Sofiane Benaffane v. State ( 2017 )

Opinion issued May 16, 2017
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-15-00840-CR
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SOFIANE BENAFFANE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Case No. 1427857
MEMORANDUM OPINION
A jury convicted Sofiane Benaffane of murder and sentenced him to 50 years’
confinement, rejecting his claim that he shot Dontrell Kelly in defense of himself or
his girlfriend, Amanda Morales. On appeal, Benaffane contends in eight issues that
(1) insufficient evidence supports his conviction, (2) the trial court erroneously
instructed the jury on provocation and the discussion-of-differences qualification on
self-defense, (3) the trial court erred by failing to grant a mistrial after the prosecutor
mentioned that Morales had been indicted for murder, and (4) the trial court abused
its discretion in admitting and excluding evidence. We affirm.
Background
Benaffane testified at trial. He contended that he shot Kelly in self-defense
and in defense of Morales. In February 2014, Benaffane met Morales, who was
working as a stripper. They started dating and shortly thereafter, Benaffane learned
that Morales had previously worked as a prostitute when he encountered her ex-pimp
while picking her up from work. The pimp blocked Benaffane’s car with his own,
stuck a gun in his waistband, and approached Benaffane’s car, causing Morales to
flee from the car back into the club. Benaffane testified that after this incident, he
purchased two guns, an AK-47 and a handgun, because he was concerned for his
and Morales’s safety.
According to Benaffane, on April 24, 2014, Morales called him in a panic.
She told him that a pimp, Dontrell Kelly, had her and had taken her car keys.
Morales asked Benaffane to come get her, though she did not know where she was.
Intending to go look for Morales, Benaffane grabbed his AK-47 and the handgun,
and called a friend, Hassan Worthy, to ask him to “back [him] up.”
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While he was driving to pick up Worthy, Morales texted Benaffane that Kelly
was taking her to Vibe Lounge. Benaffane picked up Worthy and drove to Vibe, but
Morales was not there yet. Benaffane explained to the owner of Vibe, his friend
Carlos Barrios, that Morales was being held against her will by Kelly, and asked
Barrios to let him know when Morales and Kelly arrived. Shortly thereafter, Barrios
texted Benaffane that Morales and Kelly had arrived and told Benaffane that he
would let him and Worthy into Vibe through the back door.
Several videos recorded in and around Vibe that night were admitted and
played for the jury. One video showed Morales and Kelly walking into Vibe. After
they entered, Barrios pulled Morales aside and spoke to her. After Barrios talked to
Morales, she walked over to Kelly, who had walked to a seat while the other two
talked. Barrios then let Benaffane and Worthy into the club and told them where
Kelly was sitting. Benaffane denied that Barrios signaled to him to approach Kelly,
but the video showed Barrios make a hand motion and then both Barrios and the
bartender walked away from Kelly to head towards the front of the club. The video
showed Benaffane, with the AK-47, and Worthy, with the handgun, approach Kelly.
Benaffane testified that approximately 20 seconds elapsed between the time
he entered the club and the time he confronted Kelly, but the video shows that
Benaffane waited inside near the back door for approximately nine minutes before
approaching Kelly. According to Benaffane, he did not immediately shoot Kelly
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when he approached him because his intent was only to scare Kelly into letting
Morales go. Benaffane admitted that the video never shows Kelly grab or restrain
Morales, and that Barrios was able to pull her aside without Kelly showing any
concern. But Benaffane testified that he thought it was necessary to use the threat
of force because of his knowledge of the world of prostitution and his belief that he
would never see Morales again if he did not intervene.
The video showed Kelly began to struggle with Worthy when Benaffane and
Worthy approached with guns pointed at Kelly. Kelly wrestled away Worthy’s gun
and shot Benaffane five times. Benaffane returned fire and testified that he shot
Kelly because he “wanted to stop the shooting.” In the melee, another club-goer was
shot, but not killed. After shooting Kelly, Benaffane began punching him “to make
sure he doesn’t shoot anymore.” Benaffane then grabbed the two guns and crawled
out the back of the club. Video shows Worthy retrieving the guns and giving them
to Morales, who put them in the trunk of Benaffane’s car.
On cross-examination, Benaffane conceded that he and Worthy were wearing
gloves, that he did not call police after receiving Morales’s phone call, and that Kelly
did not have a weapon. Benaffane testified that he never intended to kill Kelly.
The jury found Benaffane guilty of murder, implicitly rejecting his claims of
self-defense and defense of Morales. After the punishment phase, the jury sentenced
Benaffane to 50 years in prison. Benaffane appealed.
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Sufficiency of the Evidence
In his third issue, Benaffane challenges the sufficiency of the evidence to
support his conviction and the jury’s implicit rejection of his claim of self-defense
and defense of Morales.
A. Standard of Review and Applicable Law
When evaluating the legal sufficiency of the evidence, we view the evidence
in the light most favorable to the verdict and determine whether any rational trier of
fact could have found the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Brooks
v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010). We defer to the
responsibility of the factfinder to fairly resolve conflicts in the testimony, to weigh
evidence, and to draw reasonable inferences from the facts. See Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Brooks, 323 S.W.3d at 898–99. In so doing, we may not
reevaluate the weight and credibility of the record evidence and thereby substitute
our own judgment for that of the factfinder. Brooks, 323 S.W.3d at 898–99. This
standard applies equally to circumstantial and direct evidence. Laster v. State, 275
S.W.3d 512, 517–18 (Tex. Crim. App. 2009).
A person commits the offense of murder if he intentionally or knowingly
causes the death of an individual, or intends to cause serious bodily injury and
commits an act clearly dangerous to human life that causes the death of an individual.
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TEX. PENAL CODE § 19.02. A “person is justified in using force against another when
and to the degree the actor reasonably believes the force is immediately necessary
to protect the actor against the other’s use or attempted use of unlawful force.” Id.
§ 9.31(a). Deadly force is justified “to protect the actor against” another’s “use or
attempted use of unlawful deadly force” and to prevent another’s “imminent
commission” of murder, kidnapping, sexual assault, or robbery. Id. § 9.32(a). A
person is justified in using deadly force against another to protect a third person if,
“under the circumstances the actor reasonably believes them to be, the actor would
be justified” in using force against the other under section 9.31 or 9.32 “to protect
himself against the unlawful force or unlawful deadly force he reasonably believes
to be threatening the third person he seeks to protect” and “the actor reasonably
believes that his intervention is immediately necessary to protect the third person.”
Id. § 9.33.
The defendant bears the initial burden to produce evidence supporting a
justification defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003).
Once the defendant produces some evidence, the State then bears the burden of
persuasion to disprove the raised defense. Id. The burden of persuasion does not
require the State to produce evidence; it requires only that it prove its case beyond a
reasonable doubt. Id.; Hernandez v. State, 309 S.W.3d 661, 665 (Tex. App.—
Houston [14th Dist.] 2010, pet. ref’d). Thus, to convict a defendant of murder after
6
he has raised the issue of self-defense, the State is required to prove the elements of
the offense beyond a reasonable doubt and to persuade the jury beyond a reasonable
doubt that the defendant did not kill in self-defense. Zuliani, 97 S.W.3d at 594;
McClesky v. State, 224 S.W.3d 405, 409 (Tex. App.—Houston [1st Dist.] 2006, pet.
ref’d).
B. Analysis
Benaffane admitted killing Kelly by shooting him. Benaffane argues that
insufficient evidence supports the jury’s conclusion that he had the requisite intent
to murder because his only intent when he confronted Kelly was to scare him and
have him release Morales. But “[w]hen a deadly weapon is fired at close range, and
death results, the law presumes an intent to kill.” Sholars v. State, 312 S.W.3d 694,
703 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (citing Childs v. State, 21
S.W.3d 631, 635 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d); see also Jones
v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996) (jury may infer intent to kill
from use of deadly weapon unless it would not be reasonable to infer that death or
serious bodily injury could result from the use of weapon).
Benaffane also argues that the evidence was insufficient to support the jury’s
implicit rejection that he was acting in self-defense or defense of Morales.
Benaffane argues that the evidence shows that he went to Vibe armed because he
was fearful for his and Morales’s safety, that he did not immediately shoot Kelly,
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and that he only fired shots after first being shot. While this evidence supports
Benaffane’s self-defense and defense-of-a-third person claims, the jury was not
required to believe his explanation about his motivation and reasoning for
confronting Kelly. Among other things, for a self-defense and defense-of-a-third
person justification defense to apply, the actor must “reasonably believe” that the
use of force is “immediately necessary.” TEX. PENAL CODE §§ 9.31(a), 9.33. The
evidence showed that Benaffane did not call police after learning about Morales’s
predicament, and the video showed him waiting in the rear of the club nearly nine
minutes before confronting Kelly—two pieces of evidence that would permit a
rational jury to conclude that Benaffane did not have a reasonable belief that the use
of deadly force was immediately necessary.
Likewise, the fact that Benaffane shot his gun only after Kelly shot him does
not preclude a rational jury from concluding beyond a reasonable doubt that
Benaffane did not act in self-defense or in defense of a third person. The video
shows, and Benaffane acknowledged, that he and Worthy cornered Kelly, who was
unarmed, with guns drawn. The video shows that Kelly shot at Benaffane only after
wrestling the handgun away from Worthy, as Benaffane approached him with an
AK-47.
In short, the jury’s decision to accept or reject Benaffane’s justification
defenses hinged largely on its assessment of his credibility, and there was
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considerable evidence that the jury could credit that undermined Benaffane’s
testimony. Based upon the evidence, we hold that a rational jury could have
reasonably rejected Benaffane’s justification defenses and concluded beyond a
reasonable doubt that he committed murder. See Zuliani, 97 S.W.3d at 594.
We overrule Benaffane’s third issue.
Jury Charge
In his first and second issues, Benaffane contends that the trial court erred by
instructing the jury on (1) provocation and (2) the discussion-of-differences
qualification on self-defense. The State contends that both instructions were proper,
but even if not, neither harmed Benaffane.
A. Standard of Review
In analyzing a jury-charge issue, our first duty is to decide if error exists. See
Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh’g);
Tottenham v. State, 285 S.W.3d 19, 30 (Tex. App.—Houston [1st Dist.] 2009, pet.
ref’d). Only if we find error do we then consider whether an objection to the charge
was made and analyze for harm. Tottenham, 285 S.W.3d at 30; see also Warner v.
State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008) (“The failure to preserve jury-
charge error is not a bar to appellate review, but rather it establishes the degree of
harm necessary for reversal.”).
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“The degree of harm necessary for reversal depends upon whether the error
was preserved.” Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). Error
properly preserved by a timely objection to the charge will require reversal “as long
as the error is not harmless.” Almanza, 686 S.W.2d at 171. The Court of Criminal
Appeals has interpreted this to mean that any harm, regardless of degree, is sufficient
to require reversal. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986).
However, when the charging error is not preserved “and the accused must claim that
the error was ‘fundamental,’ he will obtain a reversal only if the error is so egregious
and created such harm that he ‘has not had a fair and impartial trial’—in short
‘egregious harm.’” Almanza, 686 S.W.2d at 171; see Nava v. State, 415 S.W.3d
289, 298 (Tex. Crim. App. 2013) (egregious harm “is a difficult standard to meet
and requires a showing that the defendants were deprived of a fair and impartial
trial”). Fundamental errors that result in egregious harm are those which affect “the
very basis of the case,” deprive the defendant of a “valuable right,” or “vitally affect
his defensive theory.” Almanza, 686 S.W.2d at 172 (citations and quotations
omitted).
When considering whether a defendant suffered harm, the reviewing court
must consider: (1) the entire jury charge; (2) the state of the evidence, including the
contested issues and weight of probative evidence; (3) the argument of counsel; and
(4) any other relevant information revealed by the record of the trial as a whole. Id.
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at 171. The reviewing court must conduct this examination of the record to
“illuminate the actual, not just theoretical, harm to the accused.” Id. at 174; see
Nava, 415 S.W.3d at 298 (record must disclose “actual rather than theoretical
harm”).
B. Provocation
In his first issue, Benaffane contends that the trial court erred by instructing
the jury on provocation.
1. Applicable Law
The use of force against another is not justified if the actor provoked the
other’s use or attempted use of deadly force. See TEX. PENAL CODE §§ 9.31(b)(4),
9.32(a)(1). “[A] charge on provocation is required when there is sufficient evidence
(1) that the defendant did some act or used some words that provoked the attack on
him, (2) that such act or words were reasonably calculated to provoke the attack, and
(3) that the act was done or the words were used for the purpose and with the intent
that the defendant would have a pretext for inflicting harm upon the other.” Elizondo
v. State, 487 S.W.3d 185, 197 (Tex. Crim. App. 2016) (quoting Smith v. State, 965
S.W.2d 509, 513 (Tex. Crim. App. 1998)).
In deciding whether to give the instruction, the trial court must “decide
whether evidence has been presented that could support a jury’s finding on all three
elements of provocation beyond a reasonable doubt.” Id. “Even though a person
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does an act, even a wrongful act, which does indeed provoke an attack by another,
if he had no intent that the act would have such an effect as part of a larger plan of
doing the victim harm, he does not lose his right of self-defense.” Id. at 200 (quoting
Smith, 965 S.W.2d at 518). “[A] finding of insufficient evidence to support a jury’s
finding of intent occurs only in a few ‘exceptional and extraordinary situations’” and
is a “rarity.” Id. at 202; Smith, 965 S.W.2d at 518–19. In reviewing the trial court’s
decision to include a provocation instruction, the appellate court views “the evidence
in the light most favorable to giving the instruction,” resolving conflicts in the
evidence and drawing reasonable inferences in favor of the instruction. Smith, 965
S.W.2d at 514.
2. Analysis
Benaffane concedes that there was sufficient evidence to support a jury
finding on the first two elements of provocation. However, he argues that the trial
court erred in submitting the provocation instruction because there was insufficient
evidence to support a jury finding on the third element that he provoked Kelly with
the intent that he would have a pretext for harming him. In particular, he points out
that the evidence shows that he only shot Kelly after being shot several times, and
that he only took guns to the confrontation because he knew that Kelly was a pimp
and might become violent if Benaffane tried to rescue Morales. The State argues
that a rational factfinder could conclude based on all of the evidence surrounding the
12
confrontation that Benaffane provoked Kelly with the intent to harm him, and the
jury was not required to accept Benaffane’s self-serving testimony regarding his
intent in confronting Kelly.
The cases in which Texas courts have concluded that a provocation instruction
was improper because there was insufficient evidence to support a finding on the
third element of provocation are a “rarity.” See Smith, 965 S.W.2d at 518–19.
Generally, they involve parties who were strangers or circumstances in which it is
inconceivable that the defendant orchestrated events to have a pretext to harm the
complainant. See id. For example, in Elizondo, Elizondo, his wife, and brother
became involved in an altercation with a nightclub’s owner, the owner’s son, and
some security personnel. 487 S.W.3d at 188. Elizondo ran to his truck and was
chased by three of the men. Id. Elizondo retrieved his gun and engaged in a struggle
beside the truck. Id. The nightclub owner approached Elizondo and pointed a gun
at him, and Elizondo shot the nightclub owner. Id. The Court of Criminal Appeals
held that there was insufficient evidence to support a finding on the third element of
provocation because Elizondo did not know or seek out the nightclub owner and
there was no evidence that he ran to his truck to goad the nightclub owner into
following and attacking him. Id. at 203. Accordingly, the Court of Criminal Appeals
concluded that a jury instruction on provocation was improper. Id. at 204.
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Other cases in which insufficient evidence supported the third element of
provocation are similar. In Bennett v. State, 726 S.W.2d 32 (Tex. Crim. App. 1986),
the defendant was accosting his daughter’s boyfriend, and a passerby came to the
boyfriend’s aid and was killed by the defendant. Id. at 34. A provocation instruction
was not warranted in that case because “[i]t is inconceivable that the defendant
orchestrated this set of events as a ploy to kill a man he did not even know.” Smith,
965 S.W.2d at 518. Likewise, in Wampler v. State, 234 S.W.2d 1009 (Tex. Crim.
App. 1950), the complainant was a business owner at his place of business late at
night, heard someone at the back door, and shot at him. Id. at 1009. The man at the
back door, a night watchman in the area, returned fire and killed the complainant.
Id. Under these facts, no provocation instruction was warranted. Id. at 1010. In
another case, Varnell v. State, 9 S.W. 65 (Tex. Crim. App. 1888), the complainant
attacked the defendant when he discovered the defendant having sex with the
complainant’s minor daughter, and the defendant killed the complainant in the
ensuing altercation. 9 S.W. at 66. The Court of Criminal Appeals observed that a
provocation instruction was unwarranted because “it is impossible to fathom, under
the facts as stated in the case, that the defendant arranged this set of events to bring
on such an attack.” Smith, 965 S.W.2d at 519.
We conclude that this is not one of the “exceptional and extraordinary”
situations in which it is “inconceivable” that Benaffane provoked Kelly with the
14
intent of harming him. See Elizondo, 487 S.W.3d at 202; Smith; 965 S.W.2d at 518.
Unlike in Elizondo, this is not a case where Benaffane “did not know [or] seek out”
Kelly. Elizondo, 487 S.W.3d at 203. To the contrary, Benaffane admitted that he
knew of and specifically sought out Kelly in order to confront him with deadly force.
See id. Benaffane testified that he knew Kelly to be a dangerous person—so
dangerous that Benaffane brought two guns and a second person as “back up” to the
confrontation. A rational jury could infer from this evidence that Benaffane was
aware that Kelly would react in a way that would require him to use the weapon he
brought to the confrontation. See, e.g., Harrod v. State, 203 S.W.3d 622, 629 (Tex.
App.—Dallas 2006, no pet.) (jury could reasonably infer that appellant intended to
harm complainant by goading with confrontation based on evidence that appellant
knew complainant might react violently to confrontation); Kelley v. State, 968
S.W.2d 395, 401 (Tex. App.—Tyler 1998, no pet.) (evidence that appellant, while
brandishing gun, confronted complainant about complainant’s mistreatment of
mother, supported rational inference by jury of third element of provocation). While
there was evidence that would have permitted a rational jury to conclude that
Benaffane did not provoke Kelly with the intent to harm him—for example, his
stated reason for confronting Kelly and the fact that he did not immediately shoot
Kelly and shot only after being shot himself—this was conflicting evidence that the
jury was entitled to weigh along with all of the other evidence in considering
15
Benaffane’s intent in provoking the confrontation. Accordingly, we hold that the
trial court did not err by instructing the jury on provocation. See Elizondo, 487
S.W.3d at 202; Harrod, 203 S.W.3d at 629; Kelley, 968 S.W.2d at 401.
We overrule Benaffane’s first issue.
C. Discussion-of-Differences Qualification
In his second issue, Benaffane contends that the trial court erred by instructing
the jury on the discussion-of-differences qualification on self-defense and defense-
of-a-third person.
1. Applicable Law
Penal Code Section 9.31(b)(5)(A) qualifies a defendant’s claim of self-
defense and defense-of-a-third person. It states that the use of force against another
is not justified “if the actor sought an explanation from or discussion with the other
person concerning the actor’s differences with the other person while the actor was
carrying a weapon in violation of Section 46.02.” TEX. PENAL CODE § 9.31(b)(5)(A).
A person violates section 46.02 of the Penal Code if he intentionally, knowingly, or
recklessly carries on or about his person a handgun, illegal knife, or club if the person
is not (1) on the person’s own premises or premises under the person’s control; or
(2) inside of or directly en route to a motor vehicle or watercraft that is owned by
the person or under the person’s control. See TEX. PENAL CODE § 46.02(a).
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2. Analysis
a. Is there error in the charge?
The guilt-innocence charge was 20 pages long. The first four pages set forth
the abstract law of murder and also charged the jury in the alternative with the lesser-
included offense of manslaughter. The next four pages set forth the abstract law on
self-defense and defense-of-a-third person and applied this law to the case. Next
came three pages of instructions regarding two qualifications on self-defense:
provocation and discussion-of-differences. The balance of the charge contained
definitions pertaining to self-defense and defense-of-a-third person, general
instructions, and an extraneous offense instruction.
The discussion-of-differences qualification appeared on page 11 of the
charge, after a two-page instruction on provocation. It said:
You are further instructed as part of the law of this case, and as a
qualification of the law on self-defense, that the use of force against
another is not justified:
(1) in response to verbal provocation alone;
(2) if the defendant consented to the exact force used or attempted
by the other; or
(3) if the defendant sought an explanation from or discussion with
the other person concerning the defendant’s differences with the
other person while the defendant was carrying a weapon in
violation of the law.
Our law provides that a person commits an offense if he
intentionally, knowingly, or recklessly carries on or about his person a
handgun, and he is not on his own premises or premises under his
17
control, or inside of or directly en route to a motor vehicle that is owned
by the person or under his control.
“Handgun” means any firearm that is designed, made, or adapted
to be fired with one hand.
Benaffane contends that the trial court improperly submitted this instruction
because he was carrying an AK-47, which is not a handgun. The State contends
that the instruction was proper because Benaffane did handle a handgun in violation
of section 46.02—not on his own premises or inside or directly on route to a vehicle
owned by him—when he handed a handgun to Worthy before they entered the club.
It is undisputed that Benaffane did not have a handgun when he approached
Kelly, or at any point during their confrontation.1 Accordingly, he did not seek an
explanation from or discussion with Kelly concerning their differences “while . . .
carrying” a handgun. See TEX. PENAL CODE § 9.31(b)(5)(A). We hold that the trial
court erred in submitting the discussion-of-differences qualification instruction to
the jury.
b. Did Benaffane preserve error?
Having found error in the charge, we next consider preservation. Tottenham,
285 S.W.3d at 30. Error preservation “is not an inflexible concept.” Thomas v.
State, 408 S.W.3d 877, 884 (Tex. Crim. App. 2013). “[A]ll a party has to do to avoid
the forfeiture of a complaint on appeal is to let the trial judge know what he wants,
1
Benaffane was not charged under the law of parties.
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why he thinks himself entitled to it, and to do so clearly enough for the judge to
understand him at a time when the trial court is in a proper position to do something
about it.” Id. (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App.
1992)).
The State argues that Benaffane’s appellate argument that there is no evidence
that he unlawfully carried a handgun while confronting Kelly does not comport with
Benaffane’s objection to the instruction in the trial court and therefore he has not
preserved error. The record reflects that Benaffane lodged the following objections
to the discussion-of-differences instruction:
The limiting instruction regarding seeking an explanation while
unlawful [sic] carrying a weapon, the defense objects to that charge. I
don’t believe there’s evidence in the record of unlawful carry at all in
terms of evidence before this jury. But on top of that, there certainly is
not evidence of the defendant seeking an explanation. All the evidence
was that he went and arrived, not seeking explanation, but with the
intent to threaten deadly force to rescue Amanda Morales. There was
no evidence of him seeking an explanation; therefore, the instruction
should not be included.
(Emphasis added.) Thus, Benaffane argued that the instruction should not be
submitted to the jury at all because there was no evidence that he unlawfully carried
a handgun while confronting Kelly. The record thus reflects that Benaffane’s
objection was two-fold—one, that there was no seeking of an explanation (an
argument Benaffane does not raise on appeal), and two, that there was no evidence
Benaffane carried a handgun as contemplated by the instruction (the argument that
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Benaffane raises on appeal). The State understood and responded to this latter
argument:
To the unlawful carrying grounds, I think there was evidence from
testimony yesterday from the defendant that he entered the club—or he
exited the vehicle, removed a handgun, and while not directly en route
to his vehicle or premises controlled by him, he then removed the Glock
.40 caliber handgun, gave it to Hasson Worthy and then entered the
club.
We therefore conclude that Benaffane’s objection was sufficient to preserve the error
he complains of on appeal. See Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim.
App. 2012) (noting that issue preserved without having been explicitly stated if
“there have been statements or actions on the record that clearly indicate what the
judge and opposing counsel understood the argument to be”); Lankston, 827 S.W.2d
at 909 (in issue-preservation context, there are “no technical considerations or form
of words to be used”); see also State v. Rosseau, 396 S.W.3d 550, 555 (Tex. Crim.
App. 2013) (although defendant’s challenge “could have been more clearly
presented,” “magic language” was not required).
c. Was the error harmless?
Because Benaffane preserved his complaint, we must reverse unless the error
is harmless. See Almanza, 686 S.W.2d at 171; see also Arline, 721 S.W.2d at 351
(any harm, regardless of degree, is sufficient to require reversal). To gauge harm,
we review (1) the entire jury charge; (2) the state of the evidence, including the
contested issues and weight of probative evidence; (3) the argument of counsel; and
20
(4) any other relevant information revealed by the record of the trial as a whole. See
Almanza, 686 S.W.2d at 171.
The entire charge
Benaffane argues that the discussion-of-differences instruction was harmful
because it instructed the jury that it could not find that he acted in self-defense
because he was carrying a handgun. But that is a mischaracterization of the
instruction. The jury was instructed that it could not find that Benaffane acted in
self-defense if the jury found that he was carrying a handgun—defined as “any
firearm that is designed, made, or adapted to be fired with one hand”—while he
“sought an explanation from or discussion with” Kelly. Thus, contrary to
Benaffane’s argument, the discussion-of-differences instruction did not compel the
jury to find against Benaffane. We assume that the jury followed the instructions
in the charge absent evidence to the contrary. See Miles v. State, 204 S.W.3d 822,
827–28 (Tex. Crim. App. 2006). We note also that the discussion-of-differences
instruction came after a two-page instruction regarding provocation. Thus, the jury
would reach provocation before it considered the discussion-of-differences
instruction.
The evidence
Given the evidence, including Benaffane’s concession that he sought Kelly
out, with Worthy as his back-up, and the video of Benaffane and Worthy
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confronting an unarmed Kelly with raised guns, it is unlikely that the jury would
have concluded that Benaffane did not provoke the difficulty. And the jury would
only consider provocation if it first concluded that Benaffane’s confrontation of
Kelly with a weapon was reasonable and immediately necessary. The State adduced
strong evidence that Benaffane’s confrontation of Kelly was not reasonable or
immediately necessary: evidence of the plan to confront Kelly with guns drawn,
that Benaffane and Worthy spent nearly 10 minutes lying in wait in the club, that
Kelly did not appear to be harming or threatening harm to Morales, and that
Benaffane had plenty of time to call police but never did. And the evidence
supporting Benaffane’s claim that deadly force was reasonable and immediately
necessary depended largely upon the jury finding Benaffane to be credible and
agreeing with his assessment that Kelly, though sitting in a club, unarmed and not
appearing to harm Morales, was threatening imminent unlawful force against
Morales or was imminently going to kidnap, rob, or sexually assault her. In short,
given the state of the evidence, it is highly likely that the jury would have rejected
Benaffane’s justification theories without reaching provocation or the discussion-
of-differences issues.
Counsel’s argument
In closing argument, the State told the jury that there were five bases upon
which it could find Benaffane guilty of murder. The first three were reasons to
22
reject Benaffane’s self-defense and defense-of-a-third-person theories: the evidence
showed that (1) Benaffane’s use of force was not proportional to Kelly’s, (2) was
not reasonable, and (3) was not immediately necessary. The fourth basis was the
discussion-of-differences qualification, which the State erroneously argued applied
because Benaffane gave the handgun to Worthy as they prepared to confront Kelly.
Finally, the State addressed the provocation qualification, which it described as the
“biggest slam-dunk.” The State told the jury that provocation was the easiest and
best path to conviction because the evidence clearly established that Benaffane
provoked the controversy in order to harm Kelly.
Defense counsel’s argument focused on the State’s arguments regarding
provocation and whether Benaffane’s actions were reasonable and immediately
necessary. Counsel also argued correctly that the discussion-of-differences
qualification did not apply because Benaffane was not carrying a handgun while he
confronted Kelly. Defense counsel further argued that the qualification did not
apply because Benaffane “wasn’t there to discuss anything . . . [or] to seek an
explanation,” but instead, “[h]e was there to threaten the use of deadly force right
from the outset to prevent what he perceived to be his girlfriend being taken over
by a pimp, kidnapped to be sexually assaulted, sexually abused.” Counsel
emphasized repeatedly that Benaffane threatened deadly force in order to protect
Morales.
23
Having reviewed the entire record in light of the Almanza factors, we
conclude that the trial court’s inclusion of the discussion-of-differences instruction
in the jury charge was harmless. See 686 S.W.2d at 174 (court must examine record
to “illuminate the actual, not just theoretical, harm to the accused”); Nava, 415
S.W.3d at 298 (record must disclose “actual rather than theoretical harm” to warrant
reversal based upon charge error). The focus of the evidence and argument was on
justification—whether Benaffane’s use of deadly force was reasonable and
immediately necessary. The evidence weighed strongly in the State’s favor. The
next most central issue raised by the evidence and argument was whether Benaffane
provoked the difficulty. The discussion-of-differences issue was a distant third in
terms of importance and centrality and, although the trial court erred in giving the
charge, Benaffane’s counsel ameliorated the error by correctly telling the jury in
closing that the facts did not support the application of the discussion-of-differences
qualification. Accordingly, we conclude that there is no actual likelihood that the
inclusion of the discussion-of-differences qualification harmed Benaffane. See
Almanza, 686 S.W.2d at 171, 174.
We overrule Benaffane’s second issue.
24
Motion for Mistrial
In his fourth issue, Benaffane argues that the trial court erred by denying his
motion for mistrial after the prosecutor asked Benaffane whether he was aware that
Morales had been indicted for murder.
A. Standard of Review and Applicable Law
A mistrial is an appropriate remedy in “extreme circumstances” for a narrow
class of highly prejudicial and incurable errors. Ocon v. State, 284 S.W.3d 880, 884
(Tex. Crim. App. 2009) (quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim.
App. 2004)). A mistrial halts trial proceedings when error is so prejudicial that
expenditure of further time and expense would be wasteful and futile. Id. (citing
Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). Whether an error
requires a mistrial must be determined by the particular facts of the case. Id. (citing
Ladd, 3 S.W.3d at 567).
A trial court’s denial of a mistrial is reviewed for an abuse of discretion. Id.
An appellate court views the evidence in the light most favorable to the trial court’s
ruling, considering only those arguments before the court at the time of the ruling.
Id. (citing Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004)). The ruling
must be upheld if it was within the zone of reasonable disagreement. Id.
Because it is an extreme remedy, a mistrial should be granted “only when
residual prejudice remains” after less drastic alternatives are explored. Id. at 884–
25
85 (quoting Barnett v. State, 161 S.W.3d 128, 134 (Tex. Crim. App. 2005)).
Though requesting lesser remedies is not a prerequisite to a motion for mistrial,
when the movant does not first request a lesser remedy, we will not reverse the
court’s judgment if the problem could have been cured by the less drastic
alternative. Id. at 885 (citing Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App.
2004)). The asking of an improper question will seldom call for a mistrial because,
in most cases, any harm can be cured by an instruction to disregard and we presume
that the jury followed the trial court’s instruction in the absence of evidence to the
contrary. See Ladd, 3 S.W.3d at 567; Burke v. State, 371 S.W.3d 252, 259 (Tex.
App.—Houston [1st Dist.] 2011, pet. dism’d).
B. Analysis
Benaffane contends that the trial court erred in denying a mistrial after the
prosecutor asked Benaffane if he was aware that Morales had been indicted for
murder during the following colloquy:
Prosecutor: Now what was [Morales’s] involvement in this shooting?
Just telling you where he was?
Benaffane: Just telling me where they were going.
Prosecutor: And you’ve seen the video. You also know that she hides
or puts the guns in your trunk, correct?
Benaffane: Correct.
Prosecutor You know, the weapons used to kill Dontrell Kelly were put
in your trunk?
26
Benaffane: Correct.
Prosecutor: And are you saying she had no involvement in this shooting
at all?
Benaffane: No, she had nothing to do with it.
Prosecutor: Would it surprise you to know she’s been indicted for
murder as well?
Defense counsel: Your Honor, I'm going to object to relevance, 403.
The Court: Sustained.
Prosecutor: May we approach?
The Court: Yes.
(At the Bench, on the record.)
Prosecutor: If she’s being painted as an innocent third party in this case
that had nothing to do with the shooting, she’s been indicted, she’s been
charged with murder. I think it’s relevant. I don’t think that the jury
should be left with a misimpression that she’s completely innocent in
this.
The Court: What’s your response?
Defense counsel: Under defensive theory of defense of a third party,
you can look at things from the perspective of the accused. It’s how he
perceived her in terms of what she’s going through as to what’s
relevant. The fact the State chose to indict her, I don’t think is relevant.
The Court: I agree. The objection’s sustained.
Defense counsel: I ask you to instruct the jury to disregard, but I don't
think that will be enough so I move for a mistrial.
(Conclusion at the Bench.)
The Court: The jury will disregard the last statement.
Defense counsel: Motion’s overruled?
27
The Court: The motion’s overruled. Denied.
The evidence before the jury showed that Morales helped to remove the guns
from the scene, showing that she had some involvement in the incident, at least in
its aftermath. The trial court instructed the jury to disregard the question regarding
her indictment. Similar comments have been held curable by instruction to
disregard. See, e.g., Carroll v. State, No. 01-89-00398-CR, 1991 WL 423, at *2
(Tex. App.—Houston [1st Dist.] Jan. 3, 1991, no pet.) (not designated for
publication) (instruction to disregard question regarding whether witness had heard
defendant had been indicted cured any error). Considering all of the evidence and
the arguments before the trial court, we conclude that the prosecutor’s question was
not so prejudicial or incurable that the trial’s court’s instruction to disregard the
question could not cure any harm the question may have caused. See Ladd, 3 S.W.3d
at 567; see also Carroll, 1991 WL 423, at *2. We presume the jury followed the
trial court’s instruction and the record does not contain anything that would suggest
otherwise. See Burke, 371 S.W.3d at 259. Accordingly, we hold that the trial court
did not abuse its discretion in denying the motion for mistrial. See Ladd, 3 S.W.3d
at 567; Carroll, 1991 WL 423, at *2.
We overrule Benaffane’s fourth issue.
28
Evidentiary Rulings
In his fifth, sixth, and seventh issues, Benaffane challenges the trial court’s
admission and exclusion of various types of evidence during the guilt innocence-
phase. In his fifth issue, Benaffane contends that the trial court erred by permitting
the State to question him about his teardrop tattoos. In his sixth issue, Benaffane
contends that the trial court should have permitted him to introduce photographs
and oral testimony to prove Kelly was soliciting Morales to work as his prostitute.
In his seventh issue, Benaffane contends that the trial court should have permitted
him to testify that during the encounter with Morales’s former pimp, the pimp said,
“Give me back my b****.” In his eighth issue, Benaffane complains that the trial
court abused its discretion by admitting during the punishment phase an out-of-state
judgment of conviction.
A. Standard of Review
We review a decision to admit or exclude evidence for an abuse of discretion.
Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010) (citing Green v.
State, 934 S.W.2d 92, 104 (Tex. Crim. App. 1996)). A trial court abuses its
discretion only if its decision is “so clearly wrong as to lie outside the zone within
which reasonable people might disagree.” Taylor v. State, 268 S.W.3d 571, 579
(Tex. Crim. App. 2008) (citing Zuliani, 97 S.W.3d at 595). In contrast, a trial court
does not abuse its discretion if any evidence supports its decision. Osbourn v. State,
29
92 S.W.3d 531, 538 (Tex. Crim. App. 2002) (citations omitted). We uphold a trial
court’s evidentiary ruling if it was correct on any theory of law applicable to the
case. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009) (citing
Sewell v. State, 629 S.W.2d 42, 45 (Tex. Crim. App. 1982)).
Even if a trial court errs by improperly admitting evidence, reversal is
warranted only if the appellant demonstrates that the erroneous admission affected
his substantial rights. TEX. R. APP. P. 44.2(b); Kibble v. State, 340 S.W.3d 14, 20
(Tex. App.—Houston [1st Dist.] 2010, pet. ref’d); Cruz v. State, 238 S.W.3d 381,
386 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). An error affects an
appellant’s substantial rights “when it has a substantial and injurious effect or
influence in determining the jury’s verdict.” Cruz, 238 S.W.3d at 386 (citing
Johnson v. State, 803 S.W.2d 272, 291 (Tex. Crim. App. 1990)). An error that did
not influence the jury or had but a slight effect on the jury is not reversible. Motilla
v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002) (nonconstitutional error is not
grounds for reversal if, “after examining the record as a whole,” there is “fair
assurance that the error did not influence the jury, or had but a slight effect.”)
(quoting Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001)); McRae v.
State, 152 S.W.3d 739, 744 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (citing
Solomon, 49 S.W.3d at 365). In assessing the likelihood that the jury’s decision
was adversely affected by the error, we consider everything in the record, including
30
any testimony or physical evidence admitted for the jury’s consideration, the nature
of the evidence supporting the verdict, the character of the alleged error and how it
might be considered in connection with other evidence in the case. McRae, 152
S.W.3d at 744 (citing Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim. App.
2003)). We should also consider whether the State emphasized the error, whether
the erroneously admitted evidence was cumulative, and whether it was elicited from
an expert. Id.
B. Applicable Law
To be admissible, evidence must be relevant. TEX. R. EVID. 402. Evidence
is relevant if “it has any tendency to make a fact more or less probable than it would
be without the evidence” and that fact “is of consequence in determining the action.”
TEX. R. EVID. 401. Thus, when assessing the relevance of particular evidence,
courts must consider the purpose for which the proof is being introduced. Layton
v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009). It is essential that there be
a direct or logical connection between the proof and the proposition sought to be
proven. Id.
Evidence of extraneous crimes, wrongs, or other acts is not admissible at the
guilt-innocence phase “to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character” but is
admissible to prove other matters, such as “motive, opportunity, intent, preparation,
31
plan, knowledge, identity, absence of mistake, or lack of accident” if the accused is
given reasonable notice of the State’s intent to introduce the evidence. TEX. R.
EVID. 404(b) (extraneous evidence must have probative value beyond character
conformity to be admissible). Further, rebuttal of a defensive theory is also “one of
the permissible purposes for which relevant evidence may be admitted under Rule
404(b).” Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003).
“However, even if the evidence is relevant, and the purpose for which it is
being offered is permissible under Rule 404(b), it may still be excluded by the trial
court under Rule 403 if its probative value is substantially outweighed by the danger
of unfair prejudice.” Id. (citing Montgomery v. State, 810 S.W.2d 372, 387 (Tex.
Crim. App. 1990)). Under a Rule 403 analysis, we consider: (1) the inherent
probative force of the proffered item of evidence along with (2) the proponent’s
need for that evidence against (3) any tendency of the evidence to suggest decision
on an improper basis, (4) any tendency of the evidence to confuse or distract the
jury from the main issues, (5) any tendency of the evidence to be given undue
weight by a jury that has not been equipped to evaluate the probative force of the
evidence, and (6) the likelihood that presentation of the evidence will consume an
inordinate amount of time or merely repeat evidence already admitted.
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). The trial
court is presumed to have conducted the proper balancing test if it overrules a 403
32
objection, regardless of whether it conducted the test on the record. See Williams
v. State, 958 S.W.2d 186, 195–96 (Tex. Crim. App. 1997).
C. Analysis
1. Teardrop Tattoos
In his fifth issue, Benaffane argues that the trial court erred by admitting a
photograph showing his tattoos and permitting the State to question Benaffane
about them. Benaffane contends this evidence was not relevant, and that it is an
extraneous bad act subject to no Rule 404(b) exception. Benaffane also argues that
evidence of the tattoos was unduly prejudicial under Rule 403 because it is
“[c]ommon knowledge” that a “teardrop tattoo is obtained in prison and generally
signifies that the person has killed another.”
At trial, Benaffane covered his teardrop tattoos with a band-aid. When the
State sought to introduce a photograph of Benaffane with the tattoos visible,
Benaffane’s counsel objected, “Relevance 404(b), 403,” and the trial court
overruled the objection. The State then briefly questioned Benaffane about when
he got the tattoos and why he got them, and Benaffane responded that he got them
in late 2014 because he was “going through a lot” and “they represent pain.” The
State then moved on, did not return to the topic, and did not mention the tattoos in
closing. On redirect, Benaffane’s counsel asked him about why he got the tattoos
and he responded, “At that time I was going through a lot. To me, it represents
33
pain. I don’t even know why I got them. I regret them.” His counsel then asked,
“You understand that other people perceive things differently as to what teardrop
tattoos mean?,” and Benaffane responded, “Now I do.” The tattoos were not further
discussed.
Even if the trial court erred in admitting evidence regarding the teardrop
tattoos, Benaffane has not demonstrated that the admission affected his substantial
rights. TEX. R. APP. P. 44.2(b). The disputed issue at trial was whether Benaffane’s
use of deadly force was reasonable and immediately necessary, and the nature of
the evidence supporting the jury’s verdict was strong. The video evidence and
Benaffane’s admissions at trial regarding the time he waited before confronting
Kelly and his failure to contact the police about the purportedly dire situation, along
with the evidence that Benaffane and Worthy confronted an unarmed Kelly with
guns raised, provide ample support for the jury’s verdict. See McRae, 152 S.W.3d
at 744. And although the evidence of the tattoos was not cumulative of other
evidence, it was only briefly addressed during the trial and not mentioned in closing.
See id. Thus, this evidence is insignificant in comparison to the totality of evidence
adduced at trial and, if it influenced the jury at all, would have had but a slight
effect. See id. After examining the record as a whole, we cannot say that the
admission of this evidence, if erroneous, affected Benaffane’s substantial rights.
We therefore hold that any alleged error in admitting the evidence does not
34
constitute reversible error. See TEX. R. APP. P. 44.2(b); Solomon, 49 S.W.3d at 365;
McRae, 152 S.W.3d at 744.
We overrule Benaffane’s fifth issue.
3. Kelly’s Solicitation of Morales
In his sixth issue, Benaffane complains that the trial court erred by excluding
evidence that Kelly was soliciting Morales to work as his prostitute. Specifically,
Benaffane sought to question an investigating officer about a series of Instagram
communications between Kelly and Morales and to admit pictures of several of the
communications which purported to show Kelly attempting to solicit Morales to
work as his prostitute. Benaffane argues that he offered this evidence to show that
he believed Kelly to be a pimp, which was relevant to his state of mind and
motivation on the night of the shooting. The State objected on the grounds of
hearsay and relevance, and the trial court sustained the objection.
However, even if the trial court erred in excluding this evidence, Benaffane
has not demonstrated that the exclusion affected his substantial rights. TEX. R. APP.
P. 44.2(b). Benaffane argues that he was harmed because this evidence showed that
Kelly was a pimp, which supports Benaffane’s claim that he was justified in
confronting Kelly because of his experience with Morales’s former pimp. But there
was other evidence admitted at trial that demonstrated that Kelly was a pimp. The
investigating officer testified that Morales told him that she was taken to Vibe by
35
Kelly, who was a pimp, and Benaffane testified that Morales called and told him
that she was with Kelly, who was a pimp. In other words, there was ample evidence
introduced to show that Benaffane believed Kelly to be a pimp, and the State did
not dispute that he was. The central question in the case was not whether Benaffane
believed Kelly was a pimp—which is what Benaffane argues the excluded evidence
would have shown—but rather, whether the force Benaffane used against Kelly was
reasonable and immediately necessary. After examining the record as a whole, we
cannot say that the exclusion of this evidence, even if erroneous, affected
Benaffane’s substantial rights, and therefore we hold that any alleged error in
excluding the evidence does not constitute reversible error. See TEX. R. APP. P.
44.2(b).
We overrule Benaffane’s sixth issue.
4. Former Pimp’s Statement
In his seventh issue, Benaffane challenges the trial court’s exclusion of his
testimony that, during a threatening encounter with Morales’s former pimp, the
former pimp stated “Give me back my b****.” Benaffane argues that this evidence
demonstrated why he feared that Kelly would treat Morales as property and
potentially abduct her, and it was offered to establish the effect the words had on
him. The State argues the statement was properly excluded as hearsay.
36
The trial court permitted Benaffane to testify about the details of his encounter
with Morales’s former pimp, except for the statement “Give me back my b****.”
Benaffane testified that he was picking Morales up from the club where she danced
shortly after they began dating when Morales’s former pimp blocked Benaffane’s
car with his own, stuck a gun in his waistband, and approached Benaffane’s car.
Benaffane testified that Morales, who had gotten into the car with him, fled back
into the club in fear. Benaffane also testified that after this incident, he became
concerned for his and Morales’s safety and purchased two guns—the guns used in
the confrontation with Kelly. But the trial court sustained the State’s hearsay
objection to Benaffane’s testimony that after approaching Benaffane’s car, the
former pimp stated, “Give me back my b****.” Benaffane argues that the statement
was not hearsay because it was not offered to prove the truth of the matter asserted
but to show why Benaffane feared Morales’s being in the company of another pimp.
Even if the trial court erred by excluding Benaffane’s testimony about the
statement made by Morales’s former pimp, this error is reversible only if it affected
Benaffane’s substantial rights. TEX. R. APP. P. 44.2(b). Here, the jury heard
Benaffane’s testimony that the former pimp confronted him and Morales in a
threatening manner with a gun shortly after Morales began dating Benaffane and
stopped working for the pimp. According to Benaffane’s testimony, the incident
provoked so much fear in Morales that she ran away. Benaffane also testified that
37
it was this incident that led him to believe that he needed to buy guns for protection,
although he had never owned guns before. Although the former pimp’s statement
provides more color about the threatening encounter, we cannot conclude that
excluding the statement, even if error, had “a substantial and injurious effect or
influence in determining the jury’s verdict.” Cruz, 238 S.W.3d at 386. Benaffane
was able to adduce evidence showing the threatening interaction with the former
pimp, but more importantly, Benaffane adduced ample evidence that he believed
pimps are violent and consider those who work for them to be property. But the
central question in this case was whether Benaffane reasonably believed that the
force he used against Kelly was immediately necessary. See Motilla, 78 S.W.3d at
355 (error that had but slight effect on jury is not reversible); McRae, 152 S.W.3d
at 744 (in assessing likelihood that jury’s decision was adversely affected by error,
court considers whole record, including nature of evidence supporting verdict and
character of alleged error and how it might be considered in connection with other
evidence in case). After examining the record as a whole, we cannot say that the
exclusion of this statement, even if erroneous, affected Benaffane’s substantial
rights, and therefore we hold that any alleged error in excluding the evidence does
not constitute reversible error. See TEX. R. APP. P. 44.2(b).
We overrule Benaffane’s seventh issue.
38
5. Out-of-state judgment of conviction
a. Applicable Law
Pursuant to article 37.07 of the Code of Criminal Procedure, after a defendant
has been found guilty, the State may offer evidence about the defendant “as to any
matter the court deems relevant to sentencing.” TEX. CODE CRIM. PROC. art. 37.07,
§ 3(a)(1). Relevant evidence in this context is any evidence that assists the factfinder
in determining the appropriate sentence given the particular defendant in the
circumstances presented. Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App.
1999). This evidence includes, but is not limited to, evidence regarding:
the prior criminal record of the defendant, his general reputation, his
character, an opinion regarding his character, the circumstances of the
offense for which he is being tried, and, notwithstanding Rules 404 and
405, Texas Rules of Evidence, any other evidence of an extraneous
crime or bad act that is shown beyond a reasonable doubt by evidence
to have been committed by the defendant or for which he could be held
criminally responsible, regardless of whether he has previously been
charged with or finally convicted of the crime or act.
TEX. CODE CRIM. PROC. art. 37.07, § 3(a)(1); see Fields v. State, 1 S.W.3d 687, 688
(Tex. Crim. App. 1999). “Prior crimes or bad acts are introduced to provide
additional information which the jury may consider in determining what sentence
the defendant should receive.” See Arthur v. State, 11 S.W.3d 386, 392 (Tex. App.–
Houston [14th Dist.] 2000, pet. ref’d) (quoting Fields, 1 S.W.3d at 688). The
statutory language grants wide latitude in the admission of evidence deemed
39
relevant. Contreras v. State, 59 S.W.3d 362, 365 (Tex. App.—Houston [1st Dist.]
2001, no pet.).
The trial court makes the decision on the threshold issue of admissibility and
may not admit extraneous offense evidence unless the evidence is such that a jury
could rationally find the defendant criminally responsible for the extraneous offense.
Smith v. State, 227 S.W.3d 753, 759–60 & n.16 (Tex. Crim. App. 2007). Ultimately,
the factfinder must decide whether the extraneous offense was proven beyond a
reasonable doubt. Id. at 760. Once this threshold is met, the factfinder may use the
evidence however it chooses in assessing punishment. See Fields, 1 S.W.3d at 688.
To establish that a defendant has been convicted of a prior offense, the State
must prove beyond a reasonable doubt that (1) a prior conviction exists, and (2) the
defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex.
Crim. App. 2007). No specific document or mode of proof is required to prove these
two elements. See id. While evidence of a certified copy of a final judgment and
sentence may be a preferred and convenient means, the State may prove both of
these elements in a number of different ways, including (1) the defendant’s
admission or stipulation, (2) testimony by a person who was present when the person
was convicted of the specified crime and can identify the defendant as that person,
or (3) documentary proof (such as a judgment) that contains sufficient information
40
to establish both the existence of a prior conviction and the defendant’s identity as
the person convicted. See id. at 921–22.
[O]rdinarily the proof that is adduced to establish that the defendant on
trial is one and the same person that is named in an alleged prior
criminal conviction or convictions closely resembles a jigsaw puzzle.
The pieces standing alone usually have little meaning. However, when
the pieces are fitted together, they usually form the picture of the person
who committed that alleged prior conviction or convictions.
Id. at 923 (quoting Human v. State, 749 S.W.2d 832, 835–36 (Tex. Crim. App.
1988)).
The trier of fact fits the pieces of the jigsaw puzzle together and weighs the
credibility of each piece. Id. Regardless of the type of evidentiary puzzle pieces the
State offers to establish the existence of a prior conviction and its link to a specific
defendant, the trier of fact determines if these pieces fit together sufficiently to
complete the puzzle. Id. The trier of fact looks at the totality of the evidence
admitted to determine (1) whether there was a previous conviction, and (2) whether
the defendant was the person convicted. Id. If these two elements can be found
beyond a reasonable doubt, then the various pieces used to complete the puzzle are
necessarily legally sufficient to prove a prior conviction. Id.
b. Analysis
Benaffane contends that the trial court abused its discretion by admitting a
certified copy of a final judgment of conviction and sentence in the Commonwealth
of Virginia for the felony offense of grand larceny reflecting the defendant was
41
named “Sufiane Benaffane” and had the same birthday as Benaffane. But even if
we assume that the trial court abused its discretion by admitting the Virginia
judgment, the erroneous admission of extraneous-offense evidence is not
constitutional error and must be disregarded unless it had a substantial and injurious
effect or influence in determining the jury’s verdict. See Cruz, 238 S.W.3d at 386.
Here, considering everything in the record, we conclude that error, if any, in
the admission of evidence pertaining to the Virginia conviction did not influence the
jury, or at most, had a slight effect. See Motilla, 78 S.W.3d at 355 (nonconstitutional
error is not grounds for reversal if, after examining record as a whole, there is fair
assurance that error did not influence jury, or had but a slight effect). During closing
argument in the punishment phase, the State focused on the details of the shooting,
including the fact that Benaffane approached an unarmed Kelly and that the jury had
already rejected his theories of self-defense or defense of Morales. The State also
reminded the jury that another club-goer besides Kelly also was shot during the
melee. That victim testified that she would have a bullet permanently lodged in her
pelvis as a result.
With respect to extraneous offenses, the State did not mention the Virginia
conviction and instead focused on a felon in possession of a weapon charge that was
filed against Benaffane based on an event that occurred a month before Benaffane
shot Kelly. The State argued “[h]e can’t make it a month after committing that
42
offense before he kills a man.” The State asked the jury to sentence Benaffane to no
less than 50 years, but preferably, life in prison. The only mention of the Virginia
conviction in closing was by Benaffane’s counsel, who argued that it was a
nonviolent offense that occurred when Benaffane was only 19, he successfully
completed probation for it, and he had no history of violence.
Considering all of the evidence and the nature of the closing arguments, we
are assured that any error in the admission of the Virginia conviction did not
influence the jury’s punishment or, at most, had “but a slight effect.” Motilla, 78
S.W.3d at 355. Accordingly, we conclude that Benaffane has not demonstrated that
admission of this conviction harmed him. See id.
We overrule Benaffane’s eighth issue.
Conclusion
We affirm the trial court’s judgment.
Rebeca Huddle
Justice
Panel consists of Justices Massengale, Brown, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
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