Harvey Leroy Sossamon, III v. State

• Court: Court of Appeals of Texas
• Decided: November 17, 2004
• Docket: 10-02-00231-CR
• Status: Published

Opinion

IN THE

TENTH COURT OF APPEALS

No. 10-02-00231-CR

Harvey Leroy Sossamon, III,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 2001-1073-C

Opinion

            Appellant, Harvey Leroy Sossamon, III, was charged by indictment with the felony offense of murder of Donald Wayne Davis.  Sossamon pled not guilty and was tried before a jury.  The jury found him guilty of murder and assessed punishment at life in prison.   Appellant appears pro se and raises eleven issues on appeal:

1. Whether the evidence is legally sufficient to support a finding that Sossamon intentionally or knowingly caused the death of Davis.

2. Whether the evidence is factually sufficient to support a finding that Sossamon intentionally or knowingly caused the death of Davis.

3. Whether the trial court erred in denying Sossamon a mistrial during the testimony of Victoria Aurora Steinhauer.

4. Whether Sossamon’s conviction violates due process because of alleged perjured testimony by Sally Glenn.

5. Whether Sossamon was denied his Sixth Amendment right to self-representation.

6. Whether Sossamon was denied his self-representation right under the Texas Fair Defense Act.

7. Whether Sossamon was denied his right to a Faretta hearing.

8. Whether the trial court erred in allowing the testimony of Craig McClain for proof of prior extraneous offenses.

9. Whether the trial court erred by including the lesser-included offense of manslaughter in the jury charge.

10. Whether the trial court erred by including the provocation instruction in the jury charge.

11. Whether Bellmead Police Department acted in bad faith during the preservation of evidence denying Sossamon’s due process rights.

We will first address the legal sufficiency of the evidence because that has the potential to provide Sossamon the greatest relief.  We will then review the factual sufficiency, the denial of a motion for mistrial, and two due-process issues.  Next we will consider the issues relating to self-representation, then an issue concerning extraneous offenses.  Finally, we will consider issues about the charge to the jury.  We will overrule all these issues and affirm the judgment.

BACKGROUND

          On June 2, 2001, Sossamon was at “The Bar” with several friends, including Sharmin Saladino.  Victoria Aurora Steinhauer, also known as “Crazy Vicky,” began throwing items at Sossamon, which lead to a verbal altercation between them.  Sossamon was escorted to the parking lot by patrons, including Donald Wayne Davis, and the owner of “The Bar.”  Shortly thereafter, he returned inside “The Bar” carrying a gun, fired it, and killed Davis.  Sossamon left the scene. He was apprehended and taken into custody three months later after a high-speed chase.

ISSUE ONE: LEGAL SUFFICIENCY OF THE EVIDENCE

          The Due Process Clause of the Fourteenth Amendment to the United States Constitution requires that every state criminal conviction be supported by evidence that a rational factfinder could find as sufficient to prove all the elements of the offense beyond a reasonable doubt.  In re Winship, 397 U.S. 358, 362-64, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970); Coit v. State, 808 S.W.2d 473, 475 (Tex. Crim. App. 1991).  The Texas Penal Code contains this same requirement.  Tex. Pen. Code Ann. § 2.01 (Vernon 2003).

Evidence will sustain a conviction if, viewing it in the light most favorable to the jury’s verdict, any rational jury could have found the essential elements of the offense beyond a reasonable doubt.  Lane v. State, 933 S.W.2d 504, 507 (Tex. Crim. App. 1996) (following standard of Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979)).  We act only "as a final, due process safeguard ensuring . . . the rationality of the factfinder."  Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).  If, based on all the evidence, a reasonably-minded jury must necessarily entertain a reasonable doubt of the defendant's guilt, due process requires that we reverse and order a judgment of acquittal.  We must remember that reconciliation of conflicts in the evidence is solely a function of the jury.  Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982).

Sossamon was convicted of murder.  See Tex. Pen. Code Ann. § 19.02(b)(1) (Vernon 2003).  The jury charge explained the elements of the offense: “[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.”  The charge defined “deadly weapon” as: “a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.”  The charge instructed the jury as to intent and knowledge:

A person acts knowingly or with knowledge, with respect to a result of his conduct when it is his conscious objective or desire to cause the result.  A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

The jury was instructed as to criminal responsibility: “A person is criminally responsible for causing the result, if the only difference between what actually happened, and what he desired, contemplated or risked, is that a different person was injured, harmed, or otherwise affected, unless otherwise excused by the law.”  And finally, the charge included instructions on the law of self defense.

Sossamon challenges the legal sufficiency of the evidence only as to the proof of his intent to cause Davis’s death.  Sossamon admits he shot Davis; however, he contends that Steinhauer killed Davis when she got on top of him after he was shot and squeezed him with her legs in an attempt to save his life.  He also argues that he shot his gun in self defense when he saw an attacker with a cue stick begin to swing at him.

The State contends that the evidence is legally sufficient to find that Sossamon intentionally or knowingly killed Davis.  Based on testimony that Sossamon re-entered “The Bar” with a gun stating he “wasn’t going to let them beat him up and kick his car for nothing when he wasn’t bothering nobody” and then fired the gun, the State argues that the jury was free to believe Sossamon intended to kill Davis.  The State also argues that Sossamon did not bring forward evidence to prove his self-defense theory and the State only had the burden to prove its case-in-chief beyond a reasonable doubt, which it claims it did.  Thus, the State contends that the jury’s guilty verdict was an implied finding against Sossamon’s self-defense theory.

Specific intent to kill may be inferred from the use of a deadly weapon unless it is reasonably apparent that its manner of use could not result in death or serious bodily injury.  Medina v. State, 7 S.W.3d 633, 637 (Tex. Crim. App. 1999); Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).  Intent can also be inferred from acts, words, and conduct of the accused.  Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995). 

The State has the burden of persuasion in disproving self defense.  Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991); Wilkerson v. State, 920 S.W.2d 404, 406 (Tex. App.—Houston [1st Dist.] 1996, no pet.).  This is not a burden of production, i.e., one which requires the State affirmatively to produce evidence refuting the self defense claim.  Rather, it is a burden requiring the State to prove its case beyond a reasonable doubt.  Saxton, 804 S.W.2d at 913-14; Wilkerson, 920 S.W.2d at 406.

At least five eyewitnesses testified fairly consistently at trial regarding the major events that occurred the evening of the shooting.  According to their testimonies, Steinhauer started a verbal altercation with Sossamon.  Latham (the bar owner), Davis, and two other men escorted Sossamon out of “The Bar” to attempt to keep peace.  Sossamon came back inside “The Bar” with a gun and was angry.  No one attempted to swing a cue stick at Sossamon.  Sossamon shot Davis in the back as Davis was leaning forward on the front pool table.  Sossamon approached Davis who was on his knees and spoke to him.

Contrary to these eyewitnesses, Sossamon testified: (1) there was a fight outside “The Bar” provoked by one of the men who escorted him outside, (2) he had to fight with three men when he re-entered “The Bar,” and (3) during the fight inside “The Bar,” someone tried to attack him with a cue stick and he shot his gun at this attacker.  When asked on the stand whether it was his intent to kill anybody when he fired his gun, Sossamon responded: “I was shooting the person that was going to hit me with a stick.  And if they died, that was okay.”  He said that he thought he shot Steinhauer.  A law enforcement officer testified that Sossamon told him that Davis got what he deserved, that Sossamon intended to kill Steinhauer before turning himself into the police, and that he did not kill Steinhauer the night of the shooting because she was hiding behind a child.

Reviewing all the evidence in the light most favorable to the verdict, we find that a rational jury could have found beyond a reasonable doubt that Sossamon intentionally or knowingly killed Davis and could have rejected his claim of self-defense.  We overrule issue one.

ISSUE TWO: FACTUAL SUFFICIENCY OF THE EVIDENCE

For a factual sufficiency review, we consider all of the evidence in a neutral light and ask whether the jury was rationally justified in finding guilt beyond a reasonable doubt.  Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex. Crim. App. April 21, 2004).   There are two ways in which the evidence may be factually insufficient:

First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand.

Id.  This standard acknowledges that evidence of guilt can "preponderate" in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt.  Id.  Stated another way, evidence supporting guilt can "outweigh" the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.  Id. 

We must remain cognizant of the jury’s role and unique position—one that this court is unable to occupy.  Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).  Therefore, we give “appropriate deference” to the jury’s evaluation of contradictory evidence because resolution often turns on an evaluation of credibility and demeanor.  See id.  The jury determines the credibility of the witnesses and may “believe all, some, or none of the testimony.”  Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).  It is the jury that accepts or rejects reasonably equal competing theories of a case.  Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001).  The evidence is not factually insufficient merely because the jury resolved conflicting views of evidence in favor of the State.  See Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997).

          Sossamon’s challenge to the factual sufficiency of the evidence is also limited to the proof of his intent to cause Davis’s death.  He contends the evidence proving his intent to kill is greatly outweighed by the evidence tending to disprove his intent to kill.  Therefore, Sossamon argues the State failed to prove beyond a reasonable doubt that he intentionally or knowingly killed Davis.  The analysis relied upon by Sossamon to show a failure of proof of his intent to kill includes: 1) lack of credibility of witnesses based on intoxication, criminal history, vision, and line of sight to shooting; 2) contradictory testimony of number of shots fired; 3) some witnesses did not know anyone was shot and Davis was alive when Sossamon left the scene; 4) Steinhauer was Sossamon’s intended victim; and 5) Sossamon shot Davis in self defense.

The State argues that the evidence is factually sufficient to find beyond a reasonable doubt that Sossamon intentionally or knowingly killed Davis based on consistent eyewitness testimony about Sossamon’s conduct.  The State also argues that Sossamon did not bring forward evidence to prove self defense.

First, the jury heard all of the witnesses and had to decide which were more credible.  We must defer to the jury’s determination of credibility of the witnesses and the jury’s resolution of any contradictory testimony.  Goodman, 66 S.W.3d at 287.  Second, the proof offered that Steinhauer was Sossamon’s intended victim actually tends to prove intent to kill—not disprove it.  As explained in the jury charge, criminal responsibility would still lie with Sossamon even if his intended victim was Steinhauer.  Tex. Pen. Code Ann. § 6.04(b) (Vernon 2003).  Lastly, there is consistent eyewitness testimony contrary to Sossamon’s sole testimony that he fired his gun in self defense at an alleged attacker with a cue stick, which also tends to prove his intent to kill—not disprove it.

Viewing all of the evidence without the prism of the “in the light most favorable to the prosecution” construct, the record does not demonstrate that the proof of guilt is too weak to support the verdict, nor is the contrary evidence strong enough that we can say the beyond-a-reasonable-doubt standard could not have been met.  Zuniga, 2004 WL 840786, at *7.  We overrule issue two.

ISSUE THREE: DENIAL OF MISTRIAL

          An appellate court uses an abuse of discretion standard to review a trial court’s ruling on a motion for mistrial.  Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1070, 120 S.Ct. 1680, 146 L.Ed.2d 487 (2000).

          Sossamon called Steinhauer to testify; however, the State did not want her to testify because of her prior outbursts in another criminal proceeding.  Prior to her testimony, the court stated that it would not grant a mistrial based on any outburst that may occur during her testimony.  Sossamon did not object.  During Steinhauer’s testimony, Sossamon made a motion for mistrial based on an objection to hearsay regarding whether Steinhauer was scared and whether she asked the State not to subpoena her.  This motion was denied.

          Sossamon now argues that he was unfairly asked to waive his right to a mistrial in advance to obtain Steinhauer’s testimony.  The State argues that this issue was not preserved for review, and we agree.  Tex. R. App. P. 33.1.  The State also argues and we agree that the court acted within its discretion in denying Sossamon’s request for a mistrial based on a question that called for hearsay.  See Ladd, 3 S.W.3d at 567.  We overrule issue three.

ISSUES FOUR AND ELEVEN: DUE PROCESS

Perjury

          A due process violation is established if the prosecutor knowingly uses perjured testimony and the reviewing court cannot determine beyond a reasonable doubt that the testimony was harmless.  United States v. Bagley, 473 U.S. 667, 678-80 & n.9, 105 S.Ct. 3375, 3381-82 & n.9, 87 L.Ed.2d 481 (1985).  Even when the prosecutor does not instigate the perjury, he is obligated to correct any perjured testimony given by one of his witnesses.  Id. at 678; Ex Parte Castellano, 863 S.W.2d 476, 480 (Tex. Crim. App. 1993) (citing Alcorta v. Texas, 355 U.S. 28, 31, 78 S.Ct. 103, 105, 2 L.Ed.2d 9 (1979)).  The Appellant bears the burden to show the testimony was perjured.  Luck v. State, 588 S.W.2d 371, 373 (Tex. Crim. App. 1979).

          Sossamon argues that the State intentionally used perjured testimony when Sally Glenn testified that the victim was shot while on his knees, which contradicts the expert testimony of Dr. Jill Urban that the path of the bullet was upwards.  Sossamon contends the image of Sossamon shooting Davis while on his knees inflamed the minds of the jurors.

          The State argues Sossamon did not offer any evidence to prove that Glenn’s testimony was perjured.  We agree.  The State points out and we agree that disagreements in testimony do not necessarily constitute the use of perjured testimony.  See Onate v. State, 62 S.W.3d 208, 212 (Tex. App.—El Paso 2001, no pet.).  We also agree with the State that Glenn’s credibility and the weight to be given to her testimony was an issue for the jury to resolve.  See Vasquez v. State, 654 S.W.2d 775, 778 (Tex. App.—Houston [14th Dist.] 1983, no pet.).  Sossamon has not proven that Glenn’s testimony was perjured.  We overrule issue four.

Preservation of Evidence

          To succeed on a due process claim involving destruction of evidence, Appellant has the burden to show that the State acted in bad faith and that the evidence allegedly not preserved is material and favorable.  Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988).  Three factors are relevant: 1) the likelihood that the lost evidence was exculpatory, 2) the likelihood that the defendant was prejudiced at trial by the absence of the evidence, and 3) the level of government culpability.  Davis v. State, 831 S.W.2d 426, 442 (Tex. App.—Austin 1992, pet. ref’d); Saldana v. State, 783 S.W.2d 22, 23 (Tex. App.—Austin 1990, no pet.).

Sossamon contends that the evidence-preservation-and-recovery techniques and policies of the Bellmead Police Department at the crime scene were so poor, or non-existent, as to constitute “bad faith” on the part of the Department, which violates his due process rights.  He argues that the witnesses should not have been allowed back inside “The Bar,” fingerprints should have been taken from the cue stick, and attempts should have been made to recover the bullets and damaged materials at the crime scene.

The State argues that Sossamon fails to demonstrate how this evidence could have been exculpatory.  We agree with the State.  The evidence Sossamon complains of does not appear to be exculpatory and the absence of the evidence did not prejudice Sossamon at trial.  Even if Sossamon did show that some of this evidence would be material and favorable to his case, he has failed to show any bad faith on the part of the State.  We overrule issue eleven.

ISSUES FIVE, SIX, AND SEVEN: SELF-REPRESENTATION

The Sixth Amendment to the United States Constitution and Article I, Section 10 of the Texas Constitution provide a criminal defendant the right to assistance of counsel.  U.S. Const. amend. VI; Tex. Const. art. I, § 10.  A criminal defendant may waive his right to counsel and represent himself at trial; however, the accused must knowingly and intelligently forego his right to counsel.  Faretta v. California, 422 U.S. 806, 821, 835, 95 S.Ct. 2525, 2534, 2541, 45 L.Ed.2d 562 (1975).  A waiver of the right to counsel will not be “lightly inferred,” and courts will indulge every reasonable presumption against the validity of such a waiver.  George v. State, 9 S.W.3d 234, 236 (Tex. App.—Texarkana 1999, no pet.) (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), and Jordan v. State, 571 S.W.2d 883, 884 (Tex. Crim. App. 1978)).  However, the denial of the right to self-representation at trial is a “structural error” and is not subject to a harmless-error test.  McKaskle v. Wiggins, 465 U.S. 168, 177 n.8, 104 S.Ct. 944, 950 n.8, 79 L.Ed.2d 122 (1984); Mendez v. State, 138 S.W.3d 334, 340 (Tex. Crim. App. 2004).

The right to self-representation does not attach until it has been clearly and unequivocally asserted.  Funderburg v. State, 717 S.W.2d 637, 642 (Tex. Crim. App. 1986) (citing Faretta, 422 U.S. at 835, 95 S.Ct. at 2541).  Before the trial court accepts the request, the defendant must be “made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’”  Faretta, 422 U.S. at 835, 95 S.Ct. at 2541.  And the trial court may appoint “standby counsel” to assist the pro se defendant in his defense.  Id., 422 U.S. at 834 n.46, 95 S.Ct. at 2541 n.46.  Even if a defendant requests to represent himself, the right to self-representation may be waived through a defendant’s subsequent conduct indicating he is vacillating on the issue or has abandoned his request altogether.  Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir. 1982); Garrett v. State, 998 S.W.2d 307, 317 (Tex. App.—Texarkana 1999, pet. ref’d).  Thus, participation of standby counsel must be objected to by a defendant to avoid eroding of the Faretta right.  See McKaskle, 465 U.S. at 178, 104 S.Ct. at 951 (“[A]cquiescence in certain types of participation by counsel substantially undermines later protestations that counsel interfered unacceptably.”).

In a prior order on December 31, 2002, we denied Sossamon’s request to abate his appeal, finding “Sossamon asked that he be permitted to represent himself at trial with the assistance of standby counsel.”  Sossamon v. State, 110 S.W.3d 57, 58 (Tex. App.—Waco 2002, order) (per curiam).  Judge Derwood Johnson, sitting in the 54th District Court, granted his request and appointed Stanley Schweiger as standby counsel.  Nevertheless, the clerk’s record reflects that following this appointment, Schweiger filed all of the pre-trial motions filed on Sossamon’s behalf without any objections by Sossamon.^[1]  In addition, the reporter’s record reflects active representation by Schweiger without any objection by Sossamon during the jury trial before Judge Clyde Whiteside in the 54th District Court.  When the court asked for introduction of the lawyers, the followed dialogue occurred:

THE COURT: The lawyer for the defense will introduce yourself.

[Mr. Schwieger]: Good morning, ladies and gentlemen of the jury.  My name is Stan Schweiger.

[Mr. Fehler]: And I am Damon Fehler

THE COURT: Thank you, gentlemen.

Schweiger then questioned the jury panel without objection by Sossamon.  Following the reading of the indictment, the following exchange occurred:

THE COURT: This is the indictment read to you now.  How does the defendant plead?

[Appellant]: Not guilty.

THE COURT: Not guilty plea is entered.  The case will proceed.

Schweiger then did the following without objection from Sossamon: 1) made defendant’s opening statement; 2) cross-examined all of the State’s witnesses; 3) called and examined all of the defendant’s witnesses; 4) called and examined Sossamon as a witness; 5) made objections to testimony and the jury charge; 6) announced that the defense rested; and 7) gave the defendant’s closing argument to the jury.

It is clear from the record that after Schweiger was appointed standby counsel, Sossamon deviated from his position that he wanted to represent himself.  He did not display an unwavering desire to conduct his own defense and did not insist on conducting his own defense at trial in front of Judge Whiteside, who was not the judge who had granted his request for self-representation.  Sossamon eroded his Faretta right by never objecting to standby counsel’s participation.  See McKaskle, 465 U.S. at 178, 104 S.Ct. at 951.  Therefore, through Sossamon’s conduct during pre-trial and trial, he waived his right to self-representation by abandonment.  See Brown, 665 F.2d at 610; Garrett, 998 S.W.2d at 317.

We find that under these circumstances, Sossamon was not denied his rights to self-representation.  We overrule issues five, six, and seven.

ISSUE EIGHT: EVIDENCE OF PRIOR EXTRANEOUS OFFENSES

          A trial court's ruling as to the admissibility of extraneous offense evidence is reviewed under an abuse of discretion standard.  Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996).  The Code of Criminal Procedure requires that on a timely request by the defendant, the State must give the defendant notice of extraneous crimes or bad acts that the State intends to use at the punishment hearing.  Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g) (Vernon Supp. 2004) (“in the same manner required by Rule 404(b)").  A reasonable notice requirement exists to avoid unfair surprise and trial by ambush.  Henderson v. State, 29 S.W.3d 616, 625 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (citing Nance v. State, 946 S.W.2d 490, 491-93 (Tex. App.—Fort Worth 1997, pet. ref'd)).  If the crime or bad act has not resulted in a final conviction or a probated or suspended sentence, notice of the intent to introduce evidence of such crime or bad act is reasonable only if the notice includes the date on which and the county in which the alleged crime or bad act occurred and the name of the alleged victim of the crime or bad act.  Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g).  Because these rules provide only minimal details regarding the manner in which notice is given, the reasonableness of the State's notice turns on the facts and circumstances of each individual case.  Scott v. State, 57 S.W.3d 476, 480 (Tex. App.—Waco 2001, pet. ref'd).   We have previously stated that notice provided ten days before trial will be presumptively reasonable.  Chimney v. State, 6 S.W.3d 681, 694 (Tex. App.—Waco 1999, no pet.).

          Sossamon contends that he was not provided notice of the State’s intent to introduce evidence from his prior extraneous offense of Aggravated Robbery of Ventura’s Jewelry in 1979.  The State introduced evidence by a Ventura’s Jewelry employee, Craig McClain, regarding the events of the robbery.  The State argues it provided adequate notice of intent to call this witness.  The State’s notice said:

On October 2, 1979, Harvey Leroy Sossman [sic], the defendant, was convicted of Aggravated Robbery in the 183^rd District Court of Harris County, Texas, Cause # 293153.  The victim was Ventura’s Jewelry, 2607 Richmond, Houston, Texas, 88098.

          The State was required to provide reasonable notice.  The State provided notice more than ten days prior to trial and included all of the elements required.  Because Sossamon was actually convicted of this crime and Sossamon had reasonable notice that evidence may be submitted about this conviction, the trial court did not abuse its discretion in allowing McClain’s testimony.  Issue eight is overruled.

ISSUES NINE AND TEN: JURY CHARGE

Lesser-included offense of manslaughter

Sossamon argues that he was entitled to have the jury deliberate and consider his self-defense claim without the inclusion of a reckless conduct instruction (here, manslaughter) where there was no evidence of recklessness.  However, the State argues and we agree that a conviction for the greater inclusive offense nullifies any possible harm that might have derived from an instruction on a lesser-included offense.  See Saunders v. State, 913 S.W.2d 564, 569-70 (Tex. Crim. App. 1995) (citing De Russe v. State, 579 S.W.2d 224, 233 (Tex. Crim. App. 1979) (“conviction of the greater offense made the question essentially academic”), and O’Pry v. State, 642 S.W.2d 748, 765 & n.11 (Tex. Crim. App. 1981) (“because the jury had convicted of the greater offense, the error, if any, was not reversible”)).  Therefore there is no error because Sossamon’s murder conviction, the greater offense, nullified any error in including the lesser-included offense of manslaughter in the jury charge.  We overrule issue nine.

Provocation instruction

          Provocation limits or totally bars a defendant’s right to a self-defense theory.  Smith v. State, 965 S.W.2d 509, 512 (Tex. Crim. App. 1998).  If the defendant provokes another to make an attack on him, and then has a pretext for killing the other in self defense, the defendant forfeits his right to self defense.  Id.; Tex. Pen. Code Ann. § 9.31(b)(4) (Vernon 2003).

A charge on provocation is proper 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.  Smith, 965 S.W.2d at 513.  An appellate court reviews the evidence in the light most favorable to giving the instruction and asks whether there was sufficient evidence from which a rational jury could have found provocation beyond a reasonable doubt.  Id. at 514.

          Sossamon argues that Steinhauer is the one who started the initial verbal altercation and that Davis said “get the f___ out of here” upon escorting Sossamon out of “The Bar.”  Also, Sossamon alleges that one of the men who escorted him outside “The Bar” instigated the fight outside by hitting him in the back of the head and spitting on his neck.  The State argues that Sossamon’s comments to “try to hit me now” and “they ain’t going to be bothering me, pushing me for no reason at all.  I wasn’t bothering nobody” when he returned inside “The Bar” with a gun were sufficient evidence that Sossamon was looking for a fight.

There is eyewitness testimony to support the State’s argument on this issue.  We find sufficient evidence for a rational jury to have found provocation beyond a reasonable doubt; therefore, the provocation instruction was proper.          We overrule issue ten.

CONCLUSION

Having overruled Sossamon’s issues, we affirm the judgment.

BILL VANCE

Justice

Before Justice Vance,

Justice Reyna, and

Judge Carroll^[2] (Sitting by Assignment)

Affirmed

Opinion delivered and filed November 17, 2004

Do not publish

[CRPM]

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    ^[1] A waiver of arraignment was also signed by Sossamon and Schweiger, which stated “Defendant herein is represented by counsel, . . . .”

   ^[2]  Hon. Joe Carroll of the 27th District Court of Bell County, sitting by assignment of the Chief Justice of the Texas Supreme Court pursuant to section 74.003(h) of the Government Code.  See Tex. Gov=t Code Ann. ' 74.003(h) (Vernon Supp. 2004).