Polk, Artis Leon Jr.

• Court: Court of Appeals of Texas
• Decided: October 8, 2015
• Docket: PD-0854-15
• Status: Published

Opinion

S5Y-/5 "•v n i (NO. 02-13-00556-CR) GINAL IN THE TEXAS COURT OF CRIMINAL APPEALS,AUSTIN COURT OF CRIMINAL APPEALS

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 COURT OF CRIMINAL APPALS

OCT 08 2L.5

Abel Acosta, GierK

Artis leon Polk Jr. MCConnell Unit 3001 S. Emily Dr., Beeville,Tx. 78102 TABLE 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

k Index., 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) 8 Identity 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 a weapon, 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.' Just like 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 first r.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 admissable was 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 the defendant 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 would either 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 threat-

7. 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, disqualifies its 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'.Tamez v. 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 COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO.02-13-00556-CR

Artis Leon Polk Jr. § From the 432nd District Court

§ of Tarrant County (1305834D)

v. § April 23, 2015

§ Opinion by Chief Justice Livingston

The State of Texas § (nfp)

JUDGMENT

This court has considered the record on appeal in this case and holds that

there was no error in the trial court's judgments. It is ordered that the judgments

of the trial court are affirmed.

SECOND DISTRICT COURT OF APPEALS

By /s/ Terrie Livingston Chief Justice Terrie Livingston COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-13-00556-CR

ARTIS LEON POLK JR. APPELLANT

V.

THE STATE OF TEXAS 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 a firearm.2 In five issues, he argues that the trial court

abused its discretion by excluding and admitting evidence and by overruling his

objections to parts of the State's closing argument concerning his guilt and that

1SeeTex. R. App. P. 47.4. 2SeeTex. Penal Code Ann. §§ 19.02(b)(1)-(2), 46.04(a) (West 2011). the evidence is factually insufficient to support the jury's rejection of his claim that

he killed the victim under the influence of sudden passion. We affirm.

Background Facts3

Charles Knighten and Sharell Wright, who once dated but later separated,

shared custody of their children. Knighten and Wright agreed that Wright would

not bring other men around the children. Appellant was Wright's boyfriend, and

she brought him around the children.

On Thanksgiving Day in 2012, Knighten called Wright on the telephone.

Although Wright told appellant not to answer the 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 not to come. As they entered the apartment complex where

Wright's mother lived, appellant, who was standing outside, began taking off his

jewelry and shirt.and acting like he was preparing to fight. Knighten got out of his

car and walked toward appellant while apparently intending to fight, but Burrows

and Reed attempted to intervene.

3The facts in the first part of this section comprise the testimony of all 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." At some point, Knighten took a 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 it was a

BB gun. According to Wright's testimony, Knighten waved the gun at her and

appellant, and she feared for her life and believed that Knighten would shoot her.

As Reed and Burrows continued their attempts to keep Knighten away

from appellant, appellant and Wright retreated into the apartment and locked the

door. At that time, Knighten was on steps that led up to the apartment. He never

entered the apartment, but he knocked on the door and said that he just

"want[ed] to see his kids" for Thanksgiving. 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 officer testified that on the day of the shooting, Wright told her that she had seen the assault rifle before appellant opened the door, that she had begged appellant to not go back outside, and that appellant had "physically pushed her, unlocked the door[,] and then exited." The officer also testified that Wright said on the day of the 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 inside the 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 at that time, according to

multiple witnesses, and appellant's gun was powerful enough to raise Knighten

off the 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

gun from near Knighten's waist, stepped over him, and drove 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

apartment complex, and the police arrested him.

Wright testified that she did not see the rifle before 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 apartment and had locked the door. Knighten's autopsy revealed many entrance and exit gunshot wounds. Dr.

Nizam Peerwani determined that twelve 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 another that lacerated the heart, were nearly instantly

fatal.

A grand jury indicted appellant with murder and with unlawful possession

of a firearm. The indictment alleged that appellant had been previously convicted

of another felony. Appellant received appointed counsel, filed several pretrial

motions, and pled not guilty.

At trial, appellant testified that he had not known how to use Wright's

phone when Knighten had called her on the day of the shooting. He explained

that when he had answered the phone by pushing "the little phone thing,"

Knighten had said, "Put Sharell on the phone." Appellant also stated that he had

heard Knighten say "disrespectful" words to Wright. According to appellant,

Knighten began yelling, and Wright started 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 preparing to meet some of his family later that day.5 As Knighten walked toward appellant, Knighten said, "Man, y'all got me f—d up."

5On the day of the shooting, Wright told a police officer that appellant had been preparing to fight Knighten. According to appellant, Knighten had the BB gun in his hand when he first

arrived at the apartment complex and approached appellant. Appellant testified

that Knighten had cocked the gun, that Knighten had said that he would kill him,

that appellant had believed that Knighten was trying to kill him, and that appellant

had been scared. Appellant testified that as Knighten had pointed the gun at him

and Wright, Wright had cried and had appeared scared.

Appellant testified that after he had entered the apartment to get his rifle

and had come back outside, Knighten had stood "right there [and was] coming

towards the door." He said that Knighten had not ever stopped knocking and had

not walked away from the apartment's door; he explained that Knighten had

tussled with Wright over the door and that Knighten would have eventually forced

his way inside.6 Appellant testified that he had fired the rifle because he was

scared and believed that Knighten was "fixing to kill [him]." According to

appellant, just before he fired, Knighten said, "Bitch-ass ni—." He testified that if

he had not gotten the rifle, Knighten would have shot him and Wright, and they

would be dead. Appellant explained,

I was scared. I . . . shot him out of instinct. He . . . spooked me. He . . . was so close, and the gun was pointed in my face, and I just jumped back and fired.

6Thus, appellant testified that Wright had lied when she testified that the door was locked and the incident had concluded before appellant opened the door and went back outside. I kind of ducked like sideways from the door, and that's how I ended up like close to the wall right there, the back of the wall, and I fired.

... He got a gun in our face. And that was the last option. That was . . . totally the last option. I could have ran and got the rifle as soon as he got out the car. But I didn't.

Appellant described the shooting as occurring abruptly; he explained that he only

remembered "a couple of shots." He testified that after he had finished shooting

Knighten, he had retrieved Knighten's gun. He denied shooting Knighten after

Knighten was already on the ground.

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

events were "buddies" and had been communicating with each other.

After the parties completed their presentation of evidence and arguments

in the guilt-innocence phase of the trial, a jury convicted appellant of both counts.

The jury then heard evidence concerning appellant's punishment and assessed

ninety-nine years' confinement for murder and twenty years' confinement for

unlawful possession of a firearm.7 The jury did not find that appellant had acted with sudden passion when killing Knighten. The trial court sentenced appellant in

7Appellant pled true to the repeat offender notice in his indictment. accordance with the jury's verdicts and ordered the sentences to run

concurrently. Appellant brought this appeal.

Admission and Exclusion of Evidence

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 by the State. We review a trial court's admission or exclusion of evidence

for an abuse of discretion. Bosquez v. State, 446 S.W.3d 581, 585 (Tex. App.—

Fort Worth 2014, pet. refd) (mem. op.); Sanders v. State, 422 S.W.3d 809, 812

(Tex. App.—Fort Worth 2014, pet. refd). An abuse of discretion occurs when the

trial court's ruling is so clearly wrong as to lie outside the zone of reasonable

disagreement. Sanders, All S.W.3d at 812-13; see also Petriciolet v. State, 442

S.W.3d 643, 650 (Tex. App.—Houston [1st Dist.] 2014, pet. refd) ("We consider

the trial court's ruling in light of the evidence presented at the time of its ruling

.... We cannot conclude that a trial court abused its discretion merely because,

under the 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's judgment based on that ruling unless the record shows

that the appellant suffered harm. See Tex. R. App. P. 44.2(b) ("Any [non-

constitutional] 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 of evidence offered under the

8 rules of evidence generally constitutes non-constitutional error and is reviewed

under Rule 44.2(b).")

Knighten's violent history

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 of events and to show . . . Wright's state

of mind, [his] state of mind[,] and the reasonableness of his claim of

apprehension of danger."

During Reed's testimony, outside the presence of the jury, the trial court

held a hearing about whether Knighten's prior conviction for assault against

Wright was admissible. The State argued that evidence of the conviction was not

admissible because there was no showing that appellant was aware of it at 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 ruled that the evidence was not admissible.

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 "whether or not there was provocation" or self-

defense. The trial court ruled that appellant would not be allowed to reveal

Knighten's prior acts. The next day, appellant again contended that he should be allowed to

present evidence of Knighten's past violent acts. His counsel argued,

[Appellant] intends to put on theories of self-defense, defense of other, and ... a necessity instruction that we'll be seeking.

We are aware that the decedent, Charles Knighten, has a prior history of assault family violence on one of the witnesses in the case, particularly the girlfriend of [appellant].

We are also aware that there's been a previous history of assault family violence on his sister that many of the 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 of other's claim . . . .

[The evidence would show] my client's state of mind at the time of the shooting and also . . . develop that the decedent was actually the first aggressor....

And I think that it's important that the witnesses, if they have personal knowledge, that I be 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 what those 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

10 circumstances, 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 other incident was when [Knighten's]

life was [taken]." The trial court once again denied appellant's request to 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 by the testimony. It is not appropriate at this time

Finally, appellant also called Wright to testify outside the presence of the

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 her on ten to twenty prior occasions. She also stated that

on the day of the 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 of the murder, it was

admissible, but as it concerned events before that, it was not.

11 Appellant 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

trait of a victim may be admissible).

As the court of criminal 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 evidence of some act of aggression by the deceased which gives rise to a claim of self-defense on the part of the defendant. If offered to show the reasonableness of the defendant's claim of apprehension of danger, it must be shown that the acts of violence were known to the defendant at the time of the homicide; if offered to show that the deceased was in fact the aggressor, the witness must know, but the defendant need not have known of the violent acts at the time of the 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 of violence 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 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).

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 of an act of aggression by the deceased that tends to raise the issue of

self defense." (emphasis added)).

Under this authority, as judged by the state of the 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

show appellant's state of mind because at the time of the trial court's rulings, the

record did not contain any evidence indicating that appellant knew at the time of

the shooting of Knighten's propensity for violence. See Beecham, 580 S.W.2d at

590.

Second, we cannot hold that the evidence was admissible 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"

13 which could give rise to appellant's claim of self-defense. See Torres, 71 S.W.3d

at 762; Beecham, 580 S.W.2d at 590. At the time of the 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

outwardly aggressive at the moment of,the killing. See Torres, 71 S.W.3d at 762.

Instead, at the time of the trial court's last ruling on appellant's request to

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 in the apartment

five to fifteen minutes before leaving it and shooting Knighten. Another witness

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 door with 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,

she had not contradicted Reed's and Porter's testimony that at the moment of the

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 appellant offered

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 shot him.9

Thus, at the time of the trial court's rulings, the jury had not heard of any

"act of aggression by [Knighten] which [gave] rise to a claim of self-defense on

the part of [appellant]." Beecham, 580 S.W.2d at 590; see Torres, 71 S.W.3d at

762 (explaining that there must be "outward aggressive conduct of the deceased

at the time of the 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 of the 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

8After the trial court's last ruling on appellant's request to present evidence of Knighten's violence, during Wright's testimony in front of the jury, she testified 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.

9Appellant argues that he "testified that Knighten was right outside the door 'coming towards' him when he began shooting." But appellant testified after the rulings at issue, and he did not again ask to present testimony from other witnesses about Knighten's violence after his testimony.

15 when the victim had a baseball bat but was walking away from the defendant

when the defendant shot the victim).

For these 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's prior conviction

In his second issue, appellant argues that the trial court abused its

discretion by admitting records related to a prior felony conviction. He contends

that

(1) the name or nature of the prior offense raised the risk of a verdict tainted by improper considerations; (2) the purpose of the evidence was solely to prove the element of [the] prior conviction; (3) [appellant's stipulation carried the same evidentiary value as the judgments of prior convictions; and (4) [ajppellant's stipulation substantially lessened the likelihood that the jury would improperly focus on the previous conviction or his 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 her with whatever he can find, he hurts her in front of his family, the dude, Reed and his -- and his mother, and they - they tell her to stop making him mad, something like that.

. . . She scared to go to court. I don't know how serious they went, but I know she scared to call the police.

16 Code 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 that the records were hearsay, and he offered to stipulate to the fact that

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, in part, that appellant did not preserve error because his

complaints on appeal do not match his hearsay objection at trial. 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 if they 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. Reynolds v. State, 423 S.W.3d 377, 383 (Tex. Crim. App. 2014).

A complaint will not be preserved if the legal basis of the 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.—Fort Worth 2011, no pet.) ("An objection preserves only the

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 present further evidence of that conviction. Thus, we hold that appellant

has not preserved the complaints made within his second issue, and we overrule

the issue.11 See Tex. R. App. P. 33.1(a); Yazdchi, 428 S.W.3d at 844.

The State's hearsay objections to Wright's testimony

In his third issue, appellant contends that the trial court abused its

discretion by sustaining the State's hearsay objections to questions that he asked

Wright. During Wright's questioning by defense counsel, the following

exchanges occurred:

Q. And did [Knighten] threaten you?

[THE STATE]: Your Honor, at this point we're going to object. That calls for hearsay.

THE COURT: Sustained.

Q. . . . What did he yell at you on the phone?

[THE STATE]: Your Honor, 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 if the trial court had erred by admitting evidence of the 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 evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling.").

18 [DEFENSE COUNSEL]: Excited utterance.

THE COURT: Over - your objection is sustained. . . .

Q. And what was [Knighten] yelling?

[THE STATE]: Your Honor, we're going to object. That calls for hearsay.

Q. All right. Was Mr. Knighten saying anything that made you think that he was going to use that gun?

[THE STATE]: Your Honor, I'm going to object. That calls for hearsay.

Appellant argues that evidentiary rules did not require exclusion of Wright'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. See Tex. 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 it therefore 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 and Wright's mental states at the time of the shooting.

19 Under the standard of rule 44.2(b), a substantial right is affected when the

error had a substantial and injurious effect or influence in determining the jury'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 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); 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 of the 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

Mosley v. State, 983 S.W.2d 249, 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 similar evidence was admitted through the same witness and

two other witnesses later in the trial.").

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

20 apartment complex, she clearly communicated to the jury what her state of mind

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

talking on the phone, Knighten became "real upset" and "[ajngry" and was yelling

at her. She also testified that when Knighten arrived at the house, he was

"arguing, cussing, [and] jumping up and down." She explained that Knighten was

still yelling after she went inside the apartment and came back outside and that

at that 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 her and that she was scared.

Similarly, appellant testified that on the phone, Knighten had said

"disrespectful" words to Wright, while screaming and yelling, that caused her to

cry. He also explained that after Knighten had arrived at the apartment and had

pulled out his gun and again started screaming, Wright was crying. Repeatedly,

appellant testified that he had feared for his life because of Knighten's words and

actions.

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 because Wright and appellant produced

similar testimony that clearly communicated their states of mind 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 if other evidence of

21 substantially the 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's third issue.

The State's Closing Argument

In his fourth issue, appellant contends that the trial court abused its

discretion by overruling his objections to parts of the State's closing argument on

his guilt. We conclude that appellant forfeited most of the complaints in his fourth 12 issue.

Rule 33.1(a)'s preservation requirements apply to 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.—Fort Worth 2002, pet. refd).

12Although the State does not argue that appellant failed to preserve error concerning some of the complaints in this issue for the reasons we conclude that he did, we must raise preservation on our own motion. Gipson v. State, 383 S.W.3d 152, 159 (Tex. Crim. App. 2012).

22 Appellant's first complaint concerns the following exchange:

[THE STATE:] You take every word out of [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 number four was fatal, and it was in his back. How is that self- defense? Every time you pull a trigger, it has to be justified. Every single time this defendant pulled the trigger —

[DEFENSE COUNSEL]: Objection; misstatement of the law.

THE COURT: Overruled.

[THE STATE]: There is no right of continued 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. That shot by itself is fatal. [Emphasis added.]

Appellant's second complaint concerns this 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 deadly force against the Defendant. A BB gun is not -

THE COURT: Ladies and gentlemen, you have been given all the law that's contained in the 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 to cause - BB gun is not capable of causing - or in the manner of its use or intended use, is capable of causing death or serious bodily injury.

No time deadly force is actually being used against him. It's not capable of doing it, and y'all know that. [Emphasis added.]

23 Appellant's fourth complaint concerns the following part of the 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 tell everybody about this jury trial. And your relatives -

[DEFENSE COUNSEL]: Objection; improper argument.

It's a one-minute warning.

[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. The door was closed.

Then what happened? He comes out with an assault weapon 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 of those shots was fatal.

Well, what did you do? That's your question. So what are you going to do? [Emphasis added.]

With regard to each of these three parts of the 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 appellant forfeited his complaints

concerning these three parts of the State's closing argument. See Tex. R. App.

P. 33.1(a); Barnes, 70 S.W.3d at 307.

Appellant's third complaint relates to this part of the record:

24 [THE STATE:] And you know that by his testimony when he got up here and talked. Since he was 16 and a half years 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 12 years.

[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 in the Court's Charge.

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

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

THE COURT: No, you may not approach.

Ladies and gentlemen, you will follow the instructions as contained in the Court's Charge. Thank you very much.

[THE STATE]: I believe it's going to be on page 14. The Judge tells you you're allowed to consider all his convictions to judge his credibility. You saw what happened.

THE COURT: Ladies and gentlemen, please remember that 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 remember the Court's Charge. Overruled.

[THE STATE]: She can't change the facts. The Judge tells you to do it.

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}^ [Emphasis added.] To the extent that appellant complains on appeal about the State's

repeated argument that the jury was allowed to consider his prior convictions to

judge his credibility, we similarly conclude that appellant forfeited the complaint

by failing to object to each occasion (and particularly the last occasion) that the

State made that argument. See Tex. R. App. P. 33.1(a); Barnes, 70 S.W.3d at

307. But to the degree that appellant independently complains about the distinct

part of the argument that he had committed a new crime "every time 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")14 by his timely objection and the trial court's contemporaneous ruling.

See Tex. R. App. P. 33.1(a); Marchbanks, 341 S.W.3d at 565.

We review the trial court's ruling on an objection to the State's jury

argument for an abuse of discretion. See Whitney v. State, 396 S.W.3d 696, 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

13Appellant did not object to this final part of the State's argument. 14To the extent that appellant complains about this argument on appeal for reasons unrelated to his trial objection that the 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 appellant complains on appeal about other parts of the State's closing argument that he did not object to, we hold that he likewise forfeited those complaints.

26 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. 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 at 704.

Appellant was born in 1983. He stated that he had a drug possession

case when he was almost seventeen years old (therefore, in approximately 1999

or 2000), that he was tried as an adult, and that he was sent to state.jail for 180

days. According to appellant, from that time on, he continued to commit crimes;

he testified that he had a "bunch of felony convictions. Appellant testified that

after he "got old enough to go to jail," the State "kept putting [him] in there." The

trial court admitted a March 2004 judgment of conviction for burglary of a

habitation. The burglary judgment states that appellant committed the offense in

October 2001.

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

twenty-nine.15 Appellant was still twenty-nine years old when he killed Knighten, and he had been released from prison for "about seven months" at that time.

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. That judgment states that appellant committed aggravated robbery in May 2003. Appellant indicated that he was on bond for burglary when he committed aggravated robbery.

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

was continually committing crimes when not confined. Because the State's

argument was a summation of the evidence and a reasonable deduction from 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

inferences drawn are reasonable, fair, legitimate, and offered in good faith.").

For all of these reasons, we overrule appellant's fourth issue.

Sudden Passion

In his fifth issue, appellant argues that the jury's decision to not find that he

was under the influence of sudden passion when he killed Knighten was against

the great weight and preponderance of the evidence and was manifestly unjust.

Murder is typically a first-degree felony. Tex. Penal Code Ann. § 19.02(c). But at

the punishment phase of a trial, "the defendant may raise the issue as to whether

he caused the death under the immediate influence of sudden passion arising

from an adequate cause. If the defendant proves the issue in the affirmative by a

preponderance of the evidence, the offense is a felony of the second degree."16

16Even if the jury had found 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. See Tex. Penal Code Ann. § 12.42(b) (West Supp. 2014).

28 Id. § 19.02(d); see McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App.

2005). "Sudden passion," under the circumstances of this case, means passion

provoked by the decedent that "arises at the time of the 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, or terror in a person of ordinary temper, sufficient to render the

mind incapable of cool reflection." Id. § 19.02(a)(1).

The issue of sudden passion is akin to an affirmative defense because the

defendant has the burden of proof by a preponderance of the 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 the jury's adverse finding is so against the great

weight and preponderance of the evidence as to be manifestly unjust. Matlock,

392 S.W.3d at 671. We consider the evidence in a neutral light, but we may not

"usurp the function of the jury by substituting [our] judgment in place of the jury's

assessment of the weight and credibility of the witnesses' testimony." Id.

Appellant contends that the evidence shows that when he shot Knighten,

he was in a state of desperation and terror because he believed Knighten's gun

was real, he was attempting to defend himself, and Knighten was near him at the

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] or the trial on punishment

29 that contradicted . . . [his] testimony that he shot Knighten when he saw Knighten

right outside the apartment 'coming towards the door.'"

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" and that she would not have gone back out there. A police officer testified

that on the day of the shooting, Wright told her that she "begged [appellant] to

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

unlocked the door, and killed Knighten.17 From this testimony and the remaining evidence in the record, we

conclude that it was not manifestly unjust for the jury to determine that appellant

did not act with adequate cause when killing Knighten; it was rational for the jury

to determine that Wright's decision to not return outside was based on "cool

17The jury was free to reject appellant's contrary version of these events. See Trevino v. State, 157 S.W.3d 818, 822 (Tex. App.—Fort Worth 2005, no pet.).

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

See Tex. 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 testimony that appellant was "posturing himself as if he 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 that the passion, in part, 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

argument that he acted out of sudden passion arising from adequate cause.").

We hold that the jury's decision to not find that appellant caused

Knighten's death while under sudden passion and with adequate cause is not so

against the great weight and preponderance of the evidence as to be manifestly

unjust. See Matlock, 392 S.W.3d at 671. We overrule appellant's fifth issue.

31 Conclusion

Having overruled all of appellant's issues, we affirm the trial court's

judgments convicting him of murder and unlawful possession of a firearm.

/s/ Terrie Livingston

TERRIE LIVINGSTON CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.

DAUPHINOT, J., concurs without opinion.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: April 23, 2015

32 FILE COPY

B

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

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

ORDER

We have considered the "Motion For Reconsideration Of Court Of Appeal

Judgement" filed by appellant Artis Leon Polk, Jr., pro se.

It is the opinion of the court that the motion for rehearing 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

appellant and the attorneys of record. FILE COPY

SIGNED July 9, 2015.

PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ. COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

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

We have considered the "Motion For Extension Of Time Pursuant To Rule

49.8 and 10.5(B) of the Texas Rules of Appellate Procedure (T.R.A.P. 49.8) With

Leave of the Court" filed by appellant Artis Leon Polk Jr;, pro se.

The motion is GRANTED. Appellant's motion for rehearing is due

Monday, June 8, 2015.

The clerk of this court is directed to transmit a copy of the order to the

appellant and the attorneys of record.

DATED May 21, 2015.

PER CURIAM