The 5th Court of Appeals decided MYO NAING SWE, Appellant v. THE STATE OF TEXAS, Appellee, on July 17, 2017.

The Court issued a memorandum opinion affirming Appellant’s conviction for Murder..

The case was on appeal from the 282nd Judicial District Court in Dallas County, Texas, as Trial Court Cause No. F-1475492-S. From the appellate court:

In his first issue, appellant challenges the sufficiency of the Evidence to support the jury’s rejection of self-defense. He contends that the evidence is factually insufficient to support the jury’s rejection of self-defense and argues the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. As explained below, the appropriate standard by which to review a jury’s rejection of self-defense is the Jackson v. Virginia standard. See Smith v. State, 355 S.W.3d 138, 144 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d); see also Jackson v. Virginia, 443 U.S. 307 (1979).

Self-defense is a defense to prosecution under penal code section 2.03. Smith, 355 S.W.3d at 144; see TEX. PENAL CODE ANN. §§ 2.03, 9.31, 9.32 (West 2011). A person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force. TEX. PEN. CODE ANN. § 9.31(a). Deadly force in self-defense is justified when a person reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful deadly force. Id. § 9.32(a).

The issue of self-defense is an issue of fact to be determined by the jury. Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991). A defendant has the burden of producing some evidence to support a claim of self-defense. Smith, 355 S.W.3d at 144 (citing Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003)). Once the defendant produces such evidence, the State bears the ultimate burden of persuasion to disprove self-defense. Id. The burden of persuasion does not require the State to produce evidence, but it requires that the State prove its case beyond a reasonable doubt. Id. For this reason, in resolving an issue about the sufficiency of the evidence of self-defense, we determine whether after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of murder beyond a reasonable doubt and also could have found against appellant on the self-defense issue beyond a reasonable doubt.2 Saxton, 804 S.W.2d at 914; Smith, 355 S.W.3d at 145. The jury resolves any conflicts in the testimony and determines the credibility of the witnesses and the weight to be given to their testimony. Gaona v. State, 498 S.W.3d 706, 709 (Tex. App.—Dallas 2016, pet. ref’d).

Appellant’s argument is not about the evidence of his use of deadly force and whether it was reasonably necessary. Instead, he argues that the State’s theory that he hit Clinton while he slept is not supported by the evidence, citing testimony from the medical examiner and the bloodstain expert, as well as Constant’s testimony that all four men left the apartment together. The jury heard two versions of how Clinton died that night, both originating from appellant. When appellant spoke to law enforcement officers at the border shortly after Clinton’s death, he did not mention self-defense. He told them that he hit Clinton in the head with a hammer while he slept. The jury as factfinder was free to disbelieve appellant’s testimony at trial over two years later that he acted in self-defense after Clinton hit him and followed him into his apartment. Further, in rejecting appellant’s claim of self-defense, the jury was entitled to consider appellant’s actions in disposing of the weapon and fleeing to Mexico. Valverde v. State, 490 S.W.3d 526, 529–30 (Tex. App.—San Antonio 2016, pet. ref’d); see Clayton v. State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007) (factfinder may draw an inference of guilt from circumstance of flight). After viewing all the evidence in the light most favorable to the prosecution, we conclude any rational trier of fact could have found the essential elements of murder beyond a reasonable doubt and also could have found against appellant on the selfdefense issue beyond a reasonable doubt. We overrule appellant’s first issue.

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In his second issue, appellant contends the jury’s rejection of sudden passion was so against the great weight and preponderance of the evidence as to be manifestly unjust. We disagree.

Murder is a first-degree felony. TEX. PENAL CODE ANN. § 19.02(c). At the punishment phase of a murder trial, the defendant may raise the issue of whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. Id. § 19.02(d). If the defendant proves the issue by a preponderance of the evidence, the offense is a felony of the second degree. Id. “Sudden passion” means passion directly caused by and arising out of provocation by the individual killed which passion arises at the time of the offense and is not solely the result of former provocation. Id. § 19.02(a)(2). “Adequate cause” means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection. Id. § 19.02(a)(1).

Although the issue of sudden passion is a punishment issue, it is analogous to an affirmative defense because the defendant has the burden of proof by a preponderance of the evidence. Gaona, 498 S.W.3d at 710. For this reason, a finding on sudden passion may be reviewed for factual sufficiency. Id. When we review a jury’s rejection of an issue on which the defendant had the burden of proof by a preponderance of the evidence, the standard of review is whether, after considering all the evidence relevant to that issue, the finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. Naasz v. State, 974 S.W.2d 418, 421 (Tex. App.—Dallas 1998, pet. ref’d) (citing Meraz v. State, 785 S.W.2d 146, 154–55 (Tex. Crim. App. 1990)).

Appellant asserts that his testimony was more consistent with the physical evidence than the State’s version of the events. Appellant maintains he killed Clinton after Clinton struck him –11– in the back of the head and followed him into his apartment without permission. According to appellant, he panicked and attacked Clinton while fearing he was going to lose his life. Appellant also said he could not remember how many times he struck Clinton, which he asserts shows he was acting in a frenzy or rage. Appellant contends Clinton’s multiple acts of aggression provoked him and produced a degree of anger, rage, or resentment sufficient to render his mind incapable of cool reflection.

Although the blood spatter expert could not rule out that the victim was first standing up, the evidence was consistent with the source of blood being between the height of the floor and the outlet. The issue of whether appellant acted under the immediate influence of sudden passion hinged on the jury’s evaluation of appellant’s credibility, and we defer to the jurors’ resolution of the issue. They were free to disbelieve appellant’s testimony that Clinton had struck him in the head right before he got the hammer and that he acted out of panic and fear. The jury could have chosen to instead believe appellant’s statement, made soon after Clinton’s death, that appellant attacked Clinton while he slept on the floor, which was consistent with the physical evidence. After reviewing the evidence, we cannot conclude the jury’s finding that appellant did not act under the immediate influence of sudden passion arising from an adequate cause is so against the great weight and preponderance of the evidence as to be manifestly unjust. We overrule appellant’s second issue.

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In his third issue, appellant contends the trial court abused its discretion in excluding evidence that was relevant to his claim of self-defense. He complains of the trial court’s refusal to allow him to develop testimony about the Illuminati. Agent Bostic testified that the Illuminati is a cult that is supposed to believe in new world order and is comprised of the elite and rich of the world. Although not entirely clear from the record or the appellant’s brief, it appears appellant wanted to present evidence that the Illuminati is a Dallas gang.

Prior to Constant’s testimony for the defense, the State asked that Constant not be permitted to give any character evidence that the court had not yet ruled on, such as testimony about the Illuminati or gang affiliation. The court had previously reserved ruling on this issue until after appellant testified. Appellant’s counsel mentioned that Constant had said in an interview that Clinton was “throwing down Illuminati signs” during his altercation with appellant. Defense counsel asserted the evidence was res gestae of the offense rather than character evidence. According to the defense, it was contextual evidence. The State responded that Constant was not present when the murder took place and had no personal knowledge of the events. The prosecutor argued that the desired testimony was being used to show character conformity. The court ruled it would allow discussion of the physical altercation, but no mention of the Illuminati.

During appellant’s testimony, he mentioned that Clinton told him, “[L]et’s do it for the Illuminati.” The court then went off the record and instructed appellant he was not allowed to talk about the Illuminati in front of the jury. The court allowed the defense to make an offer of proof about the gang evidence it sought. Appellant stated he knew Clinton was in a gang and that he had seen him fighting on the street. Appellant said this caused him concern when Clinton was coming at him. Appellant stated he knew Clinton was “a blood.” When Clinton was beating appellant, Clinton said, “[L]et’s do it for the Illuminati.” At the conclusion of the offer of proof, the court ruled appellant could not talk about the Illuminati.

Appellant now contends that because the State introduced the subject of the Illuminati during the testimony of Bostic and Lozano, it opened the door for appellant to develop testimony about the nature of that comment and how it related to his self-defense claim. Appellant did not argue in the trial court, however, that the evidence should be admitted because the State opened the door. Appellant gave various reasons why the evidence he sought was admissible. He argued it was admissible because it was res gestae, contextual evidence, and was relevant to appellant’s state of mind. Appellant also argued that not being allowed to question Constant on the topic deprived him of his right to present a defense and his right to confront the witness. As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling that the complaining party sought from the trial court. See TEX. R. APP. P. 33.1(a). Further, the record must show the trial court ruled on the request or refused to rule. Id. Appellant did not give the trial court the opportunity to rule on the argument he now makes. He has failed to preserve this issue for appellate review. We overrule appellant’s third issue.