Opinion issued May 16, 2017




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-15-00840-CR
                            ———————————
                      SOFIANE BENAFFANE, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 248th District Court
                            Harris County, Texas
                        Trial Court Case No. 1427857


                          MEMORANDUM OPINION

      A jury convicted Sofiane Benaffane of murder and sentenced him to 50 years’

confinement, rejecting his claim that he shot Dontrell Kelly in defense of himself or

his girlfriend, Amanda Morales. On appeal, Benaffane contends in eight issues that

(1) insufficient evidence supports his conviction, (2) the trial court erroneously
instructed the jury on provocation and the discussion-of-differences qualification on

self-defense, (3) the trial court erred by failing to grant a mistrial after the prosecutor

mentioned that Morales had been indicted for murder, and (4) the trial court abused

its discretion in admitting and excluding evidence. We affirm.

                                      Background

       Benaffane testified at trial. He contended that he shot Kelly in self-defense

and in defense of Morales. In February 2014, Benaffane met Morales, who was

working as a stripper. They started dating and shortly thereafter, Benaffane learned

that Morales had previously worked as a prostitute when he encountered her ex-pimp

while picking her up from work. The pimp blocked Benaffane’s car with his own,

stuck a gun in his waistband, and approached Benaffane’s car, causing Morales to

flee from the car back into the club. Benaffane testified that after this incident, he

purchased two guns, an AK-47 and a handgun, because he was concerned for his

and Morales’s safety.

       According to Benaffane, on April 24, 2014, Morales called him in a panic.

She told him that a pimp, Dontrell Kelly, had her and had taken her car keys.

Morales asked Benaffane to come get her, though she did not know where she was.

Intending to go look for Morales, Benaffane grabbed his AK-47 and the handgun,

and called a friend, Hassan Worthy, to ask him to “back [him] up.”




                                            2
      While he was driving to pick up Worthy, Morales texted Benaffane that Kelly

was taking her to Vibe Lounge. Benaffane picked up Worthy and drove to Vibe, but

Morales was not there yet. Benaffane explained to the owner of Vibe, his friend

Carlos Barrios, that Morales was being held against her will by Kelly, and asked

Barrios to let him know when Morales and Kelly arrived. Shortly thereafter, Barrios

texted Benaffane that Morales and Kelly had arrived and told Benaffane that he

would let him and Worthy into Vibe through the back door.

      Several videos recorded in and around Vibe that night were admitted and

played for the jury. One video showed Morales and Kelly walking into Vibe. After

they entered, Barrios pulled Morales aside and spoke to her. After Barrios talked to

Morales, she walked over to Kelly, who had walked to a seat while the other two

talked. Barrios then let Benaffane and Worthy into the club and told them where

Kelly was sitting. Benaffane denied that Barrios signaled to him to approach Kelly,

but the video showed Barrios make a hand motion and then both Barrios and the

bartender walked away from Kelly to head towards the front of the club. The video

showed Benaffane, with the AK-47, and Worthy, with the handgun, approach Kelly.

      Benaffane testified that approximately 20 seconds elapsed between the time

he entered the club and the time he confronted Kelly, but the video shows that

Benaffane waited inside near the back door for approximately nine minutes before

approaching Kelly. According to Benaffane, he did not immediately shoot Kelly


                                         3
when he approached him because his intent was only to scare Kelly into letting

Morales go. Benaffane admitted that the video never shows Kelly grab or restrain

Morales, and that Barrios was able to pull her aside without Kelly showing any

concern. But Benaffane testified that he thought it was necessary to use the threat

of force because of his knowledge of the world of prostitution and his belief that he

would never see Morales again if he did not intervene.

      The video showed Kelly began to struggle with Worthy when Benaffane and

Worthy approached with guns pointed at Kelly. Kelly wrestled away Worthy’s gun

and shot Benaffane five times. Benaffane returned fire and testified that he shot

Kelly because he “wanted to stop the shooting.” In the melee, another club-goer was

shot, but not killed. After shooting Kelly, Benaffane began punching him “to make

sure he doesn’t shoot anymore.” Benaffane then grabbed the two guns and crawled

out the back of the club. Video shows Worthy retrieving the guns and giving them

to Morales, who put them in the trunk of Benaffane’s car.

      On cross-examination, Benaffane conceded that he and Worthy were wearing

gloves, that he did not call police after receiving Morales’s phone call, and that Kelly

did not have a weapon. Benaffane testified that he never intended to kill Kelly.

      The jury found Benaffane guilty of murder, implicitly rejecting his claims of

self-defense and defense of Morales. After the punishment phase, the jury sentenced

Benaffane to 50 years in prison. Benaffane appealed.


                                           4
                            Sufficiency of the Evidence

      In his third issue, Benaffane challenges the sufficiency of the evidence to

support his conviction and the jury’s implicit rejection of his claim of self-defense

and defense of Morales.

A.    Standard of Review and Applicable Law

      When evaluating the legal sufficiency of the evidence, we view the evidence

in the light most favorable to the verdict and determine whether any rational trier of

fact could have found the essential elements of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Brooks

v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010). We defer to the

responsibility of the factfinder to fairly resolve conflicts in the testimony, to weigh

evidence, and to draw reasonable inferences from the facts. See Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Brooks, 323 S.W.3d at 898–99. In so doing, we may not

reevaluate the weight and credibility of the record evidence and thereby substitute

our own judgment for that of the factfinder. Brooks, 323 S.W.3d at 898–99. This

standard applies equally to circumstantial and direct evidence. Laster v. State, 275

S.W.3d 512, 517–18 (Tex. Crim. App. 2009).

      A person commits the offense of murder if he intentionally or knowingly

causes the death of an individual, or intends to cause serious bodily injury and

commits an act clearly dangerous to human life that causes the death of an individual.


                                          5
TEX. PENAL CODE § 19.02. A “person is justified in using force against another when

and to the degree the actor reasonably believes the force is immediately necessary

to protect the actor against the other’s use or attempted use of unlawful force.” Id.

§ 9.31(a). Deadly force is justified “to protect the actor against” another’s “use or

attempted use of unlawful deadly force” and to prevent another’s “imminent

commission” of murder, kidnapping, sexual assault, or robbery. Id. § 9.32(a). A

person is justified in using deadly force against another to protect a third person if,

“under the circumstances the actor reasonably believes them to be, the actor would

be justified” in using force against the other under section 9.31 or 9.32 “to protect

himself against the unlawful force or unlawful deadly force he reasonably believes

to be threatening the third person he seeks to protect” and “the actor reasonably

believes that his intervention is immediately necessary to protect the third person.”

Id. § 9.33.

      The defendant bears the initial burden to produce evidence supporting a

justification defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003).

Once the defendant produces some evidence, the State then bears the burden of

persuasion to disprove the raised defense. Id. The burden of persuasion does not

require the State to produce evidence; it requires only that it prove its case beyond a

reasonable doubt. Id.; Hernandez v. State, 309 S.W.3d 661, 665 (Tex. App.—

Houston [14th Dist.] 2010, pet. ref’d). Thus, to convict a defendant of murder after


                                          6
he has raised the issue of self-defense, the State is required to prove the elements of

the offense beyond a reasonable doubt and to persuade the jury beyond a reasonable

doubt that the defendant did not kill in self-defense. Zuliani, 97 S.W.3d at 594;

McClesky v. State, 224 S.W.3d 405, 409 (Tex. App.—Houston [1st Dist.] 2006, pet.

ref’d).

B.        Analysis

          Benaffane admitted killing Kelly by shooting him. Benaffane argues that

insufficient evidence supports the jury’s conclusion that he had the requisite intent

to murder because his only intent when he confronted Kelly was to scare him and

have him release Morales. But “[w]hen a deadly weapon is fired at close range, and

death results, the law presumes an intent to kill.” Sholars v. State, 312 S.W.3d 694,

703 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (citing Childs v. State, 21

S.W.3d 631, 635 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d); see also Jones

v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996) (jury may infer intent to kill

from use of deadly weapon unless it would not be reasonable to infer that death or

serious bodily injury could result from the use of weapon).

          Benaffane also argues that the evidence was insufficient to support the jury’s

implicit rejection that he was acting in self-defense or defense of Morales.

Benaffane argues that the evidence shows that he went to Vibe armed because he

was fearful for his and Morales’s safety, that he did not immediately shoot Kelly,


                                             7
and that he only fired shots after first being shot. While this evidence supports

Benaffane’s self-defense and defense-of-a-third person claims, the jury was not

required to believe his explanation about his motivation and reasoning for

confronting Kelly. Among other things, for a self-defense and defense-of-a-third

person justification defense to apply, the actor must “reasonably believe” that the

use of force is “immediately necessary.” TEX. PENAL CODE §§ 9.31(a), 9.33. The

evidence showed that Benaffane did not call police after learning about Morales’s

predicament, and the video showed him waiting in the rear of the club nearly nine

minutes before confronting Kelly—two pieces of evidence that would permit a

rational jury to conclude that Benaffane did not have a reasonable belief that the use

of deadly force was immediately necessary.

      Likewise, the fact that Benaffane shot his gun only after Kelly shot him does

not preclude a rational jury from concluding beyond a reasonable doubt that

Benaffane did not act in self-defense or in defense of a third person. The video

shows, and Benaffane acknowledged, that he and Worthy cornered Kelly, who was

unarmed, with guns drawn. The video shows that Kelly shot at Benaffane only after

wrestling the handgun away from Worthy, as Benaffane approached him with an

AK-47.

      In short, the jury’s decision to accept or reject Benaffane’s justification

defenses hinged largely on its assessment of his credibility, and there was


                                          8
considerable evidence that the jury could credit that undermined Benaffane’s

testimony. Based upon the evidence, we hold that a rational jury could have

reasonably rejected Benaffane’s justification defenses and concluded beyond a

reasonable doubt that he committed murder. See Zuliani, 97 S.W.3d at 594.

      We overrule Benaffane’s third issue.

                                    Jury Charge

      In his first and second issues, Benaffane contends that the trial court erred by

instructing the jury on (1) provocation and (2) the discussion-of-differences

qualification on self-defense. The State contends that both instructions were proper,

but even if not, neither harmed Benaffane.

A.    Standard of Review

      In analyzing a jury-charge issue, our first duty is to decide if error exists. See

Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh’g);

Tottenham v. State, 285 S.W.3d 19, 30 (Tex. App.—Houston [1st Dist.] 2009, pet.

ref’d). Only if we find error do we then consider whether an objection to the charge

was made and analyze for harm. Tottenham, 285 S.W.3d at 30; see also Warner v.

State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008) (“The failure to preserve jury-

charge error is not a bar to appellate review, but rather it establishes the degree of

harm necessary for reversal.”).




                                           9
      “The degree of harm necessary for reversal depends upon whether the error

was preserved.” Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). Error

properly preserved by a timely objection to the charge will require reversal “as long

as the error is not harmless.” Almanza, 686 S.W.2d at 171. The Court of Criminal

Appeals has interpreted this to mean that any harm, regardless of degree, is sufficient

to require reversal. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986).

However, when the charging error is not preserved “and the accused must claim that

the error was ‘fundamental,’ he will obtain a reversal only if the error is so egregious

and created such harm that he ‘has not had a fair and impartial trial’—in short

‘egregious harm.’” Almanza, 686 S.W.2d at 171; see Nava v. State, 415 S.W.3d

289, 298 (Tex. Crim. App. 2013) (egregious harm “is a difficult standard to meet

and requires a showing that the defendants were deprived of a fair and impartial

trial”). Fundamental errors that result in egregious harm are those which affect “the

very basis of the case,” deprive the defendant of a “valuable right,” or “vitally affect

his defensive theory.” Almanza, 686 S.W.2d at 172 (citations and quotations

omitted).

      When considering whether a defendant suffered harm, the reviewing court

must consider: (1) the entire jury charge; (2) the state of the evidence, including the

contested issues and weight of probative evidence; (3) the argument of counsel; and

(4) any other relevant information revealed by the record of the trial as a whole. Id.


                                          10
at 171. The reviewing court must conduct this examination of the record to

“illuminate the actual, not just theoretical, harm to the accused.” Id. at 174; see

Nava, 415 S.W.3d at 298 (record must disclose “actual rather than theoretical

harm”).

B.    Provocation

      In his first issue, Benaffane contends that the trial court erred by instructing

the jury on provocation.

      1.     Applicable Law

      The use of force against another is not justified if the actor provoked the

other’s use or attempted use of deadly force. See TEX. PENAL CODE §§ 9.31(b)(4),

9.32(a)(1). “[A] charge on provocation is required when there is sufficient evidence

(1) that the defendant did some act or used some words that provoked the attack on

him, (2) that such act or words were reasonably calculated to provoke the attack, and

(3) that the act was done or the words were used for the purpose and with the intent

that the defendant would have a pretext for inflicting harm upon the other.” Elizondo

v. State, 487 S.W.3d 185, 197 (Tex. Crim. App. 2016) (quoting Smith v. State, 965

S.W.2d 509, 513 (Tex. Crim. App. 1998)).

      In deciding whether to give the instruction, the trial court must “decide

whether evidence has been presented that could support a jury’s finding on all three

elements of provocation beyond a reasonable doubt.” Id. “Even though a person


                                         11
does an act, even a wrongful act, which does indeed provoke an attack by another,

if he had no intent that the act would have such an effect as part of a larger plan of

doing the victim harm, he does not lose his right of self-defense.” Id. at 200 (quoting

Smith, 965 S.W.2d at 518). “[A] finding of insufficient evidence to support a jury’s

finding of intent occurs only in a few ‘exceptional and extraordinary situations’” and

is a “rarity.” Id. at 202; Smith, 965 S.W.2d at 518–19. In reviewing the trial court’s

decision to include a provocation instruction, the appellate court views “the evidence

in the light most favorable to giving the instruction,” resolving conflicts in the

evidence and drawing reasonable inferences in favor of the instruction. Smith, 965

S.W.2d at 514.

      2.     Analysis

      Benaffane concedes that there was sufficient evidence to support a jury

finding on the first two elements of provocation. However, he argues that the trial

court erred in submitting the provocation instruction because there was insufficient

evidence to support a jury finding on the third element that he provoked Kelly with

the intent that he would have a pretext for harming him. In particular, he points out

that the evidence shows that he only shot Kelly after being shot several times, and

that he only took guns to the confrontation because he knew that Kelly was a pimp

and might become violent if Benaffane tried to rescue Morales. The State argues

that a rational factfinder could conclude based on all of the evidence surrounding the


                                          12
confrontation that Benaffane provoked Kelly with the intent to harm him, and the

jury was not required to accept Benaffane’s self-serving testimony regarding his

intent in confronting Kelly.

      The cases in which Texas courts have concluded that a provocation instruction

was improper because there was insufficient evidence to support a finding on the

third element of provocation are a “rarity.” See Smith, 965 S.W.2d at 518–19.

Generally, they involve parties who were strangers or circumstances in which it is

inconceivable that the defendant orchestrated events to have a pretext to harm the

complainant. See id. For example, in Elizondo, Elizondo, his wife, and brother

became involved in an altercation with a nightclub’s owner, the owner’s son, and

some security personnel. 487 S.W.3d at 188. Elizondo ran to his truck and was

chased by three of the men. Id. Elizondo retrieved his gun and engaged in a struggle

beside the truck. Id. The nightclub owner approached Elizondo and pointed a gun

at him, and Elizondo shot the nightclub owner. Id. The Court of Criminal Appeals

held that there was insufficient evidence to support a finding on the third element of

provocation because Elizondo did not know or seek out the nightclub owner and

there was no evidence that he ran to his truck to goad the nightclub owner into

following and attacking him. Id. at 203. Accordingly, the Court of Criminal Appeals

concluded that a jury instruction on provocation was improper. Id. at 204.




                                         13
      Other cases in which insufficient evidence supported the third element of

provocation are similar. In Bennett v. State, 726 S.W.2d 32 (Tex. Crim. App. 1986),

the defendant was accosting his daughter’s boyfriend, and a passerby came to the

boyfriend’s aid and was killed by the defendant. Id. at 34. A provocation instruction

was not warranted in that case because “[i]t is inconceivable that the defendant

orchestrated this set of events as a ploy to kill a man he did not even know.” Smith,

965 S.W.2d at 518. Likewise, in Wampler v. State, 234 S.W.2d 1009 (Tex. Crim.

App. 1950), the complainant was a business owner at his place of business late at

night, heard someone at the back door, and shot at him. Id. at 1009. The man at the

back door, a night watchman in the area, returned fire and killed the complainant.

Id. Under these facts, no provocation instruction was warranted. Id. at 1010. In

another case, Varnell v. State, 9 S.W. 65 (Tex. Crim. App. 1888), the complainant

attacked the defendant when he discovered the defendant having sex with the

complainant’s minor daughter, and the defendant killed the complainant in the

ensuing altercation. 9 S.W. at 66. The Court of Criminal Appeals observed that a

provocation instruction was unwarranted because “it is impossible to fathom, under

the facts as stated in the case, that the defendant arranged this set of events to bring

on such an attack.” Smith, 965 S.W.2d at 519.

      We conclude that this is not one of the “exceptional and extraordinary”

situations in which it is “inconceivable” that Benaffane provoked Kelly with the


                                          14
intent of harming him. See Elizondo, 487 S.W.3d at 202; Smith; 965 S.W.2d at 518.

Unlike in Elizondo, this is not a case where Benaffane “did not know [or] seek out”

Kelly. Elizondo, 487 S.W.3d at 203. To the contrary, Benaffane admitted that he

knew of and specifically sought out Kelly in order to confront him with deadly force.

See id. Benaffane testified that he knew Kelly to be a dangerous person—so

dangerous that Benaffane brought two guns and a second person as “back up” to the

confrontation. A rational jury could infer from this evidence that Benaffane was

aware that Kelly would react in a way that would require him to use the weapon he

brought to the confrontation. See, e.g., Harrod v. State, 203 S.W.3d 622, 629 (Tex.

App.—Dallas 2006, no pet.) (jury could reasonably infer that appellant intended to

harm complainant by goading with confrontation based on evidence that appellant

knew complainant might react violently to confrontation); Kelley v. State, 968

S.W.2d 395, 401 (Tex. App.—Tyler 1998, no pet.) (evidence that appellant, while

brandishing gun, confronted complainant about complainant’s mistreatment of

mother, supported rational inference by jury of third element of provocation). While

there was evidence that would have permitted a rational jury to conclude that

Benaffane did not provoke Kelly with the intent to harm him—for example, his

stated reason for confronting Kelly and the fact that he did not immediately shoot

Kelly and shot only after being shot himself—this was conflicting evidence that the

jury was entitled to weigh along with all of the other evidence in considering


                                         15
Benaffane’s intent in provoking the confrontation. Accordingly, we hold that the

trial court did not err by instructing the jury on provocation. See Elizondo, 487

S.W.3d at 202; Harrod, 203 S.W.3d at 629; Kelley, 968 S.W.2d at 401.

      We overrule Benaffane’s first issue.

C.    Discussion-of-Differences Qualification

      In his second issue, Benaffane contends that the trial court erred by instructing

the jury on the discussion-of-differences qualification on self-defense and defense-

of-a-third person.

      1.     Applicable Law

      Penal Code Section 9.31(b)(5)(A) qualifies a defendant’s claim of self-

defense and defense-of-a-third person. It states that the use of force against another

is not justified “if the actor sought an explanation from or discussion with the other

person concerning the actor’s differences with the other person while the actor was

carrying a weapon in violation of Section 46.02.” TEX. PENAL CODE § 9.31(b)(5)(A).

A person violates section 46.02 of the Penal Code if he intentionally, knowingly, or

recklessly carries on or about his person a handgun, illegal knife, or club if the person

is not (1) on the person’s own premises or premises under the person’s control; or

(2) inside of or directly en route to a motor vehicle or watercraft that is owned by

the person or under the person’s control. See TEX. PENAL CODE § 46.02(a).




                                           16
      2.       Analysis

               a. Is there error in the charge?

      The guilt-innocence charge was 20 pages long. The first four pages set forth

the abstract law of murder and also charged the jury in the alternative with the lesser-

included offense of manslaughter. The next four pages set forth the abstract law on

self-defense and defense-of-a-third person and applied this law to the case. Next

came three pages of instructions regarding two qualifications on self-defense:

provocation and discussion-of-differences. The balance of the charge contained

definitions pertaining to self-defense and defense-of-a-third person, general

instructions, and an extraneous offense instruction.

      The discussion-of-differences qualification appeared on page 11 of the

charge, after a two-page instruction on provocation. It said:

      You are further instructed as part of the law of this case, and as a
      qualification of the law on self-defense, that the use of force against
      another is not justified:

           (1) in response to verbal provocation alone;
           (2) if the defendant consented to the exact force used or attempted
               by the other; or
           (3) if the defendant sought an explanation from or discussion with
               the other person concerning the defendant’s differences with the
               other person while the defendant was carrying a weapon in
               violation of the law.

             Our law provides that a person commits an offense if he
      intentionally, knowingly, or recklessly carries on or about his person a
      handgun, and he is not on his own premises or premises under his
                                          17
      control, or inside of or directly en route to a motor vehicle that is owned
      by the person or under his control.

             “Handgun” means any firearm that is designed, made, or adapted
      to be fired with one hand.

      Benaffane contends that the trial court improperly submitted this instruction

because he was carrying an AK-47, which is not a handgun. The State contends

that the instruction was proper because Benaffane did handle a handgun in violation

of section 46.02—not on his own premises or inside or directly on route to a vehicle

owned by him—when he handed a handgun to Worthy before they entered the club.

      It is undisputed that Benaffane did not have a handgun when he approached

Kelly, or at any point during their confrontation.1 Accordingly, he did not seek an

explanation from or discussion with Kelly concerning their differences “while . . .

carrying” a handgun. See TEX. PENAL CODE § 9.31(b)(5)(A). We hold that the trial

court erred in submitting the discussion-of-differences qualification instruction to

the jury.

             b. Did Benaffane preserve error?

      Having found error in the charge, we next consider preservation. Tottenham,

285 S.W.3d at 30. Error preservation “is not an inflexible concept.” Thomas v.

State, 408 S.W.3d 877, 884 (Tex. Crim. App. 2013). “[A]ll a party has to do to avoid

the forfeiture of a complaint on appeal is to let the trial judge know what he wants,


1
      Benaffane was not charged under the law of parties.
                                          18
why he thinks himself entitled to it, and to do so clearly enough for the judge to

understand him at a time when the trial court is in a proper position to do something

about it.” Id. (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App.

1992)).

      The State argues that Benaffane’s appellate argument that there is no evidence

that he unlawfully carried a handgun while confronting Kelly does not comport with

Benaffane’s objection to the instruction in the trial court and therefore he has not

preserved error. The record reflects that Benaffane lodged the following objections

to the discussion-of-differences instruction:

      The limiting instruction regarding seeking an explanation while
      unlawful [sic] carrying a weapon, the defense objects to that charge. I
      don’t believe there’s evidence in the record of unlawful carry at all in
      terms of evidence before this jury. But on top of that, there certainly is
      not evidence of the defendant seeking an explanation. All the evidence
      was that he went and arrived, not seeking explanation, but with the
      intent to threaten deadly force to rescue Amanda Morales. There was
      no evidence of him seeking an explanation; therefore, the instruction
      should not be included.

(Emphasis added.) Thus, Benaffane argued that the instruction should not be

submitted to the jury at all because there was no evidence that he unlawfully carried

a handgun while confronting Kelly. The record thus reflects that Benaffane’s

objection was two-fold—one, that there was no seeking of an explanation (an

argument Benaffane does not raise on appeal), and two, that there was no evidence

Benaffane carried a handgun as contemplated by the instruction (the argument that


                                          19
Benaffane raises on appeal). The State understood and responded to this latter

argument:

      To the unlawful carrying grounds, I think there was evidence from
      testimony yesterday from the defendant that he entered the club—or he
      exited the vehicle, removed a handgun, and while not directly en route
      to his vehicle or premises controlled by him, he then removed the Glock
      .40 caliber handgun, gave it to Hasson Worthy and then entered the
      club.

We therefore conclude that Benaffane’s objection was sufficient to preserve the error

he complains of on appeal. See Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim.

App. 2012) (noting that issue preserved without having been explicitly stated if

“there have been statements or actions on the record that clearly indicate what the

judge and opposing counsel understood the argument to be”); Lankston, 827 S.W.2d

at 909 (in issue-preservation context, there are “no technical considerations or form

of words to be used”); see also State v. Rosseau, 396 S.W.3d 550, 555 (Tex. Crim.

App. 2013) (although defendant’s challenge “could have been more clearly

presented,” “magic language” was not required).

             c. Was the error harmless?

      Because Benaffane preserved his complaint, we must reverse unless the error

is harmless. See Almanza, 686 S.W.2d at 171; see also Arline, 721 S.W.2d at 351

(any harm, regardless of degree, is sufficient to require reversal). To gauge harm,

we review (1) the entire jury charge; (2) the state of the evidence, including the

contested issues and weight of probative evidence; (3) the argument of counsel; and

                                         20
(4) any other relevant information revealed by the record of the trial as a whole. See

Almanza, 686 S.W.2d at 171.

                                 The entire charge

      Benaffane argues that the discussion-of-differences instruction was harmful

because it instructed the jury that it could not find that he acted in self-defense

because he was carrying a handgun. But that is a mischaracterization of the

instruction. The jury was instructed that it could not find that Benaffane acted in

self-defense if the jury found that he was carrying a handgun—defined as “any

firearm that is designed, made, or adapted to be fired with one hand”—while he

“sought an explanation from or discussion with” Kelly.            Thus, contrary to

Benaffane’s argument, the discussion-of-differences instruction did not compel the

jury to find against Benaffane. We assume that the jury followed the instructions

in the charge absent evidence to the contrary. See Miles v. State, 204 S.W.3d 822,

827–28 (Tex. Crim. App. 2006). We note also that the discussion-of-differences

instruction came after a two-page instruction regarding provocation. Thus, the jury

would reach provocation before it considered the discussion-of-differences

instruction.

                                    The evidence

      Given the evidence, including Benaffane’s concession that he sought Kelly

out, with Worthy as his back-up, and the video of Benaffane and Worthy


                                          21
confronting an unarmed Kelly with raised guns, it is unlikely that the jury would

have concluded that Benaffane did not provoke the difficulty. And the jury would

only consider provocation if it first concluded that Benaffane’s confrontation of

Kelly with a weapon was reasonable and immediately necessary. The State adduced

strong evidence that Benaffane’s confrontation of Kelly was not reasonable or

immediately necessary: evidence of the plan to confront Kelly with guns drawn,

that Benaffane and Worthy spent nearly 10 minutes lying in wait in the club, that

Kelly did not appear to be harming or threatening harm to Morales, and that

Benaffane had plenty of time to call police but never did. And the evidence

supporting Benaffane’s claim that deadly force was reasonable and immediately

necessary depended largely upon the jury finding Benaffane to be credible and

agreeing with his assessment that Kelly, though sitting in a club, unarmed and not

appearing to harm Morales, was threatening imminent unlawful force against

Morales or was imminently going to kidnap, rob, or sexually assault her. In short,

given the state of the evidence, it is highly likely that the jury would have rejected

Benaffane’s justification theories without reaching provocation or the discussion-

of-differences issues.

                                Counsel’s argument

      In closing argument, the State told the jury that there were five bases upon

which it could find Benaffane guilty of murder. The first three were reasons to


                                          22
reject Benaffane’s self-defense and defense-of-a-third-person theories: the evidence

showed that (1) Benaffane’s use of force was not proportional to Kelly’s, (2) was

not reasonable, and (3) was not immediately necessary. The fourth basis was the

discussion-of-differences qualification, which the State erroneously argued applied

because Benaffane gave the handgun to Worthy as they prepared to confront Kelly.

Finally, the State addressed the provocation qualification, which it described as the

“biggest slam-dunk.” The State told the jury that provocation was the easiest and

best path to conviction because the evidence clearly established that Benaffane

provoked the controversy in order to harm Kelly.

      Defense counsel’s argument focused on the State’s arguments regarding

provocation and whether Benaffane’s actions were reasonable and immediately

necessary.   Counsel also argued correctly that the discussion-of-differences

qualification did not apply because Benaffane was not carrying a handgun while he

confronted Kelly. Defense counsel further argued that the qualification did not

apply because Benaffane “wasn’t there to discuss anything . . . [or] to seek an

explanation,” but instead, “[h]e was there to threaten the use of deadly force right

from the outset to prevent what he perceived to be his girlfriend being taken over

by a pimp, kidnapped to be sexually assaulted, sexually abused.”            Counsel

emphasized repeatedly that Benaffane threatened deadly force in order to protect

Morales.


                                         23
      Having reviewed the entire record in light of the Almanza factors, we

conclude that the trial court’s inclusion of the discussion-of-differences instruction

in the jury charge was harmless. See 686 S.W.2d at 174 (court must examine record

to “illuminate the actual, not just theoretical, harm to the accused”); Nava, 415

S.W.3d at 298 (record must disclose “actual rather than theoretical harm” to warrant

reversal based upon charge error). The focus of the evidence and argument was on

justification—whether Benaffane’s use of deadly force was reasonable and

immediately necessary. The evidence weighed strongly in the State’s favor. The

next most central issue raised by the evidence and argument was whether Benaffane

provoked the difficulty. The discussion-of-differences issue was a distant third in

terms of importance and centrality and, although the trial court erred in giving the

charge, Benaffane’s counsel ameliorated the error by correctly telling the jury in

closing that the facts did not support the application of the discussion-of-differences

qualification. Accordingly, we conclude that there is no actual likelihood that the

inclusion of the discussion-of-differences qualification harmed Benaffane. See

Almanza, 686 S.W.2d at 171, 174.

      We overrule Benaffane’s second issue.




                                          24
                                Motion for Mistrial

      In his fourth issue, Benaffane argues that the trial court erred by denying his

motion for mistrial after the prosecutor asked Benaffane whether he was aware that

Morales had been indicted for murder.

A.    Standard of Review and Applicable Law

      A mistrial is an appropriate remedy in “extreme circumstances” for a narrow

class of highly prejudicial and incurable errors. Ocon v. State, 284 S.W.3d 880, 884

(Tex. Crim. App. 2009) (quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim.

App. 2004)). A mistrial halts trial proceedings when error is so prejudicial that

expenditure of further time and expense would be wasteful and futile. Id. (citing

Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). Whether an error

requires a mistrial must be determined by the particular facts of the case. Id. (citing

Ladd, 3 S.W.3d at 567).

      A trial court’s denial of a mistrial is reviewed for an abuse of discretion. Id.

An appellate court views the evidence in the light most favorable to the trial court’s

ruling, considering only those arguments before the court at the time of the ruling.

Id. (citing Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004)). The ruling

must be upheld if it was within the zone of reasonable disagreement. Id.

      Because it is an extreme remedy, a mistrial should be granted “only when

residual prejudice remains” after less drastic alternatives are explored. Id. at 884–


                                          25
85 (quoting Barnett v. State, 161 S.W.3d 128, 134 (Tex. Crim. App. 2005)).

Though requesting lesser remedies is not a prerequisite to a motion for mistrial,

when the movant does not first request a lesser remedy, we will not reverse the

court’s judgment if the problem could have been cured by the less drastic

alternative. Id. at 885 (citing Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App.

2004)). The asking of an improper question will seldom call for a mistrial because,

in most cases, any harm can be cured by an instruction to disregard and we presume

that the jury followed the trial court’s instruction in the absence of evidence to the

contrary. See Ladd, 3 S.W.3d at 567; Burke v. State, 371 S.W.3d 252, 259 (Tex.

App.—Houston [1st Dist.] 2011, pet. dism’d).

B.    Analysis

      Benaffane contends that the trial court erred in denying a mistrial after the

prosecutor asked Benaffane if he was aware that Morales had been indicted for

murder during the following colloquy:

      Prosecutor: Now what was [Morales’s] involvement in this shooting?
      Just telling you where he was?
      Benaffane: Just telling me where they were going.

      Prosecutor: And you’ve seen the video. You also know that she hides
      or puts the guns in your trunk, correct?
      Benaffane: Correct.

      Prosecutor You know, the weapons used to kill Dontrell Kelly were put
      in your trunk?


                                          26
Benaffane: Correct.

Prosecutor: And are you saying she had no involvement in this shooting
at all?

Benaffane: No, she had nothing to do with it.

Prosecutor: Would it surprise you to know she’s been indicted for
murder as well?

Defense counsel: Your Honor, I'm going to object to relevance, 403.
The Court: Sustained.

Prosecutor: May we approach?
The Court: Yes.

(At the Bench, on the record.)
Prosecutor: If she’s being painted as an innocent third party in this case
that had nothing to do with the shooting, she’s been indicted, she’s been
charged with murder. I think it’s relevant. I don’t think that the jury
should be left with a misimpression that she’s completely innocent in
this.
The Court: What’s your response?

Defense counsel: Under defensive theory of defense of a third party,
you can look at things from the perspective of the accused. It’s how he
perceived her in terms of what she’s going through as to what’s
relevant. The fact the State chose to indict her, I don’t think is relevant.

The Court: I agree. The objection’s sustained.
Defense counsel: I ask you to instruct the jury to disregard, but I don't
think that will be enough so I move for a mistrial.

(Conclusion at the Bench.)
The Court: The jury will disregard the last statement.
Defense counsel: Motion’s overruled?


                                    27
      The Court: The motion’s overruled. Denied.

      The evidence before the jury showed that Morales helped to remove the guns

from the scene, showing that she had some involvement in the incident, at least in

its aftermath. The trial court instructed the jury to disregard the question regarding

her indictment.    Similar comments have been held curable by instruction to

disregard. See, e.g., Carroll v. State, No. 01-89-00398-CR, 1991 WL 423, at *2

(Tex. App.—Houston [1st Dist.] Jan. 3, 1991, no pet.) (not designated for

publication) (instruction to disregard question regarding whether witness had heard

defendant had been indicted cured any error). Considering all of the evidence and

the arguments before the trial court, we conclude that the prosecutor’s question was

not so prejudicial or incurable that the trial’s court’s instruction to disregard the

question could not cure any harm the question may have caused. See Ladd, 3 S.W.3d

at 567; see also Carroll, 1991 WL 423, at *2. We presume the jury followed the

trial court’s instruction and the record does not contain anything that would suggest

otherwise. See Burke, 371 S.W.3d at 259. Accordingly, we hold that the trial court

did not abuse its discretion in denying the motion for mistrial. See Ladd, 3 S.W.3d

at 567; Carroll, 1991 WL 423, at *2.

      We overrule Benaffane’s fourth issue.




                                         28
                               Evidentiary Rulings

      In his fifth, sixth, and seventh issues, Benaffane challenges the trial court’s

admission and exclusion of various types of evidence during the guilt innocence-

phase. In his fifth issue, Benaffane contends that the trial court erred by permitting

the State to question him about his teardrop tattoos. In his sixth issue, Benaffane

contends that the trial court should have permitted him to introduce photographs

and oral testimony to prove Kelly was soliciting Morales to work as his prostitute.

In his seventh issue, Benaffane contends that the trial court should have permitted

him to testify that during the encounter with Morales’s former pimp, the pimp said,

“Give me back my b****.” In his eighth issue, Benaffane complains that the trial

court abused its discretion by admitting during the punishment phase an out-of-state

judgment of conviction.

A.    Standard of Review

      We review a decision to admit or exclude evidence for an abuse of discretion.

Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010) (citing Green v.

State, 934 S.W.2d 92, 104 (Tex. Crim. App. 1996)). A trial court abuses its

discretion only if its decision is “so clearly wrong as to lie outside the zone within

which reasonable people might disagree.” Taylor v. State, 268 S.W.3d 571, 579

(Tex. Crim. App. 2008) (citing Zuliani, 97 S.W.3d at 595). In contrast, a trial court

does not abuse its discretion if any evidence supports its decision. Osbourn v. State,


                                          29
92 S.W.3d 531, 538 (Tex. Crim. App. 2002) (citations omitted). We uphold a trial

court’s evidentiary ruling if it was correct on any theory of law applicable to the

case. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009) (citing

Sewell v. State, 629 S.W.2d 42, 45 (Tex. Crim. App. 1982)).

      Even if a trial court errs by improperly admitting evidence, reversal is

warranted only if the appellant demonstrates that the erroneous admission affected

his substantial rights. TEX. R. APP. P. 44.2(b); Kibble v. State, 340 S.W.3d 14, 20

(Tex. App.—Houston [1st Dist.] 2010, pet. ref’d); Cruz v. State, 238 S.W.3d 381,

386 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).            An error affects an

appellant’s substantial rights “when it has a substantial and injurious effect or

influence in determining the jury’s verdict.” Cruz, 238 S.W.3d at 386 (citing

Johnson v. State, 803 S.W.2d 272, 291 (Tex. Crim. App. 1990)). An error that did

not influence the jury or had but a slight effect on the jury is not reversible. Motilla

v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002) (nonconstitutional error is not

grounds for reversal if, “after examining the record as a whole,” there is “fair

assurance that the error did not influence the jury, or had but a slight effect.”)

(quoting Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001)); McRae v.

State, 152 S.W.3d 739, 744 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (citing

Solomon, 49 S.W.3d at 365). In assessing the likelihood that the jury’s decision

was adversely affected by the error, we consider everything in the record, including


                                           30
any testimony or physical evidence admitted for the jury’s consideration, the nature

of the evidence supporting the verdict, the character of the alleged error and how it

might be considered in connection with other evidence in the case. McRae, 152

S.W.3d at 744 (citing Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim. App.

2003)). We should also consider whether the State emphasized the error, whether

the erroneously admitted evidence was cumulative, and whether it was elicited from

an expert. Id.

B.    Applicable Law

      To be admissible, evidence must be relevant. TEX. R. EVID. 402. Evidence

is relevant if “it has any tendency to make a fact more or less probable than it would

be without the evidence” and that fact “is of consequence in determining the action.”

TEX. R. EVID. 401. Thus, when assessing the relevance of particular evidence,

courts must consider the purpose for which the proof is being introduced. Layton

v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009). It is essential that there be

a direct or logical connection between the proof and the proposition sought to be

proven. Id.

      Evidence of extraneous crimes, wrongs, or other acts is not admissible at the

guilt-innocence phase “to prove a person’s character in order to show that on a

particular occasion the person acted in accordance with the character” but is

admissible to prove other matters, such as “motive, opportunity, intent, preparation,


                                          31
plan, knowledge, identity, absence of mistake, or lack of accident” if the accused is

given reasonable notice of the State’s intent to introduce the evidence. TEX. R.

EVID. 404(b) (extraneous evidence must have probative value beyond character

conformity to be admissible). Further, rebuttal of a defensive theory is also “one of

the permissible purposes for which relevant evidence may be admitted under Rule

404(b).” Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003).

      “However, even if the evidence is relevant, and the purpose for which it is

being offered is permissible under Rule 404(b), it may still be excluded by the trial

court under Rule 403 if its probative value is substantially outweighed by the danger

of unfair prejudice.” Id. (citing Montgomery v. State, 810 S.W.2d 372, 387 (Tex.

Crim. App. 1990)). Under a Rule 403 analysis, we consider: (1) the inherent

probative force of the proffered item of evidence along with (2) the proponent’s

need for that evidence against (3) any tendency of the evidence to suggest decision

on an improper basis, (4) any tendency of the evidence to confuse or distract the

jury from the main issues, (5) any tendency of the evidence to be given undue

weight by a jury that has not been equipped to evaluate the probative force of the

evidence, and (6) the likelihood that presentation of the evidence will consume an

inordinate amount of time or merely repeat evidence already admitted.

Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). The trial

court is presumed to have conducted the proper balancing test if it overrules a 403


                                         32
objection, regardless of whether it conducted the test on the record. See Williams

v. State, 958 S.W.2d 186, 195–96 (Tex. Crim. App. 1997).

C.    Analysis

      1.     Teardrop Tattoos

      In his fifth issue, Benaffane argues that the trial court erred by admitting a

photograph showing his tattoos and permitting the State to question Benaffane

about them. Benaffane contends this evidence was not relevant, and that it is an

extraneous bad act subject to no Rule 404(b) exception. Benaffane also argues that

evidence of the tattoos was unduly prejudicial under Rule 403 because it is

“[c]ommon knowledge” that a “teardrop tattoo is obtained in prison and generally

signifies that the person has killed another.”

      At trial, Benaffane covered his teardrop tattoos with a band-aid. When the

State sought to introduce a photograph of Benaffane with the tattoos visible,

Benaffane’s counsel objected, “Relevance 404(b), 403,” and the trial court

overruled the objection. The State then briefly questioned Benaffane about when

he got the tattoos and why he got them, and Benaffane responded that he got them

in late 2014 because he was “going through a lot” and “they represent pain.” The

State then moved on, did not return to the topic, and did not mention the tattoos in

closing. On redirect, Benaffane’s counsel asked him about why he got the tattoos

and he responded, “At that time I was going through a lot. To me, it represents


                                          33
pain. I don’t even know why I got them. I regret them.” His counsel then asked,

“You understand that other people perceive things differently as to what teardrop

tattoos mean?,” and Benaffane responded, “Now I do.” The tattoos were not further

discussed.

      Even if the trial court erred in admitting evidence regarding the teardrop

tattoos, Benaffane has not demonstrated that the admission affected his substantial

rights. TEX. R. APP. P. 44.2(b). The disputed issue at trial was whether Benaffane’s

use of deadly force was reasonable and immediately necessary, and the nature of

the evidence supporting the jury’s verdict was strong. The video evidence and

Benaffane’s admissions at trial regarding the time he waited before confronting

Kelly and his failure to contact the police about the purportedly dire situation, along

with the evidence that Benaffane and Worthy confronted an unarmed Kelly with

guns raised, provide ample support for the jury’s verdict. See McRae, 152 S.W.3d

at 744. And although the evidence of the tattoos was not cumulative of other

evidence, it was only briefly addressed during the trial and not mentioned in closing.

See id. Thus, this evidence is insignificant in comparison to the totality of evidence

adduced at trial and, if it influenced the jury at all, would have had but a slight

effect. See id. After examining the record as a whole, we cannot say that the

admission of this evidence, if erroneous, affected Benaffane’s substantial rights.

We therefore hold that any alleged error in admitting the evidence does not


                                          34
constitute reversible error. See TEX. R. APP. P. 44.2(b); Solomon, 49 S.W.3d at 365;

McRae, 152 S.W.3d at 744.

      We overrule Benaffane’s fifth issue.

      3.     Kelly’s Solicitation of Morales

      In his sixth issue, Benaffane complains that the trial court erred by excluding

evidence that Kelly was soliciting Morales to work as his prostitute. Specifically,

Benaffane sought to question an investigating officer about a series of Instagram

communications between Kelly and Morales and to admit pictures of several of the

communications which purported to show Kelly attempting to solicit Morales to

work as his prostitute. Benaffane argues that he offered this evidence to show that

he believed Kelly to be a pimp, which was relevant to his state of mind and

motivation on the night of the shooting. The State objected on the grounds of

hearsay and relevance, and the trial court sustained the objection.

      However, even if the trial court erred in excluding this evidence, Benaffane

has not demonstrated that the exclusion affected his substantial rights. TEX. R. APP.

P. 44.2(b). Benaffane argues that he was harmed because this evidence showed that

Kelly was a pimp, which supports Benaffane’s claim that he was justified in

confronting Kelly because of his experience with Morales’s former pimp. But there

was other evidence admitted at trial that demonstrated that Kelly was a pimp. The

investigating officer testified that Morales told him that she was taken to Vibe by


                                         35
Kelly, who was a pimp, and Benaffane testified that Morales called and told him

that she was with Kelly, who was a pimp. In other words, there was ample evidence

introduced to show that Benaffane believed Kelly to be a pimp, and the State did

not dispute that he was. The central question in the case was not whether Benaffane

believed Kelly was a pimp—which is what Benaffane argues the excluded evidence

would have shown—but rather, whether the force Benaffane used against Kelly was

reasonable and immediately necessary. After examining the record as a whole, we

cannot say that the exclusion of this evidence, even if erroneous, affected

Benaffane’s substantial rights, and therefore we hold that any alleged error in

excluding the evidence does not constitute reversible error. See TEX. R. APP. P.

44.2(b).

      We overrule Benaffane’s sixth issue.

      4.    Former Pimp’s Statement

      In his seventh issue, Benaffane challenges the trial court’s exclusion of his

testimony that, during a threatening encounter with Morales’s former pimp, the

former pimp stated “Give me back my b****.” Benaffane argues that this evidence

demonstrated why he feared that Kelly would treat Morales as property and

potentially abduct her, and it was offered to establish the effect the words had on

him. The State argues the statement was properly excluded as hearsay.




                                        36
      The trial court permitted Benaffane to testify about the details of his encounter

with Morales’s former pimp, except for the statement “Give me back my b****.”

Benaffane testified that he was picking Morales up from the club where she danced

shortly after they began dating when Morales’s former pimp blocked Benaffane’s

car with his own, stuck a gun in his waistband, and approached Benaffane’s car.

Benaffane testified that Morales, who had gotten into the car with him, fled back

into the club in fear. Benaffane also testified that after this incident, he became

concerned for his and Morales’s safety and purchased two guns—the guns used in

the confrontation with Kelly. But the trial court sustained the State’s hearsay

objection to Benaffane’s testimony that after approaching Benaffane’s car, the

former pimp stated, “Give me back my b****.” Benaffane argues that the statement

was not hearsay because it was not offered to prove the truth of the matter asserted

but to show why Benaffane feared Morales’s being in the company of another pimp.

      Even if the trial court erred by excluding Benaffane’s testimony about the

statement made by Morales’s former pimp, this error is reversible only if it affected

Benaffane’s substantial rights. TEX. R. APP. P. 44.2(b). Here, the jury heard

Benaffane’s testimony that the former pimp confronted him and Morales in a

threatening manner with a gun shortly after Morales began dating Benaffane and

stopped working for the pimp. According to Benaffane’s testimony, the incident

provoked so much fear in Morales that she ran away. Benaffane also testified that


                                         37
it was this incident that led him to believe that he needed to buy guns for protection,

although he had never owned guns before. Although the former pimp’s statement

provides more color about the threatening encounter, we cannot conclude that

excluding the statement, even if error, had “a substantial and injurious effect or

influence in determining the jury’s verdict.” Cruz, 238 S.W.3d at 386. Benaffane

was able to adduce evidence showing the threatening interaction with the former

pimp, but more importantly, Benaffane adduced ample evidence that he believed

pimps are violent and consider those who work for them to be property. But the

central question in this case was whether Benaffane reasonably believed that the

force he used against Kelly was immediately necessary. See Motilla, 78 S.W.3d at

355 (error that had but slight effect on jury is not reversible); McRae, 152 S.W.3d

at 744 (in assessing likelihood that jury’s decision was adversely affected by error,

court considers whole record, including nature of evidence supporting verdict and

character of alleged error and how it might be considered in connection with other

evidence in case). After examining the record as a whole, we cannot say that the

exclusion of this statement, even if erroneous, affected Benaffane’s substantial

rights, and therefore we hold that any alleged error in excluding the evidence does

not constitute reversible error. See TEX. R. APP. P. 44.2(b).

      We overrule Benaffane’s seventh issue.




                                          38
      5.     Out-of-state judgment of conviction

             a. Applicable Law

      Pursuant to article 37.07 of the Code of Criminal Procedure, after a defendant

has been found guilty, the State may offer evidence about the defendant “as to any

matter the court deems relevant to sentencing.” TEX. CODE CRIM. PROC. art. 37.07,

§ 3(a)(1). Relevant evidence in this context is any evidence that assists the factfinder

in determining the appropriate sentence given the particular defendant in the

circumstances presented. Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App.

1999). This evidence includes, but is not limited to, evidence regarding:

      the prior criminal record of the defendant, his general reputation, his
      character, an opinion regarding his character, the circumstances of the
      offense for which he is being tried, and, notwithstanding Rules 404 and
      405, Texas Rules of Evidence, any other evidence of an extraneous
      crime or bad act that is shown beyond a reasonable doubt by evidence
      to have been committed by the defendant or for which he could be held
      criminally responsible, regardless of whether he has previously been
      charged with or finally convicted of the crime or act.
TEX. CODE CRIM. PROC. art. 37.07, § 3(a)(1); see Fields v. State, 1 S.W.3d 687, 688

(Tex. Crim. App. 1999). “Prior crimes or bad acts are introduced to provide

additional information which the jury may consider in determining what sentence

the defendant should receive.” See Arthur v. State, 11 S.W.3d 386, 392 (Tex. App.–

Houston [14th Dist.] 2000, pet. ref’d) (quoting Fields, 1 S.W.3d at 688). The

statutory language grants wide latitude in the admission of evidence deemed



                                          39
relevant. Contreras v. State, 59 S.W.3d 362, 365 (Tex. App.—Houston [1st Dist.]

2001, no pet.).

      The trial court makes the decision on the threshold issue of admissibility and

may not admit extraneous offense evidence unless the evidence is such that a jury

could rationally find the defendant criminally responsible for the extraneous offense.

Smith v. State, 227 S.W.3d 753, 759–60 & n.16 (Tex. Crim. App. 2007). Ultimately,

the factfinder must decide whether the extraneous offense was proven beyond a

reasonable doubt. Id. at 760. Once this threshold is met, the factfinder may use the

evidence however it chooses in assessing punishment. See Fields, 1 S.W.3d at 688.

      To establish that a defendant has been convicted of a prior offense, the State

must prove beyond a reasonable doubt that (1) a prior conviction exists, and (2) the

defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex.

Crim. App. 2007). No specific document or mode of proof is required to prove these

two elements. See id. While evidence of a certified copy of a final judgment and

sentence may be a preferred and convenient means, the State may prove both of

these elements in a number of different ways, including (1) the defendant’s

admission or stipulation, (2) testimony by a person who was present when the person

was convicted of the specified crime and can identify the defendant as that person,

or (3) documentary proof (such as a judgment) that contains sufficient information




                                         40
to establish both the existence of a prior conviction and the defendant’s identity as

the person convicted. See id. at 921–22.

      [O]rdinarily the proof that is adduced to establish that the defendant on
      trial is one and the same person that is named in an alleged prior
      criminal conviction or convictions closely resembles a jigsaw puzzle.
      The pieces standing alone usually have little meaning. However, when
      the pieces are fitted together, they usually form the picture of the person
      who committed that alleged prior conviction or convictions.

Id. at 923 (quoting Human v. State, 749 S.W.2d 832, 835–36 (Tex. Crim. App.

1988)).

      The trier of fact fits the pieces of the jigsaw puzzle together and weighs the

credibility of each piece. Id. Regardless of the type of evidentiary puzzle pieces the

State offers to establish the existence of a prior conviction and its link to a specific

defendant, the trier of fact determines if these pieces fit together sufficiently to

complete the puzzle. Id. The trier of fact looks at the totality of the evidence

admitted to determine (1) whether there was a previous conviction, and (2) whether

the defendant was the person convicted. Id. If these two elements can be found

beyond a reasonable doubt, then the various pieces used to complete the puzzle are

necessarily legally sufficient to prove a prior conviction. Id.

             b. Analysis

      Benaffane contends that the trial court abused its discretion by admitting a

certified copy of a final judgment of conviction and sentence in the Commonwealth

of Virginia for the felony offense of grand larceny reflecting the defendant was

                                           41
named “Sufiane Benaffane” and had the same birthday as Benaffane. But even if

we assume that the trial court abused its discretion by admitting the Virginia

judgment, the erroneous admission of extraneous-offense evidence is not

constitutional error and must be disregarded unless it had a substantial and injurious

effect or influence in determining the jury’s verdict. See Cruz, 238 S.W.3d at 386.

       Here, considering everything in the record, we conclude that error, if any, in

the admission of evidence pertaining to the Virginia conviction did not influence the

jury, or at most, had a slight effect. See Motilla, 78 S.W.3d at 355 (nonconstitutional

error is not grounds for reversal if, after examining record as a whole, there is fair

assurance that error did not influence jury, or had but a slight effect). During closing

argument in the punishment phase, the State focused on the details of the shooting,

including the fact that Benaffane approached an unarmed Kelly and that the jury had

already rejected his theories of self-defense or defense of Morales. The State also

reminded the jury that another club-goer besides Kelly also was shot during the

melee. That victim testified that she would have a bullet permanently lodged in her

pelvis as a result.

       With respect to extraneous offenses, the State did not mention the Virginia

conviction and instead focused on a felon in possession of a weapon charge that was

filed against Benaffane based on an event that occurred a month before Benaffane

shot Kelly. The State argued “[h]e can’t make it a month after committing that


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offense before he kills a man.” The State asked the jury to sentence Benaffane to no

less than 50 years, but preferably, life in prison. The only mention of the Virginia

conviction in closing was by Benaffane’s counsel, who argued that it was a

nonviolent offense that occurred when Benaffane was only 19, he successfully

completed probation for it, and he had no history of violence.

      Considering all of the evidence and the nature of the closing arguments, we

are assured that any error in the admission of the Virginia conviction did not

influence the jury’s punishment or, at most, had “but a slight effect.” Motilla, 78

S.W.3d at 355. Accordingly, we conclude that Benaffane has not demonstrated that

admission of this conviction harmed him. See id.

      We overrule Benaffane’s eighth issue.

                                    Conclusion

      We affirm the trial court’s judgment.




                                                Rebeca Huddle
                                                Justice

Panel consists of Justices Massengale, Brown, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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