JASON NICHOLAS MILLER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed August 10, 2007.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00721-CR
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JASON NICHOLAS MILLER, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 382nd Judicial District Court
Rockwall County, Texas
Trial Court Cause No. 2-05-528
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OPINION
Before Justices Moseley, Bridges, and Richter
Opinion By Justice Bridges
        A jury convicted Jason Nicholas Miller of murder and assessed punishment at thirty years' imprisonment. In five points of error, appellant claims the evidence is factually insufficient to support the jury's rejection of sudden passioin and of four evidentiary rulings. We affirm the trial court's judgment.
 
Background
 
        On November 19, 2005, Jason Miller shot Brian Fisher eight times. Fisher died as the result of multiple gunshot wounds.
        Isaiah Whitaker testified that on the evening of November 18, 2005, he, his girlfriend, and appellant had been at a bar. They later left with appellant driving. Appellant became enraged because Whitaker had an open container of beer in the car. Appellant wanted Whitaker to get rid of the beer, but Whitaker refused to throw it out of the moving car. Whitaker told appellant to pull over so that Whitaker could get out, but appellant sped up and began driving erratically, saying he would get Whitaker home faster. When they reached Whitaker's apartment complex, appellant stopped the car. Whitaker and his girlfriend got out, but appellant stayed in the vehicle. Whitaker started to “cuss” at appellant, took a swing at appellant through the open window, and hit appellant on the cheek. Appellant backed up, straightened the car, and drove forward about twenty feet. He then stopped the car, got out, and approached Whitaker brandishing a .45-caliber Ruger. Appellant walked to within one-and-a-half feet of Whitaker, pointing the gun directly at him. Whitaker ran to his apartment and called the police. An officer came, but appellant had already left the scene.
        Geoffrey Perry testified that he hosted poker games in a shed on his father's property. On the night of November 18, 2005, Perry held a game that Fisher, Ashleigh Brister, Matt Litzinger, Scott Carlson, and Jonathan Anglier attended. Some of them were drinking and some were smoking marijuana. The game began at about 9:00 p.m. At about 1:30 a.m., Perry received a call on his cell phone from appellant. Appellant said “he might possibly need [Perry] to say he had been at [Perry's] house all evening.” Appellant would not say what happened, but did say he “hadn't killed anyone or anything like that.” Perry refused to give appellant an alibi. A short time later, appellant called Litzinger's cell phone. Fisher took the phone from Litzinger and told appellant it would not do any good to have any of them provide an alibi because by telephoning them, appellant had indicated he was not there.
        About thirty minutes later, appellant showed up at Perry's shed. Appellant said he had just been pulled over by the police. Fisher again told appellant that he was not very smart to have called someone he was supposed to have been with. Fisher was sitting on the couch and appellant was pacing back and forth. Fisher told appellant, “Well, I should kick your ass.” Appellant then told Fisher, “Oh, yeah? Well, I'll shoot you in the face.” Appellant then pulled a .45-caliber Ruger from behind his back and chambered a round. Fisher then told appellant, “Well, I ought to kick your ass for pulling that gun on me.” Fisher got off the couch, approached appellant, and the two exchanged words. Perry asked them to calm down. Fisher shoved appellant with one hand. Appellant dropped the gun a little, and as appellant came back up, he grabbed Fisher. The two struggled and Fisher punched appellant. Appellant then brought the gun up and fired on shot at Fisher's torso. After a very brief pause, appellant fired several more shots in succession. Perry heard a total of eight shots. Perry testified Fisher had not produced a weapon nor threatened to get one.
        Perry yelled at appellant to put his gun down, and appellant threw the gun onto the poker table. Fisher was on the floor. Appellant appeared to approach Fisher and then tried to go back for the gun. Perry yelled at Litzinger to get the gun and leave with it. Perry called 911.
        Perry testified that appellant and Fisher had “enjoyed butting heads.” However, no guns had ever been pulled by either of them during previous interactions.
        Jonathan Anglier testified he arrived at Perry's poker game at about 12:50 a.m. on November 19, 2005. After he arrived, appellant called Perry, and Perry mentioned that appellant had asked for an alibi. Appellant arrived at Perry's at about 1:50 a.m. Fisher told appellant he was an idiot or something like that. Appellant said he had been pulled over by the police about five minutes before he arrived at Perry's. Appellant was in an angry mood and he walked up behind Fisher, who was seated on the couch. Appellant was yelling at Fisher. Fisher then “jumped” over the couch and got in appellant's face. The two backed up to a wall and were arguing. Anglier believed Fisher told appellant he knew appellant did not have a gun. Anglier did not recall Fisher saying he had his gun. Appellant pulled out a gun from behind his back and waved it in the air. Fisher moved back a step or two and appellant put the gun back behind him. Fisher then got in appellant's face again and shoved appellant, but not hard. Appellant took out his gun again and pointed it Fisher. Fisher then crouched down and appellant shot repeatedly. Anglier thought the shots were just blanks until he saw Fisher motionless on the floor. Anglier left the building, got into his car, and drove away. He called Carlson, who had also left, and Carlson called 911. Anglier and Carlson then went to the Rockwall County Sheriff's Office where they told what had happened.
        Scott Carlson testified Perry received a telephone call from appellant between 12:30 and 1:00 a.m. Appellant was frantic and said he needed an alibi. Fisher told appellant he had messed up his alibi by calling them. Appellant showed up at Perry's at about 1:50 a.m. Fisher again said appellant was an idiot, and the two began arguing. Appellant said he had been pulled over by the police, and the officer told him to “have a nice day.” Appellant would not say what he did that required the alibi. Carlson believed appellant was the first person to say he would “kick Fisher's ass.” Fisher then said the same thing to appellant. Appellant then pulled a gun and replied he would shoot Fisher. Carlson did not recall Fisher saying he had his gun and that appellant would have to retrieve his gun from the car. Carlson decided to leave. Fisher stepped over the couch and pushed appellant. The two men pushed each other and then Carlson heard a gunshot. He thought it was joke until appellant threw the gun on the poker table and Carlson saw it was “coiled back, like it had just been unloaded.” Fisher said something like, “I can't believe you just shot me.” Appellant and Fisher were face to face when the shots were fired. Carlson left the shed, got into his car, and drove away. He called 911 and then arranged with Anglier to go to the Rockwall County Sheriff's Office.
        Matthew Litzinger testified he and his girlfriend Ashleigh Brister were with Fisher at his house before they went to the poker game. Fisher took off his shoulder holster and they went to Perry's. Later that night, appellant called Perry and asked for an alibi. Perry would not give him one. About twenty minutes later, appellant called Litzinger and asked for an alibi. Appellant was upset that Perry was not “cooperating with him.” Appellant would not say what happened, but did say he had not killed anyone or anything like that. Litzinger also refused to give appellant an alibi. When Fisher spoke to appellant on the phone, Fisher's tone was not angry, just condescending. A short time later, appellant arrived at Perry's shed. Fisher told appellant he should not have called them for an alibi. Appellant said he had just been pulled over by the police. Fisher and appellant began to argue, which was not unusual for them. Appellant told Fisher, “I will shoot you in the face.” Fisher responded that he had his gun on him and appellant would have to retrieve his gun from the car. Litzinger knew Fisher did not have his gun, but did not tell appellant. Appellant then pulled out his gun and chambered a round. Fisher told appellant “I ought to kick your ass for pulling that gun on me.” Fisher got off the couch and approached appellant. There was some “physical contact” and appellant kept the gun in the air. Appellant had a “look in his eye” as if something was wrong. Litzinger did not see Fisher reach toward his pocket as if he was going for a gun. Appellant fired a shot and, after a slight hesitation, fired several more quick shots. Perry yelled at appellant to drop the gun, and Litzinger picked it up from the poker table. The clip was empty and the breach was back. Litzinger started to call 911, but hung up when appellant came towards him. Litzinger testified about two minutes elapsed between appellant's arrival and the shooting.
        Ashleigh Brister testified that when she and Litzinger were with Fisher at his house, Fisher took off his shoulder holster and said he was putting it away. Brister never saw Fisher with his weapon at a poker game. They then went to Perry's poker game. Brister took a nap, then went into the house to use the restroom. When she returned, everyone was talking about appellant's phone call to Perry for an alibi. Litzinger also received a call and, after a short conversation, gave the telephone to Fisher. Fisher told appellant he could not call the place he was supposed to be at. Perry had said appellant was not coming over, but Brister had a feeling appellant might come over and “start something.” Appellant arrived a short time later. Appellant was angry with Perry for not providing an alibi. Appellant came into the building yelling that he had just been pulled over by the police. Everyone was telling appellant to calm down and appellant said, “What are you going to do?” Fisher then said, “Well, I'll kick your ass.” Appellant responded that he would shoot Fisher in the face, and Fisher said appellant would have to get his gun from the car. Appellant then pulled his gun. Brister did not believe Fisher had his own gun, even though he had told appellant he did. Fisher then told appellant he should “kick his ass” for pulling the gun, and shoved appellant back. Brister did not see Fisher punch appellant. Appellant lost his balance, but did not fall. Brister then heard one gunshot, a short pause, and then six or seven other shots. Fisher fell to the ground. Perry told appellant to put the gun down, and appellant threw it onto the poker table. Brister went to Fisher to try to help him, but was afraid to touch him when she saw all of the bullet wounds. She ran to the house to get Perry's father.
        Brister testified that both appellant and Fisher liked to be big shots. The two commonly fought. That night, Brister did not see anything she thought warranted appellant either pulling his gun or shooting Fisher.
        Rockwall police office Joshua Stamper testified that on November 19, 2005, he responded to a dispatch regarding an aggravated assault. He pulled appellant's vehicle over because it matched the description of the suspect's car. However, appellant was not on the road the suspect was reported to be on. Appellant appeared calm and did not appear intoxicated. The officer had no name of a suspect and no reason to hold appellant, so he allowed him to leave.
        Shonda Hill testified that in 2001, she had been in an automobile accident with Fisher. He was very pleasant at the scene when they exchanged information. However, after she reported the accident to her insurance company, she received a telephone message from Fisher in which he was very upset and yelling at her for reporting the accident. She reported Fisher's message to the police. Based on the call, Hill formed the opinion that Fisher was violent.
        Ed Asbell testified he met Fisher through appellant when they were about seventeen years old. The day they met, Fisher “messed with” Asbell's vehicle, doing some juvenile acts of vandalism just to antagonize Asbell. Asbell pulled over and made both appellant and Fisher get out of his car. Asbell testified he saw Fisher with a gun on various occasions.
        Appellant testified he and Fisher had been good friends since about seventh grade. They had verbal disagreements, but had never come to blows. Appellant knew Fisher had a gun and a concealed handgun license. Appellant never saw Fisher with a shoulder holster, but he had seen Fisher carry the weapon in his front pocket. Appellant later bought himself a gun. In the last couple of years, appellant and Fisher had some difficulties getting along. Appellant testified he was distancing himself from Fisher because he did not approve of some things Fisher was doing. Specifically, appellant testified of an incident in which Fisher had threatened and made derogatory racial comments to a young woman with whom he had been in an auto accident. Also, appellant testified that Fisher and Whitaker had been friends, but after they had a falling out, Fisher “conspired” with another person to get revenge on Whitaker. Appellant further testified of threats made by Fisher against Josh Gannaway.
        On November 18, 2005, he and Whitaker had gone to a bar. Appellant normally kept his gun in the trunk of his car, but Whitaker convinced him to wear it in his holster into the bar. When they left the bar, appellant was driving. He became angry with Whitaker for having an open container in the vehicle. Appellant was speeding, but not driving erratically, and told Whitaker it would get him home faster. Appellant knew Whitaker was uncomfortable with the way appellant was driving. When they reached Whitaker's apartment complex, Whitaker and his girlfriend got out of the car. Whitaker then cursed appellant and hit him on the side of the head. Appellant backed up, stopped, and got out of the car. He testified he intended to talk to Whitaker. However, Whitaker looked like he was going to charge appellant, so appellant pulled his gun and pointed it at the ground. Whitaker appeared to still be coming, so appellant pointed the gun at Whitaker's chest. Whitaker jumped into some bushes and told a woman in an apartment to call the police. Appellant then left.
        Appellant started to drive from Terrell to Rockwall on one road, and then got onto a different road. He did not want to go straight home because he was concerned the police might be there. He called Perry and asked for an alibi. Perry asked if appellant killed anybody or anything like that, and appellant said no. Perry refused to provide an alibi. Appellant testified he was disappointed, but not angry. Appellant then called Litzinger, who also refused to provide an alibi. Appellant denied talking to Fisher and said the reception was bad and the phone cut out. Appellant decided he would go to Perry's place, and was on his way there when the officer pulled him over. After the officer let him go, he continued to Perry's. Appellant testified he was going to ask Perry to hang onto his gun for a few days because he was concerned about being found with it.
        When appellant arrived at Perry's shed, appellant was not angry, but he was talking loudly because he was excited. He wanted to explain what had happened. Everyone listened, except Fisher, who immediately began to yell at appellant and insult him. Fisher called appellant an idiot for calling them for an alibi. Fisher was tried to “provoke” a fight. Fisher called appellant a “stupid spic” and appellant called Fisher a “dumb wop.” Appellant and Fisher were yelling and talking over each other. Fisher jumped up and said he ought to “kick [appellant's] ass,” and appellant said he did not come for trouble. Fisher then said he would shoot appellant, and said he had his gun, but appellant would have to get his from the car. Appellant said Fisher was wrong, pulled the gun out, and slid a round into the chamber. Appellant then pointed the gun at the ceiling. Fisher said he should kick appellant's ass for pulling the gun out. Appellant said he did not want any trouble and put the gun back into the holster. Fisher then grabbed appellant and punched him. Appellant fell back a step and pushed Fisher away. Perry was telling them to calm down and stop fighting, but appellant and Fisher were yelling louder than Perry.
        Appellant testified that he saw Fisher reach his hand by his waist, as if he were going to pull a gun. Appellant was afraid, so he pulled his own gun again, “pointed it at Fisher's chest, flipped the safety off, and opened fire.” Appellant did not count, but the gun held eight rounds and, when he was finished, it was empty. Perry then told appellant to put the gun down, and appellant threw it onto the poker table. He then went to Fisher as Perry was calling 911. Appellant testified he did not try to leave, even though he could have. He checked Fisher's pulse and breathing, which is why he had blood on his hands. Appellant did not remember what he told the police when they arrived.
        Appellant testified he had decided Fisher was a “bad guy” during the last couple of years when Fisher became increasingly more violent and made derogatory racial remarks about others. Appellant identified a letter he had written to Fisher from Marine Corps boot camp in which he referred to “towel heads,” but testified it was after “9/11” and the Marines had instilled that thinking in him. He further testified he has changed his way of thinking since that time. Appellant denied using his gun to intimidate people.
        Josh Gannaway testified he and Fisher had been friends, but Fisher started becoming violent and Gannaway was afraid of him. Gannaway decided not to hang around with Fisher anymore, and Fisher became angry about that. Gannaway received two voice messages from Fisher that were profanity laced, angry, and sounded violent. In the messages, Fisher made threats against Gannaway and his infant daughter. Gannaway was so frightened by the messages that he moved without telling anyone his new address. Gannaway testified he was afraid to report the messages to the police. Gannaway further testified that Fisher never pulled a gun on him.
 
Factual Sufficiency of the Evidence
 
        In his first issue, appellant asserts the evidence is factually insufficient to support the jury's rejection of his claim of sudden passion. The State responds that the evidence was sufficient to support the rejection of appellant's sudden passion claim.
        Murder is a first-degree felony. See Tex. Pen. Code Ann. § 19.02(c) (Vernon 2003). At the punishment stage, however, the defendant my raise the issue of whether he caused the death under the immediate influence of sudden passion arising from adequate cause. See id. § 19.02(d). “'Sudden passion” means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed that 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, range, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.” Id. § 19.02(a)(1). If the defendant affirmatively proves sudden passion by a preponderance of the evidence, the offense is a second- degree felony. See id. § 19.02(d).
        We review a challenge to the factual sufficiency of the evidence to support the jury's rejection of the sudden passion claim using the same standard of review as a challenge to the rejection of an affirmative defense. See Naasz v. State, 974 S.W.2d 418, 421 (Tex. App.-Dallas 1998, pet. ref'd). That standard requires us to view all of the evidence in a neutral light to determine whether the negative finding is so against the great weight and preponderance of the evidence so as to be clearly wrong or manifestly unjust. See id.; see also Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003) (factual sufficiency standard of review for rejection of affirmative defense); Hernandez v. State, 127 S.W.3d 206, 212 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd).
        In this case, there was conflicting evidence about the events that immediately preceded appellant shooting Fisher. The conflicts centered mostly around appellant's demeanor and what was said by appellant and Fisher. Appellant testified he was excited, not angry when he entered Perry's shed. The other eyewitnesses testified appellant was angry and yelling when he entered the shed. Several witnesses testified appellant was upset because Perry and Litzinger would not provide him an alibi. There was also evidence that although Fisher told appellant, “I ought to kick your ass,” Fisher was sitting down at the time he made the statement and was not angry. Finally, there was testimony that in response to Fisher's statement, appellant said he would shoot Fisher in the face and then pulled out his gun while Fisher was still seated on the couch. It was after appellant pulled the gun that Fisher got off the couch and the episode escalated into pushing. Appellant testified he only pulled the gun to show Fisher he had it, not to threaten Fisher. Finally, although appellant testified he believed Fisher might be reaching for a weapon, the other witnesses testified Fisher made no gestures that indicated he was reaching for a weapon.
        To constitute sudden passion, appellant's action in shooting Fisher must have been taken while in an excited and agitated mind arising out of Fisher's provocation. See Merchant v. State, 810 S.W.2d 305, 310 (Tex. App.-Dallas 1991, pet. ref'd). Based on the evidence before us, we conclude a rational jury could have found appellant did not act in response to direct provocation by Fisher at the time he shot Fisher. Therefore, we conclude the jury's rejection of appellant's sudden passion claim was not so against the great weight and preponderance of the evidence so as to be clearly wrong or manifestly unjust. See Naasz, 974 S.W.2d at 421; Hernandez, 127 S.W.3d at 212. We resolve appellant's first issue against him.
 
Evidentiary Rulings
 
        In issues two through five, appellant complains of evidentiary rulings made by the trial court. We review the trial court's determination to admit or exclude evidence for an abuse of discretion. See Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g). We will uphold the trial court's ruling unless it is outside the zone of reasonable disagreement. See Oprean, 201 S.W.3d at 726; Montgomery, 810 S.W.2d at 391.
A. Evidence of Gun Possession
        In his second issue, appellant asserts the trial court erred in overruling his rule 404(b) objection to evidence that he produced a weapon several hours before the shooting. The State responds the evidence was admissible as same transaction contextual evidence.
        “Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” Tex. R. Evid. 404(b). Such evidence may be admissible to show “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.” Id. Additionally, extraneous evidence may be admissible as same transaction contextual evidence. See Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993).
        The record shows an ongoing course of events from the time appellant threatened Whitaker with the gun until he shot Fisher. After threatening Whitaker, appellant called Perry and Litzinger in an attempt to obtain an alibi, which they refused to give. There was testimony that Fisher talked to appellant and called appellant stupid for telephoning them for an alibi. Appellant did not want to go directly home for fear the police would be there, so he decided to go to Perry's shed. En route, appellant was stopped by the police, but the officer let him go. By his own testimony, appellant then proceeded to Perry's, intending to ask Perry to hold onto the gun for a few days because he did not want to be found with it. There was evidence appellant was upset with his friends for refusing to provide him an alibi, and he was angry and yelling when he entered the shed. Appellant and Fisher got into a shouting match, and appellant pulled the gun and ultimately shot Fisher.
        We conclude the judge could reasonably find the evidence of the assault on Whitaker was same transaction contextual evidence. See Camacho, 864 S.W.2d at 532. Therefore, the trial court did not err in admitting the evidence. We resolve appellant's second issue against him.
B. Lay Witness Testimony
        Brister testified on direct examination, without objection, that she had not seen anything she thought justified appellant pulling a gun on Fisher. On redirect examination, the prosecutor asked if Brister had seen anything that would lead her to believe appellant was justified in “firing eight shells in” Fisher. Appellant objected to Brister testifying as to what she believed appellant then believed or saw. The trial court overruled the objection, and Brister answered, “No.”
        In his third issue, appellant contends the trial court erred in allowing Brister to give lay opinion testimony that amounted to speculation as to appellant's state of mind at the time of the shooting. The State responds Brister was permitted to give lay opinion testimony based on her first hand knowledge. We agree with the State.
        Brister gave no opinion as to what she believed appellant's state of mind was at the time he fired the shots. Rather, she testified as to what her perceptions were at that time, i.e., that she did not see anything she believed justified the shooting. A witness who is not an expert may testify in the form of opinion or inference only to the extent that those opinions or inferences are rationally based on the perception of the witness and helpful to a clear understanding of the witness's testimony or the determination of a fact in issue. See Tex. R. Evid. 701. “Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Tex. R. Evid. 704.
        Because Brister's testimony was based on her own observations, the trial court did not abuse its discretion in allowing the testimony. See Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002). We resolve appellant's third issue against him.
3. Admission of Letter
        During his direct testimony, appellant testified that he started to “distance” himself from Fisher because Fisher began acting in a way appellant did not approve of, including making derogatory racial remarks about other people. During cross-examination, appellant repeated that he found the racial comments by Fisher offensive. The State then introduced a letter appellant wrote to Fisher from Marine boot camp approximately four years before the shooting. In the letter, appellant said he was able to “tag a towel head at 500 yards” and could “hit the . . . dot on his greasy forehead.” Appellant obtained a running objection to being impeached on a collateral matter.
        In his fourth issue, appellant complains the trial court erred in admitting the letter into evidence. The State responds that appellant opened the door to the admission of the letter through his own testimony. We agree with the State.
        Generally, a witness may not be impeached on a collateral matter. See Flores v. State, 155 S.W.3d 144, 149 n.17 (Tex. Crim. App. 2004). An exception to the general rule exists where a witness has left a false impression concerning a matter relating to his credibility. See id. (citing Flannery v. State, 676 S.W.2d 369, 370 (Tex.Crim.App.1984)). In such a case, the opposing party is allowed to correct that false impression. Id.
        Through his testimony, appellant created the impression that he did not share Fisher's racial views. The State was entitled to counter that impression with the evidence appellant had shared those views. Appellant testified he had changed in the years since that time. But, he also testified he called Fisher a “dumb wop” during their exchange of insults prior to the shooting. Therefore, we conclude the trial court did not err in admitting the letter into evidence to correct the impression appellant's testimony left regarding his racial views. See id. We resolve appellant's fourth issue against him.
4. Exclusion of Audiotape
        In his fifth issue, appellant contends the trial court erred in excluding from evidence a voice recording of Fisher appellant claims went to Fisher's character. The State responds the trial court properly excluded the audiotape because it did not satisfy the requirements of rule of evidence 405(a) and its prejudicial effect substantially outweighed its probative value.
        We need not decide whether the trial court erred in refusing to admit the audiotape because we conclude any error was harmless. When we review non-constitutional error, we disregard error that does not affect the substantial rights of the accused. See Tex. R. App. P. 44.2(b). Substantial rights are not affected by the erroneous exclusion of evidence “'if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.'” Reese v. State, 33 S.W.3d 238, 243 (Tex. Crim. App. 2000).
        Appellant sought to introduce the audiotape to show Fisher's character and to show he was the aggressor on the night of his death. However, there was already evidence of that in the record. Hill testified that after she reported her traffic accident with Fisher to her insurance company, she received a voice mail message from Fisher in which he was yelling at her, upset that she had reported the accident. Hill testified that after hearing the message, she formed the opinion Fisher was violent.
        Appellant testified he began to distance himself from Fisher because appellant did not approve of some of the things Fisher was doing. Specifically, appellant mentioned threats and racial comments Fisher made following an auto accident with a young lady. Additionally, appellant testified that Fisher and Whitaker had been good friends at one time, but, after a “falling out,” Fisher and another person “conspired” to get revenge on Whitaker. Appellant also testified of threats made by Fisher against Gannaway after those two men had a falling out.
        Finally, Gannaway testified Fisher left two telephone messages that were profanity laced, angry, and sounded violent. Gannaway testified the messages included threats against himself and his infant daughter. Gannaway was so frightened by the threats that he moved without telling anyone his new address.
        Because the evidence regarding Fisher's character appellant sought to introduce via the audiotape was already before the jury, we have a fair assurance that any error in the exclusion of the audiotape did not affect appellant's substantial rights. See Tex. R. App. P. 44.2(b). We resolve appellant's fifth issue against him.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
060721f.u05