Frank E. Seidule v. State ( 2021 )

Affirmed and Opinion filed February 25, 2021.
In The
Fourteenth Court of Appeals
NO. 14-20-00010-CR
FRANK E. SEIDULE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 239th District Court
Brazoria County, Texas
Trial Court Cause No. 85423-CR
OPINION
Appellant Frank E. Seidule appeals his murder conviction. He raises two
issues, both of which seek a new trial based on alleged error in the admission or
exclusion of evidence during the guilt/innocence phase of trial. In his first issue,
appellant contends the trial court erred by excluding specific acts of violence or
misconduct by the decedent, which appellant asserts was admissible in connection
with his self-defense claim. In his second issue, appellant argues that the trial court
erred by admitting opinion evidence of appellant’s violent character. Concluding
that both complaints lack merit, we affirm the judgment.
Background
A grand jury indicted appellant for the murder of Lewis Watson. Appellant
admitted killing Watson but claimed that he shot Watson in self-defense. The
following evidence was presented at appellant’s jury trial.
Appellant, Paula Cerda (appellant’s girlfriend), and Watson all lived in a
single residence. On November 7, 2017, appellant called the Brazoria County
Sheriff’s Office (“BCSO”) on a nonemergency line. He told the dispatcher that he
shot Watson with a 9-millimeter handgun and “had to kill [him] because [Watson]
kept threatening to kill me.” Appellant stated that Watson threatened to kill him
numerous times, including during the preceding week when Watson threatened to
kill him with a sawed-off shotgun. He added that Watson assaulted him in 2010 and
shot a gun into his television and windows. Appellant also told the dispatcher that
Watson may have an active warrant for his arrest for failing to fulfill the terms of his
probation. Appellant said that he phoned his lawyer before calling the BCSO.
BCSO deputies, including Deputy John McDonald, were dispatched to
appellant’s home, where they discovered Watson’s body in the kitchen pantry
covered by a plastic tarp and a trash bag. Appellant asserted that Watson threatened
to kill him and pointed a shotgun at his face. Appellant mentioned several incidents
during the preceding few days when Watson physically assaulted him. Additionally,
appellant told Deputy McDonald, as he had told the dispatcher, about an assault in
2010 and that Watson was recently released from jail on probation. Deputy
McDonald took pictures documenting several bruises on appellant’s person, and
appellant was transported to a local hospital.
2
BCSO Investigator Dominic Sanders interviewed appellant twice at the
hospital. During the first brief recorded interview, appellant related that he had been
kicked in the ribs and that his ankle and left arm had been “messed up.” Appellant’s
medical records indicated these injuries occurred two to five days earlier.
During a second and longer recorded interview, appellant described his
history with Watson. Appellant had known Watson since around 2003. Watson
frequently worked for appellant in appellant’s landscaping business. Appellant
explained that Watson assaulted him in 2010, but the two reconciled and Watson
moved into appellant’s home after being released from prison for a different offense.
Appellant said that Watson became increasingly aggressive towards appellant after
moving in. For example, Watson pushed him around “a lot” and kicked him in the
side “a couple of days” before the shooting. And just one day before the shooting,
appellant left the house because Watson became “violent” toward him. While
appellant was away, Watson fired a shotgun into the television and through a
window.
Appellant also told Investigator Sanders his version of events the night of
Watson’s death. During a confrontation about Watson shooting the television and
the window, Watson threatened to kill appellant while pointing a shotgun at him.
Appellant went to his bedroom, retrieved his handgun, and returned. Appellant saw
Watson standing at the kitchen sink, no longer holding the shotgun. According to
appellant, he intentionally shot Watson, first in the “butt” and then again as Watson
turned and “came after” him. Appellant fired again as Watson turned toward the
back door. After Watson fell by the pantry, appellant shot him a final time in the
head. Appellant called both his lawyer and his father, reaching only the latter, who
told him to call the police.
3
Following both hospital interviews, Investigator Sanders obtained a search
warrant for appellant’s home. BCSO officers discovered a shotgun on the highest
shelf in the kitchen pantry behind several dusty liquor bottles, as well as a fully
loaded 9-millimeter handgun in a holster in a downstairs bedroom. Officers found
no firearms at or within reach of Watson’s body. Numerous shell casings and bullet
fragments were collected.
Investigator Sanders interviewed appellant a third and final time, with
counsel, in March 2018. During this recorded interview, appellant described for the
first time a physical assault by Watson shortly before the shooting. Appellant said
that Watson “sucker-punched” him after an argument; when appellant fell to the
ground, Watson continued beating and kicking him. Cerda attempted to intervene,
Watson hit her in her eye, and she fell backwards. Appellant claimed that Cerda had
four broken ribs and a black eye. Appellant had not mentioned these facts during
his prior statements to the dispatcher, Deputy McDonald, or Investigator Sanders.
Appellant left the room to retrieve his 9-millimeter handgun, loaded the gun,
returned to the kitchen, and shot Watson as Watson stood by the sink. Appellant
claimed that Watson came toward him before turning to the back door, and he
continued to shoot at Watson. According to appellant, Watson said he was getting
his shotgun as he moved toward the kitchen pantry. Appellant stated that he saw
Watson reach for something in the pantry before shooting him again. Cerda was no
longer in the kitchen at that time, and appellant assumed that she was in her bedroom.
Appellant repeatedly stated that he feared for both his and Cerda’s lives when he
shot Watson. Finally, appellant claimed that his leg had been broken from the assault
and that he needed surgery for his eye where Watson hit him.
Cerda testified that on the evening of the shooting, she, Watson, and appellant
were talking and drinking alcohol. She and appellant had “quite a few” beers, and
4
Watson was drinking a large glass of whiskey. Cerda went to her bedroom. Later,
she heard appellant tell Watson that “you really need to get your priorities and get
your probation and [your] community service done,” which Watson supposedly was
not doing. She heard a “commotion” in the kitchen and returned to find Watson on
top of appellant, hitting him. She tried to pull Watson off, but Watson struck her
and she fell backward. When she got up, appellant was no longer in the kitchen.
Watson said he was not “after” her. She saw Watson in the pantry, looking for
something on a shelf behind the garbage can. Cerda returned to her bedroom, took
some allergy medication, and went to sleep. Before she fell asleep, she heard
gunshots but assumed that Watson was shooting rounds into the backyard as he had
done before. Appellant later woke her and showed her Watson’s lifeless body,
surrounded by “a lot” of blood. Cerda and appellant placed a plastic sheet over
Watson’s body, and she told appellant to call police. On cross-examination, Cerda
testified that, during the month before the shooting, Watson sawed off the barrel of
a shotgun, over appellant’s protestation. Watson carried the shotgun around the
house and frequently shot it outdoors. Approximately one week before the offense,
Watson came to Cerda’s room looking for appellant, and shot out a window when
he did not find him.
The medical examiner who performed Watson’s autopsy testified. He
described six bullet entry wounds to the back of his torso, legs, and arms. One bullet
perforated Watson’s iliac artery and another fractured his femur. Watson had a
seventh bullet entry wound on his head. The six gunshots to Watson’s body may
have been survivable with prompt medical attention, and it was possible that a person
suffering from these types of wounds could still remain a threat and, if armed, pull
a trigger. However, the gunshot to Watson’s head would have caused immediate
death. Toxicology analysis of Watson’s blood showed his blood-alcohol content
5
was 0.123. Watson also had metabolites of diazepam, marijuana, and an anti-
depressant in his system at the time of his death. Contrary to appellant’s statements
to Sanders, the medical examiner said there were no bullet entry wounds to the front
of Watson’s body.
A. Appellant’s Character
The critical evidence for our purposes involves two topics: appellant’s
character and Watson’s character. The subject testimony regarding appellant’s
character came from two witnesses, Codi Craddock and Bryan Cupp. Before either
witness testified, the court ruled preliminarily outside the jury’s presence that it
would not allow testimony of specific instances of conduct by appellant or Watson
but would allow reputation or opinion testimony. At that point, appellant stated his
objection under rule 404 to evidence of appellant’s reputation for violence. The jury
returned to the courtroom, and the State called Craddock.
Codi Craddock. The State sought to introduce character evidence regarding
appellant’s propensity for violence from Craddock, the daughter of appellant’s
former wife. Craddock has known appellant since approximately 1994. Craddock
testified that, in 2017 when she visited appellant, he and Watson seemed to be
“close” and “friends.” She never saw physical fights or arguments between them.
She also stated that she had seen appellant with a gun at his house during the 2017
timeframe. The prosecutor then asked whether she had an opinion about whether
appellant can be violent, and Craddock said “yes.” When asked to state her opinion,
appellant reiterated his rule 404 objection, which the court overruled. Craddock
testified that, in her opinion, appellant could be and had been violent. In contrast,
she described Watson as “easygoing” and “trustworthy.”
Bryan Cupp. Lisa Good, a friend of Cerda’s who also knew appellant and
Watson, described a conversation she had with appellant, Cerda, and another
6
individual, Bryan Cupp, in September 2018. Good recorded this conversation on
her cell phone intending to provide it to BCSO investigators, which she did. The
State played the recording for the jury. On the recording, appellant asked Good if
she wanted to “get rid of” her estranged husband by setting him up with heroin in an
effort to send him to prison. Good said that she did not want to do that, and appellant
suggested that he could do the same thing to Good’s husband as he had done to
Watson, making a pistol-shaped hand gesture and simulating the sound of a gunshot.
Later, during the defense’s case-in-chief, appellant called Cupp to testify
regarding the conversation Good recorded. Cupp acknowledged that one reason for
the recording was because he and Good “knew [appellant] had killed [Watson] and
that wasn’t right.” Cupp agreed that the recording was made to give to the police.
On cross-examination, the prosecutor asked whether he had an opinion whether
appellant is violent. Restating his rule 404 objection, appellant asserted that the
solicited opinion testimony could only be offered in rebuttal after the defense had
offered evidence of appellant’s peaceful character, which it had not presented. The
trial court overruled appellant’s objection. Cupp then stated his opinion that
appellant was violent.
B. Watson’s Character
The relevant testimony pertaining to Watson’s character came from two
defense witnesses, Manna Moore and Michael Lochmann. Appellant proffered
character testimony from both witnesses to buttress his self-defense theory and show
that Watson was the first aggressor and that appellant reasonably feared for his life
at the moment of the shooting. Appellant asserted that Moore and Lochmann would
describe specific acts of violence by Watson that were admissible to establish “a
long-term character of the victim for violence and unpredictable behavior.” The trial
court heard the relevant testimony outside the jury’s presence.
7
Manna Moore. Moore was in a relationship with Watson from 2003 to 2008,
during which Watson was unpredictably violent, was a paranoid schizophrenic with
delusional beliefs, used drugs and alcohol, and was obsessive and controlling toward
her. She described an occasion when Watson locked her out of the house. After she
banged on the door for two hours, Watson finally answered, naked and wielding a
machete. According to Moore, Watson destroyed items in the house and had
delusions that a neighbor worked for the FBI, which caused her concern that Watson
would kill the neighbor. She stated Watson “always” possessed a loaded gun. She
testified that Watson had frequently beaten her, and he would not let her leave the
relationship. Watson regularly threatened her and her family, and she saw him be
physically violent with his mother. Moore described an occasion when Watson
became upset at appellant and “went nuts” in front of appellant, throwing equipment
and screaming. According to Moore, Watson and appellant almost got into a “fist
fight.” Moore testified that Watson physically assaulted her and threatened her with
a knife in 2007 or 2008, which caused her to end their relationship. However, up
until six months before his death, Watson continued to track her down and contact
her.
Michael Lochmann. Lochmann, whose wife had been in an eight-month
relationship with Watson before Lochmann began dating her, described Watson’s
stalking behavior. He stated that Watson attempted to contact him and his wife
repeatedly by phone and email. Lochmann spoke to appellant about Watson before
Watson’s death: “I told [appellant] that Lewis [Watson] was stalking me and my
then girlfriend, that he was dangerous, that he was making threats against me and
my girlfriend Nicole at the time, and that he had threatened to kill me.” He explained
that his wife’s brother caught Watson breaking into her brother’s house. As well,
his wife’s father, who was an IRS employee, related that Watson accessed a secured
8
floor at an IRS building before being confronted by security. On cross-examination,
Lochmann acknowledged that he was not present for either of these incidents and
that his wife told him about them. Lochmann also described occasions when Watson
followed him. According to Lochmann, Watson’s words and actions placed both he
and his wife in fear for their lives.
Ruling. The State opposed the admission of Moore’s testimony on the ground
that any probative value was substantially outweighed by the danger of unfair
prejudice due to the remoteness of the described behavior. As to Lochmann’s
testimony, the State argued that it was not probative of whether Watson was the
“first aggressor.” The trial court ruled:
Let me start with Ms. Moore. Obviously I’m going to allow her to
testify as to what her relationship was with Mr. Watson as far as how
she knew him. I’ll allow her to testify as to character and opinion of
Mr. Watson because I believe she can do that. The predicate’s been
laid.
I’m not going to allow her to give any type of expert testimony. I don’t
think she’s been proven up as an expert when she starts talking about
brain chemical makeup. . . .
And even any type of diagnosis as far as obsessive behavior -- well,
general obsessive behavior, I mean, that’s fine, I mean, I guess as to
their relationship. As to any specific instances of conduct, I’m not
going to allow her to go into that regarding the machete or those things
that she talked about.
I am going to allow her to testify as to the incidents that [appellant]
observed where she was there because I believe if [appellant] was there,
then obviously then that is -- that’s relevant as to his state of mind. But
as to any specific instances of conduct, I’m not going to allow her to
testify.
As to Mr. Lochmann, I’ll allow him to testify as to general reputation
and opinion and the fact that he -- that he prior to Mr. Watson’s death
informed [appellant] of what his opinion is and a general basis.
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As to anything else that Mr. Lochmann testified to as to the relationship
between himself and his wife and her brother and her dad and those
things, I’m not going to allow that testimony.
The jury returned, and Moore testified that, while living with Watson, she saw
behavior that upset and disturbed her. She described the incident when appellant
was present and Watson screamed and threw equipment. She also testified Watson
threatened appellant on that occasion. According to Moore, Watson had a physically
violent character toward people and objects.
Lochmann testified that Watson repeatedly attempted to contact him and his
wife via telephone and email. He stated his opinion of Watson’s character for
violence was that Watson was a very aggressive and violent person. According to
Lochmann, he told appellant that Watson had harassed and threatened him and his
wife.1
C. Verdict and Punishment
The jury rejected appellant’s self-defense claim and found him guilty of
murder. During the punishment phase, appellant called Moore, who testified
regarding Watson’s purported drug use, occasions when Watson would be found
naked and holding a machete, new testimony that Watson had threatened to kill
himself with a shotgun and been taken to a psychiatric ward, that Watson had
physically assaulted her, and that he had paranoid delusions. She also claimed she
had never seen appellant be violent or aggressive. Lochmann did not testify during
the punishment phase.
1
Outside the jury’s presence, appellant made an additional offer of proof that Lochmann
told appellant that Watson had threatened Lochmann’s life. The court sustained the State’s hearsay
objection to this testimony.
10
Appellant requested and was granted a sudden passion instruction in the
punishment jury charge. Following closing argument, the jury rejected sudden
passion and sentenced appellant to life imprisonment and no fine.
Appellant timely appealed.
Issues Presented
Appellant limits his arguments to the rulings admitting or excluding character
evidence. In his first issue, appellant challenges the trial court’s ruling sustaining
the State’s objection to Moore’s and Lochmann’s testimony describing specific acts
of violence or misconduct committed by Watson. In his second issue, appellant
argues the trial court erred in admitting opinion testimony of appellant’s violent
character.
Analysis
A. Standard of Review
“We review the trial court’s decision to admit or exclude evidence, as well as
its decision as to whether the probative value of evidence was substantially
outweighed by the danger of unfair prejudice, under an abuse of discretion standard.”
Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018); see Neale v. State,
525 S.W.3d 800, 809 (Tex. App.—Houston [14th Dist.] 2017, no pet.). A trial court
abuses its discretion when its ruling lies outside the zone of reasonable disagreement.
Gonzalez, 544 S.W.3d at 370. We will uphold the trial court’s ruling if it is
reasonably supported by the record and is correct under any theory of law applicable
to the case. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002); Roderick
v. State, 494 S.W.3d 868, 874 (Tex. App.—Houston [14th Dist.] 2016, no pet.).
11
B. Whether the Trial Court Erred in Excluding Specific Acts of Violence by
Watson
Appellant contends the trial court erred in refusing to allow Moore and
Lochmann to testify about specific acts of violence or misconduct by Watson. The
excluded evidence, appellant says, pertained to the victim’s character for violence
and supported his self-defense theory.2
Although relevant, character evidence is generally inadmissible. Sims v.
State, 273 S.W.3d 291, 294 (Tex. Crim. App. 2008). Evidence of a person’s
character is 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
Tex. R. Evid. 405; Sims, 273 S.W.3d at 294. 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, as here,
the defendant is charged with an assaultive offense. Ex parte Miller, 330 S.W.3d
610, 618 (Tex. Crim. App. 2009) (citing Fry v. State, 915 S.W.2d 554, 560-61 (Tex.
2
Penal Code section 9.31 provides that, subject to certain exceptions, a person is justified
in using force against another “when and to the degree the actor reasonably believes the force is
immediately necessary to protect the actor against the other’s use or attempted use of unlawful
force.” Tex. Penal Code § 9.31(a). A “reasonable belief” in this context is defined as “one that
would be held by an ordinary and prudent man in the same circumstances as the actor.” Id.
§ 1.07(a)(42). The issue of self-defense is one of fact to be determined by the jury, and a jury’s
guilty verdict is an implicit finding rejecting this defensive theory. See Braughton v. State, 569
S.W.3d 592, 609 (Tex. Crim. App. 2018).
12
App.—Houston [14th Dist.] 1995, 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. Id. A second rationale is to show that the victim was the
first aggressor. Id. Appellant advanced both theories in the trial court.
Apprehension of danger. 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. See Miller, 330 S.W.3d at 618; Torres v. State, 71 S.W.3d 758, 760
(Tex. Crim. App. 2002); Green v. State, 589 S.W.3d 250, 258 (Tex. App.—Houston
[14th Dist.] 2019, pet. ref’d). “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, however, the
defendant offers the evidence to establish a “self-defensive state of mind and the
reasonableness of that state of mind.” Id. at 619.
First aggressor. 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. See id. 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.
(citing Mozon v. State, 991 S.W.2d 841, 845 (Tex. Crim. App. 1999)). 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
13
through reputation and opinion testimony under Rule 405(a).” Id. at 619 (citing
Wilson v. State, 71 S.W.3d 346, 350 n.4 (Tex. Crim. App. 2002)). Evidence of the
victim’s prior specific acts of violence is not permitted to show that the victim was
the first aggressor. Miller, 330 S.W.3d at 620.
1. The trial court did not abuse its discretion in excluding the evidence.
Although the court permitted Moore and Lochmann to testify as to their
respective opinions of Watson’s violent character, appellant argues that the court
also should have admitted Moore’s and Lochmann’s testimony describing particular
instances of Watson’s violent conduct under either the first-aggressor or
apprehension-of-danger theories. We address each theory.
a. First-aggressor theory
Watson’s status as first aggressor may only be shown through reputation and
opinion testimony pursuant to rule 405(a). See Tex. R. Evid. 404(a)(2), 405(a);
Miller, 330 S.W.3d at 619; Allen v. State, 473 S.W.3d 426, 444 (Tex. App.—
Houston [14th Dist.] 2015), pet. dism’d, 517 S.W.3d 111 (Tex. Crim. App. 2017).
A defendant may not offer evidence of the victim’s prior specific acts of violence to
prove the victim’s violent character and hence that the victim acted in conformity
with that character trait at the time of the assault. Miller, 330 S.W.3d at 619. Under
rule 404(a)(3), appellant was not entitled to offer evidence of any specific prior acts
of violence by Watson to show that Watson was the first aggressor. That use is an
attempt to prove Watson’s conduct conformed with his violent character, which is
prohibited. Id.
In arguing to the contrary, appellant relies largely on Dempsey v. State, 266
S.W.2d 875, 877-78 (Tex. Crim. App. 1954), and its progeny. The Dempsey line of
cases no longer represents Texas law on this issue, given subsequent changes in the
14
Rules of Evidence. See Tate v. State, 981 S.W.2d 189, 192-93 (Tex. Crim. App.
1998); see also Torres, 71 S.W.3d at 761 n.6.
A victim’s prior specific acts of violence may be admitted for non-character
conforming purposes, Tex. R. Evid. 404(b)(2), Torres, 71 S.W.3d at 762; but
appellant does not argue that this rule applies to the excluded evidence.
The trial court did not abuse its discretion in excluding Moore’s and
Lochmann’s evidence of Watson’s prior specific acts of violence to support
appellant’s first-aggressor theory.
b. Apprehension-of-danger theory
Moore testified outside the jury’s presence about the following events:
• Watson destroyed property while enraged, including destroying a
television and electrical outlets;
• Watson locked Moore out of the house and, after Moore “banged” on
the door for two hours, Watson answered the door naked and holding a
machete;
• Moore believed that, on one occasion, Watson might kill a neighbor
because Watson thought the neighbor worked for the FBI;
• Watson carried a loaded gun;
• Watson walked outside with a machete;
• Watson shot a street sign with his gun;
• Watson “went nuts” in front of Moore and appellant, destroying
appellant’s landscaping equipment; and
• An occasion when Watson violently beat, strangled, and threatened to
kill Moore.
According to our record, appellant had no awareness of these events, save
one—the occasion when Watson became upset at appellant and “went nuts,”
throwing equipment and screaming. But the trial court permitted Moore to testify
15
about that event. Accordingly, any complaint by appellant as to that testimony
presents no error.
As to the other instances of Watson’s violent conduct Moore described, she
could not recall whether she communicated any of them to appellant. No witness
established that appellant knew of them. Because our record does not demonstrate
appellant’s awareness of the described specific acts, the trial court did not abuse its
discretion in excluding them. E.g., Hayes v. State, 124 S.W.3d 781, 785-86 (Tex.
App.—Houston [1st Dist.] 2003) (when record did not show appellant had
knowledge of victim’s violent acts, they were inadmissible to show appellant’s state
of mind), aff’d, 161 S.W.3d 507 (Tex. Crim. App. 2005).
Appellant also complains that the trial court erroneously excluded portions of
Lochmann’s proffered testimony. Lochmann discussed two “stalking” events: one
occasion when Watson followed and watched Lochmann inside a grocery store, and
a separate occasion when Watson watched Lochmann at his home while speaking to
him on the phone. Lochmann believed that Watson once camped near Lochmann’s
house. Lochmann also testified that Watson had committed burglary and criminal
trespass against his then-girlfriend’s family.
Like Moore, Lochmann did not testify that he told Watson about these events.
Because the record does not show that appellant knew of them, the apprehension-of-
danger theory does not support their admission, and the trial court did not abuse its
discretion in excluding them. See id.
Lochmann, however, told appellant about some of Watson’s conduct that
disturbed him. Specifically, he told appellant that Watson was “dangerous,” had
“stalked” Lochmann and his wife, had threatened them both, and specifically
threatened to kill Lochmann. Because Lochmann related this conduct to appellant,
16
it is communicated character evidence. See Miller, 330 S.W.3d at 618; Green, 589
S.W.3d at 259.
Communicated character evidence must be probative of the reasonableness of
the defendant’s apprehension of danger. See Allen, 473 S.W.3d at 448-49. Here,
appellant provided two versions of events that occurred before the shooting:
(1) Watson threatened appellant verbally and put a gun in his face; and (2) Watson
assaulted appellant as he lay on the floor and hit Cerda when she attempted to
intervene. Cerda testified that she found Watson assaulting appellant in the kitchen
and that Watson hit her when she tried to intervene. Appellant left the immediate
scene to retrieve and load his gun, then returned to the kitchen and fired at Watson’s
back as Watson stood at the sink.
Although Lochmann testified that Watson threatened him and his wife,
Lochmann did not testify that Watson ever followed through his threat, that his threat
involved the use of a firearm, or that Watson assaulted either him or his wife.
In Allen, the appellant contended that the trial court abused its discretion in
excluding evidence of the murder victim’s character for violence as shown by his
prior acts of assaulting his girlfriend and his status as a gang member. Id. at 444-45.
He urged that this evidence showed the victim was the first aggressor, as well as
supported the reasonableness of appellant’s apprehension of danger. See id. There,
we held that the evidence pertaining to the victim’s physical abuse of his girlfriend
and gang membership “had no clear bearing” on the altercation between the
appellant and the victim; thus, the trial court did not abuse its discretion in excluding
this evidence. See id.at 449. Here, as in Allen, appellant simply “has not explained
how the specific acts [Lochmann] described and of which appellant was aware
affected his belief that the use of deadly force was immediately necessary to protect
against [Watson]’s use or attempted use of force.” See id. at 449 (citing Tex. Penal
17
Code §§ 9.31, 9.32). As we held in Allen, we likewise conclude here that the trial
court did not abuse its discretion in excluding this evidence.
2. Assuming error, appellant was not harmed.
Even assuming the trial court erred in excluding the proffered evidence, we
would conclude that the error was harmless. Standards for reversible error in
criminal cases depend on whether the error is constitutional or non-constitutional.
See Tex. R. App. P. 44.2; Mercier v. State, 322 S.W.3d 258, 261 (Tex. Crim. App.
2010). Errors in sustaining the State’s objections to the admission of a defendant’s
evidence generally are non-constitutional. Easley v. State, 424 S.W.3d 535, 540
(Tex. Crim. App. 2014). A constitutional violation may arise only if “(1) a state
evidentiary rule categorically and arbitrarily prohibits the defendant from offering
otherwise relevant, reliable evidence vital to his defense; or (2) a trial court’s clearly
erroneous ruling results in the exclusion of admissible evidence that forms the vital
core of a defendant’s theory of defense and effectively prevents him from presenting
that defense.” Id.
Invoking the second situation, appellant contends that the exclusion of
Moore’s and Lochmann’s testimony about Watson’s prior specific violent acts is
constitutional error because the ruling prevented him from presenting his self-
defense claim. On this record, we disagree. Appellant introduced significant
evidence pertaining to his self-defense claim, including his theories that Watson was
the first aggressor and that appellant reasonably feared Watson was dangerous. For
example, the jury heard appellant’s version of events in his recorded statements. He
stated that Watson threatened to kill him and pointed a shotgun at his face, and that
Watson “sucker-punched” and physically assaulted him before the shooting. When
Cerda attempted to intervene, Watson hit her in her eye. Cerda’s account of the
event was generally consistent with appellant’s description. Cerda even said that,
18
before the shooting, she saw Watson in the pantry looking for something on a shelf
behind the garbage can (where the police later found the shotgun). Her testimony in
that regard could have supported appellant’s claim that he saw Watson reach for
something in the pantry—believed to be a shotgun—before he killed Watson. Both
Lochmann and Moore presented their opinions that Watson was violent; Moore even
described a specific incident when Watson behaved very violently in appellant’s
presence. Given the nature of this evidence, “[a]ppellant was not effectively
prevented from presenting his defensive theory, and the excluded evidence would
have incrementally furthered the defensive theory.” Green, 589 S.W.3d at 261. We
thus conclude that the alleged errors are non-constitutional. See id.
Non-constitutional errors that do not affect the defendant’s substantial rights
must be disregarded. See Tex. R. App. P. 44.2(b); Green, 589 S.W.3d at 261 (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 but a slight effect.”
Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001) (citation and internal
quotation marks omitted). 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.
19
On balance, we have fair assurance here that any error made in excluding
Moore’s and Lochmann’s testimony of Watson’s specific violent acts did not have
a substantial and injurious effect or influence in determining the jury’s verdict. As
explained, the jury had before it considerable evidence relevant to and supporting
appellant’s self-defense claim, including evidence of Watson’s violent character.
The jury heard that: (1) Watson had previously assaulted appellant; (2) Watson had
taken appellant’s shotgun, sawed off the barrel, and shot out both a television and a
window; (3) Watson hid the shotgun around the residence; (4) Watson was on felony
probation for stalking; (5) Watson had threatened appellant with a shotgun and
sucker-punched and assaulted appellant on the night in question; and (6) appellant
was in fear for both his and Cerda’s lives. Cerda testified that she found Watson
assaulting appellant and, when she attempted to intervene, Watson hit her. Cerda
stated Watson shot out a television and a window, and she also testified that Watson
previously had looked for appellant while holding and shooting the shotgun. The
trial court permitted Moore to testify as to Watson’s violent outburst in front of
appellant and that Watson threatened appellant. Further, Lochmann testified
generally that Watson both harassed and threatened him and his then-girlfriend.
Both Moore and Lochmann opined that Watson was violent. The autopsy report and
medical examiner testimony lent some weight to appellant’s claim because they
revealed Watson’s blood-alcohol level was over the legal limit when he died, and he
had other intoxicating substances in his body. Finally, appellant’s counsel argued in
closing that Watson was a violent person whom appellant feared.
In contrast to the evidence supporting appellant’s self-defense claim, the State
presented substantial evidence that would support a factfinder’s decision to reject
the defense. Undisputed facts, inconsistent statements, and implausible explanations
supply considerable evidence of guilt. See Guevara v. State, 152 S.W.3d 45, 50
20
(Tex. Crim. App. 2004) (noting that inconsistent statements and implausible
explanations are circumstances of guilt). For instance, appellant admitted that he
fired the first shot at Watson from behind, when Watson was no longer holding the
shotgun. Refuting appellant’s claims that Watson then came at him, Watson had no
bullet wounds to the front of his body. And appellant gave notably inconsistent
accounts to police. Though he claimed Watson pointed a shotgun at his face and
threatened his life, the shotgun was found in the pantry behind several dusty bottles;
no weapons were found on or near Watson’s body at the scene. Additionally, the
jury heard a recording of appellant offering to plant heroin in the home of Lisa
Good’s estranged husband and send him to prison for life. On this recording,
appellant was heard stating that he could do to Good’s husband what he had done to
Watson, made a gun noise, and mimicked a gun with his hand.
The jury rejected appellant’s and his witnesses’ claims that he acted in self-
defense, as was its right. See Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim.
App. 1997) (indicating that jury has sole province to decide what weight is to be
given to contradictory testimony as it turns on evaluation of credibility and
demeanor). We hold that the trial court’s exclusion of Moore’s and Lochmann’s
evidence of Watson’s prior violent acts did not substantially injure appellant’s rights,
and the error, if any, was harmless. See Green, 589 S.W.3d at 262 (“Accordingly,
the jury heard plenty of other evidence concerning the decedent’s threats and
animosity toward appellant.”); Smith, 355 S.W.3d at 151-52 (explaining that,
because the appellant offered other direct evidence that the decedent was the first
aggressor and that the appellant reasonably believed he was in danger during his
altercation with the decedent, the court had “fair assurance here that any error made
in excluding [the decedent’s] earlier stabbing incident . . . did not have a substantial
and injurious effect or influence in determining the jury’s verdict”).
21
We overrule appellant’s first issue.
22
C. Whether the Trial Court Erred in Admitting Evidence of Appellant’s
Character
In his second issue, appellant contends the trial court erred in admitting, over
objection, evidence of his own character. Though generally inadmissible, character
evidence may be permitted for reasons other than character conformity, such as
rebutting a theory of self-defense. Henricks v. State, 293 S.W.3d 267, 274 (Tex.
App.—Eastland 2009, pet. ref’d) (State’s evidence of defendant’s character
admissible to rebut self-defense theory); see Powell v. State, 63 S.W.3d 435, 438
(Tex. Crim. App. 2001).
Appellant complains about the testimony of two witnesses, Codi Craddock
and Bryan Cupp, each of whom stated in the form of opinion testimony that appellant
was violent. Appellant raised a claim of self-defense. He presented his self-defense
theory during jury selection, during opening statements, and through cross-
examination of the State’s witnesses. We have summarized much of appellant’s
self-defense evidence above. Additionally, appellant’s counsel asked the medical
examiner whether it would still be possible for someone with gun wounds such as
Watson’s to shoot a firearm before the instantly fatal head shot. He emphasized with
the BCSO dispatcher that appellant stated he had been threatened by Watson. He
asked Cerda whether she had seen Watson act violently or erratically before the
shooting. He focused his cross-examination of Cerda on Watson’s shooting out a
window while holding a shotgun and looking for appellant. The jury heard
appellant’s recorded statements, in which he claimed he feared for his or Cerda’s
life at the time he shot Watson. Thus, appellant’s defensive theory was presented
from the very start of trial, and some evidence supporting this theory was presented
to the jury before the opinion testimony offered by either Craddock and Cupp.
23
Under these circumstances, the trial court could have determined that the
character evidence at issue had relevance apart from character conformity because
it rebutted appellant’s self-defense claim. See Henricks, 293 S.W.3d at 274; see also
Allen v. State, No. 14-12-01086-CR, 2014 WL 3587372, at *7 (Tex. App.—Houston
[14th Dist.] July 22, 2014, pet. ref’d) (mem. op., not designated for publication).
Moreover, even if the trial court erred in admitting this very brief testimony
concerning these witnesses’ opinions that appellant was violent, any error in the
admission of this evidence was harmless. As noted, in performing a non-
constitutional harm review, 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. See Motilla, 78 S.W.3d at 355-56; see also Anderson v. State, 717 SW.2d
622, 627-29 (Tex. Crim. App. 1986) (concluding that erroneous admission of
opinion testimony concerning the appellant’s violent character was not harmful).
Erroneously admitted evidence will not result in reversal when other evidence, or
substantially similar evidence, was received without objection—either before or
after the complained of ruling. Coble v. State, 330 S.W.3d 253, 282 (Tex. Crim.
App. 2010); Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998); see also
Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010) (noting any error
was harmless in light of “very similar” evidence admitted without objection);
Anderson, 717 S.W.2d at 628 (holding that any error in admitting opinion testimony
about the appellant’s and his family’s violent character was rendered harmless by
admission of other evidence showing this violent character).
24
Here, other evidence showed appellant’s violent character, which rendered the
complained-of admitted evidence generally cumulative. For example, appellant shot
Watson, at close range and from behind, six times. The final—and fatal—shot was
to Watson’s head. Appellant admitted that he initially shot Watson while Watson
stood, unarmed, at the kitchen sink. He told the BCSO dispatcher that he had to kill
Watson because Watson threatened to kill him. And significantly, the jury heard a
recording in which appellant threatened to plant heroin on Lisa Good’s estranged
husband and then seemingly offered to kill him. In light of this evidence illustrative
of appellant’s violent character, we conclude that the admission of Craddock’s and
Cupp’s opinion testimony was harmless. See Anderson, 717 S.W.2d at 628.
We overrule appellant’s second issue.
Conclusion
Having overruled both of appellant’s issues, we affirm the trial court’s
judgment.
/s/ Kevin Jewell
Justice
Panel consists of Justices Jewell, Poissant, and Wilson.
Publish — Tex. R. App. P. 47.2(b).
25