Jesse Lopez Jr. v. State

• Court: Court of Appeals of Texas
• Decided: May 1, 2008
• Docket: 01-06-01079-CR
• Status: Published

Opinion

Opinion issued May 1, 2008

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-06-01079-CR

JESSE LOPEZ, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 1035412

MEMORANDUM OPINION A jury convicted appellant, Jesse Lopez, Jr., of capital murder. The trial court assessed appellant's punishment at life imprisonment, which is the only possible sentence because the State did not seek the death penalty. See Tex. Pen. Code Ann. §§12.31 (Vernon 2003), 19.03 (Vernon Supp. 2007).

In thirteen points of error, appellant contends that: (1) the evidence is legally insufficient to sustain the verdict finding appellant guilty of capital murder, (2) the evidence is factually insufficient to sustain the verdict finding appellant guilty of capital murder, (3) the trial court erred when it allowed the State to introduce evidence of certain extraneous acts, (4) the trial court erred when it allowed the State to cross-examine appellant about these extraneous acts, (5) the trial court erred when it denied appellant's motion for a mistrial based on an improper question posed by the State to a defense witness, (6) the trial court erred when it allowed the State to introduce a photograph of appellant in possession of a gun on a date not alleged in the indictment, (7) the trial court erred when it excluded certain evidence regarding the presence of controlled substances in the bodies of the complainants, (8) the trial court erred when it refused to allow the introduction of autopsy photographs of one complainant, (9) the trial court erred when it refused to allow testimony regarding the meaning of one complainant's tattoo, (10) the trial court erred when it refused to submit a "sudden passion" charge to the jury during the guilt-innocence phase of the trial, (11) the trial court erred when it refused appellant's requested jury instruction on the right to continue shooting, (12) the trial court erred when it overruled appellant's objection to the prosecutor's argument concerning the relevance of the second shooting to the appellant's state of mind during the first shooting, (13) the trial court erred when it overruled appellant's objection to the prosecutor's argument concerning the application of the law of self-defense.

We affirm.

I. Factual Background

Appellant, Jesse Lopez, was convicted for the murder of the complainants following an altercation outside Poppa Burger, a small 24-hour Houston roadside restaurant with outdoor picnic table seating. The incident began in the midnight hours of Saturday, April 2, 2005, when four couples arrived at the restaurant to order food. The group drove to Poppa Burger in two cars following an evening of drinking beer and other alcohol. The following individuals arrived at Poppa Burger: (1) appellant; (2) appellant's common-law wife, Erica Diaz ("Erica"); (3) appellant's uncle Jimmy Lopez ("Jimmy"); (4) Jimmy's common-law wife Guadalupe Cardenas; (5) Anthony Hinojosa ("Anthony"); (6) Lisa Hinojosa ("Lisa"); (7) appellant's step-sister Alexandria Stone ("Alex"); (8) Alex's husband Hugo Sanchez ("Hugo").

Two Poppa Burger employees, Martha Sisco and Yamileth Reyes, were working when they saw the cars park next to a vacant warehouse near the restaurant. Both testified that they noticed the group because of the loud music coming from their cars. As appellant walked up the ramp to the ordering line, his shirt lifted and Sisco saw a gun in his waistband. Sisco testified that the gun made her nervous.

Six members of the group, including appellant, ordered food and ate it at a picnic table near the ordering window. The other two individuals, Alex and Hugo, remained in a car. As the group ate their meal, regular customers Rudy Villanueva and Modesta Pena ("the complainants") rode up on their bicycles and parked. Villanueva began walking up the ramp to order food from the attendant at the window. Before Villanueva could reach the window, Jimmy knocked both complainant's bikes over on the way to the bathroom. Jimmy apologized, picked up the bikes, and continued around the restaurant's exterior to use the restroom.

Before the altercation started that led to the shooting, the facts are generally agreed upon. However, what happened between this point and the deaths of the complainants, as well as the reasons for the shootings, were in dispute at appellant's trial. We present both versions.

A. State's Evidence

Villanueva was upset that the bikes had been knocked over and began mumbling and cursing. At some point, appellant left his table and confronted Villanueva. Scared, Sisco left her work station and went to go hide in the restaurant's walk-in freezer.

Reyes testified that she saw appellant push Villanueva and that a fist-fight ensued. Lisa and Jimmy both testified that Villanueva was the first aggressor. Anthony joined the fray on appellant's behalf. Pena tried to approach the fight in order to defend Villanueva and separate the combatants, but the women in appellant's group stopped her. Three of the women hit Pena, pulled her hair, threw a drink on her, and kicked her until she fell to the ground with the women on top of her. All three women were quite a bit larger than Pena.

While the women were hitting Pena, appellant was on top of and fighting Villanueva with Anthony's help. Jimmy heard the struggle from behind the building, returned to the area, and punched Villanueva in the face, causing Villanueva to fall to the ground. At that point, Anthony moved away from Villanueva, while Jimmy positioned himself between appellant and Villaneuva. Jimmy then told Villanueva that they did not want any problems. Appellant leaned around Jimmy and shot Villanueva eight times with his 9-millimeter handgun while Villanueva was prostrate on the ground.

The women fighting Pena heard the gunshots and all but Erica got off Pena and fled to their vehicles. Jimmy and Anthony returned to the vehicles as well. Appellant walked over, pulled Erica off of Pena, and pointed the gun at Pena as she lay on the ground. The medical testimony revealed that Pena was injured, curled up in a defensive position, and trying to scoot back away from appellant when she was shot. Lisa testified that appellant fired his remaining eight bullets into her as he walked to his vehicle. Appellant and his friends then drove away.

Officers found Pena dead at the scene with some money and a disposable lighter still in her hand. A bicycle chain and lock was lying next to her body. Villanueva was found alive and was transported to the hospital by EMS, where he later died. At the scene of the incident, officers recovered 16 fired 9-millimeter cartridge casings from the area where the victims were shot, along with a cellular phone.

Autopsies confirmed that Villanueva and Pena were each shot eight times and died from their injuries. Each also suffered significant head trauma. A firearms examiner confirmed that two bullets taken from Villanueva's body, two bullets taken from Pena's body, and the 16 fired 9-millimeter cartridge casings found near the shooting site were all fired or ejected from the same gun.

Shortly after the shooting, appellant told Jimmy that he killed Pena because he did not want to leave a witness. He also said that he had dropped his cell phone at the restaurant. Appellant devised a plan to have his mother report the cell phone stolen, however, officers eventually recovered the cell phone and established appellant's ownership by utilizing the phone numbers stored on the phone. As a result, officers were able to present Sisco and Reyes with photospreads containing appellant's picture in order to determine whether either or both Poppa Burger employees could place appellant at the scene of the shooting.

Reyes positively identified appellant as the man with a gun at Poppa Burger the night of the shooting, while Sisco said appellant looked like the man. At trial, both Reyes and Sisco positively identified appellant as the man with the gun at Poppa Burger the night of the murders. Both Lisa and Jimmy unequivocally identified appellant as the shooter.

B. Appellant's Evidence

Appellant testified that Villanueva was intoxicated, angry and cursing him and Jimmy after Jimmy knocked over Villanueva's bike. Jimmy apologized, after which Villanueva walked up and hit appellant in the face. The blow knocked appellant to the ground and Villanueva landed on top of him. Pena, who appellant testified also seemed intoxicated, ran over and also started hitting appellant.

During the struggle, Villanueva started grabbing for appellant's gun and both men fought over it. The gun went off one time. Jimmy separated the men and appellant retained control of the gun. Appellant testified that just after they were separated and the confrontation ended, appellant shot Villanueva because he felt scared of him and thought he had no other choice.

Appellant stated that after shooting Villanueva, he saw Pena hitting Erica with the bike chain and ran over to intervene. Erica managed to get the chain away from Pena, and she fell backwards. Erica then ran away to the vehicle. As appellant drew near, Pena reached up and grabbed appellant's arm. Appellant yanked his arm away and Pena fell backwards again. Appellant then started shooting his gun at Pena as he ran to the vehicle.

II. Discussion

A. Sufficiency of the Evidence

In his first and second points of error, appellant asserts that the evidence is legally and factually insufficient to support the verdict that he committed capital murder and did not act in self-defense.

1. Standard of Review

a. Legal Sufficiency

When an appellant challenges both the legal and factual sufficiency of the evidence, we must first determine whether the evidence was legally sufficient to support the verdict. Harmond v. State, 960 S.W.2d 404, 406 (Tex. App.--Houston [1st Dist.] 1998, no pet.). When examining the legal sufficiency of the evidence, appellate courts view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-2789 (1979)). This standard concedes to appellate courts only a limited role. The inquiry does not require a reviewing court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2789. In this regard, the court is not to position itself as a thirteenth juror in assessing the evidence. Narvaiz v. State, 840 S.W.2d 415, 423 (Tex. Crim. App. 1992) (stressing that appellate judges are not factfinders); Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). Rather, the court is to position itself as a final, due process safeguard, ensuring only the rationality of the factfinder. Moreno, 755 S.W.2d at 867. The factfinder's verdict must stand unless it is found to be irrational or unsupported by more than a "mere modicum" of the evidence, with such evidence being viewed under the Jackson light. Id.

b. Factual Sufficiency

When conducting a factual sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). There are two prongs to a factual sufficiency analysis. First, we must ask whether the evidence introduced to support the verdict, although legally sufficient, is so weak that jury's verdict seems clearly wrong and manifestly unjust. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006) (quoting Johnson, 23 S.W.3d at 11). Second, we must ask whether, considering any conflicting evidence, the jury's verdict, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Id. at 415.

During the course of the analysis, we are mindful that we must give appropriate deference to the jury findings in order to prevent intruding on the factfinder's role as the sole judge of the weight and credibility of the evidence. See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006); Johnson, 23 S.W.3d at 7. Therefore, unless the record clearly reveals a different result is appropriate we must defer to the jury's determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor. See Marshall, 210 S.W.3d at 625. In other words, as the determiner of the credibility of the witnesses, the jury may choose to believe all, some, or none of the testimony presented. Cain, 958 S.W.2d at 407 n.5. In our review, we must also discuss the evidence that, according to appellant, most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

2. Self-Defense

In his first and second issues, appellant argues that the evidence is legally and factually insufficient to support appellant's conviction for capital murder and the jury's implicit rejection of appellant's self-defense claim.

A person commits the offense of capital murder if he or she 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, and the person murders more than one person during the same criminal transaction. Tex. Pen. Code Ann. §§ 19.02(b)(1) (Vernon 2003), 19.03(a)(7)(A) (Vernon Supp. 2007). However, a person is generally justified in using deadly force against another if he reasonably believes that deadly force was necessary to protect himself against the other's use or attempted use of unlawful deadly force and a reasonable person in the actor's situation would not have retreated. Tex. Pen. Code Ann. §§9.31(a), 9.32(a) (Vernon Supp. 2007). ⁽¹⁾ A defendant has the burden of producing some evidence to support a claim of self-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 the State prove its case beyond a reasonable doubt. Id.

A determination of guilt by the fact-finder implies a finding against the defensive theory. Id. Thus, to convict a defendant of murder after 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. See id. Self-defense is a fact issue to be determined by the jury, which is free to accept or reject the defensive issue. Saxton v. State, 804 S.W.2d 910, 913-14 (Tex. Crim. App. 1991).

3. Analysis

We begin by discussing the evidence that appellant contends supports his claim of self-defense and undermines the jury's verdict. At trial, appellant claimed that he justifiably killed Villanueva and Pena in self-defense. Appellant also suggested that he killed Pena in defense of Erica, who is referred to throughout the testimony as appellant's girlfriend or common law wife.

The State produced evidence suggesting that appellant was the aggressor towards Villanueva. According to Erica, appellant and Anthony began fighting Villanueva, but Jimmy broke up the fight by striking Villanueva in the face and causing him to fall down. The State's theory was that Villanueva presented no immediate danger; he was "down" and not trying to get back on his feet. In support of this, Erica testified that, at that moment, everyone could have walked away and nobody had to die.

The testimony also revealed that, having shot Villanueva eight times as he lay on his back, appellant turned to the struggle between Diaz and Pena. The medical testimony showed Pena had been beaten badly and was lying on the ground with her legs curled up. Jimmy testified that Pena was trying to back away from appellant when he shot her "execution style" at point blank range, eight times.

The jury was free to believe the evidence that neither Villanueva nor Pena was attempting to use unlawful deadly force against appellant or force sufficient to cause serious bodily injury ⁽²⁾ when appellant shot them, despite the existence of contrary testimony from appellant. See Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). Therefore, viewing the evidence in the light most favorable to the verdict, we hold that the evidence was legally sufficient for a rational trier of fact to reject appellant's claim of self-defense and to find that appellant intentionally or knowingly caused the death of the complainants by shooting them with a deadly weapon. See Poindexter, 153 S.W.3d at 405.

The evidence is also factually sufficient. The crux of appellant's argument in the Villanueva killing was that Villanueva was the first aggressor, that appellant feared him, and that appellant shot him because Villanueva was reaching for appellant's gun. Although appellant and Diaz testified that Villanueva was aggressive, cursed them, and struck appellant first, their testimony was contradicted by Sisco and Reyes, who testified that appellant was the aggressor and that they had never experienced any trouble with Villanueva or Pena. Although there was conflicting testimony as to who was the first aggressor, Jimmy testified that the fight between appellant and Villanueva had ended and that Villanueva was not a threat when appellant shot him. Villanueva's autopsy confirmed that he was shot from at least three feet away while he lay on his back after suffering one or more significant blows to his head. Jimmy also testified that, in his opinion, appellant may have shot Villanueva out of anger. Again, Erica further testified that after Jimmy broke up the fight, everyone could have simply walked away and nobody had to die.

With regard to Pena, the jury heard evidence that Pena was hurt and curled up on the ground when appellant shot her. Jimmy told police that Pena was on the ground, scooting backwards away from appellant in an attempt to get away from him when he shot her. Pena's autopsy confirmed that she was lying on her left side with her legs curled up against her torso, having suffered significant head trauma prior to being shot. According to Erica, appellant could have done a "lot of things that night" besides shooting Pena.

In addition to the above, when approached by police each of the people in appellant's group either lied about what happened or were uncooperative in locating appellant. Appellant himself concocted a lie to explain how his cell phone was found at the crime scene. He tried to execute a plan to blame Anthony for the shooting, and admitted to Jimmy that he had "already f**ked up" in killing Villanueva and did not want to leave Pena as a witness. Erica testified that she, too, thought that appellant might have killed Pena so Pena could not identify him to the police.

Because the evidence in this case is almost exclusively testimonial and is sometimes contradictory, the outcome depends on whose testimony seems most credible. See Cain, 958 S.W.2d at 407. The jury is the sole judge of the credibility of the witnesses and the weight to be given the evidence; thus, the jury is entitled to believe or disbelieve all or part of a witness's testimony. Jones v. State, 944 S.W.2d 642, 647-48 (Tex. Crim. App. 1996). The jury was free to reject appellant's evidence that he was acting in self-defense and to accept the evidence to the contrary. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). Viewing the evidence in a neutral light, we cannot say the evidence of guilt, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt or that the contrary evidence is strong enough that the beyond-a-reasonable-doubt standard could not have been met. See Watson v. State, 204 S.W.3d 404, 416-17 (Tex. Crim. App. 2006). Therefore, we hold the evidence is factually sufficient to support the jury's finding of guilt.

We overrule appellant's first and second issues.

B. Improper Admission of Extraneous Offense Evidence

In his third, fourth, and fifth points of error, appellant claims that the trial court abused its discretion by allowing the trial prosecutor to question Erica and appellant about his tendency to carry a gun, his reckless behavior with guns, and his tendency to become angry. Appellant also urges that the trial court erred when it allowed the State to introduce a photograph of appellant in possession of a gun on a date not alleged in the indictment.

1. Testimony of Appellant's Common Law Wife (Appellant's Third Point of Error)

In furtherance of appellant's defense, appellant's common-law wife Erica testified that appellant fought Villanueva with a sprained right hand because a week earlier appellant had hit a window at work. Moreover, she testified that appellant's left hand was missing its pinky finger and was wrapped in gauze. Erica also stated that she knew that appellant was carrying a pistol when he went to the picnic table to eat.

Erica testified that after appellant's struggle with Villanueva was over, appellant proceeded to break up her fight with Pena. Erica ran away and saw Pena reaching for appellant. Appellant shot Pena a couple of times and then continued shooting her as he ran back to their vehicle.

On cross-examination, the State asked Erica several questions about appellant's personality and tendency to become angry. The State also asked questions about appellant's gun, but Erica stated that she had never seen it and did not know what kind of gun it was. Erica later elaborated on appellant's prior injury, stating that appellant got into an argument with her, got mad, and struck a car window. According to Erica, the remaining sprain was so bad that it hindered appellant's ability to fight Villanueva.

The State asked more questions about appellant's gun and his behavior with the gun:

State: So, this gun that you don't know what it is, was that just a one-night thing that he just carried it that night, or did he carry it all the time?

Defense: Judge, again, I would object to that as being a violation of Rule 404 as to what was done in the past.

Trial Court: Overruled.

Erica: I'm sorry , can you repeat it?

State: Was that just a one-night thing, or did he carry it all the time?

Erica: I'm pretty sure he carried it all the time. I don't know. He wouldn't ask my permission to carry it.

State: But you know when he carries it, don't you?

Erica: Not all the time.

State: Is it such a casual thing that when your husband is carrying a gun around you don't know when he has it?

Erica: No.

State: But you know he carries it on a regular basis, correct?

Erica: Yes.

State: Or does he just carry it when he goes out drinking and partying with his friends?

State: He carries it all the time?

State: Does he have a license to carry that gun?

State: And he doesn't just carry the gun, he plays with it a lot, doesn't he?

State: And, in fact, there have been many times outside that apartment complex right there in the middle of the parking lot where he pulls out that gun and shoots it off in the air?

Defense: Judge, I object to this line of questioning as being an extraneous offense, extraneous matter that's not material.

Erica: Can you repeat the question?

State: There have been lots of times when he goes out in that parking lot at that apartment complex and shoots off that gun?

Defense: Can I have a running objection to this line of questioning?

Trial court: Yes.

Defense: Thank you.

Trial court: What was your answer?

State: Are you saying that's never happened?

Erica: Not to my knowledge, no.

State: Are you saying he's never gone out there and shot off that gun?

State: You don't remember an occasion about a month before this incident where you and the defendant and Jimmy and Shelly all stood out in that parking lot and shot off the gun and the neighbors called the police?

Defense: Again, I object to this line of questioning.

Erica: No, I don't recall.

State: That's his gun, isn't it?

State: Nobody else has that gun, do they?

State: So, would it surprise you to learn that casings from that gun were collected and found-

Defense: Judge, assuming facts not in evidence.

Trial Court: Sustained.

State: Isn't that exactly what he was doing the night that he shot half his pinky finger off?

State: He was playing with that gun out there in that apartment complex parking lot, wasn't he?

Erica: No.

State: Where was he playing with the gun?

Erica: I don't remember. I know it wasn't in the apartments though.

State: You don't remember where your husband shot off half his pinky finger?

Erica: It was not at my apartments.

State: Do you remember where it was?

Erica: At his uncle's.

State: At his uncle's apartments?

Erica: At his uncle's house.

State: At his uncle's house. In the house or outside?

Erica: Outside.

State: What was he doing with it?

Erica: I'm not sure. I wasn't-my back was to him.

State: You were there and he was playing with it, wasn't he?

Erica: Uh-huh.

State: Shooting it and messing around with it?

Erica: Not shooting it.

State: Do you notice his personality is different when he's running around with that gun or is he just always mean?

Defense: Judge, I-

Trial Court: Sustained to the form of the question.

Defense: I'd ask the Court to admonish the jury not to consider that last-

Trial Court: You will disregard the last question and not consider it for any purpose.

Defense: I'll ask for a mistrial.

Trial Court: Be denied.

State: Is your husband left-handed or right-handed?

Erica: My husband is left-handed.

2. Testimony of Appellant (Appellant's Fourth Point of Error)

Appellant testified next. He stated that he bought the 9-millimeter pistol legally at a gun show. He also stated that two injuries impeded his ability to fight Villanueva: (1) his right wrist was sprained from an argument with Erica, and (2) shortly before the incident he had shot off his left pinky finger. On cross-examination, appellant stated that he had the 9-millimeter Ruger for a couple of months and that he had two 15-round clips and a 30-round clip for it.

Over his attorney's objection, the State asked if appellant had been outside his apartment complex on a number of occasions shooting off the gun and scaring his neighbors; appellant stated that he had not. Also following his attorney's "assuming facts not in evidence" objection, the State asked if anyone had "gathered up those casings and submitted them to the police." Appellant responded, "I don't know nothing about that." Finally, over appellant's Rule 403 objection, the State asked when he carried the gun. Appellant stated, "I just-whenever, really. I don't have no certain days that I decide I'm going to carry it or nothing like that." With regard to the night in question, appellant stated, "[e]verybody else had a gun, so I had brought mine."

3. Photographic Evidence (Appellant's Fifth Point of Error)

The State was also allowed to introduce a photograph of appellant smiling, surrounded by friends, while holding a handgun at a firing range on a date not alleged in the indictment. Appellant objected that the photo was irrelevant, immaterial, and that the prejudicial effect of the photograph outweighed any probative value, but the objection was overruled. At trial, crime scene officer Duncan testified that he recovered a cell phone from the Poppa Burger restaurant. During Duncan's testimony, the State entered the cellular phone into evidence and appellant reserved his right to object to the admission of photographs found inside the phone. One of the photographs inside the phone was the photograph of appellant at the firing range with the gun.

The State introduced the photograph into evidence over appellant's Rule 402 and 403 objections, which the trial court denied. Jimmy testified that he thought that the gun appellant was holding in the photograph was a 9-millimeter Ruger handgun. Jimmy also stated the gun in the photograph may have belonged to someone else.

4. Analysis

Appellant complains that the trial court erred by overruling his Rule 404 and Rule 403 objections to the testimony and photograph outlined above. We review a trial court's decision to admit evidence under an abuse of discretion standard. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). The trial court does not abuse its discretion unless its determination lies outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991).

a. Relevancy

At trial, all relevant evidence is admissible unless otherwise excepted by the Constitution, statute, or other rules. Tex. R. Evid. 402. Evidence is relevant if it has any tendency to make more probable or less probable the existence of a consequential fact. See Tex. R. Evid. 401; Moses, 105 S.W.3d at 626. Not all relevant evidence is admissible. Id.

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. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of the intent to introduce within the State's case-in-chief such evidence other than that arising in the same transaction. Tex. R. Evid. 404(b). In other words, evidence is admissible under Texas Rule of Evidence 404(b) if it is relevant to show a non-character purpose that in turn tends to show commission of the crime. See Tibbs v. State, 125 S.W.3d 84, 89 (Tex. App.--Houston [14th Dist.] 2003, pet. ref'd.).

Additionally, extraneous offense evidence may be relevant and admissible to rebut a defensive theory, such as self-defense. See Montgomery, 810 S.W.2d at 387-88. The State, as the proponent of extraneous offense evidence, bears the burden of showing admissibility. See Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1998).

As previously noted, appellant complains that the aforementioned testimony and photograph are irrelevant. In support of admission, the State cites section 9.31(b)(5) of the Texas Penal Code. That portion of the self-defense statute provides, "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. Pen. Code Ann. § 9.31(b)(5) (Vernon Supp. 2007). Section 46.02 of the Texas Penal Code prohibits the unlawful carrying of a firearm. Tex. Pen. Code Ann. § 46.02 (Vernon Supp. 2007).

Because appellant claimed self-defense against both complainants, we agree with the State that appellant's experience with firearms prior to the shootings is relevant to rebut appellant's defensive theory. The testimony speaks to appellant's lack of maturity and good judgment in the handling of his weapon, to the frequency with which he used the weapon, and is relevant to show absence of mistake or accident with regard to the complainants' deaths. Likewise, the photograph of appellant at the firing range is also relevant to provide a link between appellant, the cellular phone, and the 9-millimeter Ruger handgun that was used in the shooting, but was never recovered by police. ⁽³⁾ Consequently, the trial judge did not abuse his discretion in by admitting the testimony and photograph over appellant's Rule 404(b) objection.

b. Prejudice

Appellant contends that, even if the testimony and photograph were relevant, they should have been excluded because their probative value was substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. As the Court of Criminal Appeals has noted, to violate Rule 403, it is not enough that the evidence is "prejudicial"--it must be unfairly prejudicial. Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002). Unfair prejudice occurs when the evidence has "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Id.

In making a determination under Rule 403, we take into account several factors: (1) how compelling the evidence serves to make more or less probable a fact of consequence; (2) the potential of the genre of evidence to impress the jury in some irrational but nevertheless indelible way; (3) how much trial time is consumed; and (4) how great the proponent's need is for this evidence. Montgomery, 810 S.W.2d at 389-90; Hernandez v. State, 891 S.W.2d 744, 748 (Tex. App.--Fort Worth 1994, pet. ref'd). Considering these factors, the trial court did not err in finding that this potential character conformity inference does not substantially outweigh the relevant purpose of showing motive for the aggravated sexual assault. See Vasquez, 67 S.W.3d at 240.

First, as previously noted, evidence of appellant's experience with the gun and practice of carrying it without a license serves to make less probable a fact of consequence, namely that appellant acted in self-defense. Appellant's disregard for handgun safety and registration laws is evidence consistent with the State's theory that appellant intentionally brandished the weapon and caused the death of the complainants. Second, the record does not support the notion that the evidence tended to impress the jury in some irrational and indelible manner, nor does appellant explain any such impact in his brief. Third, the evidence of appellant's experience with the gun was developed quickly via a single photograph and through a limited series of questions directed at Erica, Jimmy, and appellant. Therefore, the record does not indicate a disproportionate amount of time was spent on this subject. Fourth, the evidence was significant to the State's case as it served to rebut appellant's theory of self-defense. Thus, the State had a compelling reason to present such evidence.

In light of the relevancy of the evidence and our analysis under Rule 403, we hold the trial court's determination to admit the testimony and photograph does not fall outside of the zone of reasonable disagreement. See Weatherred, 15 S.W.3d at 542. Therefore, we overrule appellant's third, fourth, and fifth issues.

C. Failure to Declare a Mistrial

In his sixth point of error, appellant contends the trial court also abused its discretion by denying appellant's mistrial request following the prosecutor's question to Erica asking whether appellant's "personality is different when he's running around with that gun or is he just always mean?"

We review the denial of a motion for mistrial under an abuse-of-discretion standard. Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004); Davis v. State, 177 S.W.3d 355, 363 (Tex. App.--Houston [1st Dist.] 2005, no pet.). Under this standard, an appellate court must uphold the trial court's ruling as long as the ruling was within the zone of reasonable disagreement. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004).
"A mistrial is a device used to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile." Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). It is appropriate only for "a narrow class of highly prejudicial and incurable errors." Id.; See Hawkins, 135 S.W.3d at 77. Thus, a trial court properly exercises its discretion to declare a mistrial when, due to the error, an impartial verdict cannot be reached or a conviction would have to be reversed on appeal due to "an obvious procedural error." Wood, 18 S.W.3d at 648.

When, as here, the trial court sustains an objection and instructs the jury to disregard, but denies a defendant's motion for a mistrial, the issue is whether the trial court abused its discretion in denying a mistrial. Hawkins, 135 S.W.3d at 77. In determining whether the trial court abused its discretion in denying the mistrial, we balance three factors: (1) the severity of the misconduct (prejudicial effect), (2) curative measures, and (3) the certainty of conviction absent the misconduct. Id. at 75. Only in extreme circumstances, when the prejudice is incurable or the comment is "so prejudicial that expenditure of further time and expense would be wasteful and futile," will a mistrial be required. Id.

We agree with appellant that the trial prosecutor's question was improper, but conclude that the trial court did not abuse its discretion in failing to declare a mistrial. The improper question was an isolated one, and the trial court quickly instructed the jury to disregard the argument. We presume that the trial court's instruction to disregard the prosecutor's comment was followed by the jurors. See Wesbrook v. State, 29 S.W.3d 103, 116 (Tex. Crim. App. 2000). Due to the absence of any evidence in the record rebutting this presumption and the absence of any harm, we cannot say the trial court abused its discretion in denying appellant's mistrial motion.

Appellant's sixth issue is overruled.

D. Failure to Allow Toxicology Reports Concerning Complainant's Bodies

In his seventh point of error, appellant contends the trial court abused its discretion in failing to admit certain toxicology evidence concerning the complainants. Appellant urges that the evidence was relevant, that its admission was supported by article 38.36 of the Texas Code of Criminal Procedure, and that its exclusion violated his federal constitutional right to present a meaningful defense.

The State called Dr. Mary Anzalone in the presence of the jury to testify about the complainant's autopsy results. The autopsy reports were admitted into evidence, but did not contain any toxicology test results. Appellant attempted to introduce the toxicology reports following Dr. Anzalone's testimony and argued that he should be able to cross-examine Dr. Anzalone about the toxicology reports because they were relevant to support testimony that Villanueva was the first aggressor. The trial court initially ruled that, at that point in the trial, no evidentiary link existed between the toxicology results and appellant's self-defense claim. The trial court stated that, should the toxicology reports become relevant, then it would allow appellant to discuss the information in the reports.

Through subsequent testimony, appellant attempted to establish that the complainants were intoxicated and that their impaired state placed appellant in fear for his safety. Appellant testified that Villanueva was mad, cursing them, and calling them names. He stated that Villanueva's eyes looked red, that Villanueva appeared to have been drinking, and that Pena looked like she had been "drinking or doing whatever [Villanueva] had been doing." Appellant told the jury that he feared Villanueva because of a teardrop tattoo on Villanueva's face and that Villanueva was the first aggressor, hitting appellant in the face. He testified further that Villanueva was strong and that they struggled over appellant's gun. Appellant concluded that he shot Villanueva as soon as Jimmy separated the two because he was afraid and had no other choice.

Following appellant's testimony, appellant's attorney again sought to introduce the toxicology reports. Appellant made a proffer of evidence by calling Dr. Anzalone to testify outside of the jury's presence. Dr. Anzalone's testimony revealed that several illicit drugs were present in both complainants' systems and that ethyl alcohol was present in Villanueva's system. Dr. Anzalone testified that she could not say whether the presence of such drugs would make it more or less likely that someone would act in an aggressive manner. Appellant reurged the admission of the toxicology results on the basis that they were probative in light of Villanueva's aggressive conduct, they represented a pertinent character trait of the victim under Rule 404(a)(2), and that their exclusion violated appellant's right to present a complete defense. The trial court found that the evidence was relevant, but that its prejudice highly outweighed any probative value, which was only speculative.

1. Appellant's Sixth Amendment Claim

Appellant argues that the trial court's refusal to admit the toxicology results violates his Sixth Amendment right to present a meaningful defense. In support of his argument, appellant cites the Supreme Court's recent opinion in Holmes v. South Carolina, 547 U.S. 319, 126 S. Ct. 1727 (2006). There, the court held unconstitutional a state rule that controlled the admissibility of certain evidence at a criminal trial. Holmes, 547 U.S. at 331, 126 S. Ct. at 1735. Holmes was tried for the beating, rape, and robbery of an 86-year-old woman. Id. at 321, 126 S. Ct. at 1730. The State presented evidence that Holmes had been seen near the woman's home within an hour of the attack, along with forensic evidence linking him to the crime to a very high degree of certainty. Id. at 322, 126 S.Ct. at 1730. In his defense, Holmes sought to introduce evidence that the forensic evidence had been contaminated, that the police and prosecutors were trying to frame him, and that a third party committed the crime. Id. at 322-23, 126 S.Ct. at 1730.

The trial court excluded Holmes' evidence pursuant to a state rule that allowed evidence of a third party's guilt if it "'raise[s] a reasonable inference or presumption as to [the defendant's] own innocence,'" but not if it merely "cast[s] a bare suspicion upon another'" or "'raise[s] a conjectural inference as to the commission of the crime by another.'" Id. at 323-24, 126 S. Ct. at 1731.

Upon review, the United States Supreme Court found the evidentiary rule "arbitrary" and unconstitutional as applied because it did not rationally serve the end it was designed to promote--focusing the trial on central issues by excluding evidence that had only a very weak logical connection to them. Id. at 329-30, 126 S. Ct. at 1734-35. The Court determined that the constitutional right to a "meaningful opportunity to present a complete defense" prohibits basing the admissibility of potentially exculpatory evidence on the strength of only one party's evidence, especially where the "strength" of that evidence calls for a credibility assessment historically left to the jury. Id.

In Texas, the improper exclusion of evidence may raise a constitutional violation in two circumstances: (1) when an evidentiary rule categorically and arbitrarily prohibits the defendant from offering relevant evidence that is vital to his defense, or (2) when a trial court erroneously excludes evidence that is a vital portion of the case and the exclusion effectively precludes the defendant from presenting a defense. Ray v. State, 178 S.W.3d 833, 835 (Tex. Crim. App. 2005) (citing Potier v. State, 68 S.W.3d 657, 659-62 (Tex. Crim. App. 2002)).

We are not persuaded by appellant's reliance on Holmes. In contrast to that case, which involved a specific state statute, the trial court here weighed the probative value of the evidence against the danger of unfair prejudice or confusion of the issues in accordance with the Texas Rules of Evidence. See Tex. R. Evid. 403. First, Dr. Anzalone testified that she could not speak to whether the toxicology results showed either complainant was behaving aggressively on the night of the shooting. Therefore, the probative value of this evidence was minimal. Second, the trial court's ruling did not effectively preclude appellant from presenting a defense with regard to this issue because appellant offered testimony from numerous eyewitnesses, as well as his own opinion, that both complainants were intoxicated. Consequently, the trial court's ruling was not arbitrary or unconstitutional and appellant was not denied his Sixth Amendment right to present a meaningful defense.

2. Appellant's Claim Under Rules 106 and 107 of the Texas Rules of Evidence

Next, appellant urges this court to find the trial court abused its discretion in denying the toxicology reports because they were part of the larger autopsy reports that should have been admitted pursuant to Rules 106 and 107 of the Texas Rules of Evidence. To preserve a complaint for appellant review requires a party to raise a timely, specific objection at trial and to obtain an adverse ruling. Tex. R. App. P. 33.1(a). Failure to do so waives any complaint on appeal. Id. Appellant did not urge these bases for the admission of the toxicology reports at trial and, therefore, has not preserved the arguments for our review.

3. Appellant's claim under Article 38.36, Texas Code of Criminal Procedure

Finally, appellant argues that the trial court erred in refusing to admit the toxicology reports under article 38.36 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.36 (Vernon 2005). Article 38.36(a) provides that "in all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense." Although the statute refers to "murder" prosecutions, it has historically been applied to capital murder proceedings as well. See Lamb v. State, 680 S.W.2d 11, 16-17 (Tex. Crim. App. 1984).

In support of his argument that the trial court abused its discretion in failing to admit the reports, appellant cites Turner v. State, 762 S.W.2d 705 (Tex. App.--Houston [14th Dist.] 1988, pet. ref'd). In that case, the Fourteenth Court of Appeals considered whether the trial court erred by refusing to allow a defendant to present evidence about the alcohol and drug usage of the deceased and a witness prior to the date on which the murder occurred. Id. at 707. The Court cited the statute's predecessor and found that "[t]he only relevant inquiry is whether the deceased and/or [the witness] were under the influence of drugs at the time of the murder or whether the use of drugs had any connection to the commission of the crime itself." Id. at 708. Based on this language, appellant concludes that the toxicology reports were therefore admissible because they show that the complainants were under the influence of drugs and alcohol when they were killed.

We agree with appellant that because the reports reflected the "facts and circumstances surrounding the killing" they were admissible under article 38.36. However, the reports were still subject to a balancing test pursuant to Rule 403. See Smith v. State, 5 S.W.3d 673, 679 (Tex. Crim. App. 1999) (holding article 38.36 does not abrogate trial court's duty to comply with rule excluding relevant evidence if its probative value is outweighed by its prejudicial effect). The trial court conducted such a balancing test and found the probative value of the evidence did not outweigh the danger of unfair prejudice or confusion of the issues. See Tex. R. Evid. 403. Appellant does not address the trial court's Rule 403 analysis in his appellate brief. Accordingly, we cannot say the trial court abused its discretion in denying the admission of the reports into evidence.

Moreover, even if we assume the trial court erred in excluding the toxicology reports, the error was harmless. As a general rule, error in the admission or exclusion of evidence does not rise to a constitutional level. Bagheri v. State, 119 S.W.3d 755, 762-63 (Tex. Crim. App. 2003). In this case, because the trial court ultimately found the evidence relevant, but excluded it under Rule 403, any alleged error would be in the exclusion of evidence in violation of the Texas Rules of Evidence. Thus, we apply the harmless error standard found in Texas Rule of Appellate Procedure 44.2(b).

Rule 44.2(b) of the Texas Rules of Appellant Procedure provides that any non-constitutional error that does not affect substantial rights must be disregarded. Tex. R. App. P. 44.2(b). In conducting the harm analysis, an appellant court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the trial court's instructions to the jury, the State's theory, any defensive theories, closing arguments, and even voir dire if material to the appellant's claim. Motilla v. State, 78 S.W.3d 352, 355-56 (Tex. Crim. App. 2002). In assessing harm, factors to be considered include the nature of the evidence supporting the verdict, the character of the alleged error, and how the evidence might be considered in connection with the other evidence in the case. Motilla, 78 S.W.3d at 355-56. The weight of the evidence of appellant's guilt is also relevant in conducting the harm analysis under Rule 44.2(b). Id. at 357.

In determining the magnitude of the harm resulting from the exclusion of the toxicology reports, we have examined and considered the entire record. To begin, during appellant's proffer, Dr. Anzalone testified that the toxicology results did not reveal a chemical combination in complainants' bodies that would have necessarily made complainants behave aggressively on the night of the shooting. Moreover, even without the offered toxicology reports, the defense was able to present evidence that both complainants appeared drunk or high the night of the shootings. Specifically, appellant told the jury that Villanueva appeared to be intoxicated and that his eyes were "real red." Jimmy testified that Villanueva looked like he was "high" and that Pena was "acting crazy." Erica also testified that she thought Villanueva and Pena had been drinking. In addition, during closing arguments, appellant's attorney noted that appellant was fearful of Villanueva because of his intoxicated state.

Upon reviewing the entire record, we therefore conclude the trial court's error, if any, did not have a substantial and injurious effect or influence on the jury's verdict.

We overrule appellant's seventh issue.

E. Failure to Allow the Introduction of Autopsy Photographs of Villanueva

In his eighth point of error, appellant claims the trial court erred in excluding from evidence certain photographs of Villanueva taken in connection with the autopsy. At trial, appellant urged the introduction of these photographs into evidence under the rule of optional completeness since they were made during the autopsy process. The State objected that the photographs, which depicted numerous tattoos on Villanueva's body, were irrelevant and should not be admitted into evidence. Appellant's attorney argued that they were relevant to generally inform the jury "about what Mr. Villanueva looked like and what kind of person he was . . . ." The trial court denied appellant's request.

In his brief, appellant argues that the photographs should have been allowed into evidence under Rules 106 (Remainders of or Related Writings or Recorded Statements) and Rule 107 (Rule of Optional Completeness) of the Texas Rules of Evidence. As to Rule 106, appellant raises this ground of error for the first time on appeal, therefore we hold the issue was not properly preserved for our review. See Tex. R. App. P 33.1(a).

Rule 107 of the Texas Rules of Evidence, sometimes referred to as the Rule of Optional Completeness, provides that, "[w]hen part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other." Tex. R. Evid. 107. The purpose of the rule is to reduce the possibility that the fact-finder receives a false impression from having heard only part of some act, conversation, or writing. Credille v. State, 925 S.W.2d 112, 116 (Tex. App.--Houston [14th Dist.] 1996, pet. ref'd.)

Appellant's brief does not explain how Rule 107 operates in furtherance of the admission of the autopsy photographs. Therefore, we hold this point is inadequately briefed and presents nothing for our review. See Tex. R. App. P. 38.1; Rocha v. State, 16 S.W.3d 1, 20 (Tex. Crim. App. 2000). Appellant's eighth issue is overruled.

F. Error in Excluding Testimony Concerning Villanueva's Teardrop Tattoo

In his ninth point of error, appellant argues that the trial court erred in excluding testimony concerning a teardrop tattoo appellant saw on Villanueva's face the night of the killing. Appellant argues that the evidence should have been admitted under article 38.36 of the Texas Code of Criminal Procedure and that the evidence was necessary for him to present a complete defense as guaranteed by the Sixth Amendment.

While cross-examining Lisa Hinojosa, appellant's attorney introduced two photographs into evidence showing images of Villanueva's face and left eye. Later, appellant's attorney showed the photographs to Jimmy and wanted Jimmy to identify a faint blemish next to Villanueva's left eye as a teardrop tattoo and to ask Jimmy what such a tattoo meant to him. The trial court did not allow the testimony. Jimmy later testified that appellant told him he shot Villanueva because he feared that Villanueva was going to take the gun away and shoot appellant with it. When Jimmy finished testifying, appellant's attorney told the court that he intended to make a proffer of Jimmy's testimony about the tattoo the following day. The record reveals that the intended proffer was never made.

On direct examination, both appellant and Erica testified that Villanueva had a tattoo on his face. Appellant's attorney sought to ask appellant the following:

Appellant's Attorney: Based upon your experience with tattoos, what did that tattoo mean to you?

State: I'll object to the relevance.

Trial Court: Y'all come up.

(At the bench, on the record.)

Trial Court: I guess I should have asked during our last evening together, but what's he going to say?

Appellant's Attorney: He is going to say that he's under the impression that he had either killed somebody or-

Trial Court: Or what?

Appellant's Attorney: Or the tattoo represents some group that he was in-killed somebody and that made him fearful of him.

Trial Court: I have never heard of a tattoo-I mean, really and truly I have never heard the teardrop tattoos mean anything but either my homeboy died in the penetentiary or friends of mine that have died. I have never heard it said that-

Appellant's Attorney: Judge, I have heard a lot of people say tattoos mean-each teardrop counts for a person I have killed. That's been the reputation for years.

Trial court: Never heard that.

Appellant's Attorney: I have.

Trial court: Here's the deal. That version of it is way over the top prejudicial.

Appellant's Attorney: I'll just make a bill.

Trial Court: I'll tell you what. You can say he had a tattoo and it was on his face and because of what I know about tattoos it made me fearful of him, but the other, no.

(Open court, defendant and jury present).

Appellant's Attorney: Once you saw the tattoo, from what you know about tattoos, did that tattoo make you fearful of him.

Appellant: Yes. I knew what it meant.

Appellant's Attorney: Don't go into what you knew about it.

Trial Court: Just "yes" or "no".

Appellant: Yes.

For the first time on appeal, appellant relies on article 38.36 as support for the admissibility of the evidence regarding the meaning of Villanueva's tattoo. Also for the first time on appeal, appellant contends the trial court's failure to allow evidence as to the meaning of the tattoo denied appellant his Sixth Amendment right to present a complete defense.

Again, to preserve a complaint for appellant review, a party must make a timely, specific objection in the trial court. Tex. R. App. P. 33.1(a). A failure to timely and specifically object waives even constitutional rights. Muniz v. State, 851 S.W.2d 238, 255 (Tex. Crim. App. 1993).

In the instant case, appellant failed to articulate the basis for his objection to the trial court's failure to admit evidence concerning the purported meaning of Villanueva's tattoo. Additionally, appellant failed to make his intended proffer. Therefore, appellant has waived this claim's review. See Muniz, 851 S.W.2d at 255 (holding "except for complaints involving systemic (or absolute) requirements, or rights that are waivable only . . . all other complaints, whether constitutional, statutory or otherwise are forfeited by failure to comply with Rule 33.1(a).")

Appellant's ninth issue is overruled.

G. Request for "Sudden Passion" Instruction

In his tenth point of error, appellant argues that the trial court erred in denying appellant's request for a "sudden passion" instruction in the guilt-innocence jury charge. Texas's current scheme does not allow juries to consider "sudden passion" in capital murder cases in which the State does not seek the death penalty, but allows juries to consider the defense in the punishment phase of murder cases. See Tex. Pen. Code Ann. §§ 19.02(b)-(d), 19.03. Appellant argues that affording murder defendants the benefit of the defense of "sudden passion," but not affording the same defense to capital murder defendants violates his right to Equal Protection and to Due Process under the Fourteenth Amendment, as well as his right to be free from cruel and unusual punishment under the Eighth Amendment.

The Court of Criminal Appeals previously addressed this argument in Wesbrook v. State, 29 S.W.3d 103, 112 (Tex. Crim. App. 2000). There, the Court recognized "the Legislature, through its broad power to classify crimes and those who stand accused of crimes, chose not to permit the defense of 'sudden passion' in the context of capital murder. Id. at 113. No equal protection concerns are present as a result of the Legislatures prerogative to treat capital murder defendants differently from other murder defendants in this manner." Id.

As an intermediate appellate court, we must follow binding precedent of the Court of Criminal Appeals. McKinney v. State, 177 S.W.3d 186, 192 (Tex. App.--Houston [1st Dist.] 2005), aff'd, 207 S.W.3d 366 (Tex. Crim. App. 2006). Appellant fails to explain how the law has changed since Wesbrook or why this court should deviate from precedent.

Appellant's tenth issue is overruled.

H. "Right to Continue Shooting" Request

In his eleventh point of error, appellant argues that the trial court erred in denying appellant's requested instruction on his "right to continue" shooting until the danger had ended. Appellant's requested charge read:

You are instructed, in connection with the right of self-defense, that if the defendant was acting in self-defense when he shot at the deceased, then he would have a right to continue firing his firearm at the deceased so long as it reasonably appeared to him, at the time, as viewed from his standpoint alone, that all danger had not passed.

We conclude the trial court did not err in denying the requested instruction. Although a party was previously entitled to an instruction on the right to shoot and continue to shoot until the danger had passed when the evidence showed appellant was in continuing danger, the Texas Penal Code changed in 1974, requiring "the actor to protect himself by retreating if it was reasonable to do so, i.e., the penal code required a person to retreat before using deadly force if an ordinary person in the actor's situation would have done so." See Philen v. State, 683 S.W.2d 440, 445 (Tex. Crim. App. 1984). This abolished the need for an instruction on the "right to continue to shoot until the danger had ended." Id. Therefore, appellant was not entitled to the instruction, and the judge did not err.

Appellant's eleventh issue is overruled. I. Improper Jury Argument Concerning the Application of the Law of Self-Defense

In his twelfth point of error, appellant argues that the trial court erred when it overruled appellant's objection to the prosecutor's argument concerning the application of the law of self-defense. Specifically, appellant urges that the the trial court abused its discretion in overruling appellant's objection to the trial prosecutor's jury argument that the circumstances of the Pena killing shed light on the Villanueva killing.

During the State's jury argument the prosecutor, while addressing the issue of the lesser-included offense of murder, stated:

. . . So, they have conceded that Modesta Pena was not killed in self-defense.

So, the only way you can find him guilty of murder instead of capital murder is to believe that Rudy Villanueva was killed in self-defense. Well, there are a ton of reasons why that's not the case. And I will try to think of as many as I can, but y'all are going to have your own list back there yourselves. But one of the things you can look at is you can look at how coldly and calculatedly he killed Modesta. And that will instruct you on the truth of his version of events with regard to Rudy.

Appellant objected to the argument, stating that it misstated the jury charge. The trial court instructed the jury that "This is argument, ladies and gentlemen. You will refer to the charge for the law. This is argument of counsel." The prosecutor continued:

When you think about what happened to Rudy, you can be instructed by the kind of person you know him to be based on what he did to Modesta. That's taking into account all the facts and circumstances. The kind of person that walked over to Modesta Pena and shot her eight times while she was cowering on the ground is the same kind of person who shot Rudy Villanueva. So, you have a little insight into the character and the coldness of his character that you might not have in other cases. Don't forget what happened to Modesta when you consider what he did to Rudy.

There are at least four areas of proper jury argument: (1) summation of the evidence, (2) reasonable deductions from the evidence, (3) responses to opposing counsel's argument, and (4) pleas for law enforcement. See Perry v. State, 977 S.W.2d 847, 850 (Tex. App.--Houston [14th Dist.] 1998, no pet.). An attorney may not inject speculative evidence outside the record in his or her jury argument. See Everett v. State, 707 S.W.2d 638, 640-41 (Tex. Crim. App. 1986). However, attorneys may draw all reasonable, fair, and legitimate inferences from the facts in evidence. See Williams v. State, 688 S.W.2d 486, 491 (Tex. Crim. App. 1985). Additionally, even aggressive arguments are permissible so long as the arguments fall within one of the four areas of proper jury argument. See Berry v. State, 233 S.W.3d 847, 860 (Tex. Crim. App. 2007).

Appellant urges this court to find the prosecutor's argument improper because "whether . . . Pena was killed without justification has no bearing on whether Villanueva was killed in self-defense." However, we disagree. Because part of appellant's defense was that he killed Pena under a distressed state of mind brought about by Villanueva's conduct, the State was entitled to respond that appellant killed Pena in cold blood. Thus, the prosecutor's argument fell into the first, second, and third categories of permissible jury argument.

Appellant's twelfth issue is overruled.

J. Improper Jury Argument; Failure to Comport with Jury Charge

Finally, in his thirteenth point of error, appellant argues the trial court erred when it overruled appellant's objection to the prosecutor's jury argument about how the jury was to evaluate appellant's self-defense claim. Appellant complains of the following portion of the State's argument:

. . . One thing, before I leave it, though, the defense makes much about your requirements to put yourself in the shoes of the defendant and asks you to make yourself into a rash, angry 20-year-old man. That's not what the law requires you to do.

In fact, it tells you in the jury instructions: You are to look at the facts as a reasonable person in the defendant's circumstances. Not as the defendant in the defendant's circumstances.

Appellant's attorney objected and was overruled by the trial judge, who instructed the jury that "This is argument of counsel. The law is in the Court's charge." The prosecutor continued:

And what it says on page seven is you should place yourselves in the defendant's position to determine how to view the facts. You, as 12 reasonable persons in that situation. Would two people have been dead when you walked away? I don't think so.

Appellant claims that the prosecutor argued an improper legal standard, unsupported by the jury charge, and that the judge should have sustained his objection. He argues that the trial prosecutor invited the jury to evaluate the evidence based on their own personal viewpoints rather than based on how a reasonable person would have evaluated them in the defendant's position.

The jury charge instructed the jury on the law concerning deadly force in self-defense. The charge informed the jury that an actor claiming deadly force in self-defense must reasonably believe that such force was immediately necessary to protect himself against the other person's use or attempted use of unlawful deadly force, and that a reasonable person in the defendant's situation would not have retreated. The charge defined "reasonable belief" as "a belief that would be held by an ordinary and prudent person in the same circumstances as the defendant." The charge instructed that the actor must have acted upon a reasonable apprehension of danger, as it appeared to him from his standpoint at the time, and that he must reasonably have believed that the deadly force was immediately necessary. Further, it provided:

[i]n determining the existence of real or apparent danger, you should consider all the facts and circumstances in this case in evidence before you, together with all relevant facts and circumstances going to show the condition of the mind of the defendant at the time of the occurrence in question, and in considering such circumstances, you should place yourselves in the defendant's position at that time and view them from his standpoint alone.

After reviewing the prosecutor's closing argument and the jury charge, we find that the State's comments on the law of self-defense comported with the jury instruction and did not constitute impermissible argument. As the State correctly notes in its brief, at the time appellant objected the prosecutor had done nothing more than tell the jury to evaluate the facts not as the defendant but as a reasonable person in his circumstances. This statement was a proper application of the law to the evidence. Therefore, the trial court did not err by denying appellant's objection.

We overrule appellant's thirteenth issue.

III. Conclusion

We affirm the judgment of the trial court.

Davie L. Wilson

Justice

Panel consists of Justices Nuchia, Hanks, and Wilson. ⁽⁴⁾

Do not publish. Tex. R. App. P. 47.2(b).

1. Actors are no longer required to retreat, if reasonable, for conduct occurring on or after September 1, 2007. Act of Mar. 20, 2007, 80th Leg., R.S., ch. 1, §§ 2-3, 2007 Tex. Gen. Laws 1, 1-2 (amended 2007) (current version at Tex. Pen. Code Ann. § 9.31, 9.32 (Vernon Supp. 2007)). However, appellant's conduct occurred prior to September 1, 2007, therefore this change in law is not applicable to the instant case.

2. "Serious bodily injury" means "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Tex. Pen. Code Ann. § 1.07(a)(46) (Vernon Supp. 2006). Although the evidence revealed that Pena was swinging a chain at various times during the altercation, a crime scene officer testified that the chain he recovered at the scene was not a "deadly weapon" because the bicycle chain lacked sufficient mass to create enough energy to inflict a lethal blow. Moreover, the evidence showed that Pena was not swinging the chain at all when appellant shot her.

3.

Anthony testified that appellant shot complainants with a 9-millimeter Ruger handgun. Jimmy confirmed that appellant used a 9-millimeter Ruger on the night he shot the complainants. Jimmy testified further that he had seen appellant with the Ruger on more than one occasion.

4.

The Honorable Davie L. Wilson, retired Justice, First Court of Appeals, participating by assignment.