Affirmed and Memorandum Opinion filed April 4, 2019.




                                     In The

                     Fourteenth Court of Appeals

                              NO. 14-18-00116-CR

                        MIGUEL MARTINEZ, Appellant
                                       V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 183rd District Court
                            Harris County, Texas
                        Trial Court Cause No. 1495682

                       MEMORANDUM OPINION
      Appellant Miguel Martinez was found guilty of murder in connection with
the stabbing of Complainant Cesar Acosta-Gonzalez. In two issues, Appellant
challenges the trial court’s judgment and asserts (1) the trial court erred by
excluding evidence of Complainant’s violent character; and (2) the jury’s finding
against Appellant’s self-defense claim is not supported by legally sufficient
evidence. For the reasons below, we overrule Appellant’s challenges and affirm
the trial court’s judgment.
                                   BACKGROUND

      Appellant stabbed Complainant during an altercation on January 17, 2016.
Complainant died from his injuries, and Appellant was arrested and charged with
murder. After a four-day trial, the jury found Appellant guilty and sentenced him
to 35 years’ confinement.

      At Appellant’s trial, the jury heard testimony from seven witnesses and
Appellant. Most of the testimony was provided by two of the State’s witnesses,
Erica Alvarez and Edhelannie Salas. At the time of the incident, Alvarez was
dating Appellant and Salas was close friends with Complainant.

      Alvarez’s and Salas’s testimonies described a roughly similar sequence of
events. On the day of the incident, Complainant drove Alvarez and Salas to
Appellant’s house in Pasadena, Texas.           Complainant and Salas waited in
Complainant’s vehicle while Alvarez walked inside Appellant’s house. Appellant
and Alvarez began arguing about a hickey on Appellant’s neck. Alvarez walked
outside of the house followed by Appellant.

      Seeing Appellant and Alvarez walk outside of Appellant’s house,
Complainant exited his vehicle and began arguing with Appellant. Complainant
walked up the driveway towards Appellant and the men proceeded to fight.
During the altercation, Appellant pulled out a pocketknife and stabbed
Complainant four times. Complainant collapsed on the ground and Appellant left
the scene in a car with several other people.

      Alvarez’s and Salas’s testimonies differ with respect to certain details
relevant to Appellant’s self-defense claim:

            Alvarez testified that Complainant was the first aggressor and walked
             towards Appellant while “pick[ing] up his pants.” According to
             Alvarez, “[e]very guy, before they fight, I always see the[m] pick up

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            their pants because they’re always sagging.” Alvarez was unsure who
            threw the first punch.

            According to Salas, Appellant was the first aggressor and yelled at
            Complainant to exit his truck. Salas stated that the men “punch[ed] at
            the same time.”
           Alvarez was unsure whether she saw anything in Complainant’s hands
            during the altercation. Alvarez thought she saw Complainant reach in
            his pocket as if he was grabbing something.

            Salas testified that she did not see Complainant take any sort of
            weapon out of his pocket as he approached Appellant.
           Alvarez testified that, after Complainant collapsed on the ground,
            Salas went through his pockets and removed his wallet and phone.
            Alvarez stated that Salas put Complainant’s phone, wallet, and jacket
            in his truck. Alvarez was unsure whether Salas removed additional
            items from Complainant’s pockets.
            Salas denied going through Complainant’s pockets or removing
            anything from the scene of the stabbing.

           Alvarez testified that she saw Complainant use cocaine on his way to
            Appellant’s house.
            Salas testified that, although she had seen Complainant use cocaine on
            other occasions, she did not see him use cocaine the night of the
            incident.

The prosecutor for the State also questioned Alvarez regarding her statement to
police officers shortly after the stabbing occurred. In her prior statement, Alvarez
told officers that Appellant was the aggressor and that she saw him pull out a
pocketknife as he walked towards Complainant. At trial, Alvarez said her prior
statements were lies she told because she was mad at Appellant.             Alvarez
acknowledged that she only recently recalled seeing (1) Complainant reach in his
pocket as he walked towards Appellant; and (2) Salas going through
Complainant’s pockets after he collapsed onto the ground.


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      Alvarez testified that she had spoken to Appellant “quite a few times” since
the incident and had visited him in jail. Alvarez acknowledged that she “want[ed]
to be in a relationship with” Appellant.

      The State also called as a witness Nathan Cordon, who watched the incident
unfold from a window in the house next door to Appellant’s.             Describing
Appellant’s and Complainant’s actions preceding the altercation, Cordon testified
that “[b]oth of them [were] kind of doing the same thing . . . cussing each other,
calling each other names.” Cordon stated that both men were shoving each other
and that he never saw any weapons in the men’s hands. Cordon recalled seeing
Appellant swing and hit Complainant, after which Complainant fell to the ground
breathing heavily.

       Marissa Vallejo, the State’s fourth witness, rode in the vehicle with
Appellant when he left the scene of the stabbing. Vallejo stated that everyone in
the vehicle was “shocked” by what had happened, and that Appellant was
explaining his conduct and “pretty much just talking about what had happened to
[Complainant].” Vallejo testified that Appellant wrapped a pocketknife in a t-shirt
and threw the bundle into a sewer drain.

      The State also called Pasadena Patrol Officer Charles Bonsal and Detective
Michael Young. Officer Bonsal and Detective Young testified that no weapons
were recovered from the scene of the stabbing. Officer Bonsal acknowledged that
neither Complainant nor his truck was searched for weapons. Detective Young
testified that a black pocketknife was recovered from a sewer drain near Pasadena.
The knife was identified as the knife Appellant used to stab Complainant.

      The State’s final witness was Dr. Jennifer Ross, a medical examiner at the
Harris County Institute of Forensic Sciences. Dr. Ross testified that Complainant


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died of blood loss caused by multiple sharp-force injuries. Dr. Ross stated that
there were knife wounds on both of Complainant’s hands, injuries usually called
“defensive wounds” because they often are seen “when someone is trying to
defend themselves.”     Dr. Ross also testified that cocaine and metabolites of
cocaine were found in Complainant’s system, indicating Complainant used cocaine
within 30 minutes to an hour before the incident occurred.

      In his case-in-chief, Appellant called as a witness his mother’s boyfriend,
Alfonso Rosas.     Rosas did not witness the stabbing but walked outside of
Appellant’s house shortly after it occurred. Rosas testified that, as he was trying to
help Complainant after the stabbing, Salas was “digging through” Complainant’s
pockets. Complainant did not see if Salas removed anything from Complainant’s
pockets.

      While cross-examining Rosas, the prosecutor for the State questioned him
about his prior convictions for engaging in organized criminal activity and
possession of a controlled substance. The prosecutor also asked Rosas why he did
not provide a statement to police officers after the incident, to which Rosas replied,
“I tried to say something. They ignored me. They went straight to other people.”

      Appellant was the final witness to testify. Discussing the sequence of events
preceding the stabbing, Appellant said Alvarez was upset with him after seeing a
hickey on his neck. Appellant testified that he was trying to “explain [him]self” to
Alvarez as she walked outside of his house “[u]pset, mad, [and] crying.”
Appellant said he was trying to calm Alvarez when he heard a truck door slam.
Appellant recalled seeing Complainant step out of his truck, throw his jacket on the
ground, and walk up Appellant’s driveway. Appellant testified that Complainant
told him in “an angry voice” to get away from Alvarez.            Complainant then
“pick[ed] up his pants, and . . . pull[ed] out a knife.” Stating that he was “scared,”

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 Appellant testified that he pulled out his own knife, closed his eyes, and started
 swinging.    Appellant did not recall stabbing Complainant and stated that
 “[e]verything went black.”

       After the stabbing, Appellant stated that he went back inside his house to
 wash off Complainant’s blood. Appellant said one of his friends dragged him
 outside of his house and threw him in a car. Appellant testified that he was “in
 shock” and “didn’t know what to do.” Appellant turned himself in two days later.

       Appellant testified that he had not previously met Complainant before the
 day of the stabbing. On cross-examination, Appellant acknowledged that he did
 not get stabbed during the incident.       Appellant also acknowledged his prior
 conviction for assaulting the mother of his child.

       The charge instructed the jury with respect to murder and the law of self-
 defense. The jury found Appellant guilty of murder and sentenced him to 35
 years’ confinement. Appellant timely appealed.

                                      ANALYSIS

       In two issues, Appellant asserts (1) the trial court erred by excluding
 evidence of Complainant’s violent character; and (2) the jury’s implied finding
 against Appellant’s self-defense claim is not supported by legally sufficient
 evidence. For the reasons below, we overrule Appellant’s issues.

I.     The Trial Court Did Not Err by Excluding Evidence of Complainant’s
       Violent Character.
       Outside of the jury’s presence, Alvarez made the following statements with
 respect to Complainant’s violent character: (1) Complainant was a gang member;
 (2) Alvarez previously had seen Complainant with a gun; and (3) Alvarez believed
 Complainant had something in his hands during the stabbing because she “knew


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the type of person [Complainant] was.” The trial court denied Appellant’s request
to admit the testimony as prior bad acts evidence relevant to show Complainant
was the first aggressor. Appellant challenges the trial court’s exclusion of this
testimony and argues the evidence was admissible as (1) reputation or opinion
testimony regarding Complainant’s violent character, and (2) specific prior acts of
violence by Complainant. See Ex parte Miller, 330 S.W.3d 610, 617-622 (Tex.
Crim. App. 2009) (under certain circumstances, a victim’s violent character may
be shown through reputation or opinion testimony or evidence of specific acts).

      A defendant in a homicide prosecution who raises the issue of self-defense
generally may introduce evidence of the victim’s violent character. Tex. R. Evid.
404(a)(2); see also Ex parte Miller, 330 S.W.3d at 618-20 and Allen v. State, 473
S.W.3d 426, 444-45 (Tex. App.—Houston [14th Dist.] 2015, pet. dism’d).
Opinion or reputation testimony may be offered to prove the victim acted in
conformity with his violent nature. Tex. R. Evid. 404(a)(2), see also 405(a); Ex
parte Miller, 330 S.W.3d at 618; and Allen, 473 S.W.3d at 444. Specific violent
acts may be admitted to show the reasonableness of the defendant’s fear of danger
or to show that the victim was the first aggressor. Id.; see also Ex parte Miller,
330 S.W.3d at 618-20; Allen, 473 S.W.3d at 444.

      Even if we assume the trial court erred in excluding Alvarez’s testimony,
Appellant agrees that this exclusion is properly reviewed for non-constitutional
error under Texas Rule of Appellate Procedure 44.2(b). See Walters v. State, 247
S.W.3d 204, 222 (Tex. Crim. App. 2007) (the exclusion of evidence that
incrementally furthers a defendant’s defensive theory is reviewed for non-
constitutional error); see also Vasquez v. State, 501 S.W.3d 691, 700 (Tex. App.—
Houston [14th Dist.] 2016, pet. ref’d) (same).

      Non-constitutional error must be disregarded unless it affects a defendant’s

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substantial rights. Tex. R. App. P. 44.2(b); see also Vasquez, 501 S.W.3d at 700.
Error affects a defendant’s substantial rights when it has a substantial and injurious
effect or influence on the jury’s verdict. Vasquez, 501 S.W.3d at 700 (citing King
v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)). “If the error has no or
only a slight influence on the jury’s verdict, the error is harmless.” Id. at 700-01.

      When we review for non-constitutional error, we consider everything in the
record including any testimony or physical evidence admitted for the jury’s
consideration, the nature of the evidence supporting the verdict, the character of
the 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); see also
Vasquez, 501 S.W.3d at 701.

      We conclude that any error stemming from the trial court’s exclusion of
Alvarez’s testimony is harmless. Appellant asserts that exclusion of Alvarez’s
testimony affected his ability to present his theory of self-defense, but the record is
replete with testimony regarding the events and circumstances surrounding the
incident:

            Alvarez testified that Complainant was the first aggressor; she thought
             she saw Complainant reach in his pocket as he walked towards
             Appellant; Complainant used cocaine the night of the stabbing; and
             Salas went though Complainant’s pockets after he was stabbed and
             removed his cell phone and wallet.
            In her statement to police officers the night of the stabbing, Alvarez
             said Appellant was the first aggressor.
            Salas testified that Appellant was the first aggressor; she did not see
             Complainant take anything out of his pockets as he walked towards
             Appellant; she did not see Complainant use cocaine the night of the
             stabbing; and she did not go through Complainant’s pockets after he
             was stabbed.
            Cordon testified Appellant and Complainant were “kind of doing the

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             same thing . . . cussing each other, calling each other names;” Cordon
             stated that both men were shoving each other; Cordon never saw a
             weapon in the men’s hands.
            Dr. Ross testified cocaine and metabolites of cocaine were found in
             Complainant’s system, indicating Complainant used cocaine within 30
             minutes to an hour before the incident occurred.
            Rosas testified Salas was “digging through” Complainant’s pockets
             after he was stabbed.
This testimony presents conflicting versions of the altercation — some of it
supporting Appellant’s theory of self-defense and some of it suggesting Appellant
was the first aggressor. This evidence, taken together, is sufficient to give the jury
a full picture of the events that transpired the night Complainant was stabbed.
Testimony regarding Complainant’s membership in a gang or propensity to carry a
gun bears, at best, only a tangential relationship to the actions and events at issue.

      Moreover, although Appellant argues the excluded testimony supports his
theory of self-defense, Alvarez’s statements provide only slight support. Alvarez
testified Complainant was a gang member, but the evidence did not suggest the
altercation between Appellant and Complainant was in any way gang-related.

      Testimony also shows Appellant was not aware of Complainant’s alleged
gang membership and alleged propensity to carry a gun. Appellant testified that he
had not previously met Complainant before the stabbing. Alvarez stated she
“never talked to [Appellant] about [Complainant] at all” and stated Appellant
“didn’t know nothing about [Complainant].”

      Considering the entirety of the record and all evidence presented at trial, any
error in excluding Alvarez’s testimony did not have a substantial and injurious
effect on the jury’s verdict and was harmless. We overrule Appellant’s first issue.




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II.     Legally Sufficient Evidence Supports the Jury’s Finding Against
        Appellant’s Self-Defense Claim.
        In his second issue, Appellant asserts the jury’s implied finding against his
  self-defense claim is not supported by legally sufficient evidence. Arguing that
  “[t]he evidence opposing self-defense came chiefly from the testimony of Salas,”
  Appellant contends that Salas was a partisan witness who was not credible.

        A defendant has the initial burden of producing some evidence to support a
  claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App.
  2003); see also Dearborn v. State, 420 S.W.3d 366, 372 (Tex. App.—Houston
  [14th Dist.] 2014, no pet.). Once this evidence is produced, the burden shifts to the
  State to disprove the defense beyond a reasonable doubt. Zuliani, 97 S.W.3d at
  594; see also Dearborn, 420 S.W.3d at 373. This burden of persuasion does not
  require the State to produce evidence refuting the defendant’s self-defense claim;
  rather, the State must prove its case beyond a reasonable doubt.         Zuliani, 97
  S.W.3d at 594; see also Dearborn, 420 S.W.3d at 373. When the jury finds the
  defendant guilty, there is an implicit finding rejecting the defendant’s self-defense
  claim. Zuliani, 97 S.W.3d at 594; see also Dearborn, 420 S.W.3d at 373.

        When an appellant challenges the legal sufficiency of the evidence to
  support a finding against his self-defense claim, we examine all of the evidence in
  the light most favorable to the verdict to determine whether any rational trier of
  fact could have found beyond a reasonable doubt (1) the essential elements of the
  charged offense; and (2) against appellant on his self-defense claim. Brooks v.
  State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). The jury is the sole judge of
  the credibility of the witnesses and the weight to be given to their testimony.
  Dearborn, 420 S.W.3d at 373-74. We presume the jury resolved any conflicting
  inferences and issues of credibility in favor of the judgment and will not substitute


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our judgment for that of the jury. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim.
App. 2010); see also Dearborn, 420 S.W.3d at 374.

      Here, Appellant has not challenged the sufficiency of the evidence to
support the essential elements of the charged offense — murder. Therefore, we
review only whether a rational trier of fact could have found beyond a reasonable
doubt against Appellant on his self-defense claim. See Harvey v. State, No. 14-13-
00774-CR, 2014 WL 4202519, at *2 (Tex. App.—Houston [14th Dist.] Aug. 26,
2014, no pet.) (mem. op.).

      A person is justified in using deadly force against another person if he
reasonably believes that deadly force is necessary to protect against the other
person’s use or attempted use of unlawful deadly force. Tex. Penal Code Ann.
§ 9.32(a) (Vernon 2011).

      Here, the jury heard Appellant’s testimony that he stabbed Complainant in
self-defense after Complainant walked towards him and pulled out a knife.
Alvarez’s self-defense claim found some support in Alvarez’s testimony that
Complainant was the first aggressor and that she thought she saw Complainant
reach in his pocket as he walked towards Appellant. Appellant’s claim also found
some support in Rosas’s testimony that Salas was “digging through”
Complainant’s pockets after he was stabbed.

      But the jury also heard evidence refuting Appellant’s self-defense claim.
Salas testified that (1) Appellant was the first aggressor and yelled at Complainant
to get out of his truck; (2) she did not see Complainant take a weapon out of his
pocket as he walked towards Appellant; and (3) she did not go through
Complainant’s pockets or remove anything from the scene of the stabbing. Cordon
testified that, when the altercation began, Complainant and Appellant were “kind


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of doing the same thing . . . cussing each other, calling each other names.”      Dr.
Ross testified that Complainant had “defensive wounds” on both of his hands,
which suggest he was not holding anything in his hands during the altercation.

          The jury also was shown evidence indicating Appellant fled the scene after
the stabbing and disposed of the knife in a sewer drain, further discounting
Appellant’s self-defense claim. See Clay v. State, 240 S.W.3d 895, 905 n.11 (Tex.
Crim. App. 2007) (“Evidence of flight evinces a consciousness of guilt.”); see also
Castillo v. State, 71 S.W.3d 812, 818 (Tex. App.—Amarillo 2002, pet. ref’d)
(evidence showing the defendant threw weapon in a lake raised an inference of
guilt).

          Considering all of the evidence in the light most favorable to the jury’s
verdict, a rational trier of fact could have found beyond a reasonable doubt against
Appellant on his self-defense claim. Appellant asserts that Salas was “partisan”
and “not credible,” pointing out Salas saw Complainant every day before the
incident and “lied when she testified that [Complainant] had not used cocaine that
night.”      But this evidence does not conclusively disprove Salas’s testimony
regarding the events in question. The jury is the sole judge of the witnesses’
credibility and the weight to be given their testimony, and we presume the jury
resolved any conflicting inferences and issues of credibility in favor of the
judgment. See Isassi, 330 S.W.3d at 638; see also Dearborn, 420 S.W.3d at 373-
74.

          Examining all the evidence in the record, the jury’s implied finding against
Appellant on his self-defense claim is supported by legally sufficient evidence.
We overrule Appellant’s second issue.




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                                   CONCLUSION

      We affirm the trial court’s judgment.




                                      /s/     Meagan Hassan
                                              Justice


Panel consists of Justices Christopher, Jewell, and Hassan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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