Affirmed and Memorandum Opinion filed April 29, 2014.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-13-00052-CR

                    STEVEN KEITH MILLIFF, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee

                    On Appeal from the 9th District Court
                          Montgomery County, Texas
                    Trial Court Cause No. 11-03-02327 CR

                MEMORANDUM                       OPINION


      A jury convicted appellant Steven Keith Milliff of murder, sentenced him to
confinement for 35 years in the Texas Department of Criminal Justice and assessed
a fine of $6,000. He appeals, claiming the trial court erred in excluding character
evidence of the complainant and denying jury instructions on manslaughter and
sudden passion. We affirm.
                                                THE EVIDENCE

      An officer of the Conroe Police Department responded to a call that an
apartment door had been ajar for several days. The body of Fermin Flores was
discovered in the bedroom. It appeared a struggle had occurred in the bedroom. A
green pamphlet was found on the bed that was later determined to have appellant’s
fingerprints on it. Flores had a two-inch hole in the upper part of his chest and an
empty shotgun shell adhered by dried blood to the front of his shirt. The wound
was consistent with having been shot at close range by a shotgun. Underneath the
bed was a canvas gun case. In the case were shells that matched the casing on the
body. A “dog tag” was found under Flores’s body with the name “Milliff, Steven
Keith” on it.

      Following an investigation, appellant was arrested and questioned by police.
His video-taped interview and an audiotape of a “smoke break” conversation were
admitted into evidence and played for the jury.1 Appellant said Flores2 pulled a
shotgun from behind the mattress. Appellant “choked [Flores] out with his own
shotgun” and then shot him in the chest.3

      Appellant said he had never seen Flores before — the first time was at the
apartment. Appellant claimed he knocked at the door, which he thought was to his
friend Max’s apartment, and Flores answered. However, Flores’s wife testified
that Flores was not the type of person to open the door to strangers.

      On the tape, appellant said that, after Flores pulled out the shotgun, appellant
jumped on Flores and put the shotgun in Flores’s face. Flores bit him on the arm,
leaving a bite mark. Appellant claimed he was fighting for his life. “Someone
      1
          Appellant did not testify at trial.
      2
          Although appellant did not, we will use Flores’s name for clarity.
      3
          It is unclear whether Flores was rendered unconscious when choked.

                                                   2
pulls a shotgun on me so I’m fighting for my life here . . . someone pulls a gun on
you, you’re going to…kill [him].” Appellant said the chain with his “dog tags” on
it must have come off during the struggle. Appellant said that he remembered
pulling the trigger of the shotgun and shooting. Appellant said he saw Flores
slumped over, heard him moaning and crying, and saw smoke come out of his
chest. After initially fleeing, appellant returned to the apartment to retrieve his
jacket. He racked another round into the shotgun’s chamber. When asked how he
cleared the door, appellant said he probably kicked it in and, if there were signs of
its being damaged, he probably did that when he had to go back in to get his jacket.
The latch for the doorknob to the apartment was damaged. A shoeprint was found
on the doorframe, slightly above and to the left of the doorknob. Expert testimony
was presented that the print could have been made from appellant’s shoe, or a shoe
just like it.

        Appellant’s friend Max testified that he regularly sold marijuana to
appellant. On the day of the shooting, appellant repeatedly called Max seeking
marijuana, but Max did not sell any marijuana to appellant that day. Max lived at
the Timber Pine Hollows Apartments in apartment 1315. Flores was in apartment
1311.

        Another friend of appellant’s testified that on the day of the shooting
appellant called her wanting marijuana, but she was unable to deliver any
marijuana that day. Appellant called her the next day, “very angry and upset” and
told her “all that he wanted was his marijuana and that because [she] would not
bring him his weed, he shot a man twice in the chest just to watch him die.”
While awaiting trial, appellant told another Montgomery County Jail prisoner that
he went back into the apartment after Flores was shot, and Flores was still



                                         3
breathing. The prisoner asked if he did anything or called anybody and appellant
said, “No.”

      The medical examiner testified Flores’s blood alcohol content was .22
percent, which would be “well intoxicated,” but did not see any evidence that
Flores had been choked. Flores’s wound was rapidly fatal but death was not
immediate.

      During trial, defense counsel attempted to elicit testimony regarding Flores’s
character and reputation for aggressiveness after excessive consumption of alcohol.
The testimony was excluded and an offer of proof was made. At the conclusion of
the guilt-innocence phase of trial, a request was made to include an instruction on
manslaughter in the jury charge but the request was denied. The jury was given an
instruction on self-defense.

      During the punishment phase of the trial, defense counsel again attempted to
elicit testimony regarding Flores’s reputation for aggressiveness after excessive
drinking. The testimony was excluded and an offer of proof was made. At the
conclusion of the punishment phase of trial, a request was made to include an
instruction on sudden passion in the jury charge. The request was denied.

                                     DISCUSSION

      Appellant raises three issues on appeal. Appellant claims the trial court
erred in excluding evidence that would have supported his claim of self-defense.
Appellant further argues the trial court erred in failing to charge the jury on
manslaughter at guilt/innocence and by not instructing the jury on sudden passion
in punishment.




                                         4
      I.      Exclusion of Evidence

      In his first issue, appellant claims the trial court erred in excluding evidence
that when Flores drank too much he had a tendency to be violent. Appellant
asserts the following testimony of Flores’s wife was admissible:

            [Defense Counsel]:       [D]id your husband have a habit of
      drinking in excess?
            [Witness]: On occasion, but he wouldn’t drink every day or
      anything like that.
             [Defense Counsel]: Was that one of the problems that lead to
      y’all’s separation?
             [Witness]: At the last moment, it was because of that. But we
      did talk about it.
           [Defense Counsel]: Did your husband have a tendency to
      become aggressive when he was drinking to excess?
              [Witness]: Yes.

      We review a trial court’s decision to admit or exclude evidence under an
abuse-of-discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim.
App. 2002). When a defendant is charged with an assaultive offense, as in this
case, the defendant may offer evidence of the victim’s character for violence or
aggression under either of two theories. Ex Parte Miller, 330 S.W.3d 610, 618
(Tex. Crim. App. 2009). Under the first theory, “communicated character,” the
defendant is aware of the victim’s violent tendencies and perceives a danger posed
by the victim, regardless of whether the danger is real or not. Id. “[T]he defendant
is not trying to prove that the victim actually is violent; rather, he is proving his
own self-defensive state of mind and the reasonableness of that state of mind.” Id.
at 619. Neither party challenges the court’s decision based on “communicated
character.”



                                          5
       The second theory, to show that the victim was the first aggressor, is called
“uncommunicated character” because it does not matter if the defendant was aware
of the victim’s violent character. Id. A defendant in a murder case who raises the
issue of self-defense may offer opinion or reputation testimony to prove the
complainant acted in conformity with his violent nature. Tex. R. Evid. 404(a)(2);
Torres, 71 S.W.3d at 760.4

       Appellant’s claim of self-defense rests upon his assertion that Flores was the
first aggressor. Appellant claims the exclusion of the testimony set forth above
prevented him from presenting evidence in support of his claim. In its brief, the
State concedes some of the evidence was “likely admissible” but argues any error
was harmless.       Assuming, without deciding, the court erred in excluding the
testimony, we will address the issue of harm. We first determine whether the error
is constitutional or other error.

       A constitutional error that is subject to harmless error review requires
reversal unless the appellate court determines beyond a reasonable doubt that the
error did not contribute to the conviction or punishment. Tex. R. App. P. 44.2(a).
Any other error that does not affect a substantial right must be disregarded. Tex. R.
App. P. 44.2(b); and see Tex. R. Evid. 103(a). Citing Potier v. State, 68 S.W.3d
657 (Tex. Crim. App. 2002), appellant claims the error was constitutional.

       In Potier, the court held “the exclusion of a defendant’s evidence will be
constitutional error only if the evidence forms such a vital portion of the case that
exclusion effectively precludes the defendant from presenting a defense.” Id. at
665. Here, the excluded testimony was evidence that Flores drank to excess on

       4
        Specific, violent acts of misconduct may be admitted to show the reasonableness of the
defendant's fear of danger, or to show that the deceased was the first aggressor. But specific acts
are admissible only to the extent that they are relevant for a purpose other than character
conformity. Tex. R. Evid. 404(b).

                                                6
occasion and had a tendency to become aggressive when he drank to excess.
Appellant’s defense was that Flores pulled the shotgun on him and he shot Flores
in self-defense. Not only was appellant able to present this defense through his
own statement, evidence was admitted that supported his claim. The gun case
under Flores’s bed contained the same type of ammunition used to shoot Flores.
There was no evidence that appellant owned a shotgun or had one with him before
entering Flores’s apartment. The clear implication of the evidence was that the
shotgun belonged to Flores and, most probably, he retrieved it from under the bed.
Because the excluded evidence did not preclude appellant from presenting his
defense, we conclude that constitutional error is not presented and that the error
must be disregarded unless a substantial right was affected. See Tex. R. App. P.
44.2(b).

       A substantial right is affected when the error had a substantial or injurious
effect or influence in determining the jury’s verdict. King v. State, 953 S.W.2d
266, 271 (Tex. Crim. App. 1997). A reviewing court should let a conviction stand
if, after examining the record as a whole, it has fair assurance the error did not
influence the jury or had but a slight effect. Schutz v. State, 63 S.W.3d 442, 444
(Tex. Crim. App. 2001).

      Appellant asserts the excluded evidence would have supported his theory of
self-defense. The jury heard evidence that supported appellant’s claim that Flores
pulled the shotgun on him. However, there was also evidence that appellant
“choked him out with his own shotgun” before shooting Flores. There also was
evidence from which the jury could have found appellant broke into the apartment
by kicking in the door.   In light of the other evidence, we are fairly assured that
exclusion of evidence that Flores had a tendency to become aggressive when he
drank to excess did not influence the jury or had a but a slight effect.

                                         7
Accordingly, we must disregard any error. See Tex. R. App. P. 44.2(b).
Appellant’s first issue is overruled.

      II.    Failure to Give Jury Instructions

             A. Manslaughter

      In his second issue, appellant claims the trial court erred in the
guilt/innocence phase by denying his requested jury instruction on manslaughter.
In a prosecution for an offense with lesser-included offenses, the jury may find the
defendant not guilty of the greater offense, but guilty of any lesser-included
offense. Tex. Code Crim. Proc. Ann. art. 37.08.

      Our review of alleged jury charge error is under the standards set forth in the
Texas Code of Criminal Procedure and interpreted in Almanza v. State. Tex. Code
Crim. Proc. Ann. art. 36.19; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.
App. 1985). First, we must ascertain whether the charge given over appellant’s
objection was in error. Almanza, 686 S.W.2d at 177. We conduct a two-prong test
to determine whether a charge on a lesser-included offense should be given.
McKinney v. State, 207 S.W.3d 366, 370 (Tex. Crim. App. 2006). A party is
entitled to such a charge when (1) “the offense is a lesser-included offense of the
offense charged” in the indictment, and (2) the record includes some evidence to
permit a rational jury to find that if the defendant was guilty, he was guilty only of
the lesser offense, but not guilty of the greater. Id. The parties do not dispute that
manslaughter is a lesser-included offense of murder as charged in the indictment
here, so we proceed to the second prong. See id.; see also Cavazos v. State, 382
S.W.3d 377, 384 (Tex. Crim. App. 2012).

      The distinction between murder and manslaughter in the Penal Code is that
murder of the sort charged in this case requires a defendant to have intended to


                                          8
cause serious bodily injury and to have committed an act clearly dangerous to
human life that causes the death of an individual, while a defendant need only have
acted recklessly5 to be guilty of manslaughter. See Tex. Penal Code Ann. §§
19.02(b)(2) and 19.04.

       To satisfy the second prong, we must determine whether there is some
evidence from which a rational jury could acquit appellant of murder while
convicting him of manslaughter. Cavazos, 382 S.W.3d at 384. This is a fact
determination and is based on the evidence presented at trial. Id. at 383. If there is
such evidence, an instruction on the lesser-included offense is warranted,
regardless of whether the evidence is weak, impeached, or contradicted.                     Id.
Mathis v. State, 67 S.W.3d 918, 925 (Tex. Crim. App. 2002) (“The evidence must
establish the lesser-included offense as a valid rational alternative to the charged
offense.”). There must be some evidence directly pertinent to the lesser-included
offense for the jury to consider before a lesser-included instruction is warranted.
Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003), abrogated on
other grounds by Grey v. State, 298 S.W.3d 644 (Tex. Crim. App. 2011).
Therefore, for a manslaughter instruction to be proper here, some evidence would
have to demonstrate that, when he killed Flores, appellant was merely reckless and
lacked the mental state necessary for murder.

       Appellant refers only to his recorded statement where he claimed that he was
in a defensive struggle and fighting for his life when he discharged the shotgun.
Appellant’s brief refers generally to “instances of witness testimony” and suggests
a jury could infer that his mental state did not amount to one of culpable intent to
kill; however, “difficulty remembering things,” “evidence of post-traumatic stress

       5
        A person acts recklessly when he is aware of, but consciously disregards, a substantial
and unjustifiable risk. Tex. Penal Code Ann. § 6.03(c).

                                              9
disorder,” “[leaving] some of his belongings behind” is not evidence that appellant
acted recklessly when he shot Flores at close range in the chest.6

       Appellant relies upon Brown v. State, 296 S.W.3d 371, 383–84 (Tex. App.—
Beaumont 2009, pet. ref’d), where a struggle also took place between the shooter
and the victim.7 Brown is distinguishable from the present case as it involved the
trial court’s granting the State’s request for an instruction on manslaughter over the
defendant’s objection. Brown was decided before the Texas Court of Criminal
Appeals decided Grey v. State, 298 S.W.3d 644 (Tex. Crim. App. 2009), in which
it overruled precedent and held the State is not bound by the second prong under
discussion here, whether there is some evidence the defendant is guilty only of the
lesser offense. Moreover, the murder indictment in Brown required evidence that
Brown intentionally or knowingly caused the death of the complainant, which is
not at issue here. Compare Tex. Penal Code §§ 19.02(b)(1) and 19.02(b)(2).

       The Brown court found “the jury [that convicted Brown of manslaughter but
not of murder] could have reasonably rejected the State’s theory [of murder under
Tex. Penal Code §19.02(b)(1)].” Id. at 384. Specifically, the court pointed to
Brown’s trial testimony that he was attacked, first by the complainant’s pit bull
dog which Brown shot, then by the complainant’s girlfriend, then by the
complainant, who threatened to kill Brown and fought to gain control of Brown’s
handgun.       The Brown court further found that the record contained evidence
directly pertinent to Brown’s recklessness with his handgun so as to permit the trial
court to provide the jury with an instruction on manslaughter. Id. (citing Thomas v.
       6
           The quoted language is from appellant’s brief, not from evidence in the record.
       7
          This case was transferred to this court from the Ninth Court of Appeals. In cases
transferred by the Supreme Court of Texas from one court of appeals to another, the transferee
court must decide the case in accord with the precedent of the transferor court if the transferee
court’s decision would have been inconsistent with the precedent of the transferor court. See
Tex. R. App. P. 41.3.

                                                 10
State, 699 S.W.2d 845, 850 (Tex. Crim. App. 1985) (“Evidence that a defendant
knows a gun is loaded, that he is familiar with guns and their potential for injury,
and that he points a gun at another, indicates a person who is aware of a risk
created by that conduct and disregards the risk.”). The court concluded that the
record contained at least “some” evidence from which the jury could rationally
acquit Brown of murder and convict him of manslaughter.

      As the evidence in this case demonstrates, appellant stated that he “choked
Flores out” with the shotgun before shooting him in the chest at close range.
Appellant declared his intention was to kill Flores because Flores pulled a gun on
him: “someone pulls a gun on you you’re going to kill [him].” Appellant told his
friend that he shot Flores because he could not buy marijuana: “just to watch him
die.” Appellant believed Flores was still alive when he racked another round in the
shotgun chamber and kicked in the apartment door so he could retrieve his jacket.
Appellant’s evidence at trial did not affirmatively demonstrate he merely acted
recklessly and not in a manner intending to cause serious bodily harm. See Mathis,
67 S.W.3d at 926.

      Accordingly, the record does not support a finding that if the defendant was
guilty, he was guilty only of manslaughter. We therefore conclude the trial court
did not err in denying appellant’s request for an instruction on manslaughter in the
guilt/innocence phase. Issue two is overruled.

            B. Sudden Passion

      In his final issue, appellant asserts the trial court erred in denying his
request for an instruction on sudden passion in the punishment phase. A murder
committed under the “immediate influence of sudden passion arising from an
adequate cause” is a second-degree felony carrying a maximum punishment of
twenty years’ imprisonment. Tex. Penal Code § 19.02(d). Sudden passion is
                                        11
“passion directly caused by and arising out of provocation by the individual killed”
which arises at the time of the murder. Tex. Penal Code § 19.02(a)(2). 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.” Tex. Penal Code § 19.02(a)(1). The defendant has
the burden of production and persuasion with respect to the issue of sudden
passion. Tex. Penal Code § 19.02(d). A defendant is entitled to a jury instruction
on the issue of sudden passion at the punishment phase if the record supports an
inference: 1) that the defendant in fact acted under the immediate influence of a
passion such as terror, anger, rage, or resentment; 2) that his sudden passion was in
fact induced by some provocation by the deceased or another acting with him,
which provocation would commonly produce such a passion in a person of
ordinary temper; 3) that he committed the murder before regaining his capacity for
cool reflection; and 4) that a causal connection existed “between the provocation,
passion, and homicide.” McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim.
App. 2005).      Whether the evidence is weak, impeached, contradicted, or
unbelievable, if the evidence raises the issue from any source, during either phase
of trial, the defendant has satisfied his burden of production and the trial court must
submit the issue in the jury charge if the defendant requests it. Id.; Trevino v.
State, 100 S.W.3d 232, 238–39 (Tex. Crim. App. 2003) (per curium).

      While there was evidence appellant acted in response to provocation, i.e.
testimony that Flores pulled out the shotgun, there was no evidence introduced that
appellant shot Flores under the immediate influence of terror, anger, rage, or
resentment. Id. at 241. Appellant declared his intention was to kill Flores because
he pulled a gun on him: “someone pulls a gun on you, you’re going to kill [him].”
Appellant’s own appraisal of his situation reveals that he had reflected on it, knew


                                          12
what he had to do, and did it. See Daniels v. State, 645 S.W.2d 459, 460 (Tex.
Crim. App. 1983) (finding appellant’s testimony he was afraid complainant “was
going to kill [him]” did not demonstrate sudden passion where appellant also
agreed that he knew he had to do what he did). Even if appellant had testified that
he was frightened by the shotgun, “a bare claim of” fear does not demonstrate
“sudden passion arising from adequate cause.” Id.; Wooten v. State, 400 S.W.3d
601, 606–607 (Tex. Crim. App. 2013). Thus, the trial court did not err in failing to
so instruct the jury at punishment. Furthermore, even if the trial court’s failure to
charge the jury with respect to sudden passion were error, we find appellant was
not harmed. See Wooten, 400 S.W.3d at 606. “To assay harm, we focus on the
evidence and record to determine the likelihood that a jury would have believed
that the appellant acted out of sudden passion had it been given the instruction.”
Id. at 605. See Wooten, 400 S.W.3d at 608, n.38 (finding that, though typically
considered under an Almanza harm analysis, neither the jury charge as a whole nor
the arguments of counsel were particularly informative because, in the absence of a
sudden passion instruction, the parties had no occasion to argue the issue pro or
con.). A jury’s rejection of a claim of self-defense does not automatically mean
appellant was not harmed by the failure to receive a sudden passion charge. See
Trevino, 100 S.W.3d at 242 (finding jury could have accepted alternate theory).
However, it is a possibility. See Wooten, 400 S.W.3d at 609 (finding jury highly
unlikely to find sudden passion where same evidence supported self-defense theory
that jury rejected). “If, except in ‘a rare instance,’ the same evidence raising a fact
issue on self-defense also raises an issue on ‘sudden passion,’ then it must also be
true that, except in rare instances, when the State’s evidence is sufficient to
overcome a claim of self-defense, it will also be sufficient to show the absence of
sudden passion.” Benavides v. State, 992 S.W.2d 511, 524–25 (Tex. App.—
Houston [1st Dist.] 1999, pet. ref’d).
                                          13
      In the present case, the jury’s rejection of appellant’s self-defense claim
demonstrates the jury did not accept appellant’s version of events. It is highly
unlikely that a jury would nevertheless find in his favor under the same evidence
on the issue of sudden passion. See Wooten, 400 S.W.3d at 608. Based on the
evidence before us, it is exceedingly unlikely that the appellant suffered “some
harm” as a result of the trial court’s error, if any, in failing to give the jury a
sudden passion instruction. Accordingly, we overrule appellant’s third issue.

                                    CONCLUSION

      Having overruled all of appellant’s issues, we affirm the trial court’s
judgment.




                                      /s/    Martha Hill Jamison
                                             Justice



Panel consists of Chief Justice Frost and Justices Jamison and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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