is shown that he was the first aggressor, will be admissable to support a claim of self-defense. James v. St 335SW3d 719.' The court of appeals misunderstood the law in any case, because the law does not require evidence of some act of aggression 'at the actual moment of the shooting.' The law requires there to be 'some evidence of aggression by the deceased during the events that gave rise to the criminal charges.in the case before thedefendant may introduce evidence of a prior specific violent act that tends to explain the deceased's later conduct. Torres
117 SW3d 891. So the question, 'did the court of appeals misconstrue the Court of Criminal Appeals reasoning and decision concerning what constitutes an act of aggression and at the time of the killing, and did that.misunderstanding conflict with established law and rules set out by the CCA should be answered in the affirmative. The court of appeals, again, reasoned within themselves and that decision they made clearly conflicted with the decision of this court, the Court of Criminal Appeals. Accordingly, 'when the claimed error is the exclusion of a relevant piece of evidence, as it is here, conducting a meaningful harm analysis would necessarily require consideration of all evidence which was admitted at trial.' in this case all evidence on the part of the victim was excluded, and as will be show, all evidence, regardless, if it were admissable or not was given to the jury, unabated, on the part of the appellant. Because the error had a substantial and injurious influence in determinging the jury's verdict, a substantial right of the App.
was affected, and this court should therefor reverse the appellant's conveiction on this issue and remand this cause back to the trial court for further proceedings. See Rule 61.1 of the TRAP.
Question FOR REVIEW #2 Did the Court of appeals abuse its discretion by upholding the trial court's ruling by not allowing a very important witness to the defense to answer questions, which the state objected wouldeither not have been hearsay or would have been an:exception to the rule against hearsay? The appellant has preserved this error for review by making the substance of the excluded testimony known to the trial court, per the Tex. Ruels of Evi. 103(a)(1). (RR005,73,144,147) A short list of the discourse is in the court of appeals Memorandum opinion on page 18 and 19 as quotes from the trial. The State objected to the girlfriend of the decedent, Sharrell Wright's testimony concerning statements the decedent made during
a phone call before he ventured to the home of the appellant and the girl-frined. The State objected to hearsay five times, interrupting Wright's
answers to defense counsel's question about what happened after Appellant handed her the phone, if knighten, the decedent, threatened her, what Knighten yelled at her over the phone, what he yelled to her once he came to the house, outside, and what he said that made her think he was going to use the gun. The question here is did the court of appeals decide this issue contrary to established precedent, or did it misconstrue
Rules or the law. The court of appeals avered in its opinion on page 19 that: "The state contends, and we agree, that any erro in sustaining

the hearsay objections did not cause harm under rule 44.2(b) because the trial court admitted other evidence reflecting on appellant's and Wright's mental states at the time of the shooting." Appellant'.s offer of proof revealed that had Sharrel Wright been allowed to testify, she would have testified that knighten threatened her, that she believed him, and that knighten threat7.

### ened to "come and get the kids" and "to kick her ass".(RR005,144) The court of appeals misunderstood the rule against hearsay, Tex. R. Evid. 801. Threats are not hearsay. (See eg. Thompkins v. 

### Cyr, 202 F. 3d 770, 779 n. 3 5th Cir. 2000)(co-defendant's threats were not hearsay, "because not offered for their truth: the threats are verbal acts.") Even if the statements of 

### Knighten were offered in evidence to prove the truth of the matters asserted, they were admissable as statements of the declarant's then existing state of mind or emotion, Tex.R.Evi. 

### 803(3), and the testimony of what knighten yelled at Wright 

### on the phone was also admissable as an excited 'utterance' under
TexR. Evid. 803(2) . 

### The appellant asks this honorable court to see the seriousness of this error. The appellant again points to the court of appeals 

### whitewashing of the trial courts exclusion of admissable evidence, not as hearsay, but as verbal acts and excited utterance. 

### On page 21 of the curt of appeals memorandum opinion, the court explained; 

### "...she clearly communicated her state of mind during the

incident that led to knighten's death. She tesified that 

### while talking on the phone, Knighten became 'real' upset and



### 'angry' and was yelling at her. She also testified that when Knighten arrived at the house, he was "arguing and cussing, and jumping up and down." She explained that 

### Knighten was still yelling after she went inside and out the apartment...Considering the record as a whole, we conclude that the trial court's error, if any, in 

### excluding parts of Wright's testimony on the ground of 

### hearsay did not affect appellant's substantial rights..." 

### The appellant pleads with this court to use its powers of 

### equity, realizing that the fact that the court=;of appeals is 

### wrongly labeling the error or objection as hearsay, disqualifiesits reasoning when relating the error to the rule of law. If it were hearsay, then a substantial right mah have not been affected since other evidence of the same nature was admitted. However, if this testimony is in fact admissable under an 'excited utterance' or a 'verbal act', then it is no doubt that a substantial right was affected, and because it had an injurious influence in determining the jury's verdict, a substantial right was affected, and this court should reverse Appellant's conviction on the issue and remand this cause back to the trial court for further proceedings. See TRAP 61.1

QUESTION FOR REVIEW #3 Did the court of appeals improperly decide that appellant did not preserve his objection to the state's use of his prior aggravated robbery charge during its case in chief, after he stipulated to the fact that he had a prior felony conviction?

- This error is an instance where as the law is clear on a particular rule or piece of evidence, but a supervisory court totally disregard the obvious error in favor of the state on a technicality as here, the complained of error wasn't preserved becasue his complaints on appeal do not match his hearsay objections at trial. This Court, the Court of Criminal Appeals(-CCA) has ruled that 'a defendant's stipulation ' to a previous conviction should suffice when it carries the same evidentiary value as the judgements of prior convictions, yet substantially lessens the likelihood that the jury will improperly focus on the previous conviction or the defendant's bad character'.Tamezv. St. HSw3d 198, 202(TexCrimApp. 2000i)). Appellant's conviction for murder and unlawful possession of a firearm should therefore be reversed, and this case should be remanded for further proceedings. Appellant had been conviced of aggravated robbery in Criminal District Court no. 5 of Dallas County in 2004:(RR009, Exhibits no. 47-48) Thru its conduct at trial, the state betrayed its awareness of the risk that this evidence would lead to a verdict tainted by improper considerations.t;The state went inot the details of Appellant's aggr. rob. conviction over his objection, during its cross-examination of the Appellant.(R006,51-76) As the u.S. Supreme Court noted in Old;.Chief, the risk of unfair prejudice to a defednant is especially obvious in a case where the defendant's prior conviction was for a crime similar to other charges in a pending case.OLD CHIEF v. US 519, 172,174 (1997) This is indicative of why safeguards like these cases are put in place to protect an individual from the 'almighty state'. The state here, purposely interjected the details of the appellant's prior conviction solely to infuence the minds of the jury, because the appellant had already stipulated to the fact that he was convicted of a felony. This is without a doubt frounds for reversal, but the court of appeals again went out,df its way to deny the appellant a fair and impartial trial, when it sided with the state and the trial court who side-stepped the amin issue and brought up the ocbdest

10,trick in the book, improper objection, thus saving nothing for review. Its indisputed that a trial, when the state offered records related to appellant's prior conviction the agg. robb. appellant objected on the grounds that the records were hearsay, the trial court overruled the objection and admitted the records, which included a 2004, judgement of conviction, a fingerprint certificate,
a copy of a plea agreement, and the indictment. The court of appeals again misconstrued well-known rules when it totally disregard the TRAP 33.1(a)(1), which states; *To preserve a complaint for review, a party must have presented

to the trial court a timely request, objection, or motion that states the specifiec grounds for the desired ruling if they are not apparent from the context of the request.' This is a twofold statement, there must be a timely objection stateing the specific grounds 'if' they are not apparent from the context of the request. here, in the current case, the appellant objected to hearsay and again mentioned the stipulation when it was obvious from the context that the State was offering to introduce to the jury the defendant's conviction for agg. robbery. This objection was made in the context of the state breaking known rules and regu lations from which -the trial court, quickly overruled and admitted anyway, was a clear preservation of the claimed error. The Appellant asks that this court reverses his conviction and
sentence on this issue and remand this case back:to .the trial court or the court of appeals for further proceedings. See
TRAP 61.1

11.QUESTION FOR REVIEW #4 Did the court of appeals decide the issue of sudden passion in an uninformed way toward the appellant?
At the punishment stage of the trial, a defendant convicted of murder may raise the issue as to whether he caused the death under the immediate influence of 'sudden passion' arising from
an adequate cause. Tex. penal Code Ann§19.02(d) As defined by the penal code 'sudden passion' means passion directly caused by and arising out of provocation by the individaul killed or another acting with the person killed which 

### passion arises at the time of the offense and is not solely the result of former provocation. * Appellant took the stand and testified that, at the time he fatally shot knighten, he felt he 'had to defend himself and that if he had known Knighten's gun wasn't real or if knighten had not had a firearm period then he wouldn't never had run and got the rifle."(RR008,15-16) The State put on no evidence that contradicted this testimony, in fact, what reasonable person who is physically threatened at the onset of an altercation and then being put in fear of death by
a person weilding a pistol would not act as appellant did? This is clearly 'sudden passion' and this is why the legislatures enacted this law and provided rules and regulations to govern it. Accordingly, Appellant request this court vacate his sentence d 

### and remand this cause to the trial court or the court of appeals for a new trial ro further consideration. See TRAP 61.1

12,QUESTION FOR REVIEW #5 Was the court of appeals decision that the trial court did not abuse its discretion for overruling appellant's objections to the state's closing arguments overly critical, in that it, upon its own, found that appellant waived those complaints for not continuing to object or maintain a running objection and was the state's closing arguments proper? pages 22,23,24,25, and 26 of the memorandum opinion of the court of appeals 02-13-0056-CR in the courts reasong for denying the appellant his right to a fair trial and not to be subjected to prosecutorial misconduct, specifically the closing argument by
the state. To be permissable, the State's jury argument must fall within
one of the following four general areas (1) summation of the evidence, (2) reasonable deduction from the evidence,(3) answer to argument of opposing counsel, or(4) plea for law enforcement. Fielder v. St. 848 SW2d 85(TexCrim. App.1992) "Before a defendant will be permitted to complain on appeal about an erroneous jury argument or that an instruction to disregard could not have cured an erroneous jury argument, he will have to show he objected and pursued his objection to an adverse ruling."Cockrellv. St 933SW2d 73,89(TexCrim.Appl996) The appellant plainly and clearly satisfied this criteria;as shwon in the Reporter's Record9RR006,141,144,146,147,148, thus appellant has preserved this error for review by timely objecting and by pursuing his objection to an adverse ruling from the trial court. The appellant avers that the State, the adversary in this suit, did not complain that there was a preservation issue

13.concerning the forfeiture of a complained of error. on page 

### 22 of the court of appeals Memo opinion, the footnote specifi 

### cally, it is shown that the court sua sponte raised the issue that the appellant did not properly preserve his errors because,-when 

### he objected and the trial court denied him, the state continued its same line of questions without further objections. 

### This is against known procedure. The court of appeals on its 

### own, using Gipson v. St.383 SW3d 152, 159(Tex.Crim.2012) to justify its standing. 

### Without re-writing the well documented errors, the appellant will focus on one and continue to preserve all for later review. 

### Rule 404('b) expressly forbids the state from using evidence of other crimes, wrongs or acts of Appellant to prove his character 'in order to show action in conformity therewith', 

### yet the district attorney urged the jury to do just that when he argued; 

### 'That is Appellant's conduct. Thats who he is. Thats what he



### is. And you know it is. And youkknow that by his testimony...' (RR608,145-146) Just like in Walker v. St. where the prosecutor said of that defendant 'This is what he does for a living'.Walker 644SW2d338 

### (Tex. CrimAppl984) just like Walker this argument 'could only have been made in an attempt to influence the minds of the jurors in order to secure a favorable verdict. 

### Based on balancing tests, the State's improper jury argument 

### affected a substantail right of appellant, and because a right was affected, this court should therefore reverse Appellant's conviction on this issue. See TRAP 61.1

14.,J PRAYER All things considered, the Appellant, Artis Leon Polk, humbly prays this court consider the issues at hand and rule in his favor and reverse the convictions hereby attested, and alot any other remedy at law.

CERTIFICATE OF SERVICE I certify that the same has been served to the State's opposing counsel on this day .

SWORN DECLARATION

I do hereby state under penalty and perjury of law that the foregoing is true and correct to the best of my knowledge.

Artis leon polk Jr. McConnell Unit 3001 S. Emily Dr. Beeville, Tx. 78102

### COURTOFAPPEALS SECOND DISTRICT OF TEXAS FORTWORTH NO.02-13-00556-CR 

### Artis Leon PolkJr. § Fromthe432nd DistrictCourt § ofTarrantCounty (1305834D)
v. § April23, 2015 

### § OpinionbyChiefJustice Livingston TheStateofTexas § (nfp) JUDGMENT 

### This courthas consideredthe record on appeal inthis case and holds that therewas no errorinthetrial court'sjudgments. It is ordered thatthejudgments ofthe trial court are affirmed.

SECOND DISTRICT COURT OFAPPEALS
By /s/Terrie Livingston 

### ChiefJusticeTerrieLivingstonARTIS LEON POLK JR. 

### COURT OF APPEALS SECOND DISTRICT OFTEXAS FORT WORTH NO. 02-13-00556-CR

V. THE STATE OF TEXAS APPELLANT

STATE

FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 1305834D

MEMORANDUM OPINION
Appellant Artis Leon Polk Jr. appeals his convictions for murder and 

### unlawful possession of afirearm.2 In five issues, he argues that thetrial court abused its discretion by excluding and admitting evidence and by overruling his 

### objections to parts ofthe State's closing argument concerning his guilt and that 

### 1SeeTex.R.App. P.47.4. 2SeeTex.Penal CodeAnn. §§ 19.02(b)(1)-(2),46.04(a)(West2011).the evidence isfactually insufficientto supportthejury's rejection of his claimthat 

### he killedthevictim underthe influenceofsudden passion. Weaffirm. 

### BackgroundFacts3 Charles Knighten and Sharell Wright, who once dated but laterseparated, 

### shared custody oftheirchildren. Knighten and Wright agreed thatWrightwould not bring other men around the children. Appellantwas Wright's boyfriend, and shebroughthim aroundthe children. 

### On Thanksgiving Day in 2012, Knighten called Wright on the telephone. Although Wrighttold appellant notto answerthe call because she knew that his 

### doing so would upset Knighten, appellant answered the call. Knighten became upset.

### Knighten, who was twenty-three years old, rode from Dallas with his mother, Latomi Burrows, and her boyfriend, John Reed, to Arlington, although Wright had told him notto come. As they entered the apartmentcomplexwhere Wright's mother lived, appellant, who was standing outside, began taking off his jewelryand shirt.and acting like hewas preparing to fight. Knighten gotoutof his
carand walked toward appellantwhile apparently intending to fight, but Burrows and Reed attempted to intervene.



### 3The facts in the first part ofthis section comprise the testimony ofall witnesses other than appellant. Appellant provided contrary testimony that we summarize below.

### Wright went inside the apartment because she wanted to avoid any confrontation. She later came out of the apartment and saw Knighten yelling, 

### "cussing," and "jumping up and down." Atsome point, Knightentooka small gun out of his pants although Reed attempted to prevent him from doing so. To Wright, the gun looked like a real handgun. Reed later discerned that itwas a 

### BB gun. According to Wright's testimony, Knighten waved the gun at her and appellant, and shefearedfor herlifeand believedthatKnighten would shoother. As Reed and Burrows continued their attempts to keep Knighten away from appellant, appellant and Wright retreated into the apartment and locked the door. Atthattime, Knighten was on stepsthatled up to the apartment. He never entered the apartment, but he knocked on the door and said that he just 

### "want[ed] to seehis kids" forThanksgiving. He eventually stopped doing so. When appellant and Wright entered the apartment, appellant went to a 

### bedroom, grabbed a large-caliber rifle, and then came back toward the apartment's front door. Wright pleaded with him not to go back outside, but 

### appellant opened the door and stepped outside the apartment.4 As Knighten
4At trial, Wright conceded that the events initially occurring outside the apartment were concluded and that she would not have gone back outside. A police officertestifiedthaton the day ofthe shooting, Wrighttold herthat she had 

### seen the assault rifle before appellant opened the door, that she had begged appellantto not go back outside, and that appellant had "physically pushed her, unlocked the door[,] and then exited." The officer also testified thatWright said 

### on the day ofthe shooting that she knew Knighten would not have fired his gun and that she had seen him place the gun back in his pocket as she was going insidethe apartment.was walking toward Burrows and away from the apartment, appellant said, "This 

### is how it's going to be, bro." Knighten turned around, and appellant repeatedly shot him with the rifle. Knighten's hands were empty atthat time, according to multiple witnesses, and appellant's gun was powerful enough to raise Knighten offthe ground and to cause him to violently shake while being hit with bullets. Even after Knighten was on the ground, appellant hovered over him and continued to shoot him. Burrows and Reed ran toward Knighten and attempted to help him. Wright also attempted to help him by compressing his chest. Appellant went back into the apartment to look for his keys, eventually came out again, grabbed the BB 

### gunfrom nearKnighten's waist, stepped overhim, anddrove away. Multiple people called 9-1-1. When police officers arrived at the scene, they saw a large amount of blood; spent shell casings; projectile fragments; many BBs; and several people, including Knighten's mother, attempting to resuscitate him. Soon thereafter, medical personnel arrived, assessed Knighten, and determined that he was dead. Officers began talking to witnesses at the
scene. With the intent to turn himself in, appellant eventually returned to the apartmentcomplex, andthe policearrested him. 

### Wright testified that she did not see the riflebefore appellant went back outside. She also testified that only seconds elapsed from the time Knighten 

### banged on the door until appellant went back outside to confront him. Finally, she testified that she was afraid for her life even after she had returned to the 

### apartmentand had lockedthe door.Knighten's autopsy revealed many entrance and exitgunshotwounds. Dr. 

### Nizam Peerwani determined thattwelve bullets had struck Knighten's body; that
some bullets had entered through his back; and that two wounds, including one that severed an artery and anotherthat lacerated the heart, were nearly instantly fatal. A grandjury indicted appellant with murder and with unlawful possession 

### of a firearm. The indictmentallegedthatappellanthad been previouslyconvicted of another felony. Appellant received appointed counsel, filed several pretrial motions, and pled notguilty. At trial, appellant testified that he had not known how to use Wright's phone when Knighten had called her on the day ofthe shooting. He explained that when he had answered the phone by pushing "the little phone thing," 

### Knighten had said, "PutSharell on the phone." Appellantalso statedthathe had heard Knighten say "disrespectful" words to Wright. According to appellant, Knighten beganyelling, andWrightstarted crying. Appellant testified that when Knighten had arrived at the apartment complex, appellant had not been preparing to fight but was simply changing 

### clothes while preparingto meet some ofhis family later thatday.5 AsKnighten walkedtoward appellant, Knighten said, "Man, y'all gotmef—d up."


### 5Onthe day of theshooting, Wrighttold apoliceofficerthatappellanthad been preparingto fight Knighten.

### According to appellant, Knighten had the BB gun in his hand when hefirst 

### arrived at the apartment complex and approached appellant. Appellanttestified that Knighten had cocked the gun, that Knighten had said that he would kill him, 

### thatappellanthad believedthat Knighten wastrying to kill him, andthatappellant 

### had been scared. Appellanttestifiedthatas Knighten had pointedthegun at him andWright, Wrighthad criedand hadappeared scared. Appellant testified that after he had entered the apartment to get his rifle 

### and had come back outside, Knighten had stood "rightthere [and was] coming towardsthedoor." He saidthat Knighten had noteverstopped knocking and had 

### not walked away from the apartment's door; he explained that Knighten had tussledwith Wrightoverthedoorandthat Knighten would haveeventuallyforced 

### his wayinside.6 Appellanttestified that he hadfired the rifle because he was scared and believed that Knighten was "fixing to kill [him]." According to appellant,justbefore hefired, Knighten said, "Bitch-ass ni—." He testifiedthatif 

### he had not gotten the rifle, Knighten would have shot him and Wright, and they would be dead. Appellantexplained, 

### Iwas scared. I
. . . shothim outofinstinct. He . . . spooked me. He

. . . was so close, and the gun was pointed in my face, and Ijust jumped backandfired.



### 6Thus, appellanttestified thatWright had lied when she testified that the door was locked and the incident had concluded before appellant opened the door and went back outside.Ikind ofducked like sideways from the door, and that's how I ended up like closeto the wall rightthere, the back ofthe wall, and I fired.

... He got a gun in ourface. And that was the last option. Thatwas . . .totallythe lastoption. Icould have ran and gotthe rifle as soon as hegotoutthecar. But Ididn't. Appellantdescribedthe shooting as occurring abruptly; he explained thathe only 

### remembered "a couple ofshots." He testified that afterhe had finished shooting Knighten, he had retrieved Knighten's gun. He denied shooting Knighten after Knighten was already on theground. 

### On cross-examination, appellant admitted that he had a "bunch of" prior convictions, including felony convictions. Appellant also conceded that his version of the events was unique, but he stated that all other witnesses to the eventswere "buddies" and had been communicating with each other. 

### Afterthe parties completed their presentation ofevidence and arguments inthe guilt-innocence phase ofthetrial, ajuryconvicted appellantofboth counts. Thejury then heard evidence concerning appellant's punishment and assessed ninety-nine years' confinement for murder and twenty years' confinement for 

### unlawful possession of afirearm.7 Thejurydid notfindthatappellanthad acted with sudden passionwhen killing Knighten. Thetrial courtsentenced appellantin



### 7Appellantpledtrue to the repeatoffendernoticeinhisindictment.accordance with the jury's verdicts and ordered the sentences to run concurrently. Appellantbroughtthis appeal. Admission and Exclusion ofEvidence In his first three issues, appellant argues that the trial court abused its 

### discretion by excluding evidence that he proffered and by admitting evidence offered bythe State. We reviewa trial court's admission orexclusion ofevidence 

### for an abuse ofdiscretion. Bosquez v. State, 446 S.W.3d 581, 585 (Tex. App.— FortWorth 2014, pet. refd) (mem. op.); Sanders v. State, 422 S.W.3d 809, 812 

### (Tex. App.—FortWorth 2014, pet. refd). An abuse ofdiscretion occurs whenthe trial court's ruling is so clearly wrong as to lie outside the zone of reasonable disagreement. Sanders, All S.W.3dat812-13; seealsoPetricioletv. State, 442 S.W.3d 643, 650 (Tex. App.—Houston [1st Dist.] 2014, pet. refd) ("We consider the trial court's ruling in light ofthe evidence presented at the time of its ruling

.... We cannotconcludethat a trial courtabused its discretion merely because, 

### underthe same circumstances, we might have ruled differently."). Even if a trial court abuses its discretion by admitting or excluding evidence, we may not


### reverse the trial court'sjudgment based on that ruling unless the record shows that the appellant suffered harm. See Tex. R. App. P. 44.2(b) ("Any [nonconstitutional] error, defect, irregularity, or variance that does not affect 

### substantial rights must be disregarded."); Walters v. State, 247 S.W.3d 204, 219 (Tex. Crim. App. 2007) ("The erroneous exclusion ofevidence offered underthe

8rules of evidence generally constitutes non-constitutional error and is reviewed underRule44.2(b).") 

### Knighten's violenthistory In his first issue, appellant contends that the trial court abused its 

### discretion by excluding evidence of Knighten's past violent acts during Reed's and Wright's testimony. He argues that this evidence was relevant and necessary to "corroborate [his] version ofevents and to show
. . .Wright's state of mind, [his] state of mind[,] and the reasonableness of his claim of apprehension ofdanger." 

### During Reed's testimony, outside the presence ofthejury, the trial court 

### held a hearing about whether Knighten's prior conviction for assault against Wrightwas admissible. The State arguedthatevidenceofthe convictionwas not admissible because there was no showing that appellant was aware of itat the time of the shooting. Appellant argued that the State had opened the door to 

### evidence of the conviction during its questioning of Reed, but the trial court

0 disagreed and ruledthatthe evidencewas notadmissible. 

### Later on the same day, outside of the jury's presence, appellant again argued that evidence of Knighten's prior acts of violence should be admissible because such evidence affected "whetheror not there was provocation" or self

### defense. The trial court ruled that appellant would not be allowed to reveal Knighten's prioracts.The next day, appellant again contended that he should be allowed to presentevidence ofKnighten's pastviolentacts. His counsel argued, [Appellant] intends to put on theories of self-defense, defense of 

### other, and
... a necessityinstructionthatwe'll be seeking. We are aware that the decedent, Charles Knighten, has a 

### prior historyofassaultfamily violence on one ofthe witnesses inthe case, particularlythegirlfriend of[appellant]. 

### We are also aware that there's been a previous history of 

### assaultfamily violence on his sisterthat many ofthe witnesses have personal knowledge of. . . .

We are not seeking to admit the evidence of the prior 

### convictions and episodes of family violence for purposes of character or conformity therewith. We're seeking to admit them, number one, for [appellant's] state of mind for the self-defense and also the defense ofother's claim
.... [The evidence would show] my client's state ofmind at the time ofthe shooting and also . . . develop that the decedent was 

### actuallythe firstaggressor....

And Ithink that it's important that the witnesses, ifthey have personal knowledge, that Ibe allowed to question them about their personal knowledge pertaining to the decedent as concerns him 

### being the first aggressor and what was known to the parties that would contribute to the state of mind of my client at the time he reacted and whatthose people know personally as to what my client knew. [Emphasis added.] 

### The State responded by contending that evidence related to appellant's state of mind was inadmissible until he testified and that any aggressive act by Knighten outside of the event leading to his death was inadmissible under the

10circumstances, in which Knighten was walking away when appellant shot him. With the jury absent, Reed testified that he had been in a physical fight with Knighten that concerned Knighten's children. Reed also stated that he knew 

### Knighten had a history of responding to attacks by "attacking] back." Although Reed testified that Knighten was angry when he arrived at the apartment and directed inappropriate words toward Wright, Reed also explained that Knighten later calmed down and that "two incidents happened" that day: "One incident
was when [Knighten] made his mistake; the otherincidentwas when [Knighten's] lifewas [taken]." Thetrial courtonce again denied appellant's requestto present evidence about Knighten's extraneous acts, explaining, "You can go into the facts of [the date of Knighten's death]. That's clear.
. . . However, you're not 

### going into any extraneous acts that you've discussed thus far or [have] been presented bythetestimony. It is notappropriate atthis time 

### Finally, appellant also called Wright to testify outside the presence ofthe jury. Wright stated that on the day of Knighten's death, he had threatened to "beat [her] ass" and that she had believed he would do so that day because he 

### had physically abused heron ten to twenty prioroccasions. She also statedthat
on the day ofthe offense, Knighten called her a "bitch" and a "whore." Finally, 

### she stated that she saw Knighten pull out a gun (later determined to be a BB gun) before she and appellant retreated into her mother's apartment. The trial court ruled that as Wright's testimony pertained to the day ofthe murder, itwas admissible, butas itconcerned events beforethat, itwas not.

11Appellant relies on article 38.36(a) of the code of criminal procedure and 

### rule of evidence 404 to contend that the evidence of Knighten's past violence

was admissible when it was offered. See Tex. Code Crim. Proc. Ann. art. 38.36(a) (West 2005) ("In all prosecutions for murder, the [parties] shall be 

### permitted to offer testimony as to all relevant facts and circumstances surrounding the killing . . . , 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. R. Evid. 404(a)(3) (stating that evidence of a pertinent character traitof a victim maybe admissible). Asthe courtofcriminal appeals has explained, The general reputation of the deceased as a violent and dangerous [person] and specific acts of violence or misconduct of the deceased which show his violent character are admissible in a 

### homicide case where there is evidenceofsomeactofaggressionby the deceased which gives rise to a claim ofself-defense on the part of the defendant. If offered to show the reasonableness of the defendant's claim of apprehension ofdanger, itmust be shown that the acts of violence were known to the defendant at the time ofthe homicide; if offered to show that the deceased was in fact the aggressor, the witness must know, butthe defendant need not have known ofthe violent acts at the time ofthe homicide. Beecham v. State, 580 S.W.2d 588, 590 (Tex. Crim. App. [Panel Op.] 1979) (emphasis added) (citations omitted); see Mozon v. State, 991 S.W.2d 841, 845- 

### 46 (Tex. Crim. App. 1999) ("[E]vidence of a victim's character for violence remains admissible to show the victim was the first aggressor. A victim's
extraneous acts ofviolence also remain admissible to show the defendant's state 

### of mind."); Chapa v. State, 703 S.W.2d 422, 424 (Tex. App.—Fort Worth 1986,

12

### no pet.). "As long as the proffered violent acts explain the outward aggressive conduct ofthe deceased at the time ofthe killing, and in a manner otherthan 

### demonstrating character conformity only, priorspecific acts ofviolence may be admitted even though those acts were not directed against the defendant." 

### Torres v. State, 71 S.W.3d 758, 762 (Tex. Crim. App. 2002) (emphasis added). The prior acts of violence by the deceased must be relevant "to the ultimate confrontation" between the defendant and the deceased. Id. at 761; see also 

### Torres v. State, 117 S.W.3d 891, 895 (Tex. Crim. App. 2003) ("For Diane's testimony to be admissible at the time it was offered, there must have been 

### evidence ofan actofaggression bythe deceased thattends toraise theissueof selfdefense." (emphasis added)). Underthis authority, asjudged by the state ofthe record at the time that 

### the trial court made its rulings, we cannot conclude that the court abused its discretion by excluding evidence of Knighten's past violence. See Torres, 117 S.W.3d at 895. First, we cannot conclude that the evidence was admissible to 

### showappellant's state of mind because atthetime ofthe trial court's rulings, the record did not contain any evidence indicating that appellant knew atthe time of 

### the shooting ofKnighten's propensityforviolence. SeeBeecham, 580 S.W.2d at 590. Second, we cannot hold that the evidence was admissible to show 

### Knighten's characterforviolence because at the time ofthe trialcourt's rulings, there was no evidence ofany aggression by Knighten "atthe time ofthe killing"

13which could give riseto appellant's claim ofself-defense. See Torres, 71 S.W.3d 

### at 762; Beecham, 580 S.W.2d at 590. Atthe time ofthe rulings, witnesses had 

### testified that Knighten had acted aggressively before arriving at the apartment complex and upon doing so, but no witness had testified that he was still outwardlyaggressive atthe momentof,the killing. See Torres, 71 S.W.3d at762. Instead, at the time ofthe trial court's last ruling on appellant's requestto present evidence of Knighten's violence, Reed had testified that when appellant unlocked the apartment's door and came outside with the rifle, Knighten was 

### walking away from the door with his back turned to it and with his hands up. According to Reed, appellant said, "This is how it's going to be, bro" before shooting Knighten. Reed had also testified that appellant was inthe apartment 

### five to fifteen minutes before leaving itand shooting Knighten. Anotherwitness to the shooting, Porter Lewis, had testified that when Knighten knocked on the apartment's door, he stated that he just wanted to see his children, and he walked away from the doorwith nothing in his hands before being shot. Wright had testified, outside the presence of the jury, that she had closed the door behind her when she entered the apartment. Although she had testified that Knighten banged on the door and that she thought he was trying to get to her, shehad notcontradicted Reed's and Porter'stestimonythatatthe momentofthe shooting, Knighten's back was turned to appellant, and Knighten had empty

14

### hands.8 In other words, as the State contends, at the time appellantoffered evidence of Knighten's violence, the uncontroverted evidence established that 

### Knighten was walking away from the apartment (and therefore from appellant) 

### empty handed when appellant shothim.9 Thus, at the time ofthe trial court's rulings, thejury had not heard ofany "act of aggression by [Knighten] which [gave] rise to a claim of self-defense on the partof [appellant]." Beecham, 580 S.W.2d at 590; see Torres, 71 S.W.3d at 

### 762 (explaining thatthere mustbe "outward aggressive conductofthe deceased at the time ofthe killing" (emphasis added)); see also Tex. Penal Code Ann. 

### § 9.32(a)(2)(A) (West 2011) (stating that deadly force in self-defense must be "immediately necessary" to protect against unlawful deadly force); Bennett v. State, 726 S.W.2d 32, 37-38 (Tex. Crim. App. 1986) (holding that 

### reasonableness of fear for a self-defense claim must be judged from the standpoint ofthe accused at the "instant he responds to the attack" (emphasis added)); Oestrick v. State, 939 S.W.2d 232, 238 (Tex. App.—Austin 1997, pet. refd) (holding that a defendant was not entitled to a self-defense instruction 

### 8Afterthetrialcourt'slastrulingonappellant'srequest to presentevidence ofKnighten's violence, during Wright's testimony infront ofthejury, shetestified that she did not "actually see the shooting" and conceded that what had happened outside was "over" when appellant unlocked the apartment's door, 

### opened it, and shot Knighten. 

### 9Appellantargues that he"testifiedthatKnightenwasrightoutside the door 'coming towards' him when he began shooting." But appellanttestified afterthe rulings at issue, and he did not again ask to present testimony from other witnesses about Knighten's violence afterhis testimony.

15

### when the victim had a baseball bat but was walking away from the defendant whenthedefendantshotthevictim). Forthese reasons, we hold that the trial court did not abuse its discretion by excluding evidence of Knighten's violence, and we overrule appellant's first

10 issue. Appellant'spriorconviction 

### In his second issue, appellant argues that the trial court abused its discretion by admitting records related to a priorfelony conviction. He contends that (1) the name ornature ofthe prioroffense raised the risk of a verdict 

### tainted by improper considerations; (2) the purpose ofthe evidence was solely to prove the element of [the] prior conviction; 

### (3) [appellant's stipulation carriedthe same evidentiaryvalue as the judgments of prior convictions; and (4) [ajppellant's stipulation substantially lessened the likelihood that the jury would improperly focus onthe previous conviction orhis bad character. To obtain a conviction for unlawful possession of a firearm, the State was required to prove that appellant had a prior felony conviction. See Tex. Penal 

### 10We also note that through appellant's testimony, the jury learned about Knighten's past violence. Appellant testified that at the time he shot Knighten, 

### he knew that Knighten was "seriously dangerous" and was the subject of a restraining order because he had beaten Wright in the past. He explained in part, He beats her, he hits herwith whatever he can find, he hurts her in 

### front of his family, the dude, Reed and his -- and his mother, and they

- theytellherto stopmaking himmad, something likethat.

. . . She scaredto go to court. Idon't know how serious they went, butIknow she scaredto call the police.

16Code Ann. § 46.04(a). At trial, when the State offered records related to appellant's prior conviction for aggravated robbery, appellant objected on the ground thatthe records were hearsay, and he offered to stipulateto the factthat he had a prior felony conviction. The trial court overruled the objection and 

### admitted the records, which included a 2004 judgment of conviction for aggravated robbery, a fingerprint certificate, a copy of a plea agreement, and the indictment. The State argues, inpart, thatappellantdid notpreserve errorbecause his complaints on appeal do not match his hearsay objection attrial. We agree. To preserve a complaint for our review, a party must have presented to the trial 

### court a timely request, objection, or motion that states the specific grounds for 

### the desired ruling ifthey are not apparent from the context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Everitt v. State, 407 S.W.3d 259, 262-63 (Tex. Crim. App. 2013). Preservation of error is a systemic 

### requirement. Reynoldsv.State, 423 S.W.3d 377, 383 (Tex. Crim. App. 2014). A complaintwillnot be preserved ifthe legal basis ofthe complaint raised


### on appeal varies from the complaint made at trial. See Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014), cert, denied, 135 S. Ct. 1158 (2015); Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) ("Whether a party's 

### particular complaint is preserved depends on whether the complaint on appeal comports with the complaint made at trial."); Marchbanks v. State, 341 S.W.3d 559, 565 (Tex. App.—FortWorth 2011, no pet.) ("Anobjection preserves onlythe

17

### specific ground cited."). Appellant did not raise the complaints quoted above at 

### trial, and he does not continue to complain about hearsay—the lone complaint made at trial—on appeal. He did not argue at trial, as he contends on appeal, that his stipulation to the aggravated robbery conviction foreclosed the State's 

### ability to presentfurtherevidenceofthatconviction. Thus, we holdthatappellant has not preserved the complaints madewithin his second issue, and we overrule 

### theissue.11 SeeTex. R.App. P. 33.1(a); Yazdchi,428S.W.3dat844. The State's hearsayobjectionsto Wright's testimony In his third issue, appellant contends that the trial court abused its 

### discretion bysustainingthe State's hearsay objectionsto questionsthathe asked Wright. During Wright's questioning by defense counsel, the following exchanges occurred: Q. And did [Knighten] threaten you? [THE STATE]: Your Honor, atthis pointwe're going to object. Thatcallsfor hearsay. THE COURT: Sustained. Q. . . . Whatdid heyell atyou onthe phone? [THE STATE]: YourHonor, it's hearsay. 

### 11Moreover, appellant later testified during the guilt-innocence phase, without a running objection and in response to questions by the State and his counsel, about details of his aggravated robbery conviction along with other 

### convictions. Thus, even ifthe trial court had erred by admitting evidence ofthe 

### aggravated robbery conviction, the record cannot show harm from that error. See Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) ("[Overruling an objection to evidencewill notresultinreversal when othersuch evidencewas receivedwithoutobjection, eitherbeforeorafterthecomplained-ofruling.").

18[DEFENSE COUNSEL]: Excited utterance. THE COURT: Over

- yourobjection is sustained.
. . . 

### Q. And whatwas [Knighten] yelling? [THE STATE]: Your Honor, we're going to object. That calls 

### for hearsay. THE COURT: Sustained.


### Q. All right. Was Mr. Knighten saying anything thatmadeyou thinkthathewas goingto usethatgun? 

### [THE STATE]: Your Honor, I'mgoing to object. Thatcalls for hearsay. THE COURT: Sustained. 

### Appellantargues thatevidentiary rules did not require exclusion ofWright's testimony. He contends that threats are not hearsay, that the statements reflected on Knighten's then-existing state of mind, and that one statement qualified as an excited utterance. SeeTex. R. Evid. 803(2)-(3). He asserts that he was harmed by the exclusion of this testimony because it reflected on Wright's state of mind and his own state of mind, and ittherefore supported his claims of self-defense and defense of others. The State contends, and we agree, that any error in sustaining the hearsay objections did not cause harm 

### under rule 44.2(b) because the trial court admitted other evidence reflecting on 

### appellant's andWright's mental states atthetimeofthe shooting.

19Underthe standard ofrule 44.2(b), a substantial right is affected when the


### error had a substantial and injurious effect or influence in determining thejury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing 

### Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). Conversely, an errordoes notaffecta substantial right ifwe have "fairassurance 

### that the error did not influence thejury, or had but a slight effect." Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). 

### In making this determination, we review the record as a whole, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, and the character ofthe alleged


### error and how it might be considered in connection with other evidence in the
case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). Generally, the exclusion of evidence is harmless when similar evidence is admitted. See 

### Mosleyv. State, 983 S.W.2d249, 258 (Tex. Crim. App. 1998) (op. on reh'g), cert, denied, 526 U.S. 1070 (1999); Alvarez v. State, No. 02-05-00376-CR, 2007 WL 

### 117700, at *1 (Tex. App.—Fort Worth Jan. 18, 2007, no pet.) (mem. op., not 

### designated for publication) ("[T]he trial court's exclusion of the evidence was harmless because similarevidence was admitted through the same witness and two otherwitnesses laterinthetrial."). 

### While the trial court's rulings precluded Wright from testifying about the 

### particular words Knighten said to her on the phone and upon arriving at the

20apartment complex, she clearly communicated to thejurywhat her state ofmind


### was during the incident that led to Knighten's death. She testified that while 

### talking onthe phone, Knighten became "real upset" and "[ajngry"andwas yelling at her. She also testified that when Knighten arrived at the house, he was 

### "arguing, cussing, [and] jumping up and down." Sheexplainedthat Knightenwas still yelling after she went inside the apartment and came back outside and that 

### atthat point, Knighten waved the gun (which she believed was real) at her and appellant. Later, Wright repeatedly testified that she believed Knighten was going to kill herandthatshewas scared. 

### Similarly, appellant testified that on the phone, Knighten had said "disrespectful" words to Wright, while screaming and yelling, that caused herto cry. He also explained that after Knighten had arrived atthe apartment and had pulled out his gun and again started screaming, Wrightwas crying. Repeatedly, appellanttestifiedthathe hadfeared for his lifebecause ofKnighten's words and actions. Considering the record as a whole, we conclude thatthe trial court's error, ifany, in excluding parts ofWright's testimony on the ground of hearsay did not 

### affect appellant's substantial rights because Wright and appellant produced similartestimonythatclearly communicated theirstates ofmind leading up to the 

### shooting. See Motilla, 78 S.W.3d at 355; King, 953 S.W.2d at 271; see also Guerra v. State, 942 S.W.2d 28, 33 (Tex. App.—Corpus Christi 1996, pet. refd) (stating that "no harm results when evidence is excluded ifother evidence of

21substantiallythe same nature is admitted"); Akeredolu v. State, No. 08-07-00191- 

### CR, 2009 WL 1609372, at *2-3 (Tex. App.—El Paso June 10, 2009, pet. refd) (not designated for publication) (holding that a trial court's exclusion of a poem written by the deceased to another man, which the defendant claimed was admissible to show his state of mind, was harmless because there was other 

### "abundant evidence concerning the [defendant's] state of mind"). We overrule appellant'sthird issue. 

### The State's ClosingArgument In his fourth issue, appellant contends that the trial court abused its discretion by overruling his objectionsto parts ofthe State's closing argumenton 

### his guilt. We concludethatappellantforfeited mostofthe complaints in his fourth

12 issue. 

### Rule 33.1(a)'s preservation requirements applyto closing arguments. See Turner v. State, 87 S.W.3d 111, 117 (Tex. Crim. App. 2002), cert, denied, 538 U.S. 965 (2003); Marchbanks, 341 S.W.3d at 565. To preserve error on a closing argument, the defendant must object each time the objectionable 

### argument is made or obtain a running objection. See Wilson v. State, 179 S.W.3d 240, 249 (Tex. App.—Texarkana 2005, no pet.); Barnes v. State, 70 S.W.3d 294, 307 (Tex. App.—FortWorth 2002, pet. refd). 

### 12Althoughthe State does notargue thatappellantfailed to preserve error concerning someofthe complaints inthis issueforthe reasons we concludethat he did, we must raise preservation on our own motion. Gipson v. State, 383 S.W.3d 152, 159 (Tex. Crim. App. 2012).

22Appellant'sfirstcomplaintconcernsthefollowing exchange: 

### [THE STATE:] You take everyword outof[appellant's] mouth as the gospel truth,
. . . he's guilty of murder. Why do you know that? Dr. Peerwani stood up here and told you there's 12 shots. Shot numberfourwas fatal, and itwas in his back. How is that self

### defense? Everytime youpull a trigger, ithas to bejustified. Every single time this defendantpulledthetrigger

— 

### [DEFENSE COUNSEL]: Objection; misstatementofthe law. THE COURT: Overruled. 

### [THE STATE]: There is no rightofcontinued shooting. You have to have deadly force used against every time you use deadly force. The man's back was to him. Shot number four was fatal. 

### That was that pristine bullet that you saw. That was that one shot. 

### Thatshotby itself is fatal. [Emphasis added.] Appellant's second complaintconcernsthis colloquy: 

### [THE STATE:] You'd have to believe he was standing there pointing a gun at him, a BB gun, which by the way, is not a deadly weapon. And the Judge tells you you'd have to believe that the 

### victim was using deadlyforce against the Defendant. A BB gun is not- 

### [DEFENSE COUNSEL]: Objection; misstatementofthe law. THE COURT: Ladies and gentlemen, you have been given all the lawthat's contained inthe Court's Charge. Overruled. 

### [THE STATE]: Page 8, the Judge says that by the term 

### deadly force is meant that force that's intended or known by the person using it tocause - BB gun is notcapable ofcausing - or in the mannerofitsuseorintendeduse, is capableofcausingdeathor seriousbodilyinjury. 

### No timedeadly force is actuallybeing used againsthim. It's notcapableof doing it, andy'allknowthat. [Emphasis added.]

23Appellant'sfourth complaintconcerns thefollowing partofthe record: [THE STATE:] Because here's what's going to happen. 

### Probably about what, three weeks? Y'all are going to be sitting down eating Thanksgiving dinner. This trial will be over with one way or the other. And the Judge is going to tell y'all, Hey, y'all can telleverybodyaboutthis jurytrial. Andyourrelatives- [DEFENSE COUNSEL]: Objection; improperargument. THE COURT: Overruled. It's a one-minutewarning. 

### [THE STATE]: Going to ask you what happened. You're going to say we saw this case -- or the victim acted like a fool, showed up with a BB gun and threatening his girlfriend, threatening this defendant. Well, what happened? Well, everybody went inside the apartment. Thedoorwas closed. 

### Then what happened? He comes outwith an assaultweapon 

### and blows this guy away 12 times. Well, did the guy point a gun at him? No. You know that because it was in his pocket when he stepped by him. Where all did he hit him? Well, three shots were in his back and one ofthose shots was fatal. 

### Well, whatdid you do? That's yourquestion. Sowhatareyou going to do? [Emphasis added.] With regard to each ofthese three parts ofthe State's closing argument, 

### although appellant objected and the trial court overruled the objection, the State continued making the same argument, and appellant did not object again or obtain a running objection. Thus, we hold that appellantforfeited his complaints 

### concerning thesethree parts ofthe State's closing argument. SeeTex. R. App. P. 33.1(a); Barnes, 70S.W.3d at307. 

### Appellant'sthirdcomplaintrelatesto this partoftherecord:

24[THE STATE:] And you know that by his testimony when he got up here and talked. Since hewas 16 and a halfyears old, every 

### time he gets out of jail or prison for longer than seven months, he goes and commits a new crime. He's been consistent with that for the last 12years. [DEFENSE COUNSEL]: Objection; facts not in evidence. He


### THE COURT: Ladies and gentlemen, you will recall the testimony as produced during the trial. Please follow the Court's instructions as contained inthe Court's Charge. Overruled. 

### [THE STATE]: The Judge tells you in his Charge you're allowed to consider all ofhis convictions

- 

### [DEFENSE COUNSEL]: Objection; improper argument. May
we 

### THE COURT: No, you may notapproach. Ladies and gentlemen, you will follow the instructions as contained inthe Court's Charge. Thankyou very much. 

### [THE STATE]: I believe it's going to be on page 14. The Judgetells you you're allowedto considerall his convictionstojudge his credibility. You sawwhathappened. [DEFENSE COUNSEL]: Objection; improperargument. THE COURT: Ladies and gentlemen, please rememberthat 

### what the lawyers say is not evidence. This is the opportunity for both sides to sum up their respective cases to point out those strengths and weaknesses of each other's arguments. Please rememberthe Court's Charge. Overruled. 

### [THESTATE]: She can't change the facts. TheJudge tells youtodoit.

25

### The Judge tells you on page 13 and 14 you're allowed to consider his convictions for who he is and what he is and whether 

### he's believable}^ [Emphasisadded.] To the extent that appellant complains on appeal about the State's 

### repeated argumentthatthejury was allowed to consider his priorconvictions to judge his credibility, we similarly conclude that appellant forfeited the complaint by failing to objectto each occasion (and particularly the last occasion) thatthe 

### State made that argument. SeeTex. R. App. P. 33.1(a); Barnes, 70 S.W.3d at 307. But to the degreethatappellantindependently complains aboutthe distinct partofthe argumentthat he had committed a newcrime "everytime he [got] out 

### of jail
... for longer than seven months," we conclude that he preserved the complaint for our review on the legal ground cited (that the facts were "not in 

### evidence")14byhistimelyobjectionand thetrialcourt's contemporaneousruling. SeeTex. R. App. P. 33.1(a); Marchbanks, 341 S.W.3d at565. We review the trial court's ruling on an objection to the State's jury 

### argumentfor an abuseofdiscretion. See Whitneyv. State, 396 S.W.3d696, 705 (Tex. App.—Fort Worth 2013, pet. refd) (mem. op.). To be permissible, the 

### State's jury argument must fall within one of the following four general 

### 13Appellantdidnot object to thisfinalpart of theState'sargument. 14Tothe extent that appellant complains about this argument on appeal for reasons unrelated to his trial objection thatthe argument was not supported by evidence, we conclude that appellant forfeited those complaints. See Tex. R. App. P. 33.1(a)(1); Marchbanks, 341 S.W.3d at 565. Also, to the degree that 

### appellantcomplains on appeal aboutotherparts ofthe State's closing argument 

### that hedidnot object to, weholdthat helikewiseforfeitedthosecomplaints.

26areas: (1) summation of the evidence, (2) reasonable deduction from the 

### evidence, (3) answer to argument of opposing counsel, or (4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94-95 (Tex. Crim. App. 1992), 

### cert, denied, 510 U.S. 829 (1993); Whitney,396 S.W.3d at704. Appellant was born in 1983. He stated that he had a drug possession


### case when he was almost seventeen years old (therefore, inapproximately 1999
or2000), that he was tried as an adult, and that he was sentto state.jail for 180 

### days. According to appellant, from thattime on, he continued to commitcrimes; he testified that he had a "bunch offelony convictions. Appellant testified that 

### afterhe "got oldenoughto go to jail,"the State "keptputting [him] inthere." The trial court admitted a March 2004 judgment of conviction for burglary of a 

### habitation. The burglaryjudgmentstates that appellantcommittedthe offense in October 2001. 

### Appellant testified that he was in prison from the age of eighteen until 

### twenty-nine.15 Appellantwasstilltwenty-nineyearsoldwhenhekilled Knighten, and he had been releasedfrom prisonfor "aboutseven months" atthattime. 

### Thus, the evidence admitted during the guilt-innocence phase of 

### appellant's trial substantiates the gist of State's argument that from the time 

### 15The record also contains a March 2004 judgment of conviction for aggravated robbery, for which appellant was sentenced to nine years' confinement. Thatjudgmentstatesthatappellantcommitted aggravated robbery 

### in May 2003. Appellant indicated that he was on bond for burglary when he committedaggravated robbery.

27appellant was approximately sixteen years old to the time he killed Knighten, he


### was continually committing crimes when not confined. Because the State's argumentwas a summation ofthe evidence and a reasonable deductionfrom the evidence, we conclude that the trial court did not abuse its discretion by 

### overruling appellant's objection on the ground that the "facts [were] not in evidence." See Whitney, 396 S.W.3d at 704-05; see also Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988) ("Counsel is allowed wide latitude without limitation in drawing inferences from the evidence so long as the 

### inferencesdrawn arereasonable, fair, legitimate, and offered ingoodfaith."). Forall ofthese reasons, we overruleappellant'sfourth issue. Sudden Passion 

### In his fifth issue, appellantarguesthatthejury'sdecision to not findthathe
was underthe influence ofsudden passion when he killed Knighten was against 

### the greatweight and preponderance ofthe evidence and was manifestly unjust. Murderis typically afirst-degreefelony. Tex. Penal CodeAnn. § 19.02(c). But at the punishmentphaseof a trial, "the defendant may raisethe issue as to whether he caused the death under the immediate influence of sudden passion arising 

### from an adequatecause. Ifthedefendantprovesthe issueinthe affirmative by a 

## preponderanceoftheevidence, theoffenseis afelony oftheseconddegree."16 16Even ifthejury hadfound that appellant acted in sudden passion and with adequate cause while killing Knighten, appellant still would have faced a 

### first-degree-felony range of punishment because of his prior felony conviction. SeeTex. Penal CodeAnn. § 12.42(b)(WestSupp. 2014).

28

### Id. § 19.02(d); see McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005). "Sudden passion," underthe circumstances ofthis case, means passion 

### provoked bythe decedentthat "arises atthetime ofthe offense and is not solely the result of former provocation." Tex. Penal Code Ann. § 19.02(a)(2). An 

### "adequate cause" is a cause that would "commonly produce a degree of anger, rage, resentment, orterrorin a person ofordinarytemper, sufficientto renderthe mind incapableofcool reflection." Id. § 19.02(a)(1). The issue ofsudden passion is akin to an affirmative defense becausethe 

### defendant has the burden of proofby a preponderance ofthe evidence. See Matlock v. State, 392 S.W.3d 662, 667 &n.14 (Tex. Crim. App. 2013); Bradshaw 

### v. State, 1AA S.W.3d 490, 502 (Tex. App.—Texarkana 2007, pet. refd). We review a factual sufficiency challenge to a jury's rejection of an affirmative defense to determine whether thejury's adverse finding is so against the great 

### weight and preponderance ofthe evidence as to be manifestly unjust. Matlock, 392 S.W.3d at671. We considerthe evidence in a neutral light, butwe may not "usurpthe function ofthejury by substituting [our]judgmentin place ofthejury's 

### assessmentoftheweightandcredibility ofthewitnesses'testimony." Id. Appellant contends thatthe evidence shows thatwhen he shot Knighten, he was in a state ofdesperation and terror because he believed Knighten's gun 

### was real, he was attempting todefend himself, and Knighten was nearhim atthe time he opened the apartment's door and fired the rifle. Appellant asserts that "the State put on no evidence at the trial on [his guilt] orthetrial on punishment

29thatcontradicted . . . [his] testimonythathe shotKnighten when he saw Knighten rightoutsidethe apartment'coming towardsthedoor.'" 

### We cannot agree. As described above, the jury heard during the first phase of appellant's trial that after appellant and Wright had entered the apartment and had closed and locked the door, Knighten had knocked on the 

### door but had not had anything in his hands. Lewis testified that Knighten was walking away from the door when appellant opened it and shot Knighten from five to six feet away. Reed testified that appellant said, "This is how it's going to 

### be, bro," before shooting Knighten repeatedly. Reed and Lewis also stated that after Knighten was on the ground, appellant stood over him and continued to shoot him. Wright conceded that the incident that had occurred outside was "done" andthatshewould nothave gone backoutthere. Apoliceofficertestified that on the day ofthe shooting, Wright told her that she "begged [appellant] to 

### stop" and "tried to grab ahold of him and stop him" before he pushed her, 

### unlockedthedoor, andkilledKnighten.17 From this testimony and the remaining evidence in the record, we 

### concludethatitwas not manifestly unjustforthejury to determine thatappellant did not actwith adequate cause when killing Knighten; itwas rational forthejury to determine that Wright's decision to not return outside was based on "cool 

### 17Thejurywas free torejectappellant's contrary version of these events. See Trevino v. State, 157 S.W.3d 818, 822 (Tex. App.—Fort Worth 2005, no pet.).

30reflection" and that appellant could have reasonably made the same decision. 

### SeeTex. Penal Code Ann § 19.02(a)(1); see also Fry v. State, 915 S.W.2d 554, 559 (Tex. App.—Houston [14th Dist.] 1995, no pet.) (explaining that an individual 

### who fears for his or her life may still be capable of cool reflection). Moreover, based on Reed's testimonythatappellantwas "posturing himselfas ifhe wanted to fight" when Knighten arrived at the apartment complex, the jury could have rationally rejected appellant's claim of sudden passion by finding that he anticipated the confrontation and thatthe passion, inpart, was provoked by him. 

### See Tex. Penal Code Ann. § 19.02(a)(2); Smith v. State, 355 S.W.3d 138, 149 (Tex. App.—Houston [1st Dist.] 2011, pet. refd) ("A defendant may not rely on a
cause of his own making, such as precipitating a confrontation, to support his 

### argumentthathe actedoutofsudden passion arisingfrom adequatecause."). We hold that the jury's decision to not find that appellant caused Knighten's death while undersudden passion and with adequate cause is not so 

### againstthe greatweight and preponderance ofthe evidence as to be manifestly unjust. SeeMatlock, 392 S.W.3d at671. Weoverrule appellant'sfifthissue.

31Conclusion Having overruled all of appellant's issues, we affirm the trial court's judgments convicting him ofmurderand unlawful possession of a firearm.
/s/Terrie Livingston TERRIE LIVINGSTON CHIEF JUSTICE PANEL: LIVINGSTON, C.J.; DAUPHINOT andWALKER, JJ. DAUPHINOT, J., concurswithoutopinion. DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED: April23, 2015

32

# B

ARTIS LEON POLKJR. 

### COURT OFAPPEALS SECOND DISTRICTOFTEXAS FORTWORTH NO. 02-13-00556-CR

V. THE STATE OF TEXAS FILE COPY

APPELLANT

STATE

FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 1305834D

ORDER



### We have considered the "Motion For Reconsideration OfCourt OfAppeal Judgement" filed byappellantArtis Leon Polk, Jr., pro se. It isthe opinionofthecourtthatthe motionforrehearing or reconsideration should be and is hereby denied and that the opinion and judgment of April 23, 2015 stand unchanged. 

### The clerk of this court is directed to transmit a copy of this order to the appellantandtheattorneys ofrecord.

### SIGNEDJuly9, 2015. FILE COPY



### /s/Terrie Livingston
TERRIE LIVINGSTON CHIEF JUSTICE PANEL: LIVINGSTON, C.J.; DAUPHINOTand WALKER, JJ.ARTIS LEON POLKJR. 

### COURT OFAPPEALS SECOND DISTRICT OF TEXAS FORTWORTH NO. 02-13-00556-CR

V. THE STATE OF TEXAS APPELLANT

STATE

FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 1305834D

ORDER

We have considered the "Motion For Extension OfTime Pursuant To Rule 

### 49.8 and 10.5(B) oftheTexas Rules ofAppellate Procedure (T.R.A.P. 49.8)With Leaveofthe Court" filed by appellantArtis Leon PolkJr;, pro se. The motion is GRANTED. Appellant's motion for rehearing is due Monday, June 8, 2015. The clerk ofthis court is directed to transmit a copy ofthe order to the 

### appellantandthe attorneys ofrecord. DATED May21, 2015.

PER CURIAM