Marie Gallegos v. State

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

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MARIE GALLEGOS, No. 08-07-00104-CR
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Appellant, Appeal from
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v. 79th District Court
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THE STATE OF TEXAS, of Jim Wells County, Texas
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Appellee. (TC # 06-04-11893)
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OPINION

Marie Gallegos appeals her murder conviction. A jury found Appellant guilty and assessed

her punishment at a $10,000 fine imprisonment for a term of seventy-four years. We affirm.

FACTUAL SUMMARY

On October 24, 2005, Sergeant William Taylor of the Alice Police Department was

dispatched to the scene of a house fire. The Alice Fire Department was subsequently called to the

scene to extinguish the flames. A short time later, a body was discovered inside the house. Fire

Marshall Mitch Wilson arrived at the home to investigate the cause of the fire; he concluded that the

fire was set intentionally. Sergeant Taylor, who identified the victim as Jimmy Brown, noticed that

Brown’s two vehicles were not at the residence and issued a “be on the lookout” to try and locate

the vehicles. The medical examiner, Dr. Rey Fernandez, determined that a three-inch stab wound

to the neck which severed the carotid artery and jugular vein caused Brown’s death.

Later that evening, Jim Wells County Sheriff’s Deputy Jose Martinez was dispatched to

investigate a report of a suspicious vehicle. Deputy Martinez attempted to stop a yellow station

wagon that had been reported as stolen, but the two suspects fled in the vehicle. The vehicle crashed
after a high-speed pursuit. Renee Rosas, a juvenile, was the driver of the vehicle and Appellant sat

in the front passenger seat. Deputy Martinez placed Rosas under arrest and other law enforcement

officers who had arrived on the scene placed Appellant under arrest. The officer who patted down

Appellant removed a knife from her pocket which had bloody residue on it. Deputy Martinez ran

the plates on the yellow station wagon and determined that it belonged to the victim, Brown. After

being Mirandized, Appellant confessed to stabbing Brown with a knife and setting him on fire.

In her confession, Appellant explained that around 4 a.m., she was out with Jodana Alviar

and they stopped at Brown’s house because Appellant wanted to borrow money from him. Appellant

went into Brown’s bedroom and he tried to kiss her. She pushed him back and they started to fight.

Appellant pulled out a knife and jumped on top of Brown with her knees on his chest to hold him

down. She then stated: “I pushed the knife through his throat and it went all the way through.

Jimmie tried to get the knife from me and we fought for the knife and he cut his hands and palms

everytime he grabbed the knife blade. He was bleeding and then he fell over the bed.” Appellant

searched the house for money or anything of value but she found only $40. She took the keys to

Brown’s car from his pocket and then covered him with a blanket because she knew it would burn

quickly. She also gathered other items to that would burn. Appellant and Alviar left in Brown’s

station wagon at around 5:30 a.m. to get some gasoline and butane to start the fire. They returned

with various accelerants including gasoline, lighter fluid, and brake fluid and Appellant poured them

throughout Brown’s house. Appellant then set some items on fire and lit a rag which she has stuffed

in a gasoline can. The gasoline can exploded and they exited the house. Appellant took with her all

of the items which had her fingerprints on them and burned them. Appellant used the money she had

stolen from Brown’s house to pay for gasoline and drove around in Brown’s car all day. In the

afternoon, Appellant picked up Renee Rosas and they bought crack cocaine and marihuana. They
were smoking crack in an alley when she they saw the police. Appellant told Rosas, who was

driving, to not stop when the police were chasing them because she had killed Brown and had stolen

his car.

Renee Rosas, who was seventeen years of age at the time of trial, testified that Appellant told

her that she and Jodana Alviar went to Brown’s house. Appellant told Alviar to wait outside.

Appellant said that Brown wanted to have sex with her and she pulled out the knife to trick him. She

could see the fear in his eyes when they fought for the knife. Brown attempted to grab Appellant’s

arms and using both hands she stabbed him in the throat. After she stabbed Brown and could see

the blood gushing from his throat, Appellant asked him, “Why don’t you die already?” Appellant

told Rosas that Brown was “pretty strong for an old man.” Brown attempted to grab the phone and

call someone, but he was only mumbling. Appellant then called Alviar into the house and asked her

to “watch him to make sure he was dead.”

The jury found Appellant guilty of murder as alleged in the indictment. At the punishment

phase, Appellant testified that she did not go to Brown’s house with the intention to kill him and she

never wanted to kill him but it just happened. She testified that Brown became upset when she

refused to perform oral sex and they began to fight. Appellant became angry that Brown hit her, so

she got her knife and stabbed him.

The trial court submitted a special issue to the jury on sudden passion and the jury found that

Appellant had not proved by a preponderance of the evidence that Appellant caused Brown’s death

under the immediate influence of sudden passion arising from an adequate cause. The jury then

sentenced Appellant to seventy-four years’ imprisonment and a $10,000 fine. The trial court denied

Appellant’s motion for a new trial and Appellant timely filed notice of appeal.

SUFFICIENCY OF THE EVIDENCE
 In Points of Error One and Two, Appellant challenges the legal and factual sufficiency of the

evidence supporting her conviction. More specifically, she alleges that the evidence is insufficient

to prove that she acted intentionally or knowingly as alleged in the indictment.

Standards of Review

In reviewing the legal sufficiency of evidence, we consider all evidence in the light most

favorable to the verdict and determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-

19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979). We look at “events occurring before, during

and after the commission of the offense and may rely on actions of the defendant which show an

understanding and common design to do the prohibited act.” Hooper v. State, 214 S.W.3d 9, 13

(Tex.Crim.App. 2007), quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex.Crim.App. 1985). We

must account for “the responsibility of the trier of fact to fairly resolve conflicts in testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper,

214 S.W.3d at 13, quoting Jackson, 443 U.S. at 318-19, 99 S.Ct. 2181.

Appellate courts are constitutionally empowered to review the judgment of the trial court to

determine the factual sufficiency of the evidence used to establish the elements of an offense.

Johnson v. State, 23 S.W.3d 1, 6 (Tex.Crim.App. 2000), citing Clewis v. State, 922 S.W.2d 126,

129-30 (Tex.Crim.App. 1996). In examining the factual sufficiency of the elements of the offense,

all evidence is viewed in a neutral light, favoring neither party. Clewis, 922 S.W.2d at 129. In

performing our review, due deference is given to the fact finder’s determinations. See Johnson, 23

S.W.3d at 8-9. Evidence may be factually insufficient if it is so weak that it would clearly be wrong

and manifestly unjust for the verdict to stand, or “the adverse finding is against the great weight and

preponderance of the available evidence.” Johnson, 23 S.W.3d at 11. The question that must be
answered when reviewing factual sufficiency is whether a neutral review of all the evidence, both

for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine

confidence in the jury’s determination, or proof of guilt, although ample if taken alone, is greatly

outweighed by contrary proof. Id.

Under the first prong of Johnson, we cannot conclude that a conviction is “clearly wrong”

or “manifestly unjust” simply because, on the amount of evidence admitted, we would have voted

to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006).

Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new

trial simply because we disagree with the jury’s resolution of the conflict. Id. In order to find that

evidence is factually insufficient to support a verdict, we must be able to say, with some objective

basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s

verdict. Id. We give appropriate deference to the jury with respect to credibility and weighing of

evidence. Torres v. State, 141 S.W.3d 645, 662 (Tex.App.--El Paso 2004, pet. ref’d). The jury is

the sole judge of witness credibility and is free to believe or disbelieve any witness. Id.

Analysis of the Evidence

A person commits the offense of murder if she: (1) intentionally or knowingly causes the

death of an individual. TEX .PEN .CODE ANN . § 19.02(b)(1)(Vernon 2003). The indictment alleged

that Appellant intentionally or knowingly caused the death of an individual, James Thomas Brown,

by stabbing him in the neck. The application paragraph of the court’s charge tracked the indictment.

Further, the court’s charge defined the culpable mental states as follows:

A person acts intentionally, or with intent, with respect to the nature of her conduct
or to a result of her conduct when it is her conscious objective or desire to engage in
the conduct or cause the result.

A person acts knowingly, or with knowledge, with respect to the nature of her
 conduct or to circumstances surrounding her conduct when she is aware of the nature
of her conduct or that the circumstances exist. A person acts knowingly, or with
knowledge, with respect to a result of her conduct when he is aware that her conduct
is reasonably certain to cause the result.

We first find that the evidence is legally sufficient to prove beyond a reasonable doubt that

Appellant intentionally caused Brown’s death by stabbing him in the neck. In her confession,

Appellant stated:

We started to fight and I had a knife that I had pulled out. I jumped on him and put
my knees on his chest to hold him down. I had the knife blade facing down. I
pushed the knife through his throat and it went all the way through. Jimmie tried to
get the knife from me and we fought for the knife and he cut his hands and palms
everytime he grabbed the knife blade.

Appellant explained that she then covered Brown’s body in a blanket because she “knew it would

burn quickly” and later returned with gas, lighter fluid, and brake fluid that she poured around the

house to help fuel the fire. Appellant told Renee Rosas that she stabbed Brown in the throat using

both hands and asked him, “Why don’t you die already?” We conclude the evidence is legally

sufficient to prove beyond a reasonable doubt that Appellant intentionally caused Brown’s death

because it was her conscious objective or desire to both engage in the conduct and to cause the result.

The evidence is also factually sufficient to prove that Appellant intentionally caused Brown’s

death by stabbing him in the neck. Appellant points to the testimony of Renee Rosas that Appellant

took the knife out of her pocket to “scare” Brown and argues she acted only recklessly. While this

constitutes some evidence that Appellant might not have intended to kill Brown when she pulled the

knife out of her pocket, her own confession and statements to Rosas provides evidence that she

intentionally stabbed Brown and intended to cause the result. The proof of guilt is not so obviously

weak as to undermine confidence in the jury’s determination and is not greatly outweighed by

contrary proof. Therefore, we find the evidence is factually sufficient to support the verdict. Points
of Error One and Two are overruled.

CHARGE ERROR

Appellant raises several issues complaining of charge error. Texas law mandates that a trial

court submit a charge to the jury setting forth “the law applicable to the case.” Druery v. State, 225

S.W.3d 491, 505 (Tex.Crim.App. 2007), quoting TEX .CODE CRIM .PROC.ANN . art 36.14). An

appellant must object to the charge before he may be heard to complain on appeal about “errors

claimed to have been committed in the charge, as well as errors claimed to have been committed by

omissions therefrom or in failing to charge upon issues arising from the facts.” Id., quoting Posey

v. State, 966 S.W.2d 57, 61 (Tex.Crim.App. 1998). An appellant will obtain a reversal only if the

error was so egregious and created such harm that he or she has not had a fair and impartial trial.

Druery, 225 S.W.3d at 505. However, if a party “affirmatively seeks action by the trial court, that

party cannot later contend that the action was in error.” Prystash v. State, 3 S.W.3d 522, 531

(Tex.Crim.App. 1999). Further, the law of invited error estops a party from making an appellate

error of an action it induced. Id.
 Definition of ”Intentionally”

In Point of Error Three, Appellant complains that the trial court’s definition of “intentionally”

impermissibly shifted the burden of proof to Appellant in violation of his right to due process under

the Texas and United States constitutions. The record reflects that Appellant requested that the

complete definition of “intentionally,” per TEX .PEN .CODE ANN . art. 6.03 (a) and (b)(Vernon 2003),

be included in the jury charge, and the trial court granted the request. Since Appellant affirmatively

sought action from the trial court, she cannot now contend that the action was in error. Prystash, 3

S.W.3d at 531; see Druery, 225 S.W.3d at 506 (in a capital murder case, the defendant argued that

the trial judge had a duty to sua sponte give the jury an instruction on the lesser-included offense of

first-degree murder even though the defendant had at trial informed the court that the lesser-included

charge not be included; court of criminal appeals held that because appellant induced the alleged

error, he was estopped from bringing the charge-error claim on appeal). Under the foregoing

authority, Appellant invited her own error and is estopped from asserting on appeal that the jury

instruction regarding “intentionally” violated her due process rights. Point of Error Three is

overruled.

Definition of “Conduct”

In Point of Error Four, Appellant contends that the court’s charge is erroneous because it

failed to define “conduct,” thereby lessening the State’s burden of proof. Appellant did not object

to this portion of the charge at trial and did not tender a correct instruction.

When reviewing charge error, we first determine if an error actually exists in the charge.

Middleton v. State, 125 S.W.3d 450, 453 (Tex.Crim.App. 2003); Almanza v. State, 686 S.W.2d 157,

171 (Tex.Crim.App. 1984). If there is charge error, we must then determine if the error caused

sufficient harm to warrant reversal. Hutch v. State, 922 S.W.2d 166, 170-71 (Tex.Crim.App. 1996);
Almanza, 686 S.W.2d at 171. Preservation of charge error does not become an issue until we assess

harm. Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App. 2005). The degree of harm necessary for

reversal depends on whether the appellant preserved the error by objection. Id. When the defendant

fails to object, as in this case, we will not reverse for jury charge error unless the record shows

“egregious harm” to the defendant. Id. at 743-44; Almanza, 686 S.W.2d at 171.

Under the Almanza egregious harm standard, the record must show that a defendant has

suffered actual, rather than merely theoretical, harm from the jury instruction error. Almanza, 686

S.W.2d at 174. Egregious harm consists of errors affecting the very basis of the case or that deprive

the defendant of a valuable right, vitally affect a defensive theory, or make the case for conviction

or punishment clearly and significantly more persuasive. Saunders v. State, 817 S.W.2d 688, 692

(Tex.Crim.App. 1991). Egregious harm is a difficult standard to prove and must be determined on

a case-by-case basis. Ellison v. State, 86 S.W.3d 226, 227 (Tex.Crim.App. 2002). To determine

whether a defendant has sustained egregious harm from an instruction to which he did not object,

we consider (1) the entire charge; (2) the state of the evidence, including contested issues; (3)

arguments of counsel; and (4) any other relevant information revealed by the record of the trial as

a whole. Allen v. State, 253 S.W.3d 260, 264 (Tex.Crim.App. 2008); Hutch, 922 S.W.2d at 171.

Harm may be shown by direct evidence or inferred from the record. Hutch, 922 S.W.2d at 171.

Under the Penal Code definition, the term “conduct” means an act or omission and its

accompanying mental state. TEX .PEN .CODE ANN . § 1.07(10)(Vernon Supp. 2008). A statutorily

defined word or phrase should be included in the charge as part of the law applicable to the case.

Arline v. State, 721 S.W.2d 348, 352 n.4 (Tex.Crim.App. 1986); Macias v. State, 959 S.W.2d 332,

336 (Tex.App.--Houston [14th Dist.] 1997, pet. ref’d). The charge is erroneous because it does not

include the statutory definition of “conduct.”
 Appellant makes no effort to show how the lack of this definition caused egregious harm.

When a statutory term is not defined in the jury charge, we are to assume that the jury considered the

commonly understood meaning of the term in its deliberations. See Olveda v. State, 650 S.W.2d

408, 409 (Tex.Crim.App. 1983). Webster’s Dictionary defines “conduct” as “personal behavior; way

of acting; bearing or deportment.” Webster’s New Universal Unabridged Dictionary 426 (2003).

The commonly understood meaning of “conduct” as used in the context of the court’s charge refers

to a person’s actions but the common meaning does not generally encompass omissions or failure

to act. That is immaterial, however, because Appellant was not charged with an omission. Under

the charge, the jury was required to find that Appellant’s conduct, namely, intentionally stabbing

Brown in the neck with a knife, caused his death. We conclude that egregious harm did not result

from the trial court’s failure to include the statutory definition of “conduct” in the jury charge. Point

of Error Four is overruled.

Lesser Included Offenses

Appellant raises five points of error related to her argument that the trial court erred by failing

to instruct the jury on three lesser-included offenses. A two-pronged test is required to determine

whether a jury charge on a lesser-included offense must be given. Rousseau v. State, 855 S.W.2d

666, 672 (Tex.Crim.App. 1993). First, the lesser-included offense must be included within the proof

necessary to establish the offense charged. Id. We must decide whether the lesser-included offense

fits within the charged offense. Mathis v. State, 67 S.W.3d 918, 925 (Tex.Crim.App. 2002).

Second, some evidence must exist in the record that if the accused is guilty, he is guilty only of the

lesser offense. Id. In other words, there must be some evidence from which a jury could rationally

acquit the defendant of the greater offense while convicting him of the lesser-included offense.

Mathis, 67 S.W.3d at 925. The evidence must establish the lesser-included offense as a valid
alternative to the charged offense. Wesbrook v. State, 29 S.W.3d 103, 113 (Tex.Crim.App. 2000).

There are two ways in which the evidence may indicate that the accused is guilty of only the

lesser offense. Saunders v. State, 840 S.W.2d 390, 391 (Tex.Crim.App. 1992), aff’d, 913 S.W.2d

564 (Tex.Crim.App. 1995). First, there may be evidence that refutes or negates other evidence

establishing the greater offense. Id. For example, if a defendant is charged with aggravated robbery

and evidence is presented which indicates the defendant may not have used a deadly weapon, a

charge on the lesser offense of robbery would be required. Id. at 391-92. However, if the defendant

simply denies commission of the offense or there is no evidence specifically raising an issue

regarding use of the weapon, the charge on the lesser offense would not be required. Id. at 392.

Second, the accused may be shown to be guilty only of the lesser offense if the evidence presented

is subject to different interpretations. Id. If the evidence raises two inferences regarding the

defendant’s awareness of the risk, then the jury should be instructed on both inferences. See

Thomas, 699 S.W.2d 845, 851 (Tex.Crim.App. 1985).

Aggravated Assault

In Point of Error Six, Appellant contends that the jury should have been charged on the

lesser-included offense of aggravated assault. She raises a related argument in Point of Error Five

wherein she argues that the court erred by failing to charge the jury on the culpable mental state of

recklessly so that the jury could consider the lesser included offense of aggravated assault.

A person commits aggravated assault if the person intentionally, knowingly, or recklessly

causes serious bodily injury to another or the person uses or exhibits a deadly weapon during the

commission of the assault. TEX .PEN .CODE ANN . §§ 22.01(a)(1), 22.02(a)(Vernon Supp. 2008).

Aggravated assault is a lesser included offense of murder. See Cardenas v. State, 30 S.W.3d 384,

392 (Tex.Crim.App. 2000). Therefore, the first prong of the lesser-included offense analysis is
satisfied. See Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Crim.App. 1985).

Under the second prong, if any evidence produced at trial would permit a jury to find that

Appellant intended to cause serious bodily injury, but did not intend to kill Brown, Appellant may

be entitled to a jury instruction on aggravated assault. See Rousseau, 855 S.W.2d at 674. A jury

charge on aggravated assault would be required “only if testimony was introduced from sources

indicating a lack of intent on the part of appellant to kill the deceased.” [Emphasis in original].

Dowden v. State, 758 S.W.2d 264, 269 (Tex.Crim.App. 1988). The evidence showed that Appellant

stabbed Brown in the neck with a knife during an argument. Appellant told Rosas that she used both

hands to stab Brown in the throat. As Brown was bleeding to death, Appellant asked him, “Why

don’t you die already?” Further, she called Alviar into the room and instructed her to watch Brown

and make sure he was dead. Appellant set Brown’s home on fire and removed those items she had

touched in order to conceal the crime and her connection to it. There is no evidence that Appellant

did not intend to kill Brown. Therefore, the second prong of the lesser-included offense analysis is

not satisfied and Appellant is not entitled to a jury instruction on aggravated assault. See Rousseau,

855 S.W.2d at 674. Points of Error Five and Six are overruled.

Criminally Negligent Homicide

In Point of Error Seven, Appellant maintains she was entitled to an instruction on the lesser-

included offense of criminally negligent homicide. She argues in Point of Error Eight that the trial

court should have instructed the jury on the culpable mental state of criminal negligence in

connection with this lesser included offense.

Criminally negligent homicide is the failure of the actor to perceive the risk created by his

conduct, and a charge is not required unless the evidence shows that the actor was unaware of the

risk his conduct created. Saunders, 840 S.W.2d at 391. The record must contain evidence showing
an unawareness of the risk. Licon v. State, 99 S.W.3d 918, 928 (Tex.App.--El Paso 2003, no pet.).

In Licon, the appellant shot and killed a man while shooting at a group of people in order to

scare them. Id. at 921. One witness testified that he did not know where the shots came from, and

the other stated that she dropped to the ground when she saw the shooter. Id. at 928 (holding that

the trial court did not err in refusing to include a charge of criminally negligent homicide because

the testimony did not show an unawareness of the risk on the part of the appellant).

The appellant in Saunders was convicted of murder for shaking a baby and squeezing its

head. Saunders, 840 S.W.2d at 391. Circumstances existed from which a jury could conclude

appellant knew his treatment of the baby could kill it, but a jury could also conclude based on the

same evidence that appellant may not have known his actions could kill, even though he ought to

have been aware of the risk. Id. (holding that an instruction of criminally negligent homicide should

have been given because the evidence presented was subject to different interpretations and raised

the issue that the appellant was criminally negligent in squeezing the baby’s head).

Similar to Licon and in contrast with Saunders, there is no evidence in the record to show

an unawareness of the risk on the part of Appellant. Again, the evidence showed that Appellant

stabbed Brown in the neck and set the house on fire in an effort to cover up the murder. Appellant

covered Brown in a blanket because she knew it would burn quickly. The evidence presented was

not subject to different interpretations. Therefore, the trial court did not err in failing to charge the

jury on the lesser-included offense of criminally-negligent homicide. Points of Error Seven and

Eight are overruled.

Manslaughter

In Point of Error Nine, Appellant contends that the trial court erred by not instructing the jury

on the lesser-included offense of manslaughter. A person commits manslaughter if he recklessly
causes the death of an individual. TEX .PEN .CODE ANN . § 19.04(a). Manslaughter is a lesser-

included offense of murder. Cardenas, 30 S.W.3d at 392. Therefore, the first prong of the Rousseau

test is satisfied.

In Mathis v. State, the defendant, convicted of murder, challenged the trial court’s refusal to

instruct the jury on the lesser-included offense of manslaughter. Mathis, 67 S.W.3d at 925. The

defendant testified that he did not intend to kill anyone and claimed that he shot the victim in a panic.

Id. He insisted that he was acting recklessly, not intentionally, but there was no other evidence in

support of such theory. Id. at 925-26 (holding that appellant failed to satisfy the second prong of the

Rousseau test because he admitted to aiming and firing the gun and witnesses testified that his

actions were calm and collected).

Similar to Mathis, the evidence showed that Appellant acted intentionally, not recklessly,

when she stabbed Brown in the throat and killed him. We overrule Point of Error Nine.

Coercive Jury Charge

In Points of Error Ten and Eleven, Appellant argues that the inclusion of a dynamite

instruction in the main charge on guilt-innocence impermissibly coerced the jury and forced

unanimity among the jurors to reach a verdict. Specifically, Appellant points to language in Article

Nine of the charge of the court:

In order to return a verdict, each juror must agree thereto, but jurors have a
duty to consult with one another and to deliberate with a view of reaching an
agreement . . . Each juror must decide the case . . . only after an impartial
consideration of the evidence with their fellow jurors. In the course of deliberations,
a juror should not hesitate to reexamine their own views and change their opinion if
convinced it is erroneous.

Allen Charge

An Allen, or “dynamite,” charge is a supplemental charge normally given to a deadlocked
jury which directs the jurors to examine the submitted questions and decide the case if the they are

able to do so. Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

However, an Allen charge may also be issued in the court’s main charge. Love v. State, 909 S.W.2d

930, 937 (Tex.App.--El Paso 1995, pet. ref’d). An Allen charge is unduly coercive and therefore

improper only if it pressures jurors into reaching a particular verdict or improperly conveys the

court’s opinion of the case. See Arrevalo v. State, 489 S.W.2d 569, 571 (Tex.Crim.App. 1973).

While there may be some deficiency in the instruction, as long as it is not coercive, an accused must

show that jury coercion or misconduct occurred in fact. Jackson v. State, 753 S.W.2d 706, 712

(Tex.App.--San Antonio 1988, pet. ref’d).

We review the decision to give an Allen charge under an abuse of discretion standard. See

U.S. v. Wickersham, 29 F.3d 191, 194 (5th Cir. 1994). Our inquiry focuses on whether it had a

coercive effect on juror deliberation. Howard v. State, 941 S.W.2d 102, 123 (Tex.Crim.App. 1996).

The language used in the charge of the court was not coercive and it did not covey any type of

opinion, comment on Appellant’s case, or pressure jurors into reaching a particular verdict. See

Arrevalo, 489 S.W.2d at 571. Further, Appellant did not object to the charge or show that any jury

coercion or misconduct occurred as a result of the charge. We therefore overrule Points of Error Ten

and Eleven.

Misleading and Contradictory Instruction

In Point of Error Twelve, Appellant argues that a portion of the court’s charge is misleading

and contradicted the court’s instruction that the defendant is not required to prove her innocence.

The trial court instructed the jury as follows:

The jury, in determining the guilt or innocence of the Defendant of the offense
charged in the indictment, can consider only the evidence or lack of evidence and are
to disregard any statement made during the course of the trial, by counsel or the
 Court, not supported by the evidence.

Appellant asserts that the portion of the instruction informing the jury that it should consider “the

evidence or lack of evidence” is misleading and contradicted the court’s instruction that Appellant

did not have to prove her innocence. Appellant did not object to the instruction. Therefore, she must

show that the instruction is erroneous and that it caused her egregious harm. Appellant has not made

any effort on appeal to show that the instruction resulted in egregious harm. Point of Error Twelve

is overruled.

JUVENILE COURT RECORDS

In Point of Error Thirteen, Appellant argues that the trial court erred by denying her motion

to release the juvenile records of Renee Rosas and Jodana Alviar. Any requests for discovery of

prior convictions of State’s witnesses must show good cause, materiality, and possession of those

records by the State. Rodriguez v. State, 513 S.W.2d 22, 27 (Tex.Crim.App. 1974). Denial of this

type of request is never in error if the defendant has not shown that the State possessed the records

or had ready access to the records. Id. Under the Texas Family Code, juvenile records may only be

released to: (1) the judge, probation officers, and professional staff or consultants of the juvenile

court; (2) a juvenile justice agency; (3) an attorney for a party to the proceeding; (4) a public or

private agency or institution providing supervision of the child by arrangement of the juvenile court;

or (5) any other person, agency, or institution having a legitimate interest in the proceeding. See

TEX .FAM .CODE ANN . § 58.007(b)(Vernon 2008).

In Taylor v. State, a trial court decision to deny the defendant’s request for production of

juvenile arrest records was upheld because the defendant did not show he had made any attempt to

obtain the records from the juvenile court system, that the juvenile records existed, or that the State

possessed the records. Taylor v. State, 755 S.W.2d 548, 551 (Tex.App.--Houston [1st Dist.] 1988,
pet. ref’d). The court of appeals noted that during cross-examination, the defendant did not even ask

the witness whether she had a criminal record. Id.

Similar to Taylor, there is no evidence to show that Appellant made any effort to obtain

Rosas’s records from the juvenile court, determine whether the records existed, or find out if the

State was in possession of such records. Appellant acknowledged Rosas’s juvenile record in the

memorandum in support of her motion, but only that Rosas had a juvenile record based on “best of

[sic] available information.” Further, Appellant did not show that the State was in possession of any

juvenile records. Accordingly, the trial court did not err in denying Appellant’s motion. See

Rodriguez, 513 S.W.2d at 27; Taylor, 755 S.W.2d at 551. Even if the trial court erred by denying

the motion, any error is harmless because Appellant cross-examined Rosas about the disposition of

her juvenile court charges arising out of this case and Alviar did not testify. Point of Error Thirteen

is overruled.
 EXPERT WITNESS TESTIMONY

In Point of Error Fourteen, Appellant argues that the trial judge abused its discretion in

disallowing the testimony of an expert witness who had been subpoenaed and was available at trial.

A trial judge has broad discretion in maintaining control and expediting the trial. Jasper v. State,

61 S.W.3d 413, 421 (Tex.Crim.App. 2001). We review the exclusion of an expert witness under an

abuse of discretion standard. Kelly v. State, 824 S.W.2d 568, 574 (Tex.Crim.App. 1992). An abuse

of discretion occurs when the trial court acts without reference to any guiding rules and principles

or acts arbitrarily or unreasonably. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App.

1990). However, if the trial court’s decision to admit or exclude the expert testimony is “within the

zone of reasonable disagreement,” it does not abuse its discretion. See Kelly, 824 S.W.2d at 574.

The trial court was aware that Appellant had a scheduling conflict with Dr. Troy Martinez,

a psychologist who was expected to testify as to Appellant’s state of mind. When the trial court

asked Appellant to call her next witness and Dr. Martinez was not present, Appellant rested her case.

After the noon recess, the trial court learned that Dr. Martinez was available so the court gave

Appellant an opportunity to have Martinez testify during the guilt-innocence phase of the trial.

Appellant’s counsel declined the offer, stating he would offer the testimony during the punishment

phase if necessary.

The record does not support Appellant’s contention that the trial court disallowed the expert

witness’s testimony. To the contrary, the trial court gave Appellant an opportunity to present the

testimony during the guilt-innocence phase of trial, but Appellant rejected the offer. The record does

not show any abuse of discretion on the part of the trial court. We therefore overrule Point of Error

Fourteen.

EXTRANEOUS OFFENSE
 In Point of Error Fifteen, Appellant asserts that the trial court abused its discretion by

admitting the evidence showing the commission of arson because it is an extraneous offense. She

argues in Point of Error Sixteen that a limiting instruction should have been given.

We review a trial court's decision regarding the admissibility of evidence for an abuse of

discretion. Rodriguez v. State, 203 S.W.3d 837, 841 (Tex.Crim.App. 2006). This standard requires

an appellate court to uphold a trial court’s decision to admit evidence decision when that decision

is within the zone of reasonable disagreement. Id. An appellate court would misapply the appellate

abuse of discretion standard of review to reverse a trial court's admissibility decision solely because

the appellate court disagreed with it. Id.; see also Robbins v. State, 88 S.W.3d 256, 259-60

(Tex.Crim.App. 2002).

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person

in order to show action in conformity therewith. TEX .R.EVID . 404(b). However, it may be

admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, or

knowledge. Id. In order for evidence of other crimes to be admissible, it must be relevant for a

purpose other than to show the character of a person and that he acted in conformity with it. See

TEX .R.EVID . 404(b).

“Same transaction contextual evidence” is evidence that reflects the context in which a

criminal act occurred. Wesbrook, 29 S.W.3d at 115. To be admissible under Rule 404(b), same

transaction contextual evidence must be necessary to the jury’s understanding of the offense. Id. at

115. Thus, necessity is the “other purpose” for which same transaction contextual evidence is

admissible. Rogers v. State, 853 S.W.2d 29, 33 (Tex.Crim.App. 1993). Necessity may exist either

because: (1) several offenses are so intermixed or connected as to form a single, indivisible criminal

transaction, such that in narrating one, it is impracticable to avoid describing the other; or (2) the
same transaction contextual evidence tends to establish some evidentiary fact, such as motive or

intent. McDonald v. State, 148 S.W.3d 598, 602 (Tex.App.--Houston [14th Dist.] 2004), aff’d by

179 S.W3d 571 (Tex.Crim.App. 2005).

Upon a timely request, the State must give notice of its intent to introduce “other purpose”

extraneous offense evidence “other than that arising in the same transaction.” See TEX .R.EVID .

404(b). Although necessity is required for same transaction contextual evidence to be relevant under

Rule 404(b) for a purpose other than character conformity, it is not required if evidence arises from

the same transaction; this evidence is exempt from the Rule 404(b) notice rule. McDonald, 148

S.W.3d at 602.

The appellant in McDonald challenged his conviction of indecency with a child, arguing that

the trial court erred in admitting testimony regarding an extraneous offense because the State failed

to give adequate notice of its intent to use the evidence at trial. McDonald, 148 S.W.3d at 600. The

victim testified that on the same day of the offense, during the same visit, and a short time after the

offense, appellant: (1) pulled down a cousin’s clothes and exposed her; and (2) asked the cousin to

touch him inappropriately. Id. at 602. (finding that trial court had discretion to conclude that

evidence arose from same transaction and notice was not required because the evidence was closely

related in time, location, and subject matter with the charged offense).

The State was not required to give notice of its intent to introduce Fire Marshall Wilson’s

testimony about the arson. Under Rule 404(b), notice is required only when “other purpose”

extraneous offense evidence is introduced that does not arise out of the same transaction. See

Tex.R.Evid. 404(b). The “other purpose” extraneous offense evidence offered by the State regarding

the arson arose out of the same transaction as the murder. Like McDonald, the evidence of the arson

was closely related in time, location, and subject matter to the charged offense of murder.
McDonald, 148 S.W.3d at 602. This same transaction contextual evidence was necessary to the

jury’s understanding of the offense. McDonald, 148 S.W.3d at 602. Thus, the State was not

required to give notice of Wilson’s testimony under Rule 404(b) and the trial court did not err in

allowing the evidence or failing to include a limiting instruction. See Tex.R.Evid. 404(b);

McDonald, 148 S.W.3d at 602. Points of Error Fifteen and Sixteen are overruled.

ADMONISHMENT OF COUNSEL

In Point of Error Seventeen, Appellant maintains that the trial court rendered her attorney

ineffective by admonishing counsel in front of the jury about disrupting the proceedings, ordering

him to sit down, and threatening him with contempt during attempted cross-examination of Jodana

Alviar and Renee Rosas. Further, Appellant contends that the trial judge was “conveying to the jury,

that [A]ppellant’s counsel was engaging in chicanery or in an improper manner in defending

[A]ppellant, prejudicing and harming [A]ppellant by ‘poisoning’ the jury against her.” Appellant

argues that the court, by its conduct, rendered trial counsel ineffective.

Fifth Amendment Protection

When parties are aware that a witness will invoke the Fifth Amendment, no party is allowed

to call that witness to testify in the presence of a jury. See McKaine v. State, 170 S.W.3d 285, 293

(Tex.App.--Corpus Christi 2005, no pet.), citing Tex.R.Evid. 513(d). The trial court was aware that

Jodana Alviar would invoke her Fifth Amendment right to self-incrimination if she were called to

testify. Since Appellant’s counsel would not be allowed to call Alviar as a witness, the trial court

did not render Appellant’s counsel ineffective. See id.

Trial Judge’s Conduct

A trial court may not comment, discuss, or convey its opinion on the admissibility of

evidence in a case. TEX .CODE CRIM .PROC.ANN . art. 38.05 (Vernon 1979). The court can interrupt
parties’ questioning if it is to correct misstatements or misrepresentations of previous testimony. See

Jasper, 61 S.W.3d at 421. A trial judge’s irritation at the defense attorney does not translate to

comments or opinions about the defendant’s guilt or innocence. Id. A trial judge has broad

discretion in maintaining control and expediting the trial. Id.

Appellant alleges that her counsel was rendered ineffective when the trial judge, in front of

the jury, accused her attorney of deliberately disrupting the proceedings, prevented him from making

objections, and threatened him with jail time. However, the record reflects that this exchange

happened without the jury present. Additionally, the judge threatened Appellant’s counsel with

contempt of court and jail time because the judge felt counsel was disrupting the proceedings over

objections previously ruled upon. The trial judge was simply exercising discretion and taking action

to maintain control of the court and expedite the trial. See Jasper, 61 S.W.3d at 421. Therefore, the

trial court’s conduct did not render Appellant’s counsel ineffective. Point of Error Seventeen is

overruled.

SUDDEN PASSION

In Point of Error Eighteen, Appellant contends that the evidence is factually insufficient to

support the first degree murder conviction because the evidence showed that she caused Brown’s

death under the immediate influence of sudden passion. We interpret this point of error as

challenging the jury’s negative finding on the sudden passion issue during the punishment phase.

At the punishment stage of a trial, the accused may raise the issue as to whether he caused

the death under the immediate influence of sudden passion arising from an adequate cause.

TEX .PEN .CODE ANN . § 19.02(d). If the defendant proves the issue in the affirmative by a

preponderance of the evidence, the offense is a felony of the second degree. Id.

“Sudden passion” means “passion directly caused by and arising out of provocation by the
individual killed or another acting with the person killed which passion arises at the time of the

offense and is not solely the result of former provocation.” TEX .PEN .CODE ANN . § 19.02(a)(2).

Sudden passion does not include feeling strange or upset. Cleveland v. State, 177 S.W.3d 374, 391

(Tex.App.--Houston [1st Dist.] 2005, pet. ref’d). In most cases, sudden passion is resolved

exclusively by the jury’s assessment of whether the witness is credible. Id. at 389. Adequate cause

is defined as “cause that would commonly produce a degree of anger, rage, resentment, or terror in

a person of ordinary temper, sufficient to render the mind incapable of cool reflection.”

TEX .PEN .CODE ANN . § 19.02(a).

When a defendant seeks appellate review of a jury’s failure to make a finding on which the

defendant has the burden of proof, such as on an affirmative defense, the defendant invokes our

factual review jurisdiction. See Meraz v. State, 785 S.W.2d 146, 154-55 (Tex.Crim.App. 1990). We

review a challenge to the factual sufficiency of the evidence on sudden passion using the same

standard of review as a challenge to the rejection of an affirmative defense. See Naasz v. State, 974

S.W.2d 418, 421 (Tex.App.--Dallas 1998, pet. ref’d). That standard requires us to consider all of

the evidence in a neutral light to determine whether the verdict is so against the great weight and

preponderance of the evidence as to be clearly wrong or manifestly unjust. See Meraz, 785 S.W.2d

at 155; see also Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007). We are to afford due

deference to a jury’s determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006);

Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006). We must reach “a high level of

skepticism” before reversing a jury’s verdict on this basis. Roberts, 220 S.W.3d 524.

Sudden passion must arise from an adequate cause. See TEX .PEN .CODE ANN . § 19.02(d).

Appellant offered evidence that Brown became upset when she refused to perform oral sex. Brown

put his hand behind her neck and pushed her head down toward his genitals. Appellant pushed him
away, and Brown slapped her across the face. Appellant became angry because he slapped her and

she got her knife. A slap in the face would not produce such a degree of anger, rage, or resentment

in a person of ordinary temper sufficient to render Appellant’s mind incapable of cool reflection.

See Bradshaw v. State, 244 S.W.3d 490, 503 (Tex.App.--Texarkana 2007, pet. ref’d)(the discovery

of a spouse’s extramarital affair was not adequate cause for murder); Cleveland, 177 S.W.3d at 390

(no adequate cause arising from the immediate influence of sudden passion was found where a

defendant’s wife served him with divorce papers, and he subsequently stabbed her to death, while

remaining calm and without becoming upset afterwards). The evidence is factually sufficient to

support the jury’s implied determination that any sudden passion did not arise from an adequate

cause. See TEX .PEN .CODE ANN . § 19.02(a)(1). The evidence is therefore factually sufficient to

support the jury’s negative finding on the sudden passion special issue. Point of Error Eighteen is

overruled.

CUMULATIVE ERROR

Appellant argues that her conviction should be reversed because of cumulative error. We

have rejected each of Appellant’s points of error. Without error, there is no cumulative effect.

Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App. 1999). Therefore, we affirm the trial

court’s judgment.

August 26, 2009
ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Carr, JJ.
Carr, J., not participating

(Do Not Publish)