                         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

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                        MEMORANDUM OPINION 1

                                     ----------

      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

      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. 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 Facts 3

         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.




         3
       The 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.


                                           2
      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


      4
        At 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.


                                          3
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.


                                       4
         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.”



         5
      On the day of the shooting, Wright told a police officer that appellant had
been preparing to fight Knighten.


                                         5
      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.




      6
       Thus, 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.


                                           6
             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




      7
       Appellant pled true to the repeat offender notice in his indictment.


                                          7
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. ref’d) (mem. op.); Sanders v. State, 422 S.W.3d 809, 812

(Tex. App.—Fort Worth 2014, pet. ref’d). 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, 422 S.W.3d at 812–13; see also Petriciolet v. State, 442

S.W.3d 643, 650 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (“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

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.




                                        9
      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 “attack[ing] 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.

ref’d) (holding that a defendant was not entitled to a self-defense instruction

      8
       After 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.
      9
       Appellant 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

issue. 10

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) [a]ppellant’s stipulation carried the same evidentiary value as the
       judgments of prior convictions; and (4) [a]ppellant’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

       10
         We 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.
      11
        Moreover, 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) (“[O]verruling
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.

             THE COURT: Sustained.

             ....

             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.

             THE COURT: Sustained.

      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 “[a]ngry” 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. ref’d)

(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. ref’d)

(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

issue. 12

       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. ref’d).

       12
        Although 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 --

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

            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.

            THE COURT: Overruled.

            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.

        Overruled.

      [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.

        [DEFENSE COUNSEL]: Objection; improper argument.

      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.[13] [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. ref’d) (mem. op.).         To be permissible, the

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

      13
        Appellant did not object to this final part of the State’s argument.
      14
        To 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


      15
       The 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

      16
         Even 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, 244 S.W.3d 490, 502 (Tex. App.—Texarkana 2007, pet. ref'd). 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


      17
       The 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. ref’d) (“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
