Affirmed and Memorandum Opinion filed February 15, 2005.
In The
Fourteenth Court of Appeals
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NO. 14-03-00034-CR
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GABRIEL CASTILLO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 12th District Court
Walker County, Texas
Trial Court Cause No. 20,166
M E M O R A N D U M O P I N I O N
Appellant Gabriel Castillo was convicted of murder and sentenced to sixty years’ imprisonment in the Texas Department of Criminal Justice-Institutional Division. In sixteen issues, appellant complains of the following errors: (1) the trial court refused to conduct a post-trial in camera inspection of the prosecution’s file to determine whether it contained Brady materials not disclosed to the defense; (2) the trial court admitted unfairly prejudicial photographs of the victim; (3) the State presented evidence suggesting appellant’s gang affiliation in violation of Rule 403 and 404b; (4) the presentation of gang affiliation evidence rendered appellant’s self-defense trial fundamentally unfair; (5) the trial court refused to declare a mistrial after the prosecutor’s improper jury argument; (6) the prosecutor’s improper jury argument rendered appellant’s self-defense trial fundamentally unfair; (7) the jury rejected appellant’s self-defense theory on factually insufficient evidence; (8) the jury was improperly charged on the limited application of self-defense based on “provoking the difficulty”; (9) the jury charge improperly limited the applicability of self-defense on verbal provocation alone; (10) the instruction on verbal provocation alone was an improper comment on the weight of the evidence; (11) the trial court erred in admitting a written statement appellant gave the authorities while in custody; (12) the trial court permitted the State to dilute the meaning of “beyond a reasonable doubt”; (13) the State should have been required to bear the burden of negating mitigating evidence of sudden passion; (14) the trial court’s instruction on “good conduct time” likely resulted in a longer period of incarceration; (15) the evidence was insufficient to support a sixty-year sentence; and (16) the sentence amounts to cruel and unusual punishment in violation of the Eighth Amendment and the Texas Constitution.
FACTUAL AND PROCEDURAL BACKGROUND
On the night of March 27, 1999, Lee Anzuldua and five other young men, some of whom had been drinking, were riding in a green Dodge on the way to the home of an acquaintance who was old enough to buy them beer. Appellant was also on the road that night, driving a red Blazer and accompanied by Daniel Ortiz. When the two groups saw each other, Anzuldua and Ortiz exchanged gang signs or otherwise gestured at each other from their car windows. Both groups then drove to a Burger King restaurant, where everyone got out of their cars in the parking lot. Either appellant or Ortiz began throwing beer cans at Anzuldua and his group. A can hit Anzuldua, who picked it up and threw it at appellant, hitting him either in the face or the back of the head. Appellant, who was holding a gun, then shot Anzuldua in the chest. Anzuldua died from the gunshot wound.
At trial, the State argued that appellant shot Anzuldua because they were members of rival gangs. According to the State’s theory, members of gangs known as MS and F Troop did not get along with members of the OHL gang. The State’s witnesses included three of the individuals in the car with Anzuldua that night. Although these witnesses denied being gang members, evidence was presented that at least some of the victim’s group were either members of, or associated with, the MS or F Troop gangs, and that Anzuldua was a member of the MS gang. Over objection, the State attempted to show that appellant and Ortiz were members of the OHL gang. Testimony was also presented that the gangs did not get along, and acts of violence occurred between them.
The details of the events and circumstances of that night were strongly contested and sometimes contradictory. The State’s witnesses generally testified that, as the victim’s group was traveling in the Dodge, appellant and Ortiz pulled alongside them in the Blazer. Then, either Ortiz “threw a gang sign” at them and Lee responded with a gang sign or hand gesture, or Lee gestured at them and Ortiz responded with a gang sign. Appellant and Ortiz then followed Anzuldua’s group to the Burger King parking lot, where appellant parked the Blazer behind the Dodge so as to block it in. Everyone got out of the cars, and appellant and Ortiz began throwing beer cans at Anzuldua’s group. Appellant either had the gun in his possession during the confrontation or Ortiz handed him the gun. One witness testified that Ortiz handed appellant the gun and told appellant to “shoot them all.” At some point, appellant threw a full beer can at Anzuldua, who picked it up and threw it back at appellant, hitting him in the face. According to the witnesses, appellant stopped for a moment, and then he raised his hand holding the gun and shot Anzuldua in the chest. Appellant and Ortiz then got back in the Blazer and drove away.
Appellant did not dispute that he shot and killed the victim. However, he argued that he acted in self-defense. Appellant’s self-defense argument was premised on his fear of gang-related violence where he lived and gang members in the victim’s group, particularly Anzuldua. He testified that he was not a member of OHL, but admitted associating with its members and having a tattoo of a grim reaper with “OHL” on its blade. Appellant described his background, and he testified that there was gang violence where he lived, including drive-by shootings. He said that he was told to be afraid of “these outlaws by MS.” He also stated that Anzuldua had attacked him three times in the past.
Appellant testified that, on the night of the shooting, he and Ortiz went to the Burger King because they wanted to get something to eat. While driving there, the Dodge carrying Anzuldua and the others abruptly pulled in front of him. He recognized Anzuldua in the car. He saw Anzuldua “doing something with his hands” and saw Ortiz make a hand signal back to him. Appellant and Ortiz then continued on to the Burger King. When they got there, appellant saw Anzuldua’s group, and he became afraid that something was going to happen. Appellant knew that Ortiz had a gun with him, and appellant took it and put it in the front of his pants because Ortiz had been drinking and appellant “did not want anything to happen.” Appellant and Anzuldua then got in a fistfight, but appellant gave up the fight and began walking away. Someone then hit him in the back of the head with a beer can or beer bottle. Appellant testified that he “saw stars” and his knees buckled. He then grabbed the gun and shot back over his shoulder. He and Ortiz then left. Appellant claimed he did not know Anzuldua had been shot.
On cross-examination, appellant was asked about inconsistencies between his testimony and a statement he had given police when he was arrested. In the statement, appellant stated that, when he was hit with the beer can, he turned around and saw Anzuldua standing in front of him and starting towards him. He pulled his gun out of his right front pocket, and not aiming at anyone, he “just shot at [Anzuldua] and the dudes that were with him.” At trial, appellant contended it was a misstatement that he was looking at Anzuldua when he fired the gun. Appellant admitted, however, that he did not see anyone out there with a gun or knife, and that he was the only one with a gun. Appellant denied following Anzuldua’s group to the Burger King or parking so as to block them in. Appellant also denied that he threw a beer can at Anzuldua or his group, but testified that Ortiz did throw a beer can at them. Ortiz did not testify.
The jury rejected appellant’s self-defense argument and convicted him of murder. At the punishment phase, the jury also declined to find that appellant acted with sudden passion from an adequate cause, and sentenced him to sixty years’ imprisonment. This appeal followed.
ANALYSIS OF THE ISSUES
I. The Trial Court’s Denial of Appellant’s Post-Trial Motion for In Camera Inspection of the Prosecution Team’s File for Undisclosed Brady Materials
Appellant’s counsel on appeal, who was appointed after appellant’s trial, filed a post-trial motion in the trial court in which he asserted that the prosecution team might be in possession of exculpatory and impeachment evidence, and he requested the trial court conduct an in camera inspection of the State’s file for undisclosed Brady[1] material. After a hearing on the motion, the trial court denied his request. In his first issue, appellant complains the trial judge erred in refusing his request for an in camera inspection of the prosecution’s file to determine whether it contained Brady material not disclosed to him.
In Brady v. Maryland, the United States Supreme Court held that the prosecution violates a defendant’s due process rights when it suppresses evidence in its possession favorable to the defendant “where the evidence is material either to the guilt or to punishment irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87. Brady evidence includes impeachment evidence as well as exculpatory evidence. United States v. Bagley, 473 U.S. 667, 676 (1985). Such evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the results of the proceeding would have been different. Kyles v. Whitley, 514 U.S. 419, 434 (1995); Bagley, 473 U.S. at 682. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome of the trial. Bagley, 473 U.S. at 682; Ex parte Kimes, 872 S.W.2d 700, 702–03 (Tex. Crim. App. 1993). This court has said that to invoke Brady, “the accused must present evidence that: (1) the prosecution suppressed or withheld evidence; (2) the evidence would have been favorable to the accused; and (3) this evidence would have been material to the accused’s defense.” Cruz v. State, 838 S.W.2d 682, 686 (Tex. App.—Houston [14th Dist.] 1992, pet. ref’d) (citing Moore v. Illinois, 408 U.S. 786, 794‑95 (1972)).
Appellant relies upon Thomas v. State, in which the Texas Court of Criminal Appeals held that an accused did not have a right to complete disclosure, but did have a right to have the trial court examine certain material in camera and then order disclosure of any information the examination indicated was appropriate for disclosure. 837 S.W.2d 106, 113–14 (Tex. Crim. App. 1992) (en banc) (per curiam). Thomas relied upon Pennsylvania v. Ritchie, in which the United States Supreme Court held that a defendant is entitled to an in camera review in his post-verdict efforts to establish that his Brady due process right had been violated. 480 U.S. 39, 58 (1987). Ritchie made clear, however, that a defendant is entitled to that procedure only if he first establishes a basis for his claim that the prosecution file contains evidence he is entitled to under Brady. Id. at 58 n.15 (citing United States v. Valenzuela‑Bernal, 458 U.S. 858, 867 (1982) (“He must at least make some plausible showing of how their testimony would have been both material and favorable to his defense.”)).
Appellant suggests that the proper test for triggering the requirement of an in camera inspection by the trial court is “some plausible showing” that (1) the evidence exists and (2) the evidence would be both material and favorable to the defense. See Page v. State, 7 S.W.3d 202, 215–16 (Tex. App.—Fort Worth 1999, no pet.) (en banc) (Dauphinot, J., dissenting), 217 (Richards, J., joined by Livingston, J., dissenting). Appellant also cites Ransonette v. State, in which the Court of Criminal Appeals stated, “we know of no constitutional obligation of the trial court to peruse the prosecutor’s file for exculpatory evidence in the absence of a specific request supported by some showing that such evidence exists.” 550 S.W.2d 36, 40 (Tex. Crim. App. 1976).
We need not decide the proper test to establish the right to an in camera inspection, because, even applying appellant’s suggested test, we find no plausible showing that evidence exists that is both favorable and material to appellant’s case. Appellant lists several factors he contends constitute a plausible showing[2] and cites two cases in which Walker county prosecutors failed to disclose evidence, see Cruice v. State, No. 14-96-01362-CR, 2000 WL 328197 (Tex. App.—Houston [14th Dist.] Mar. 23, 2000, pet. ref’d) (not designated for publication); Parker v. State, No. 01-97-00200-CR, 1999 WL 681905 (Tex. App.—Houston [1st Dist.] Aug. 31, 1999, pet. ref’d) (not designated for publication), and asks us to take judicial notice of documents filed in Daniel Ortiz’s case, suggesting that Ortiz and the State may have entered into an agreement that violated appellant’s rights.[3] In essence, appellant contends he is entitled to an in camera hearing based on the following: (1) the State’s case was weak because the witnesses were biased, intoxicated, and unreliable; (2) Ortiz, who could have corroborated that appellant did not throw a beer can at the victim’s party, pleaded guilty and did not testify; and (3) the prosecutors must be withholding evidence because they have done it before. Appellant’s factors amount to nothing more than unsubstantiated speculation which does not rise to the level of a “plausible showing” that evidence exists that would be material and favorable to appellant’s case.
Additionally, at the hearing on the motion, appellant’s counsel on appeal did not identify any information he believed was being withheld by the State; instead, he argued that the trial court should conduct the inspection because the State did not permit him to review its file and so he did not know what was in it. Appellant’s counsel reasoned that the file might contain something new or something important that trial counsel did not use, and the only way to find out would be for the trial court to conduct the in camera review. However, appellant’s trial counsel stated that he had access to the State’s file under the State’s “open file” policy. Trial counsel stated that he was allowed access to the offense reports and statements in the prosecution’s file. He also stated that the State cooperated in the discovery process and discovery was supplemented as additional information was learned through the trial. The hearing reinforces our determination that appellant has failed to make any kind of showing that entitled him to an in camera review of the prosecution’s file.
We overrule appellant’s first issue.
II. The Trial Court’s Admission of Photographs of the Victim
In his second issue, appellant contends the trial court erred by overruling his objection to the State’s introduction, in the guilt-innocence phase of the trial, of two photographs of the victim. Appellant contends that the evidence should have been excluded under Texas Rule of Evidence 403. We will limit our review to only State’s Exhibit 1, a photograph of the victim during his life, with his hands together in a praying pose, because the second photograph, State’s Exhibit 2, was not admitted into evidence.
Under Rule 403, relevant evidence is admissible unless its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury, or by consideration of undue delay, or needless presentation of cumulative evidence. Tex. R. Evid. 403; Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1991) (op. on reh’g). The rule favors the admissibility of relevant evidence, and the presumption is that relevant evidence will be more probative than prejudicial. Long v. State, 823 S.W.2d 259, 271 (Tex. Crim. App. 1991).
The admission of photographs into evidence is within the discretion of the trial court and will not be disturbed absent an abuse of that discretion. Wyatt v. State, 23 S.W.3d 18, 29 (Tex. Crim. App. 2000). A non‑exhaustive list of factors to consider in determining whether the probative value of photographs is outweighed by the danger of unfair prejudice includes the number of exhibits offered, their gruesomeness, detail, and size, whether they are black and white or color, whether they are close‑up, whether the body is naked or clothed, and the availability of other means of proof and the circumstances unique to each case. Williams v. State, 958 S.W.2d 186, 196 (Tex. Crim. App. 1997). Generally, a photograph is admissible if verbal testimony as to matters depicted in the photograph is also admissible. Id. at 195.
Appellant contends that the trial court erred in admitting State’s Exhibit 1, a photograph of the victim in a praying pose, because appellant admitted firing the fatal shot and there was no need to adduce this evidence at the guilt phase. Therefore, appellant contends the case should be reversed on this ground. The State contends the photograph was the best available depiction of “who the victim was” and how he appeared before his death.
First, we presume that the photograph is relevant because appellant did not object to its relevancy at trial. And, in any event, it was relevant to identifying the victim. Therefore, we consider only whether its probative value is substantially outweighed by the danger of unfair prejudice. The exhibit provided in the record is a black-and-white photocopy of a picture, approximately 8½ by 11 inches, of the victim’s face and hands in a praying position. No other photographs depicting the victim while alive are in the record. Additionally, the victim’s father testified that the photograph was the best recent photograph he had of the victim. Although appellant contends this evidence was unnecessary, he provides no explanation of how it is unfairly prejudicial. Therefore, we find that the trial court did not abuse its discretion in admitting the photograph. See Lewis v. State, No. 14-98-00895-CR, 1999 WL 976245 (Tex. App.—Houston [14th Dist.] Oct. 28,1999, no pet.) (not designated for publication) (holding that photograph of deceased victim with his birthday cake was relevant and admissible for in-court identification purposes).
We overrule appellant’s second issue.
III. Gang Affiliation Issues
In issues three through six, appellant complains of the State’s presentation of evidence of appellant’s alleged gang affiliation in the guilt-innocence phase of the trial and the State’s references to gang affiliation in its jury argument. The State responds that the evidence was relevant and admissible to show motive, and it was not overly prejudicial. We address each of appellant’s issues in turn.
A. Admissibility under Rules of Evidence 404(b) and 403
In his third issue, appellant contends the trial court erred in allowing the State to present evidence of appellant’s gang affiliation over appellant’s Rule 404(b) and 403 objections. Appellant contends that the gang affiliation evidence was inflammatory and unnecessary because, in his opening statement, appellant judicially admitted killing the victim; therefore, the only element the state was required to prove was whether the act was committed intentionally or knowingly. Appellant also contends the evidence was not admissible because it was irrelevant and was used to show that he was a bad and dangerous person who acted in conformity with his bad character. We disagree.
Under Rule 404(b), evidence of other crimes, wrongs, or acts is not admissible to prove a person’s character and/or to show that the person acted in conformity with that character. See Tex. R. Evid. 404(b). However, such evidence may be admitted if it is relevant to motive, identity, intent, opportunity, preparation, plan or absence of mistake. Id. As the Texas Court of Criminal Appeals has explained, “It has long been the rule in this State that the jury is entitled to know all relevant surrounding facts and circumstances of the charged offense; an offense is not tried in a vacuum.” Moreno v. State, 721 S.W.2d 295, 301 (Tex. Crim. App. 1986) (citing Archer v. State, 607 S.W.2d 539, 542 (Tex. Crim. App. 1980)).
The State’s theory was that appellant intentionally shot the victim because he was a member of a rival gang. Thus, the gang affiliation evidence was relevant evidence of motive to show an intent to kill, and is permissible under Rule 404(b). See Medina v. State, 7 S.W.3d 633, 644 (Tex. Crim. App. 1999) (stating that evidence of gang affiliation “was most relevant as to appellant’s motive and intent on the night of the offense”); Cunningham v. State, 982 S.W.2d 513, 523 (Tex. App.—San Antonio 1998, pet. ref’d) (holding trial counsel was not ineffective for failing to object to evidence of defendant’s gang affiliation because such evidence was admissible to show motive); Williams v. State, 974 S.W.2d 324, 331 (Tex. App.—San Antonio 1998, pet. ref’d) (holding evidence of gang affiliation admissible under Rule 404(b) to show motive). Because appellant’s affiliation with a rival gang was relevant to show the motive for the victim’s murder, rather than mere conformity with character, the trial court did not abuse its discretion by allowing it.
Even if the evidence is admissible under Rule 404(b), however, it may still be excluded under Rule 403 if the danger of unfair prejudice substantially outweighs its probative value. While it is true that evidence of gang affiliation may prejudice a jury to some extent, we find that, in the context of this case, the danger of any unfair prejudice does not substantially outweigh the probative value of the evidence.
Appellant injected gang-related issues into the case in his opening statement, asserting that “[w]hat you’re going to learn about those people is that they are associated with two gangs . . . .” Appellant’s self-defense argument was premised on his fear for his safety because of gang-related violence where he lived and threats of violence from the gang members in the victim’s group. Appellant also did not object when the State questioned its witnesses regarding their gang affiliations, and, on direct examination, appellant himself testified concerning his association with gang members. Thus, the evidence of appellant’s gang affiliation was relevant both to the State’s theory and appellant’s defense, and put the circumstances of the crime in context for the jury.[4] Therefore, the trial court did not abuse its discretion in admitting the evidence of appellant’s gang affiliation. See Williams, 974 S.W.2d at 331. We overrule appellant’s third issue.
B. Improper Evidence and Argument Rendering Trial Fundamentally Unfair
In his fourth issue, appellant contends the improper presentation of evidence of gang affiliation rendered appellant’s self-defense trial fundamentally unfair. Because we have overruled appellant’s issues concerning the admission of gang affiliation evidence, we find no fundamental unfairness based on the admission of the evidence and overrule appellant’s fourth issue.
C. Improper Jury Argument Rendering Trial Fundamentally Unfair
In his fifth and sixth issues, appellant contends the trial court erred in refusing to declare a mistrial because of the prosecutor’s improper jury argument, and the improper jury argument rendered appellant’s trial fundamentally unfair. Appellant contends that, in addition to gang references, the prosecutor referred to a new and unproven allegation that appellant or his associates were somehow connected to some stabbings. Although the trial court sustained appellant’s objection and instructed the jury to disregard the reference to stabbings, it declined to declare a mistrial. Consequently, appellant argues, his “Due Process right to a fundamentally fair trial was destroyed by the refusal to declare a mistrial.”
The four general areas for proper jury argument are (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to argument of opposing counsel, and (4) plea for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (en banc). Argument beyond the bounds of these four areas will not constitute reversible error unless, in light of the record as a whole, the argument is extreme or manifestly improper, violates a mandatory statute, or injects new facts harmful to the accused into the trial proceeding. Id. The remarks must have been a willful and calculated effort by the State to deprive an appellant of a fair and impartial trial. Id. In most instances, an instruction to disregard the remarks will cure the error. Id. Only offensive or flagrant error warrants reversal when there has been an instruction to disregard. Id.
The prosecutor referenced “shooting and stabbing” in the context of a plea for law enforcement.[5] Having reviewed the record, we find that the trial court did not err in denying appellant’s request for mistrial. We also find that the State’s argument was not so offensive or flagrant that the trial was rendered fundamentally unfair. Therefore, we overrule appellant’s fifth and sixth issues.
IV. Jury Charge Issues
In issues seven through ten, appellant contends the trial court’s charge was defective because (A) the evidence was not factually sufficient to exclude justification by self-defense, (B) the charge limited the applicability of self-defense based on “provoking the difficulty,” (C) the charge limited the applicability of self-defense on verbal provocation alone, and (D) the charge’s limit on the applicability of self-defense on verbal provocation alone was an improper comment on the weight of the evidence. We address each in turn.
A. The Factual Sufficiency of the Evidence Against Justification by Self-Defense
In issue seven, appellant contends that the evidence was insufficient to support the jury’s rejection of appellant’s self-defense theory. Appellant contends the jury’s verdict was influenced by the introduction of prejudicial gang and victim impact evidence instead of “the available legitimate evidence.” However, appellant fails to demonstrate how gang or victim impact evidence would sway a jury from the facts of the case. Additionally, we have reviewed the evidence and find that factually sufficient evidence was presented to support the jury’s refusal to find that appellant acted in self-defense.
The Texas Penal Code provides that a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force. Tex. Penal Code § 9.31(a). A person is justified in using deadly force against another (1) if he would be justified in using force against the other under section 9.31, (2) if a reasonable person in the actor’s situation would not have retreated, and (3) when and to the degree he reasonably believes the deadly force is immediately necessary to protect himself against the other’s use or attempted use of unlawful deadly force. Id. § 9.32(a)(1)–(3)(A). When a defendant challenges the factual sufficiency of the rejection of a defense, we review all of the evidence in a neutral light and ask whether the State’s evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). The State is not required to affirmatively produce evidence to refute a defendant’s self‑defense claim, but must prove its case beyond a reasonable doubt. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). The issue of self‑defense is an issue of fact to be determined by the fact finder, and the fact finder is free to accept or reject the defensive evidence. See id. at 913. A verdict of guilty is an implicit finding rejecting the defendant’s self‑defense theory. See id. at 914.
Appellant contends it is enough that the evidence shows that he was hit hard, at close range, with a full beer can, either in the face or back of the head, he was stunned, and he responded by shooting the victim. However, appellant’s own testimony shows that he could have retreated and not initially confronted the victim. He testified that he continued to drive into the Burger King parking lot even though he saw the victim’s group in the parking lot and knew some of them did not like his companion, Daniel Ortiz. He also testified that when he saw these people he “was scared something was going to happen.” But, he did not leave the scene. Appellant also testified that he got in a fistfight with the victim, but began to leave when he realized that the victim was stronger than he was. He was then hit with the beer can or bottle, and pulled the gun from his pants and shot in fear for his safety. However, there was no evidence that the victim or anyone else in his group threatened appellant with a gun or knife. Thus, the evidence showed that the deadly force appellant used was far greater than the degree of force used against him. Instead of shooting the victim, appellant could have retreated to his vehicle, but he did not.
The State’s witnesses also controverted appellant’s self-defense theory. Jason Fuentes, a member of the victim’s party, testified that at the Burger King everyone got out of their cars and appellant and Ortiz began throwing beer cans at them. At some point, Ortiz passed the gun to appellant, saying “shoot them all.” The victim, after being hit in the chest with a beer can, then threw a beer can back, hitting appellant in the face. According to Fuentes, appellant was startled, and then he lifted up his hand and shot the victim in the chest. Another member of the victim’s group, Gilbert Fuentes, also testified that Ortiz gave appellant the gun, and appellant, after being hit in the face with the beer can, aimed at the victim’s chest and shot.
Applying the standards discussed above, we find the evidence factually sufficient to support the jury’s rejection of appellant’s defense, and overrule appellant’s seventh issue.
B. The Jury Charge’s Limitation on the Applicability of Self-Defense based on “Provoking the Difficulty”
In his eighth issue, appellant contends the trial court erred in charging the jury on “provoking the difficulty” as a limitation on the application of self-defense. Appellant contends the issue was not raised by the facts; therefore, the charge was an unwarranted limitation on the right to self-defense and the case should be reversed as a result.
The Texas Penal Code provides that self-defense is not justified “if the actor provoked the other’s use or attempted use of unlawful force” unless the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter, and the other nevertheless continues or attempts to use unlawful force against the actor. See Tex. Pen. Code § 9.31(b)(4)(A)–(B). The jury was charged consistently with this language.
A charge on provocation is required when there is sufficient evidence that (1) the defendant did some act or used some words which provoked the attack on him, (2) such act or words were reasonably calculated to provoke the attack, and (3) the act was done or the words were used for the purpose and with the intent that the defendant would have a pretext for inflicting harm upon the other. Smith v. State, 965 S.W.2d 509, 513 (Tex. Crim. App. 1998) (en banc). All of the elements are questions of fact. Id. A provocation instruction should be given only if there is evidence from which a rational trier of fact could find each element beyond a reasonable doubt. Id. at 514. On appeal, we determine if there was sufficient evidence from which a rational jury could have found provocation beyond a reasonable doubt, viewing the evidence in the light most favorable to giving the instruction to determine if the instruction was warranted. Id.
The evidence before us shows that a jury could have found provocation beyond a reasonable doubt. The State presented evidence that when the victim’s group encountered appellant’s car, gang signals or gestures were exchanged, and appellant followed them to the Burger King parking lot. Appellant stopped his vehicle in the parking lot, got out of the car, and both appellant and Ortiz began throwing beer cans at the victim’s group. At the same time, appellant was either carrying or was given the gun used to shoot the victim. A rational trier of fact could infer from this and from appellant’s subsequent conduct in the parking lot that appellant, intending to give himself a pretext for shooting the victim, engaged in conduct that was reasonably calculated to and did provoke an attack by the victim. We overrule appellant’s eighth issue.
C. Charging the Jury on “Verbal Provocation Alone”
In issues nine and ten, appellant contends the trial court erred in charging the jury on “verbal provocation alone” as a limitation on the applicability of self-defense because it was not raised by the evidence, and its inclusion was an improper comment on the weight of the evidence. According to appellant, there was record evidence of non-verbal provocation, by throwing a full beer can, but verbal provocation alone was not a fact at issue.
The court charged on the law of self‑defense and further advised that “the use of force against another is not justified in response to verbal provocation alone.” See Tex. Pen. Code § 9.31(b)(1). Courts have held that this instruction does not constitute a limitation on the self‑defense charge. See Quintana v. State, 777 S.W.2d 474, 478 (Tex. App.—Corpus Christi 1989, pet. ref’d) (holding instruction did not limit self-defense charge); Frescas v. State, 636 S.W.2d 516, 518 (Tex. App.—El Paso 1982, no pet.) (noting instruction was not equivalent to a limiting instruction concerning the accused’s actions in provoking a difficulty); see also Gamez v. State, No. 14‑95‑00788‑CR, 1997 WL 167124, at *2 (Tex. App.—Houston [14th Dist.] April 10, 1997, pet. ref’d) (not designated for publication) (same). Appellant cites no cases to the contrary.
Additionally, we note that, while appellant points to evidence of provocation based on the victim throwing a beer can at him, not speaking to him, appellant’s own written statement provides some evidence of verbal provocation. Appellant stated that when he saw the members of the victim’s group in the Burger King parking lot, “[t]hey started talking bullshit and me and Daniel started talking bullshit back.” At trial, appellant testified that, although he did not know what was being said, Ortiz and the victim’s group were “communicating.” This evidence shows that, contrary to appellant’s assertion, some evidence of verbal provocation was presented. Given this evidence, we cannot say the inclusion of the instruction was error.
Finally, under these issues, appellant argues that by including language on verbal provocation alone, the judge commented on the weight of the evidence. A trial court may not comment on the weight of the evidence in the charge. Tex. Code Crim. Proc. art. 36.14. The court comments on the weight of the evidence when its charge comments on the elements of the charged offense “or assumes the truth of a controverted issue.” Kitt v. State, 875 S.W.2d 19, 20 (Tex. App.—Texarkana 1994, pet. ref’d) (citing Whaley v. State, 717 S.W.2d 26, 32 (Tex. Crim. App. 1986); Grady v. State, 634 S.W.2d 316, 317 (Tex. Crim. App. [Panel Op.] 1982)). In determining whether the charge comments on the weight of the evidence, we review the “charge as a whole rather than as a series of isolated statements.” Kitt, 875 S.W.2d at 20; accord Whaley, 717 S.W.2d at 32; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). A trial judge improperly comments on the weight of the evidence if he makes a statement that implies approval of the State’s argument, indicates any disbelief in the defense’s position, or diminishes the credibility of the defense’s approach to its case. Clark v. State, 878 S.W.2d 224, 226 (Tex. App.—Dallas 1994, no pet.)
We are not convinced the inclusion of language on verbal provocation alone amounted to a comment on the weight of the evidence. To begin with, the cases appellant relies on to support his contention that the instruction constitutes an improper comment on the evidence are inapposite. See Zani v. State, 758 S.W.2d 233 (Tex. Crim. App. 1988) (en banc); Florio v. State, 532 S.W.2d 614 (Tex. Crim. App. 1976). In both of those cases, the Court of Criminal Appeals held that the trial court properly denied the inclusion of instructions specifically addressing a particular type of testimony. See Zani, 758 S.W.2d at 245 (upholding denial of instruction directed to hypnotically-enhanced testimony); Florio, 532 S.W.2d at 618 (upholding denial of instruction directed to credibility and reliability of expert testimony). In contrast, this instruction, one of several concerning self-defense, does not single out a particular type of evidence for special attention; it merely recites a correct statement of the law of self-defense. In the context of the entire charge, the instruction does not constitute a comment on the weight of any particular evidence. We overrule appellant’s ninth and tenth issues.
V. The Admission of Appellant’s Written Statement
In his eleventh issue, appellant contends the trial court erred in admitting into evidence the statement he gave the authorities while in their custody. Appellant complains that the interviewing officer who obtained his statement testified at the suppression hearing that he did not know if appellant had actually waived his Miranda[6] rights before giving the statement. According to appellant, the officer should have questioned appellant further to determine whether appellant actually understood and intended to waive his right not to talk to the officer.[7] Absent such further questioning, appellant argues that giving the Miranda warnings was nothing more than an “empty ritual.” We disagree.
The record of the suppression hearing shows that appellant was read the warnings and signed a form listing his rights as required under article 38.22, section 3(a) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. art. 38.22, § 3(a). The form also included appellant’s acknowledgment that he had been given his rights and that he fully understood them. The interviewing officer testified that he asked appellant if he understood his rights and appellant answered that he did. Appellant then gave his statement to the interviewing officer. The written statement repeated appellant’s rights and included the statement that he “knowingly, intelligently and voluntarily” waived the listed rights. The officer testified that he and appellant reviewed the statement and appellant indicated he understood it. Appellant then initialed and signed the statement. Nothing in the record of the hearing indicates appellant did not knowingly, intelligently, and voluntarily waive his rights. We overrule appellant’s eleventh issue.
VI. Whether the Trial Court Allowed the Prosecutor to Dilute the Meaning of “Beyond a Reasonable Doubt”
In his twelfth issue, appellant contends the trial court erred in permitting the State to dilute the meaning of “beyond a reasonable doubt” in violation of his constitutional rights. Appellant argues that the State’s misstatement of the meaning of reasonable doubt distorted the lawful course of the voir dire and therefore the trial court should have granted his request that a Geesa[8] reasonable doubt instruction be included in the charge. Again, however, we disagree.
During voir dire, the State discussed reasonable doubt, commenting in part that “I think it’s easier to look at it in terms of what it’s not. It’s not beyond all doubt, it’s not beyond any doubt. It’s beyond a reasonable doubt.” Appellant objected to the State’s comment, arguing that the comment alone, without a complete definition, violated his due process rights. Later, at the charge conference, appellant requested that the trial court include a definition of reasonable doubt, which the trial court denied.
In Paulson v. State, the Court of Criminal Appeals overruled Geesa’s requirement that a definition of reasonable doubt be included in the charge. 28 S.W.3d 570, 573 (Tex. Crim. App. 2000). The Court found that “the better practice” was to give no definition of reasonable doubt at all to the jury. Id. The Court also held, however, that if both the State and the defense agree to give the Geesa instruction to the jury, it would not result in reversible error if the trial court includes the instruction in the charge. Id.
After the Paulson case, this court considered whether a trial court erred in including in the charge an instruction similar to the State’s voir dire statements regarding reasonable doubt, and we held that it did not. See Jackson v. State, 105 S.W.3d 321, 325–26 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). In Jackson, the challenged instruction read as follows: “It is not required that the prosecution prove guilt beyond all possible doubt. It is required that the prosecutor’s proof excludes all ‘reasonable doubt’ concerning the Defendant’s guilt.” Id. at 325. We rejected the appellant’s contention that the instruction lessened the State’s burden of proof, confused the jury, or negated the statutory burden of proof language, finding instead that the instruction correctly stated the State’s burden of proof. Id. at 326. Similarly, we find no error in the prosecutor’s statements here. Additionally, both the trial court and appellant’s counsel explained the burden of proof further to assist the jury panel in understanding how to apply it to the State’s evidence. The trial court discussed the various standards of proof and explained that “beyond a reasonable doubt” is the “highest standard of proof.” During voir dire, appellant’s counsel also spent some time explaining that “the highest burden under our law” was proof beyond a reasonable doubt, and that if a juror had a reasonable doubt, he was to vote “not guilty.” We overrule appellant’s twelfth issue.
VII. The Submission of Sudden Passion
In his thirteenth issue, appellant contends that the trial court erred in the punishment phase by submitting the instruction on sudden passion arising from adequate cause as an affirmative defense. According to appellant, placing the burden of proof and persuasion on any element of a criminal offense on the defense, including the mens rea, violates the Due Process Clause of the United States Constitution. Appellant cites Ring v. Arizona, 536 U.S. 584 (2002) and Apprendi v. New Jersey, 530 U.S. 466 (2000) to argue that the Texas Legislature erroneously determined that sudden passion arising from adequate cause is “a mere sentencing factor” and contends that, instead, the State should be required to negate its existence. See Tex. Code Crim. P. 19.02(d).
This court has already rejected a similar challenge to the constitutionality of section 19.02(d). See Walker v. State, No. 14-01-01197-CR, 2003 WL 21466960, at *2–3 (Tex. App.—Houston [14th Dist.] June 26, 2003, pet. ref’d) (not designated for publication), cert. denied, 125 S. Ct. 45 (2004).[9] We hold, therefore, that the Constitution does not prohibit the State from putting the burden on the defendant to prove an issue that would mitigate punishment. We overrule appellant’s thirteenth issue.
VIII. The “Good Conduct Time” Instruction
In his fourteenth issue, appellant contends the trial court erred in including an instruction about “good time” because it was reasonably likely to produce a longer period of incarceration than the jury intended. He contends that, as applied to him, the charge is unconstitutional because he was eligible for probation, but because of prevailing fears and attitudes in the community, a juror could reasonably be influenced to impose a longer sentence to ensure that the defendant remains incarcerated for a sufficiently long period.
When a defendant is found guilty of murder and the jury is to assess punishment, the trial court is statutorily required to include the prescribed “good conduct time” instruction in the charge. See Tex. Code Crim. Proc. art. 37.07, § 4(a). This instruction explains generally the concepts of good conduct time and parole. It ends with the following admonishment to the jury:
You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.
Id. (emphasis added).
Appellant acknowledges that the Texas Court of Criminal Appeals has held that this legislatively-mandated instruction was not unconstitutional in Luquis v. State, 72 S.W.3d 355, 365 (Tex. Crim. App. 2002). Appellant argues that his situation is distinguishable because the defendant in Luquis was not eligible for parole or release on mandatory supervision, while appellant was eligible for probation. But, he does not explain the significance of this distinction. Instead, he contends the instruction could confuse or mislead a juror regarding the minimum time a defendant would serve in prison. However, the Luquis Court found that the instruction was not a misstatement of the law, and, considering the instruction as a whole, also found it was “not misleading and certainly not so misleading as to convert appellant’s trial into a fundamentally unfair proceeding which denied him due process.” Id. at 366–67. The Court reasoned that if the jury followed the trial judge’s clear and explicit direction not to apply the general concepts of parole or good conduct time in assessing the appellant’s sentence, there could be no error, confusion, or harm. Id. at 367. And, because the appellant made no showing that the jury did not follow the instruction, appellant failed to show that there was a reasonable likelihood that the jury unconstitutionally misapplied the concept of “good conduct time” to assess a higher sentence as a result of the instruction. Id.
Likewise, appellant here has made no showing that the jury failed to follow the instruction. Appellant instead makes a public policy argument in which he contends that the current climate in Texas is one of fear and concern that dangerous and undeserving felons are being prematurely released from overcrowded prisons by the orders of “unaccountable” federal judges, and this erosion of the public’s confidence in the administration of criminal justice requires that we alter our assumption that juries follow their instructions. This argument is more appropriately directed to the legislature, rather than this court. On these facts, we find that the inclusion of the required good conduct time instruction did not violate appellant’s constitutional rights. We overrule appellant’s fourteenth issue.
IX. The Factual Sufficiency of the Evidence to Support a Sixty-Year Sentence and Whether it is Cruel and Unusual
In his fifteenth issue, appellant contends the evidence is insufficient to support a sixty-year sentence with thirty calendar years before parole eligibility. Appellant does not explain how the evidence is factually insufficient, he merely “urges” us to “review the evidence of the crime and his background and record to determine whether the evidence is sufficient to support the sentence under Jackson v. Virginia.” We have detailed the evidence above, and we find it sufficient to support the sentence.
In his sixteenth issue, appellant contends the sentence imposed amounts to cruel and unusual punishment. Appellant recognizes that his failure to object on this ground ordinarily waives his right to complain on appeal, see Tex. R. App. P. 33.1; Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (holding that appellant waived point of error concerning cruel and unusual punishment by failing to object at trial), but argues that we should “make a thorough review of the lengthy record of the facts and circumstances of the case” to (1) determine whether the sentence should be reduced, (2) determine whether the failure to lodge this complaint at the motion for new trial stage ought to be excused by reason of the lack of the evidentiary record to review for that purpose, and (3) determine whether trial and/or appellate counsel were ineffective in failing to raise this issue at the motion for new trial stage.[10] Appellant does not cite us to any parts of the record he claims support his argument, nor does he explain why we should depart from the Court of Criminal Appeals’ oft-cited admonition that when ineffectiveness is claimed, the proper procedural vehicle to attack ineffectiveness is a post-trial writ of habeas corpus. See Aldrich v. State, 104 S.W.3d 890, 896 (Tex. Crim. App. 2003) (en banc).
In any event, we note that the sentence was within the statutory guidelines. “When punishment assessed by a judge or jury is within the statutory limits, it is not cruel and unusual within the constitutional prohibitions.” Benjamin v. State, 874 S.W.2d 132, 135 (Tex. App.—Houston [14th Dist.] 1994, no pet.). Appellant was convicted of murder, a first-degree felony that carries with it a penalty between five and ninety-nine years’ imprisonment. Tex. Pen. Code § 12.32(a). Appellant’s sentence of 60 years’ imprisonment was well within the limit. We overrule appellant’s fifteenth and sixteenth issues.
CONCLUSION
The judgment of the trial court is affirmed.
/s/ Wanda McKee Fowler
Justice
Judgment rendered and Memorandum Opinion filed February 15, 2005.
Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.
Do Not Publish — Tex. R. App. P. 47.2(b).
[1] Brady v. Maryland, 373 U.S. 83 (1963).
[2] These factors included the following: (1) the witnesses which were of the victim’s party were unreliable; (2) Daniel Ortiz was in a position to give testimony from the same or similar standpoint as appellant but did not testify; (3) the State’s case that appellant did not act in self-defense because he “provoked the difficulty” relied heavily on the biased, intoxicated members of the victim’s party; (4) appellant testified at trial that Ortiz, not he, had thrown a beer can at members of the victim’s party, perhaps provoking them; and (5) the State exposed perceived weakness in its direct evidence of unjustified murder when it took the extraordinary risk of presenting victim impact and gang affiliation evidence in the guilt phase of the trial.
[3] We have reviewed the documents and they show the following. Ortiz pleaded guilty to first degree murder and, on April 9, 2003, was sentenced to twenty years’ imprisonment in the Texas Department of Criminal Justice-Institutional Division. Ortiz’s Guilty Plea Memorandum and Written Stipulations and Waivers were entered November 4, 2002, the same day as appellant’s hearing on his request for in camera review of undisclosed Brady materials. Appellant postulates that, in exchange for a sentence of no more than twenty years and other possible consideration, Ortiz agreed to refrain from cooperating with appellant’s defense, thus leaving the jury with the impression that appellant, rather than Ortiz, provoked the dispute. However, according to the Judgment and Sentence on Plea of Guilty or Nolo Contendere, the trial court determined there was no plea bargaining agreement between the parties, and appellant offers no evidence of such an agreement.
[4] Appellant cites Macias v. State, 959 S.W.2d 332 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d), as support for his contention that gang affiliation evidence is not admissible under Rule 404(b). However, in that case, the court found that the appellant’s gang affiliation was only an incidental aspect of appellant’s life; it was not part of the reason for the murder or part of the explanation for why the murder occurred as it did. Id. at 339. Here, as we have discussed, the State’s theory relied on gang affiliation to demonstrate a motive for appellant to intentionally kill, and appellant’s self-defense theory also relied on knowledge of gang activity that placed appellant in fear for his safety. Macias is therefore distinguishable.
[5] In his argument, the prosecutor stated, “What y’all need to understand is the only way those people out there will get the message that gang membership and gang activities and the killing of people and the injury to people, the shooting and the stabbing will stop.”
[6] Miranda v. Arizona, 384 U.S. 436 (1966).
[7] Among the questions appellant contends the officer should have asked were “what Appellant thought would happen if he stopped talking after giving the officer some information,” “when, and under what circumstances he would get to talk with a lawyer if he said he wanted one right then,” and “whether he thought he had the right to talk with a lawyer who was working on his behalf before he told the officer anything more.”
[8] Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991).
[9] The instruction given to the jury involved a fact that would mitigate, not enhance, punishment. Ring and Apprendi address facts that would increase punishment. See Ring, 536 U.S. at 600; Apprendi, 530 U.S. at 492. Neither Ring nor Apprendi speaks to which party should bear the burden of proof or persuasion as to mitigating evidence; those cases focus on whether the trial court or the jury should be the fact finder for sentence enhancement.
[10] Appellant also asks that we abate the appeal and remand the case to the trial court to conduct a hearing to determine whether the sentence is cruel and unusual in violation of constitutional guarantees, citing Alvarez v. State, 79 S.W.3d 679 (Tex. App.—Houston [1st Dist.] 2002, pet. dism’d) (abating appeal and remanding for motion for new trial when record did not show that defendant knowingly, intelligently, and voluntarily waived his right to conflict-free representation). However, because we find the evidence is factually sufficient and the sentence is within the statutory guidelines, we decline appellant’s request.