Opinion issued June 25, 2019
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-00222-CR ——————————— ISHMAEL OMAH ALFRED, Appellant V. THE STATE OF TEXAS
On Appeal from the 174th District Court Harris County, Texas Trial Court Cause No. 1472016
MEMORANDUM OPINION
A jury convicted appellant, Ishmael Omah Alfred, of murder and assessed
punishment at 20 years’ confinement. On appeal, appellant contends the trial court erred by (1) excluding the complainant’s social media posts; (2) excluding evidence
that the complainant had previously committed a burglary; and (3) refusing
appellant’s request for a jury instruction on sudden passion at the punishment phase
of trial. We affirm.
BACKGROUND
On June 9th, 2015, appellant sent the complainant, David Hernandez, a series
of text messages inviting him to appellant’s house. Appellant and the complainant
had been friends but had not seen each other for several years because of a
disagreement. The complainant arrived at appellant’s around 4:30 p.m.,
approximately one-half hour after appellant invited him over. A neighbor saw the
complainant walk to the front door, which was open, and then lost sight of him.
Several seconds later, the neighbor heard appellant shoot the complainant.
Appellant then called 9-1-1 and claimed that he had detained someone trying to
break into his house. Police arrived to investigate and discovered the complainant’s
body lying approximately five or six feet from appellant’s back door. The
complainant did not have any burglary tools and was unarmed.
Appellant told police that he was standing by the door when the complainant
“powerwalked” by him. Appellant said he called out to the complainant, saw the
complainant turn, and then appellant shot him. Appellant never stated that he saw a
weapon in the complainant’s hand.
2 Appellant, testifying on his own behalf at trial, gave another version of the
events. Appellant testified that he was aware of some of the complainant’s prior
violent acts and that such acts frightened him. When the complainant appeared at
appellant’s house on the day of the shooting, appellant had a pistol, which was not
loaded. Appellant issued an invitation for the complainant to come to appellant’s
house, and exchange of messages ensued in which the complainant asked appellant
if he was still mad at him about clothes and admitted that he had committed a “hoe
move” that he would repay. Appellant testified that he did not know what the
complainant was talking about and that the complainant owed him nothing.
Appellant continued to invite the complainant to come by the house. Appellant
testified that he had no intention of harming the complainant.
Appellant testified that he was in the hall sending a text message to his
girlfriend, when his younger brother, Jerome, alerted him to a loud noise behind the
house, and his mother began yelling. Appellant noticed that a screen was off a
window, which prompted him to retrieve his handgun and ammunition. Appellant
saw a car he did not recognize blocking his driveway. He heard loud noises coming
from the back door, but “nothing was happening” because the door was barricaded.
Appellant removed the barricade and went out the back door. Outside, he saw the
complainant and asked him, “What the f***, bro.” The complainant turned around
and, without a word, lunged and charged at appellant. The complainant’s face looked
3 “angry.” Appellant was frightened. The complainant was “two steps away” and
raised his hands, as if to grab Appellant’s gun; whereupon, appellant fired one shot
that struck the complainant in the head.
Appellant testified he feared for his own safety and for that of his mother and
younger brother.
EXCLUDING COMPLAINANT’S SOCIAL-MEDIA POSTS
During cross-examination of a State’s witness, appellant sought to introduce
15 posts from the complainant’s Facebook page, made several years before the
charged offense, in which the complainant proclaimed himself to be violent, or a
“thug” or showed pictures of himself engaged in criminal or obscene activity. In
issue one, appellant contends the trial court abused its discretion in refusing to admit
the complainant’s social media posts.
Standard of Review
We review a trial court’s rulings to admit or exclude evidence under an abuse
of discretion standard. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App.
2011). We will not reverse a trial court’s ruling unless that ruling falls outside the
zone of reasonable disagreement. See id. We 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. See Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).
4 Self-defense—Character Evidence under Rule 404(a)(3)
In general, evidence of a person’s character may not be used to prove that the
person “behaved in a particular way at a given time.” Tate v. State, 981 S.W.2d 189,
192 (Tex. Crim. App. 1998); see TEX. R. EVID. 404(a). This limit on character
evidence, however, is not absolute. When a defendant in a homicide prosecution
raises the issue of self-defense, he may introduce evidence of the victim’s violent
character on two separate theories. TEX. R. EVID. 404(a)(3); see Ex parte Miller, 330
S.W.3d 610, 618 (Tex. Crim. App. 2009); Torres v. State, 117 S.W.3d 891, 894
(Tex. Crim. App. 2003).
Under the first theory, the defendant may offer reputation or opinion
testimony, or evidence of specific prior acts of violence by the victim, to show the
reasonableness of the defendant’s claimed fear of danger from the victim. See Miller,
330 S.W.3d at 618. This is called “communicated character” evidence because the
defendant knows of the victim’s violent tendencies and sees a danger posed by the
victim, regardless of whether that danger is real. See id. The defendant is not trying
to prove the victim was actually violent, but that his fear of the victim during their
confrontation was reasonable. See id. at 619.
Under the second theory––called “uncommunicated character” evidence
because it does not matter whether the defendant knew of the victim’s violent
character––a defendant may offer evidence of the victim’s character trait for
5 violence to show that the victim was, in fact, the first aggressor. See id.; see also
TEX. R. EVID. 404(a)(2). “The chain of logic is as follows: a witness testifies that the
victim made an aggressive move against the defendant; another witness then testifies
about the victim’s character for violence, but he may do so only through reputation
and opinion testimony under Rule 405(a).” Miller, 330 S.W.3d at 619.
In this case, appellant offered the complainant’s Facebook posts (1) “[t]o
correct the impression of good character of the [c]omplainant previously testified to
by Dezerai Rodriguez, on direct examination from the State;” (2) to show an
“uncommunicated character” trait of the complainant, i.e., that complainant was the
first aggressor; and (3) under the rule of optional completeness. We address each
argument respectively.
To Correct a False Impression
At trial, the State called Dezerai Rodriguez, the complainant’s previous
girlfriend. Rodriguez testified that the complainant was “very outgoing,” “the life of
the party,” and “just real fun to be around.” She also testified that the complainant
never hurt her and that his tattoos did not scare her. Appellant argues that the
Facebook posts should have been admitted to counter Rodriguez’s testimony, which
“create[d] an image of the Complainant as friendly and harmless.”
The general rule is that a party is not entitled to impeach a witness on a
collateral matter. Ramirez v. State, 802 S.W.2d 674, 676 (Tex. Crim. App. 1990).
6 However, when a witness has voluntarily testified to a collateral matter resulting in
a false impression, the witness may be impeached on that matter in order to correct
the false impression. But, courts construe this exception narrowly. James v. State,
102 S.W.3d 162, 181 (Tex. App.—Fort Worth 2003, pet ref’d). Moreover, “[u]nless
the witness’s testimony created a false impression that is directly relevant to the
offense charged, allowing a party to delve into the issue beyond the limits of cross
examination wastes time and confuses the issues.” Hayden v. State, 296 S.W.3d 549,
554 (Tex. Crim. App. 2009).
Even if we were to agree that Rodriguez’s testimony left a false impression
that the complainant was “friendly and harmless,” appellant had the opportunity to
correct the alleged false impression by cross-examining Rodriguez at trial. Appellant
was not entitled to correct the alleged false impression by introducing extrinsic
evidence via the complainant’s Facebook posts. See Wheeler v. State, 67 S.W.3d
879, 885 (Tex. Crim. App. 2002) (“[O]pponent must correct the ‘false impression’
through cross-examination of the witness who left the false impression, not by
calling other witnesses to correct that false impression”).
First aggressor—Texas Rule of Evidence 404(a)(3).
Appellant also argues that, under Rule 404(a)(3), he was entitled to introduce
the complainant’s Facebook posts to show that the complainant had an
uncommunicated character trait for aggression. It is true that a defendant may offer
7 uncommunicated evidence of the victim’s character trait for violence pursuant to
Rule 404(a) to show that the victim was the first aggressor, but a defendant may do
so “only through reputation and opinion testimony under Rule 405(a).” Ex parte
Miller, 330 S.W.3d at 619; Allen v. State, 473 S.W.3d 426, 445 (Tex. App.—
Houston [14th Dist.] 2015, pet. dism’d); see TEX. R. EVID. 405(a).
Here, appellant proffered evidence, i.e., the complainant’s Facebook posts, to
show that appellant represented himself as a violent “thug.” Such evidence, appellant
contends, shows that the complainant’s character trait for violence and demonstrates
that he was the first aggressor. Although the Facebook posts were an attempt to show
the complainant’s conformity with his violent character, they were neither reputation
nor opinion testimony. See Allen, 473 S.W.3d at 445–46. As such, the trial court did
not abuse its discretion in excluding the proffered evidence. See Ex parte Miller, 330
S.W.3d at 620; Allen, 473 S.W.3d at 445–46.
Optional Completeness
Appellant also complains that, because the State entered his own text
messages into evidence, which were sent to the complainant via the Facebook
Messenger application less than an hour before the murder, he should, under the rule
of optional completeness, be able to introduce all of the complainant’s Facebook
posts, which were from several years before the murder.
8 Texas Rule of Evidence 107, the rule of optional completeness, is an exception
to the general rule that hearsay is inadmissible. Pena v. State, 353 S.W.3d 797, 814
(Tex. Crim. App. 2011); Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App.
2007). The rule of optional completeness provides:
If a party introduces part of an act, declaration, conversation, writing, or recorded statement, an adverse party may inquire into any other part on the same subject. An adverse party may also introduce any other act, declaration, conversation, writing, or recorded statement that is necessary to explain or allow the trier of fact to fully understand the part offered by the opponent. “Writing or recorded statement” includes a deposition.
TEX. R. EVID. 107.
This rule “is one of admissibility and permits the introduction of otherwise
inadmissible evidence when that evidence is necessary to fully and fairly explain a
matter ‘opened up’ by the adverse party.” Walters, 247 S.W.3d at 217–18. The rule
“is designed to reduce the possibility of the jury receiving a false impression from
hearing only a part of some act, conversation, or writing.” Id. at 218.
Admission of evidence under the rule of optional completeness is “not
invoked by the mere reference to a document, statement, or act.” Pena, 353 S.W.3d
at 814; Walters, 247 S.W.3d at 218. Rather, for evidence to be admissible under this
rule, “the omitted portion of the statement must be ‘on the same subject’ and must
be ‘necessary to make it fully understood.’” Pena, 353 S.W.3d at 814 (quoting
Sauceda v. State, 129 S.W.3d 116, 123 (Tex. Crim. App. 2004)); see Walters, 247
9 S.W.3d at 218 (“Rule 107 does not permit the introduction of other similar, but
inadmissible, evidence unless it is necessary to explain properly admitted
evidence.”).
We begin our analysis by noting that the Facebook posts from previous years
and the text messages sent via the Facebook Messenger application are not a part of
the same “act, declaration, conversation, writing, or recorded statement,” as required
by Rule 107. The text messages are part of a recent private conversation between
appellant and the complainant and were sent on a completely separate application.1
In contrast, the Facebook posts are not private conversations between appellant and
the complainant, but were visible to all of the complainant’s “friends” on Facebook,
which is a separate platform from Facebook Messenger. As such, the rule of optional
completeness is not applicable.
And, even if it were, the trial court would not have abused its discretion in
refusing to admit the Facebook posts under the rule of optional completeness
because they are not “on the same subject,” nor are they “necessary to make [the text
messages] fully understood.” Appellant claims that one of the Facebook posts
explains one of the text messages about why appellant was mad at the complainant,
1 Appellant’s own expert explained that Facebook Messenger messages cannot be viewed on Facebook and that a separate application is used to send these messages. 10 however, he does not elaborate about which post he is referencing or why that would
justify the admission of all 15 Facebook posts.
Because the trial court did not abuse its discretion by refusing to admit the
complainant’s Facebook posts under any of the theories set forth by appellant, we
overrule issue one.
EXCLUDING EVIDENCE OF COMPLAINANT’S PRIOR BURGLARY
In issues two and three, appellant contends the trial court erred by refusing to
allow him to (1) question a defense witness about details of a previous burglary
committed by the complainant and (2) introduce DNA evidence tying the
complainant to that previous burglary. Specifically, appellant sought to question a
defense witness, William Eason, a prison inmate, about burglaries he had seen the
complainant commit in the past. And, appellant also sought to admit evidence that
the complainant’s DNA was found at the scene of an unrelated 2013 burglary.
Crimes, Wrongs, and Other Acts under Rule 404(b)
In addition to the character evidence permitted by Rule 404(a)(3), as discussed
above, a separate rationale may support the admission of evidence under Rule 404(b)
of a “victim’s prior specific acts of violence when offered for a non-character
purpose—such as his specific intent, motive for an attack on the defendant, or
hostility—in the particular case.” Ex parte Miller, 330 S.W.3d at 620; see TEX. R.
EVID. 404(b). “The proper predicate for the specific violent prior act by the deceased
11 is some act of aggression that tends to raise the issue of self-defense, which the
violent act may then help clarify.” Torres, 117 S.W.3d at 895. Under Rule 404(b), a
victim’s prior acts of violence may be admissible to clarify the issue of first
aggressor if the proffered act explains the victim’s ambiguously aggressive conduct.
Allen v. State, 473 S.W.3d 426, 446 (Tex. App.—Houston [14th Dist.] 2015, pet.
dism’d). “As long as the proffered violent acts explain the outward aggressive
conduct of the deceased at the time of the killing, and in a manner other than
demonstrating character conformity only, prior specific acts of violence may be
admitted even though those acts were not directed against the defendant.” Torres v.
State, 71 S.W.3d 758, 762 (Tex. Crim. App. 2002) (emphasis added).
Here, the proffered acts—prior, unrelated burglaries—were offered for the
purpose of demonstrating character conformity only, i.e., that because the
complainant had committed burglaries before, he must have been committing a
burglary when he was shot. As such, the trial court did not abuse its discretion in
refusing to admit the details and DNA evidence from another, unrelated burglary
committed by the complainant.
Furthermore, appellant was permitted to question Eason about burglaries that
Eason had seen appellant commit, he was just prohibited from eliciting details about
how the burglaries were accomplished or how much time they took, or from
introducing DNA evidence to connect the complainant to a specific, unrelated
12 burglary. Because appellant was not prevented from proving that the complainant
was a burglar and essentially the same or similar evidence to that excluded was, in
fact, admitted, error, if any, was rendered harmless. See Montgomery v. State, 383
S.W.3d 722, 727 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (“Although the
trial court may have initially excluded this evidence, the later admission renders
harmless any possible error.”).
We overrule issues two and three.
REFUSING JURY INSTRUCTION ON SUDDEN PASSION
In issue four, appellant contends the trial court erred in refusing to give a
charge on sudden passion at the punishment stage of trial. Specifically, appellant
argues that given his “prior relationship [with the complainant] and all he knew about
the complainant, it was reasonable that he should fear [the] complainant, even as an
invitee, if [the] complainant arrived, went to the back door without announcing his
presence, and began beating or kicking on it.”
The review of an alleged jury charge error in a criminal trial is a two-step
process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). First, an
appellate court must determine whether there was error in the jury charge. Id. Then,
if there is charge error, the court must determine whether there is sufficient harm to
require reversal. Id. at 731–32. The standard for determining whether there is
13 sufficient harm to require reversal depends on whether the appellant objected to the
error at trial. Id. at 732.
If the appellant objected to the error, the appellate court must reverse the trial
court’s judgment if the error “is calculated to injure the rights of the defendant.”
TEX. CODE CRIM. PROC. ANN. art. 36.19. This means no more than that there must
be some harm to the accused from the error. Almanza v. State, 686 S.W.2d 157, 171
(Tex. Crim. App. 1984). An appellant who did not raise the error at trial can prevail
only if the error is so egregious and created such harm that he has not had a fair and
impartial trial. Id. “In both situations the actual degree of harm must be assayed in
light of the entire jury charge, the state of the evidence, including the contested issues
and weight of probative evidence, the argument of counsel and any other relevant
information revealed by the record of the trial as a whole.” Id.
The record must show that the defendant suffered actual harm, not merely
theoretical harm. Id. at 174. In assessing whether the trial court erred by denying a
requested defensive instruction, an appellate court must examine the evidence
offered in support of the defensive issue in the light most favorable to the defense.
Farmer v. State, 411 S.W.3d 901, 906 (Tex. Crim. App. 2013). The charge must
include an instruction on any defensive theory raised by the evidence and properly
requested by the defendant. Booth v. State, 679 S.W.2d 498, 500 (Tex. Crim. App.
1984).
14 Applicable Law on Sudden Passion
Sudden passion is a mitigating circumstance that, if proven by a
preponderance of the evidence, reduces murder from a first-degree felony, which
carries a maximum punishment of life imprisonment, to a second-degree felony,
which carries a maximum punishment of twenty years’ imprisonment. See TEX.
PENAL CODE §§ 12.32, 12.33, 19.02(d); McKinney v. State, 179 S.W.3d 565, 569
(Tex. Crim. App. 2005). The Penal Code defines “sudden passion” as “passion
directly caused by and arising out of provocation by the individual killed . . . which
passion arises at the time of the offense and is not solely the result of former
provocation.” TEX. PENAL CODE § 19.02(a)(2). “Adequate cause” is defined as
“cause that would commonly produce a degree of anger, rage, resentment, or terror
in a person of ordinary temper, sufficient to render the mind incapable of cool
reflection.” Id. § 19.02(a)(1).
Rarely, when self-defense is raised will sudden passion not be raised. See
Chavez v. State, 6 S.W.3d 56, 65 (Tex. App.—San Antonio 1999, pet. ref’d).
Conversely, “when the State’s evidence is sufficient to overcome a claim of self-
defense, it will also be sufficient to show the absence of sudden passion.” Id.
(quoting Benavides v. State, 992 S.W.2d 511, 524–25) (Tex. App.—Houston [1st
Dist.] 1999, pet. ref’d)).
15 “Some Harm” Not Shown
We need not decide whether the trial court erred in denying the sudden-
passion charge because appellant cannot show that he suffered “some harm” as a
result of the trial court’s refusal to charge the jury on sudden passion.
The Court of Criminal Appeals has addressed the issue of how a jury’s
rejection of self-defense affects the harm analysis with respect to the erroneous
denial of a sudden-passion instruction. See Wooten v. State, 400 S.W.3d 601, 608
(Tex. Crim. App. 2013); Trevino v. State, 100 S.W.3d 232, 241 (Tex. Crim. App.
2003).
In Trevino, the defendant was charged with the murder of his wife. 100
S.W.3d at 232, 236. He claimed that the shooting occurred after a heated argument
and struggle over two guns. Id. at 233. According to police, the defendant told them
that his wife confronted him with a gun after finding telephone numbers of other
women in his wallet. Id. The defendant then retrieved his own gun, and, after his
wife shot at him but missed, the two struggled over the guns. Id. In the course of the
struggle, the defendant’s wife was shot three times. Id.
A police officer testified that the crime scene did not match the defendant’s
story. Id. Based on this testimony, the State argued the defendant shot his wife and
then staged the scene to make it look like self-defense. Id. at 232, 235–36. The jury
rejected appellant’s claim that the shooting was an accident and that he acted in self-
16 defense and, after the trial court refused to instruct the jury on sudden passion,
assessed a sixty-year sentence. Id. at 236.
The court of appeals reversed, finding that the trial court should have
instructed the jury on sudden passion, and that appellant was harmed. Id. Agreeing
with the court of appeals that appellant was harmed, the court of criminal appeals
noted that the jury could have found that appellant killed his wife in sudden passion
and then staged the crime scene to make the killing appear to have occurred in self-
defense. Id. at 241–43.
In Wooten, appellant was charged with murder after the victim was killed in a
gunfight. 400 S.W.3d at 602–03. According to the defendant, who testified at trial,
the victim dropped off the defendant’s girlfriend, a prostitute, at defendant’s
apartment after “backing out” of a “date” with her. Id. at 603. The defendant greeted
his girlfriend outside the apartment and approached the victim’s car. Id. The
defendant noted the victim had placed a gun on the console, but began talking with
him. Id. When the conversation turned to why the “date” had not occurred, the
victim’s demeanor “became more combative.” Id. The defendant testified that the
victim was frustrated and began to speak in a “heightened tone” and display a “sort
of ‘aggressiveness’ in his speaking.” Id. When the defendant told the victim he
should pay his girlfriend “something for her time,” the victim lashed out verbally
17 and then shot at the defendant. Id. The defendant shot back in claimed self-defense,
killing the victim. Id.
The jury was instructed on self-defense, but was told “not to consider whether
appellant failed to retreat.” Id. at 603–04, 609. The jury rejected the defendant’s self-
defense claim, and, as in Trevino, when the trial court refused to instruct on sudden
passion, assessed a sixty-year sentence. Id. at 603–04. The court of appeals,
concluding that the failure to instruct on sudden passion harmed the defendant,
reversed as to punishment. Id. at 604.
Disagreeing that appellant was harmed, the court of criminal appeals observed
that “the success of appellant’s self-defense claim boiled down to whether the jury
would accept that, when he shot [the victim], he reasonably believed that deadly
force was necessary to protect himself from [the victim’s] use of deadly force.” Id.
at 607, 609. Noting deadly force was the only element of self-defense refuted by the
evidence, the court concluded the jury rejected the inference that the victim shot first
because, had they believed appellant’s testimony that the victim shot first, the jury
“almost certainly” would have acquitted appellant. Id. The court further concluded
that, the jury, having rejected appellant’s self-defense claim, “was highly unlikely”
to find appellant acted under sudden passion. Id. The court of criminal appeals
concluded that the defendant had failed to show “some harm,” stating:
It is highly unlikely that a jury that had already rejected the appellant’s claim that he reasonably believed that deadly force was immediately 18 necessary to defend himself would nevertheless find in his favor on the issue of sudden passion. To prove sudden passion, the appellant would have had to establish, inter alia, 1) that he actually acted under the influence of a fear so great that it caused him to lose his capacity for cool reflection, and 2) that [the complainant’s] actions were adequate to produce such a degree of fear in a man of ordinary temperament. But a jury that had already discredited the appellant’s claim that he reasonably believed deadly force to be immediately necessary would be unlikely to believe that, at the time the appellant first fired, he was actually experiencing a level of fear that caused him to lose control. Moreover, even had the jury believed that the appellant subjectively experienced such a level of fear, it would not likely have found that [the complainant’s] behavior presented a provocation adequate to produce such a degree of fear in a man of ordinary temperament. Based on the record and evidence before us, it is exceedingly unlikely that the appellant suffered “some harm” as a result of the trial court’s failure to give the jury a sudden passion instruction based on the appellant’s assertion that terror or fear controlled his actions.
Id. at 609–10.
This case is like Wooten, not Trevino. In Trevino, there was another basis for
the jury’s rejection of appellant’s self-defense claim, i.e., that the murder scene was
staged to look like self-defense. No such basis is present here. As in Wooten,
appellant’s self-defense case in this case “boiled down to whether the jury would
accept that, when he shot [the complainant], he reasonably believed that deadly force
was immediately necessary to protect himself from [the complainant’s] use of deadly
force. Id. at 609. And, as in Wooten, the jury was specifically admonished “not to
consider whether the defendant failed to retreat.” Id. at 610. As in Wooten, the jury,
having already rejected appellant’s self-defense claim, was “exceedingly unlikely”
19 to have suffered “some harm” as a result of the denial of the “sudden passion” charge
at punishment.
Accordingly, we overrule issue four.
CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack Chief Justice
Panel consists of Chief Justice Radack and Justices Goodman and Countiss.
Do not publish. TEX. R. APP. P. 47.2(b).