Opinion issued June 25, 2019




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                            ————————————
                              NO. 01-18-00222-CR
                           ———————————
                   ISHMAEL OMAH ALFRED, Appellant
                                       V.
                           THE STATE OF TEXAS



                   On Appeal from the 174th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1472016


                         MEMORANDUM OPINION

      A jury convicted appellant, Ishmael Omah Alfred, of murder and assessed

punishment at 20 years’ confinement. On appeal, appellant contends the trial court
erred by (1) excluding the complainant’s social media posts; (2) excluding evidence

that the complainant had previously committed a burglary; and (3) refusing

appellant’s request for a jury instruction on sudden passion at the punishment phase

of trial. We affirm.

                                BACKGROUND

      On June 9th, 2015, appellant sent the complainant, David Hernandez, a series

of text messages inviting him to appellant’s house. Appellant and the complainant

had been friends but had not seen each other for several years because of a

disagreement. The complainant arrived at appellant’s around 4:30 p.m.,

approximately one-half hour after appellant invited him over. A neighbor saw the

complainant walk to the front door, which was open, and then lost sight of him.

      Several seconds later, the neighbor heard appellant shoot the complainant.

Appellant then called 9-1-1 and claimed that he had detained someone trying to

break into his house. Police arrived to investigate and discovered the complainant’s

body lying approximately five or six feet from appellant’s back door. The

complainant did not have any burglary tools and was unarmed.

      Appellant told police that he was standing by the door when the complainant

“powerwalked” by him. Appellant said he called out to the complainant, saw the

complainant turn, and then appellant shot him. Appellant never stated that he saw a

weapon in the complainant’s hand.


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      Appellant, testifying on his own behalf at trial, gave another version of the

events. Appellant testified that he was aware of some of the complainant’s prior

violent acts and that such acts frightened him. When the complainant appeared at

appellant’s house on the day of the shooting, appellant had a pistol, which was not

loaded. Appellant issued an invitation for the complainant to come to appellant’s

house, and exchange of messages ensued in which the complainant asked appellant

if he was still mad at him about clothes and admitted that he had committed a “hoe

move” that he would repay. Appellant testified that he did not know what the

complainant was talking about and that the complainant owed him nothing.

Appellant continued to invite the complainant to come by the house. Appellant

testified that he had no intention of harming the complainant.

      Appellant testified that he was in the hall sending a text message to his

girlfriend, when his younger brother, Jerome, alerted him to a loud noise behind the

house, and his mother began yelling. Appellant noticed that a screen was off a

window, which prompted him to retrieve his handgun and ammunition. Appellant

saw a car he did not recognize blocking his driveway. He heard loud noises coming

from the back door, but “nothing was happening” because the door was barricaded.

Appellant removed the barricade and went out the back door. Outside, he saw the

complainant and asked him, “What the f***, bro.” The complainant turned around

and, without a word, lunged and charged at appellant. The complainant’s face looked


                                         3
“angry.” Appellant was frightened. The complainant was “two steps away” and

raised his hands, as if to grab Appellant’s gun; whereupon, appellant fired one shot

that struck the complainant in the head.

      Appellant testified he feared for his own safety and for that of his mother and

younger brother.

         EXCLUDING COMPLAINANT’S SOCIAL-MEDIA POSTS

      During cross-examination of a State’s witness, appellant sought to introduce

15 posts from the complainant’s Facebook page, made several years before the

charged offense, in which the complainant proclaimed himself to be violent, or a

“thug” or showed pictures of himself engaged in criminal or obscene activity. In

issue one, appellant contends the trial court abused its discretion in refusing to admit

the complainant’s social media posts.

Standard of Review

      We review a trial court’s rulings to admit or exclude evidence under an abuse

of discretion standard. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App.

2011). We will not reverse a trial court’s ruling unless that ruling falls outside the

zone of reasonable disagreement. See id. We uphold the trial court’s ruling if it is

reasonably supported by the record and is correct under any theory of law applicable

to the case. See Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).




                                           4
Self-defense—Character Evidence under Rule 404(a)(3)

      In general, evidence of a person’s character may not be used to prove that the

person “behaved in a particular way at a given time.” Tate v. State, 981 S.W.2d 189,

192 (Tex. Crim. App. 1998); see TEX. R. EVID. 404(a). This limit on character

evidence, however, is not absolute. When a defendant in a homicide prosecution

raises the issue of self-defense, he may introduce evidence of the victim’s violent

character on two separate theories. TEX. R. EVID. 404(a)(3); see Ex parte Miller, 330

S.W.3d 610, 618 (Tex. Crim. App. 2009); Torres v. State, 117 S.W.3d 891, 894

(Tex. Crim. App. 2003).

      Under the first theory, the defendant may offer reputation or opinion

testimony, or evidence of specific prior acts of violence by the victim, to show the

reasonableness of the defendant’s claimed fear of danger from the victim. See Miller,

330 S.W.3d at 618. This is called “communicated character” evidence because the

defendant knows of the victim’s violent tendencies and sees a danger posed by the

victim, regardless of whether that danger is real. See id. The defendant is not trying

to prove the victim was actually violent, but that his fear of the victim during their

confrontation was reasonable. See id. at 619.

      Under the second theory––called “uncommunicated character” evidence

because it does not matter whether the defendant knew of the victim’s violent

character––a defendant may offer evidence of the victim’s character trait for


                                          5
violence to show that the victim was, in fact, the first aggressor. See id.; see also

TEX. R. EVID. 404(a)(2). “The chain of logic is as follows: a witness testifies that the

victim made an aggressive move against the defendant; another witness then testifies

about the victim’s character for violence, but he may do so only through reputation

and opinion testimony under Rule 405(a).” Miller, 330 S.W.3d at 619.

      In this case, appellant offered the complainant’s Facebook posts (1) “[t]o

correct the impression of good character of the [c]omplainant previously testified to

by Dezerai Rodriguez, on direct examination from the State;” (2) to show an

“uncommunicated character” trait of the complainant, i.e., that complainant was the

first aggressor; and (3) under the rule of optional completeness. We address each

argument respectively.

      To Correct a False Impression

      At trial, the State called Dezerai Rodriguez, the complainant’s previous

girlfriend. Rodriguez testified that the complainant was “very outgoing,” “the life of

the party,” and “just real fun to be around.” She also testified that the complainant

never hurt her and that his tattoos did not scare her. Appellant argues that the

Facebook posts should have been admitted to counter Rodriguez’s testimony, which

“create[d] an image of the Complainant as friendly and harmless.”

      The general rule is that a party is not entitled to impeach a witness on a

collateral matter. Ramirez v. State, 802 S.W.2d 674, 676 (Tex. Crim. App. 1990).


                                           6
However, when a witness has voluntarily testified to a collateral matter resulting in

a false impression, the witness may be impeached on that matter in order to correct

the false impression. But, courts construe this exception narrowly. James v. State,

102 S.W.3d 162, 181 (Tex. App.—Fort Worth 2003, pet ref’d). Moreover, “[u]nless

the witness’s testimony created a false impression that is directly relevant to the

offense charged, allowing a party to delve into the issue beyond the limits of cross

examination wastes time and confuses the issues.” Hayden v. State, 296 S.W.3d 549,

554 (Tex. Crim. App. 2009).

      Even if we were to agree that Rodriguez’s testimony left a false impression

that the complainant was “friendly and harmless,” appellant had the opportunity to

correct the alleged false impression by cross-examining Rodriguez at trial. Appellant

was not entitled to correct the alleged false impression by introducing extrinsic

evidence via the complainant’s Facebook posts. See Wheeler v. State, 67 S.W.3d

879, 885 (Tex. Crim. App. 2002) (“[O]pponent must correct the ‘false impression’

through cross-examination of the witness who left the false impression, not by

calling other witnesses to correct that false impression”).

      First aggressor—Texas Rule of Evidence 404(a)(3).

      Appellant also argues that, under Rule 404(a)(3), he was entitled to introduce

the complainant’s Facebook posts to show that the complainant had an

uncommunicated character trait for aggression. It is true that a defendant may offer


                                          7
uncommunicated evidence of the victim’s character trait for violence pursuant to

Rule 404(a) to show that the victim was the first aggressor, but a defendant may do

so “only through reputation and opinion testimony under Rule 405(a).” Ex parte

Miller, 330 S.W.3d at 619; Allen v. State, 473 S.W.3d 426, 445 (Tex. App.—

Houston [14th Dist.] 2015, pet. dism’d); see TEX. R. EVID. 405(a).

      Here, appellant proffered evidence, i.e., the complainant’s Facebook posts, to

show that appellant represented himself as a violent “thug.” Such evidence, appellant

contends, shows that the complainant’s character trait for violence and demonstrates

that he was the first aggressor. Although the Facebook posts were an attempt to show

the complainant’s conformity with his violent character, they were neither reputation

nor opinion testimony. See Allen, 473 S.W.3d at 445–46. As such, the trial court did

not abuse its discretion in excluding the proffered evidence. See Ex parte Miller, 330

S.W.3d at 620; Allen, 473 S.W.3d at 445–46.

      Optional Completeness

      Appellant also complains that, because the State entered his own text

messages into evidence, which were sent to the complainant via the Facebook

Messenger application less than an hour before the murder, he should, under the rule

of optional completeness, be able to introduce all of the complainant’s Facebook

posts, which were from several years before the murder.




                                          8
      Texas Rule of Evidence 107, the rule of optional completeness, is an exception

to the general rule that hearsay is inadmissible. Pena v. State, 353 S.W.3d 797, 814

(Tex. Crim. App. 2011); Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App.

2007). The rule of optional completeness provides:

             If a party introduces part of an act, declaration, conversation,
      writing, or recorded statement, an adverse party may inquire into any
      other part on the same subject. An adverse party may also introduce any
      other act, declaration, conversation, writing, or recorded statement that
      is necessary to explain or allow the trier of fact to fully understand the
      part offered by the opponent. “Writing or recorded statement” includes
      a deposition.

TEX. R. EVID. 107.

      This rule “is one of admissibility and permits the introduction of otherwise

inadmissible evidence when that evidence is necessary to fully and fairly explain a

matter ‘opened up’ by the adverse party.” Walters, 247 S.W.3d at 217–18. The rule

“is designed to reduce the possibility of the jury receiving a false impression from

hearing only a part of some act, conversation, or writing.” Id. at 218.

      Admission of evidence under the rule of optional completeness is “not

invoked by the mere reference to a document, statement, or act.” Pena, 353 S.W.3d

at 814; Walters, 247 S.W.3d at 218. Rather, for evidence to be admissible under this

rule, “the omitted portion of the statement must be ‘on the same subject’ and must

be ‘necessary to make it fully understood.’” Pena, 353 S.W.3d at 814 (quoting

Sauceda v. State, 129 S.W.3d 116, 123 (Tex. Crim. App. 2004)); see Walters, 247


                                          9
S.W.3d at 218 (“Rule 107 does not permit the introduction of other similar, but

inadmissible, evidence unless it is necessary to explain properly admitted

evidence.”).

      We begin our analysis by noting that the Facebook posts from previous years

and the text messages sent via the Facebook Messenger application are not a part of

the same “act, declaration, conversation, writing, or recorded statement,” as required

by Rule 107. The text messages are part of a recent private conversation between

appellant and the complainant and were sent on a completely separate application.1

In contrast, the Facebook posts are not private conversations between appellant and

the complainant, but were visible to all of the complainant’s “friends” on Facebook,

which is a separate platform from Facebook Messenger. As such, the rule of optional

completeness is not applicable.

      And, even if it were, the trial court would not have abused its discretion in

refusing to admit the Facebook posts under the rule of optional completeness

because they are not “on the same subject,” nor are they “necessary to make [the text

messages] fully understood.” Appellant claims that one of the Facebook posts

explains one of the text messages about why appellant was mad at the complainant,




1
      Appellant’s own expert explained that Facebook Messenger messages cannot be
      viewed on Facebook and that a separate application is used to send these messages.
                                          10
however, he does not elaborate about which post he is referencing or why that would

justify the admission of all 15 Facebook posts.

      Because the trial court did not abuse its discretion by refusing to admit the

complainant’s Facebook posts under any of the theories set forth by appellant, we

overrule issue one.

  EXCLUDING EVIDENCE OF COMPLAINANT’S PRIOR BURGLARY

      In issues two and three, appellant contends the trial court erred by refusing to

allow him to (1) question a defense witness about details of a previous burglary

committed by the complainant and (2) introduce DNA evidence tying the

complainant to that previous burglary. Specifically, appellant sought to question a

defense witness, William Eason, a prison inmate, about burglaries he had seen the

complainant commit in the past. And, appellant also sought to admit evidence that

the complainant’s DNA was found at the scene of an unrelated 2013 burglary.

Crimes, Wrongs, and Other Acts under Rule 404(b)

      In addition to the character evidence permitted by Rule 404(a)(3), as discussed

above, a separate rationale may support the admission of evidence under Rule 404(b)

of a “victim’s prior specific acts of violence when offered for a non-character

purpose—such as his specific intent, motive for an attack on the defendant, or

hostility—in the particular case.” Ex parte Miller, 330 S.W.3d at 620; see TEX. R.

EVID. 404(b). “The proper predicate for the specific violent prior act by the deceased


                                         11
is some act of aggression that tends to raise the issue of self-defense, which the

violent act may then help clarify.” Torres, 117 S.W.3d at 895. Under Rule 404(b), a

victim’s prior acts of violence may be admissible to clarify the issue of first

aggressor if the proffered act explains the victim’s ambiguously aggressive conduct.

Allen v. State, 473 S.W.3d 426, 446 (Tex. App.—Houston [14th Dist.] 2015, pet.

dism’d). “As long as the proffered violent acts explain the outward aggressive

conduct of the deceased at the time of the killing, and in a manner other than

demonstrating character conformity only, prior specific acts of violence may be

admitted even though those acts were not directed against the defendant.” Torres v.

State, 71 S.W.3d 758, 762 (Tex. Crim. App. 2002) (emphasis added).

      Here, the proffered acts—prior, unrelated burglaries—were offered for the

purpose of demonstrating character conformity only, i.e., that because the

complainant had committed burglaries before, he must have been committing a

burglary when he was shot. As such, the trial court did not abuse its discretion in

refusing to admit the details and DNA evidence from another, unrelated burglary

committed by the complainant.

      Furthermore, appellant was permitted to question Eason about burglaries that

Eason had seen appellant commit, he was just prohibited from eliciting details about

how the burglaries were accomplished or how much time they took, or from

introducing DNA evidence to connect the complainant to a specific, unrelated


                                        12
burglary. Because appellant was not prevented from proving that the complainant

was a burglar and essentially the same or similar evidence to that excluded was, in

fact, admitted, error, if any, was rendered harmless. See Montgomery v. State, 383

S.W.3d 722, 727 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (“Although the

trial court may have initially excluded this evidence, the later admission renders

harmless any possible error.”).

      We overrule issues two and three.

            REFUSING JURY INSTRUCTION ON SUDDEN PASSION

      In issue four, appellant contends the trial court erred in refusing to give a

charge on sudden passion at the punishment stage of trial. Specifically, appellant

argues that given his “prior relationship [with the complainant] and all he knew about

the complainant, it was reasonable that he should fear [the] complainant, even as an

invitee, if [the] complainant arrived, went to the back door without announcing his

presence, and began beating or kicking on it.”

Standard of Review

      The review of an alleged jury charge error in a criminal trial is a two-step

process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). First, an

appellate court must determine whether there was error in the jury charge. Id. Then,

if there is charge error, the court must determine whether there is sufficient harm to

require reversal. Id. at 731–32. The standard for determining whether there is


                                          13
sufficient harm to require reversal depends on whether the appellant objected to the

error at trial. Id. at 732.

       If the appellant objected to the error, the appellate court must reverse the trial

court’s judgment if the error “is calculated to injure the rights of the defendant.”

TEX. CODE CRIM. PROC. ANN. art. 36.19. This means no more than that there must

be some harm to the accused from the error. Almanza v. State, 686 S.W.2d 157, 171

(Tex. Crim. App. 1984). An appellant who did not raise the error at trial can prevail

only if the error is so egregious and created such harm that he has not had a fair and

impartial trial. Id. “In both situations the actual degree of harm must be assayed in

light of the entire jury charge, the state of the evidence, including the contested issues

and weight of probative evidence, the argument of counsel and any other relevant

information revealed by the record of the trial as a whole.” Id.

       The record must show that the defendant suffered actual harm, not merely

theoretical harm. Id. at 174. In assessing whether the trial court erred by denying a

requested defensive instruction, an appellate court must examine the evidence

offered in support of the defensive issue in the light most favorable to the defense.

Farmer v. State, 411 S.W.3d 901, 906 (Tex. Crim. App. 2013). The charge must

include an instruction on any defensive theory raised by the evidence and properly

requested by the defendant. Booth v. State, 679 S.W.2d 498, 500 (Tex. Crim. App.

1984).


                                           14
Applicable Law on Sudden Passion

      Sudden passion is a mitigating circumstance that, if proven by a

preponderance of the evidence, reduces murder from a first-degree felony, which

carries a maximum punishment of life imprisonment, to a second-degree felony,

which carries a maximum punishment of twenty years’ imprisonment. See TEX.

PENAL CODE §§ 12.32, 12.33, 19.02(d); McKinney v. State, 179 S.W.3d 565, 569

(Tex. Crim. App. 2005). The Penal Code defines “sudden passion” as “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.” TEX. PENAL CODE § 19.02(a)(2). “Adequate cause” is defined as

“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).

      Rarely, when self-defense is raised will sudden passion not be raised. See

Chavez v. State, 6 S.W.3d 56, 65 (Tex. App.—San Antonio 1999, pet. ref’d).

Conversely, “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.” Id.

(quoting Benavides v. State, 992 S.W.2d 511, 524–25) (Tex. App.—Houston [1st

Dist.] 1999, pet. ref’d)).




                                         15
“Some Harm” Not Shown

      We need not decide whether the trial court erred in denying the sudden-

passion charge because appellant cannot show that he suffered “some harm” as a

result of the trial court’s refusal to charge the jury on sudden passion.

      The Court of Criminal Appeals has addressed the issue of how a jury’s

rejection of self-defense affects the harm analysis with respect to the erroneous

denial of a sudden-passion instruction. See Wooten v. State, 400 S.W.3d 601, 608

(Tex. Crim. App. 2013); Trevino v. State, 100 S.W.3d 232, 241 (Tex. Crim. App.

2003).

      In Trevino, the defendant was charged with the murder of his wife. 100

S.W.3d at 232, 236. He claimed that the shooting occurred after a heated argument

and struggle over two guns. Id. at 233. According to police, the defendant told them

that his wife confronted him with a gun after finding telephone numbers of other

women in his wallet. Id. The defendant then retrieved his own gun, and, after his

wife shot at him but missed, the two struggled over the guns. Id. In the course of the

struggle, the defendant’s wife was shot three times. Id.

      A police officer testified that the crime scene did not match the defendant’s

story. Id. Based on this testimony, the State argued the defendant shot his wife and

then staged the scene to make it look like self-defense. Id. at 232, 235–36. The jury

rejected appellant’s claim that the shooting was an accident and that he acted in self-


                                          16
defense and, after the trial court refused to instruct the jury on sudden passion,

assessed a sixty-year sentence. Id. at 236.

      The court of appeals reversed, finding that the trial court should have

instructed the jury on sudden passion, and that appellant was harmed. Id. Agreeing

with the court of appeals that appellant was harmed, the court of criminal appeals

noted that the jury could have found that appellant killed his wife in sudden passion

and then staged the crime scene to make the killing appear to have occurred in self-

defense. Id. at 241–43.

      In Wooten, appellant was charged with murder after the victim was killed in a

gunfight. 400 S.W.3d at 602–03. According to the defendant, who testified at trial,

the victim dropped off the defendant’s girlfriend, a prostitute, at defendant’s

apartment after “backing out” of a “date” with her. Id. at 603. The defendant greeted

his girlfriend outside the apartment and approached the victim’s car. Id. The

defendant noted the victim had placed a gun on the console, but began talking with

him. Id. When the conversation turned to why the “date” had not occurred, the

victim’s demeanor “became more combative.” Id. The defendant testified that the

victim was frustrated and began to speak in a “heightened tone” and display a “sort

of ‘aggressiveness’ in his speaking.” Id. When the defendant told the victim he

should pay his girlfriend “something for her time,” the victim lashed out verbally




                                          17
and then shot at the defendant. Id. The defendant shot back in claimed self-defense,

killing the victim. Id.

      The jury was instructed on self-defense, but was told “not to consider whether

appellant failed to retreat.” Id. at 603–04, 609. The jury rejected the defendant’s self-

defense claim, and, as in Trevino, when the trial court refused to instruct on sudden

passion, assessed a sixty-year sentence. Id. at 603–04. The court of appeals,

concluding that the failure to instruct on sudden passion harmed the defendant,

reversed as to punishment. Id. at 604.

      Disagreeing that appellant was harmed, the court of criminal appeals observed

that “the success of appellant’s self-defense claim boiled down to whether the jury

would accept that, when he shot [the victim], he reasonably believed that deadly

force was necessary to protect himself from [the victim’s] use of deadly force.” Id.

at 607, 609. Noting deadly force was the only element of self-defense refuted by the

evidence, the court concluded the jury rejected the inference that the victim shot first

because, had they believed appellant’s testimony that the victim shot first, the jury

“almost certainly” would have acquitted appellant. Id. The court further concluded

that, the jury, having rejected appellant’s self-defense claim, “was highly unlikely”

to find appellant acted under sudden passion. Id. The court of criminal appeals

concluded that the defendant had failed to show “some harm,” stating:

      It is highly unlikely that a jury that had already rejected the appellant’s
      claim that he reasonably believed that deadly force was immediately
                                           18
      necessary to defend himself would nevertheless find in his favor on the
      issue of sudden passion. To prove sudden passion, the appellant would
      have had to establish, inter alia, 1) that he actually acted under the
      influence of a fear so great that it caused him to lose his capacity for
      cool reflection, and 2) that [the complainant’s] actions were adequate
      to produce such a degree of fear in a man of ordinary temperament. But
      a jury that had already discredited the appellant’s claim that he
      reasonably believed deadly force to be immediately necessary would
      be unlikely to believe that, at the time the appellant first fired, he was
      actually experiencing a level of fear that caused him to lose control.
      Moreover, even had the jury believed that the appellant subjectively
      experienced such a level of fear, it would not likely have found that [the
      complainant’s] behavior presented a provocation adequate to produce
      such a degree of fear in a man of ordinary temperament. Based on the
      record and evidence before us, it is exceedingly unlikely that the
      appellant suffered “some harm” as a result of the trial court’s failure to
      give the jury a sudden passion instruction based on the appellant’s
      assertion that terror or fear controlled his actions.

Id. at 609–10.

      This case is like Wooten, not Trevino. In Trevino, there was another basis for

the jury’s rejection of appellant’s self-defense claim, i.e., that the murder scene was

staged to look like self-defense. No such basis is present here. As in Wooten,

appellant’s self-defense case in this case “boiled down to whether the jury would

accept that, when he shot [the complainant], he reasonably believed that deadly force

was immediately necessary to protect himself from [the complainant’s] use of deadly

force. Id. at 609. And, as in Wooten, the jury was specifically admonished “not to

consider whether the defendant failed to retreat.” Id. at 610. As in Wooten, the jury,

having already rejected appellant’s self-defense claim, was “exceedingly unlikely”



                                          19
to have suffered “some harm” as a result of the denial of the “sudden passion” charge

at punishment.

      Accordingly, we overrule issue four.

                                 CONCLUSION

      We affirm the trial court’s judgment.




                                                Sherry Radack
                                                Chief Justice

Panel consists of Chief Justice Radack and Justices Goodman and Countiss.

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




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