AFFIRM; and Opinion Filed July 17, 2017.




                                          S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-16-00810-CR

                                MYO NAING SWE, Appellant
                                           V.
                               THE STATE OF TEXAS, Appellee

                       On Appeal from the 282nd Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F-1475492-S

                              MEMORANDUM OPINION
                           Before Justices Francis, Brown, and Schenck
                                    Opinion by Justice Brown
       Following a jury trial, Myo Naing Swe appeals his conviction for murder. In four issues,

appellant contends the evidence is insufficient to support the jury’s rejection of both self-defense

and sudden passion, the trial court erred in excluding evidence relevant to self-defense, and the

trial court violated his right to allocution. We affirm the trial court’s judgment.

                                           BACKGROUND

       The indictment alleged appellant intentionally and knowingly caused the death of

Anthwan Clinton by striking Clinton with a hammer. See TEX. PENAL CODE ANN. § 19.02(b)(1)

(West 2011). The indictment alleged in the alternative that appellant intended to cause serious

bodily injury to Clinton and committed an act clearly dangerous to human life, striking Clinton

with a hammer, and thereby caused Clinton’s death. Id. § 19.02(b)(2).
          The jury trial in this case lasted just over a week, and there were more than fifteen

witnesses. We limit our recitation of the facts to those necessary to resolve the issues in this

appeal. There is no dispute that Clinton died as a result of injuries inflicted by appellant.

Clinton’s older brother Reginald testified that Clinton hung out several days a week in a high-

crime area known as Five Points with appellant and others. They smoked “K2,” a synthetic

drug. When Clinton did not come home one night, Reginald went to look for Clinton and found

him dead in appellant’s apartment. Appellant fled to Mexico after the incident. When he tried to

return to the United States a short time later, appellant told a customs agent at the border that he

had killed a man in Dallas.

          Appellant waived his rights and chose to speak to Agent Paulo Lozano with the

Department of Homeland Security at the border. Lozano contacted the FBI about the situation.

FBI Special Agent Gregory Bostic arrived and sat in on the interrogation. Lozano and Bostic

both testified about what appellant told them. Lozano testified appellant told him that on about

March 24, 2014, he had been hanging out with friends at his apartment, including Clinton. 1

Appellant had been smoking marijuana and said Clinton had been smoking PCP. Appellant said

Clinton began acting strangely. Clinton came at appellant and attempted to rape him. Clinton

said, “Let’s do it for the Illuminati.” Appellant became angry and told the victim, “Don’t ever

come at me like that or I will kill you.” The others present separated them. Appellant told the

others to leave, but Clinton stayed. Appellant and Clinton watched movies on appellant’s phone

and fell asleep on the floor. Sometime later, appellant woke up and began thinking about the

prior altercation with Clinton. Appellant became angry. He retrieved a hammer from his closet.

While Clinton was sleeping, appellant hit him in the head with the hammer about five times.

Clinton began to scream. Appellant covered Clinton’s face with a pillow and with clothing and

   1
       Appellant did not identify Clinton by name during the interview, but we do so for ease of reference.



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pressed down until the victim died. Appellant then left the apartment. He later told his friend A.

Soe that he had killed someone and took him to the apartment to show him the body. They

decided it would be best to flee to Mexico. Appellant and Soe took the bus to Laredo and

walked across the border to Nuevo Laredo. After a couple of days, they decided they could not

stay in Mexico and walked back to the United States. Appellant told Lozano he was okay with

what he had done and that he felt he had killed the victim for God. Agent Bostic’s testimony

about appellant’s statements during the interrogation was similar to and corroborated Agent

Bostic’s.

       Dallas Police Detective Derick Chaney found the hammer used to kill Clinton in a creek

less than half a mile from appellant’s apartment.

       David Spence, supervisor of the trace evidence section at Southwestern Institute of

Forensic Sciences (SWIFS) crime lab, performed a bloodstain pattern analysis in this case.

Spence analyzed crime scene photographs, the autopsy report, items of the victim’s clothing, and

hair and fibers from the scene. Bloodstains were observed on the victim and his clothes, the

carpet, the adjacent wall, and other items on the floor. Spence testified in detail about various

bloodstain patterns at the scene. There were spatter bloodstains below and to the right of an

electrical outlet consistent with a force being applied to a source of blood in the area near the

outlet. Spence testified that the height of the spatter bloodstains on the wall was consistent with

a source of blood being at the height of somewhere between the floor and the height of the outlet.

He stated that the likely source of blood at the scene was the victim’s head.

       On cross-examination, Spence testified there was no evidence of spatter stains high on

the wall. Spence could not rule out that the spatter stains were consistent with a person who was

on his knees on all fours and struck in the back of his head. From the blood stain patterns,

Spence could not rule out a scenario where the person was standing up, was struck twice with a

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hammer, dropped to his knees, was struck again, and then was driven to the floor and given a

shower of blows.

       Dr. Candace Schoppe, a medical examiner with SWIFS, performed an autopsy on

Clinton. The cause of death for Clinton was blunt force injuries of the head. She testified that

the majority of his injuries were on the right side of his head. Some of the wounds were crescent

shaped, which was consistent with being struck by a hammer. The doctor counted at least

sixteen individual lacerations or defects. Schoppe stated that Clinton did not die instantly, but

would not have survived more than a couple of hours. The victim would have been rendered

unconscious fairly quickly. The location of the blows told Schoppe that the victim was probably

positioned with the left side of his head toward the ground or away from the object striking him.

The majority of the blows were to the back of the head. He also had cuts on his lip that were not

consistent with being hit with a hammer in the mouth and were “maybe more from . . . falling.”

There was no evidence to indicate that the victim was alive and moaning and someone held a

pillow over his face to get him to stop breathing. There was no evidence of suffocation.

       The medical examiner also testified that Clinton had PCP in his system at a level of .03

milligrams per liter. The test for K2 in his system was negative. This type of drug is frequently

modified to avoid detection. There was testimony from both the State and defense about the

effects of PCP.

       Appellant testified and presented a different version of events from the one he gave

shortly after Clinton’s death. Appellant first testified about an incident that occurred a couple of

days before Clinton’s death. Appellant, Clinton, and Reginald had gone to an apartment to get

some PCP. Reginald went in to the apartment, and appellant and Clinton waited outside. A man

came out and asked what they were doing there. Clinton said, “on blood,” and Clinton and the




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man started swinging. Appellant ran. Clinton and Reginald met up with appellant in about thirty

minutes, but Clinton wanted to go back and continue to fight.

       According to appellant, on March 23, 2014, appellant, Clinton, and two others, Prince

Constant and Gediyon Assefa, got some PCP. They smoked it and K2. They were high and

walked around for a couple of hours. They eventually went back to appellant’s apartment where

everyone but appellant smoked the remaining PCP. After that, Clinton got up and began making

growling noises like a dog about to fight. Appellant also described the noise as a demonic voice.

Clinton looked at appellant with a mean look. Clinton was standing and appellant was sitting.

Clinton grabbed appellant’s shirt and pulled him up off the ground. Clinton started swinging at

appellant’s head. Appellant testified Clinton beat him for about fifteen seconds. Appellant did

not hit Clinton back. Clinton then pushed appellant to the ground and jumped on him, landing in

between appellant’s legs. Clinton then started ripping appellant’s shirt. Clinton was between

appellant’s legs and he started putting his face “between [appellant’s] neck.” Appellant testified

he thought Clinton was trying to rape him. Appellant told Assefa and Constant to get Clinton off

of him. Assefa and Constant tried to help appellant and started pulling Clinton up. Appellant

then pushed Clinton to the ground and slapped his face. Clinton was still making noises and he

started rolling around on the ground. Appellant told the three men that they needed to leave.

       All four men left the apartment together and started walking. Clinton would not talk and

exhibited more strange behavior.     Eventually, appellant started to walk home, and Clinton

followed him to his apartment. Appellant told Clinton he could not come in. As appellant

opened his apartment door, Clinton punched him in the back of the head. Appellant went to his

closet, leaving the door to the apartment open. He heard glass break. Appellant got a hammer

out of the closet for protection. When he turned around, he saw Clinton in the apartment.

Appellant told him to get out, but Clinton walked toward appellant with a “mean face.”

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Appellant testified that he was scared. Clinton was “balling up his hands.” Appellant took that

to mean Clinton was going to hit him again. In appellant’s mind, Clinton was going to kill him.

Appellant started swinging the hammer. Clinton was really close to him and tried to grab the

hammer. Appellant could not say how many times he hit Clinton in the head. After appellant hit

him, Clinton fell forward near the wall. He fell all the way to the ground, but then got up on all

fours. Appellant started swinging again because he was scared. Appellant hit Clinton again in

the back of the head. He did not know how many times. Clinton dropped down flat on the

ground, and appellant kept hitting him. When he thought Clinton was dead, appellant put

pillows and blankets on top of Clinton so he would not have to see him. Appellant did not call

the police. He testified that people in the Five Points area do not trust the police. Before he left

for Mexico, appellant threw the hammer in a nearby river. Appellant testified that Clinton was

the first aggressor. He testified he caused the death of Clinton to protect himself and did not feel

like he had another option.

       According to appellant’s trial testimony, Clinton was not making loud screaming noises,

and appellant never used a pillow to smother him. He did not attack Clinton while Clinton slept.

They did not watch movies on appellant’s cell phone. Appellant did not recall being interviewed

by Homeland Security or by the FBI. He did not recall telling them that Clinton stayed behind in

his apartment and they watched movies. He did not recall telling them that he hit Clinton while

he was asleep.

       Constant testified that on the morning of March 23, 2014, he was with Assefa and

Clinton and they were smoking a K2 blunt. Clinton was his good friend. Some time that

afternoon, appellant approached them by a store named Bonito’s. The group walked to an

apartment a few minutes away, and Clinton purchased PCP. Constant testified that Assefa,

Clinton, and appellant smoked the PCP. They later went to appellant’s apartment. Constant

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stayed in appellant’s apartment about thirty minutes because Clinton “started tripping.”

Constant knew something was not right. Clinton grabbed appellant and “tussled him up.”

Constant and Assefa got Clinton off of appellant. They splashed some water on Clinton’s head

to calm him down. At some point, Clinton hit the window with his hand. Constant and Assefa

left the apartment.

       Constant testified that before Clinton started beating on appellant, appellant was “making

gay advances” toward him. Constant testified he did not know why Clinton started hitting

appellant; he did not know if it was due to the advances. Constant testified that all four men left

the apartment at about 9:00 p.m. The last time Constant saw Clinton was not in appellant’s

apartment; it was behind a nearby church. When they were all four at the church, everyone was

peaceful.

       On cross-examination, Constant denied telling Detective Chaney that Clinton hit

appellant. Appellant was not hurt as a result of the altercation. Constant admitted that Clinton

was his friend and that he did not like appellant.

       The defense next called Detective Chaney as a witness. He testified he interviewed

Constant and Constant did not mention any homosexual advances made by appellant. In his

investigation, he was told Clinton initiated the altercation and that Clinton beat appellant.

       The trial court instructed the jury on self-defense in the charge. The jury found appellant

guilty of murder. At punishment, the jury found that appellant did not cause Clinton’s death

while under the immediate influence of sudden passion arising from an adequate cause. The jury

assessed appellant’s punishment at twenty-five years’ confinement. This appeal followed.

                                          SELF-DEFENSE

       In his first issue, appellant challenges the sufficiency of the evidence to support the jury’s

rejection of self-defense. He contends that the evidence is factually insufficient to support the

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jury’s rejection of self-defense and argues the verdict is so against the great weight and

preponderance of the evidence as to be manifestly unjust. As explained below, the appropriate

standard by which to review a jury’s rejection of self-defense is the Jackson v. Virginia standard.

See Smith v. State, 355 S.W.3d 138, 144 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d); see

also Jackson v. Virginia, 443 U.S. 307 (1979).

       Self-defense is a defense to prosecution under penal code section 2.03. Smith, 355

S.W.3d at 144; see TEX. PENAL CODE ANN. §§ 2.03, 9.31, 9.32 (West 2011). 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. TEX. PEN. CODE ANN. § 9.31(a). Deadly force in self-defense is justified when a

person reasonably believes the force is immediately necessary to protect the actor against the

other’s use or attempted use of unlawful deadly force. Id. § 9.32(a).

       The issue of self-defense is an issue of fact to be determined by the jury. Saxton v. State,

804 S.W.2d 910, 913 (Tex. Crim. App. 1991). A defendant has the burden of producing some

evidence to support a claim of self-defense. Smith, 355 S.W.3d at 144 (citing Zuliani v. State, 97

S.W.3d 589, 594 (Tex. Crim. App. 2003)). Once the defendant produces such evidence, the

State bears the ultimate burden of persuasion to disprove self-defense. Id. The burden of

persuasion does not require the State to produce evidence, but it requires that the State prove its

case beyond a reasonable doubt. Id. For this reason, in resolving an issue about the sufficiency

of the evidence of self-defense, we determine whether after viewing all the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the essential

elements of murder beyond a reasonable doubt and also could have found against appellant on




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the self-defense issue beyond a reasonable doubt. 2 Saxton, 804 S.W.2d at 914; Smith, 355

S.W.3d at 145. The jury resolves any conflicts in the testimony and determines the credibility of

the witnesses and the weight to be given to their testimony. Gaona v. State, 498 S.W.3d 706,

709 (Tex. App.—Dallas 2016, pet. ref’d).

           Appellant’s argument is not about the evidence of his use of deadly force and whether it

was reasonably necessary. Instead, he argues that the State’s theory that he hit Clinton while he

slept is not supported by the evidence, citing testimony from the medical examiner and the

bloodstain expert, as well as Constant’s testimony that all four men left the apartment together.

The jury heard two versions of how Clinton died that night, both originating from appellant.

When appellant spoke to law enforcement officers at the border shortly after Clinton’s death, he

did not mention self-defense. He told them that he hit Clinton in the head with a hammer while

he slept. The jury as factfinder was free to disbelieve appellant’s testimony at trial over two

years later that he acted in self-defense after Clinton hit him and followed him into his

apartment.          Further, in rejecting appellant’s claim of self-defense, the jury was entitled to

consider appellant’s actions in disposing of the weapon and fleeing to Mexico. Valverde v. State,

490 S.W.3d 526, 529–30 (Tex. App.—San Antonio 2016, pet. ref’d); see Clayton v. State, 235

S.W.3d 772, 780 (Tex. Crim. App. 2007) (factfinder may draw an inference of guilt from

circumstance of flight).                 After viewing all the evidence in the light most favorable to the

prosecution, we conclude any rational trier of fact could have found the essential elements of

murder beyond a reasonable doubt and also could have found against appellant on the self-

defense issue beyond a reasonable doubt. We overrule appellant’s first issue.



     2
        To support his assertion that a factual sufficiency challenge may be made to the jury’s rejection of self-defense, appellant cites Butcher v.
State, 454 S.W.3d 13 (Tex. Crim. App. 2015). Butcher did not involve self-defense. It was a kidnapping case that involved the mitigating
defense of release in a safe place, which the court of criminal appeals treated as an affirmative defense and evaluated for factual sufficiency. Id.
at 20. Self-defense is a defense under penal code section 2.03, not an affirmative defense. Saxton, 804 S.W.2d at 912 n.5.



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                                        SUDDEN PASSION

       In his second issue, appellant contends the jury’s rejection of sudden passion was so

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

disagree.

       Murder is a first-degree felony. TEX. PENAL CODE ANN. § 19.02(c). At the punishment

phase of a murder trial, the defendant may raise the issue of whether he caused the death under

the immediate influence of sudden passion arising from an adequate cause. Id. § 19.02(d). If the

defendant proves the issue by a preponderance of the evidence, the offense is a felony of the

second degree. Id. “Sudden passion” means passion directly caused by and arising out of

provocation by the individual killed which passion arises at the time of the offense and is not

solely the result of former provocation. Id. § 19.02(a)(2). “Adequate cause” means cause that

would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary

temper, sufficient to render the mind incapable of cool reflection. Id. § 19.02(a)(1).

       Although the issue of sudden passion is a punishment issue, it is analogous to an

affirmative defense because the defendant has the burden of proof by a preponderance of the

evidence. Gaona, 498 S.W.3d at 710. For this reason, a finding on sudden passion may be

reviewed for factual sufficiency. Id. When we review a jury’s rejection of an issue on which the

defendant had the burden of proof by a preponderance of the evidence, the standard of review is

whether, after considering all the evidence relevant to that issue, the finding is so against the

great weight and preponderance of the evidence as to be manifestly unjust. Naasz v. State, 974

S.W.2d 418, 421 (Tex. App.—Dallas 1998, pet. ref’d) (citing Meraz v. State, 785 S.W.2d 146,

154–55 (Tex. Crim. App. 1990)).

       Appellant asserts that his testimony was more consistent with the physical evidence than

the State’s version of the events. Appellant maintains he killed Clinton after Clinton struck him

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in the back of the head and followed him into his apartment without permission. According to

appellant, he panicked and attacked Clinton while fearing he was going to lose his life.

Appellant also said he could not remember how many times he struck Clinton, which he asserts

shows he was acting in a frenzy or rage.          Appellant contends Clinton’s multiple acts of

aggression provoked him and produced a degree of anger, rage, or resentment sufficient to

render his mind incapable of cool reflection.

       Although the blood spatter expert could not rule out that the victim was first standing up,

the evidence was consistent with the source of blood being between the height of the floor and

the outlet. The issue of whether appellant acted under the immediate influence of sudden passion

hinged on the jury’s evaluation of appellant’s credibility, and we defer to the jurors’ resolution of

the issue. They were free to disbelieve appellant’s testimony that Clinton had struck him in the

head right before he got the hammer and that he acted out of panic and fear. The jury could have

chosen to instead believe appellant’s statement, made soon after Clinton’s death, that appellant

attacked Clinton while he slept on the floor, which was consistent with the physical evidence.

After reviewing the evidence, we cannot conclude the jury’s finding that appellant did not act

under the immediate influence of sudden passion arising from an adequate cause is so against the

great weight and preponderance of the evidence as to be manifestly unjust.             We overrule

appellant’s second issue.

                                    EXCLUSION OF EVIDENCE

       In his third issue, appellant contends the trial court abused its discretion in excluding

evidence that was relevant to his claim of self-defense. He complains of the trial court’s refusal

to allow him to develop testimony about the Illuminati. Agent Bostic testified that the Illuminati

is a cult that is supposed to believe in new world order and is comprised of the elite and rich of




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the world. Although not entirely clear from the record or the appellant’s brief, it appears

appellant wanted to present evidence that the Illuminati is a Dallas gang.

       Prior to Constant’s testimony for the defense, the State asked that Constant not be

permitted to give any character evidence that the court had not yet ruled on, such as testimony

about the Illuminati or gang affiliation. The court had previously reserved ruling on this issue

until after appellant testified. Appellant’s counsel mentioned that Constant had said in an

interview that Clinton was “throwing down Illuminati signs” during his altercation with

appellant. Defense counsel asserted the evidence was res gestae of the offense rather than

character evidence. According to the defense, it was contextual evidence. The State responded

that Constant was not present when the murder took place and had no personal knowledge of the

events. The prosecutor argued that the desired testimony was being used to show character

conformity. The court ruled it would allow discussion of the physical altercation, but no mention

of the Illuminati.

       During appellant’s testimony, he mentioned that Clinton told him, “[L]et’s do it for the

Illuminati.” The court then went off the record and instructed appellant he was not allowed to

talk about the Illuminati in front of the jury. The court allowed the defense to make an offer of

proof about the gang evidence it sought. Appellant stated he knew Clinton was in a gang and

that he had seen him fighting on the street. Appellant said this caused him concern when Clinton

was coming at him. Appellant stated he knew Clinton was “a blood.” When Clinton was

beating appellant, Clinton said, “[L]et’s do it for the Illuminati.” At the conclusion of the offer of

proof, the court ruled appellant could not talk about the Illuminati.

       Appellant now contends that because the State introduced the subject of the Illuminati

during the testimony of Bostic and Lozano, it opened the door for appellant to develop testimony

about the nature of that comment and how it related to his self-defense claim. Appellant did not

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argue in the trial court, however, that the evidence should be admitted because the State opened

the door. Appellant gave various reasons why the evidence he sought was admissible. He

argued it was admissible because it was res gestae, contextual evidence, and was relevant to

appellant’s state of mind. Appellant also argued that not being allowed to question Constant on

the topic deprived him of his right to present a defense and his right to confront the witness. As

a prerequisite to presenting a complaint for appellate review, the record must show that the

complaint was made to the trial court by a timely request, objection, or motion that stated the

grounds for the ruling that the complaining party sought from the trial court. See TEX. R. APP. P.

33.1(a). Further, the record must show the trial court ruled on the request or refused to rule. Id.

Appellant did not give the trial court the opportunity to rule on the argument he now makes. He

has failed to preserve this issue for appellate review. We overrule appellant’s third issue.

                                           ALLOCUTION

       In his fourth issue, appellant contends the trial court denied him his common-law right to

allocution. Appellant acknowledges that the trial court complied with the statute pertaining to

allocution by asking if there was any legal reason sentence should not be imposed. See TEX.

CODE CRIM. PROC. ANN. art. 42.07 (West 2006) (before pronouncing sentence, defendant shall be

asked whether he has anything to say why sentence should not be pronounced against him).

Appellant complains of the trial court’s failure to inquire if he wished to exercise his common-

law right to allocution or had anything to say beyond the limited reasons in article 42.07 why

sentence cannot be pronounced. See id. Appellant has failed to preserve this issue for appellate

review. Again, as a prerequisite to presenting a complaint for appellate review, the record must

show that the specific complaint was made to the trial court. See TEX. R. APP. P. 33.1(a).

Appellant did not object at trial on grounds he was denied his common-law right of allocution

and raises this issue for the first time on appeal. He has failed to preserve error. See Norton v.

                                               –13–
State, 434 S.W.3d 767, 771 (Tex. App.—Houston [14th Dist.] 2014, no pet.). We overrule

appellant’s fourth issue.

       We affirm the trial court’s judgment.




                                                  /Ada Brown/
                                                  ADA BROWN
                                                  JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b).

160810F.U05




                                               –14–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

MYO NAING SWE, Appellant                               On Appeal from the 282nd Judicial District
                                                       Court, Dallas County, Texas
No. 05-16-00810-CR         V.                          Trial Court Cause No. F-1475492-S.
                                                       Opinion delivered by Justice Brown, Justices
THE STATE OF TEXAS, Appellee                           Francis and Schenck participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 17th day of July, 2017.




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