Affirmed and Opinion filed November 4, 2014.




                                            In The

                        Fourteenth Court of Appeals

                                   NO. 14-13-00144-CR

                           HERMILO MORALEZ, Appellant

                                              V.
                           THE STATE OF TEXAS, Appellee

                       On Appeal from the 300th District Court
                              Brazoria County, Texas
                            Trial Court Cause No. 63639

                                      OPINION


      Appellant Hermilo Moralez appeals following his conviction for murder.1 In
seven issues, appellant contends (1) the trial court erred by requiring him to prove
he was mentally incompetent to stand trial after a prior judicial finding of
incompetency; (2) the evidence is insufficient to support the jury’s finding of
competency; (3) the trial court erred denying his motion to suppress; (4) the State

      1
          See Tex. Penal Code Ann. §§ 19.02(b)(1), 19.02(b)(2) (West 2011).
failed to disprove he acted in self-defense; (5) the trial court erred admitting
photographs and a DVD of the complainant’s body into evidence; (6) the trial court
erred allowing evidence of extraneous offenses into evidence; and (7) the trial
court erred by failing to admit the Agreed Judgment of Incompetency into
evidence during the punishment phase. For the reasons stated below, we overrule
appellant’s issues and affirm the jury’s verdict.

                                       BACKGROUND

      In November 2010, the complainant, a high school student, was reported as a
missing person. Appellant was seen near the location where the complainant’s
truck was found and questioned. Ultimately, appellant led police to the location of
the complainant’s body. Appellant was arrested and charged with murder.

      Subsequently, appellant was found incompetent to stand trial. Following
treatment, it was determined that appellant’s competency to stand trial had been
restored. Appellant requested a jury hearing on the issue of his competency and the
jury found appellant was competent to stand trial.

      Following the denial of appellant’s pre-trial motion to suppress and motion
to quash subpoena duces tecum filed by the Texas Department of State Health
Services, trial on the merits began. The jury was charged on appellant’s claim of
self-defense but rejected it and found appellant guilty of murder. The jury assessed
appellant’s punishment at confinement in the Institutional Division of the Texas
Department of Criminal Justice for life. From those proceedings, this appeal was
brought.

                             COMPETENCY TO STAND TRIAL

      Appellant was arrested in November 2010. On July 2, 2011, the trial court
referred appellant for a competency examination in accordance with Chapter 46B

                                          2
of the Texas Code of Criminal Procedure. On August 30, 2011, Dr. Michael Alan
Fuller reported that appellant was not competent to stand trial. On October 30,
2011, an Agreed Order of Incompetency was signed by the trial court. On February
14, 2012, the trial court was informed appellant remained incompetent to stand
trial. On March 20, 2012, the trial court signed an Amended Order for Extended
Commitment and Compelled Medications. A Second Amended Order for Extended
Commitment and Compelled Medications, finding the head of the facility
requested an extension, was signed on July 29, 2012.

       On September 12, 2012, Brenda L. Slaton, the Superintendent of Rusk State
Hospital, reported to the trial court that appellant was competent to stand trial. On
October 26, 2012, appellant objected to the finding of competency. An agreed
request for a jury trial was filed that same day. On November 14, 2012, the jury
found appellant was competent to stand trial. The trial court signed an Order
Finding Competency to Stand Trial on November 15, 2012. Defendant’s pretrial
motions were heard on the 8th and 14th of January 2013 and voir dire began on
January 16, 2013.

       I.     Finding of Competency

       In his first issue, appellant makes two arguments. One argument is that the
trial court failed to make a judicial determination that he had regained competency
before criminal proceedings resumed.

       When a trial court determines that a defendant is incompetent to stand trial,
the court may commit the defendant to a mental health facility “for further
examination and treatment toward the specific objective of the defendant attaining
competency to stand trial.”2 When the “head of the facility” is of the opinion that

       2
        Act of May 14, 2003, 78th Leg., R.S., ch. 35, 2003 Tex. Gen. Laws 62 (amended 2005,
2007, 2011, 2013) (current version at Tex. Code Crim. Proc. Ann. art. 46B.073(b) (West Supp.
                                             3
the defendant has attained competency to stand trial, a report is filed with the court,
with copies provided to both parties, and the defendant is returned to the
committing court.3 Article 46B.084 4 of the Texas Code of Criminal Procedure
requires that, after a defendant has been adjudicated incompetent to stand trial and
has been committed to a mental hospital, the trial court must make a judicial
determination that the defendant has regained competency before the criminal
proceedings against him may be resumed. See also Bradford v. State, 172 S.W.3d
1, 4–6 (Tex. App. — Fort Worth 2005, no pet.) (trial court was required to make a
judicial determination of competency before proceeding with an adjudication of
guilt); and Byrd v. State, 719 S.W.2d 237, 238 (Tex. App. — Dallas 1986, no pet.)
(appeal was abated because there was no judicial determination on the record).

          The record reflects the trial court signed an order on November 15, 2012,
finding appellant competent to stand trial. This order was entered before
appellant’s trial on the merits proceeded. We therefore find the trial court did make
a judicial determination that appellant had regained competency before criminal
proceedings resumed.

          We understand appellant’s other argument to be that because the
competency hearing occurred before the trial court signed the order on November
15, 2012, the State was required to establish beyond a reasonable doubt that
appellant was competent to stand trial. Appellant argues the burden of proof is not

2014)).
          3
         Act of June 15, 2007, 80th Leg., R.S., ch. 1307, 2007 Tex. Gen. Laws 4389 (amended
2011) (current version at Tex. Code Crim. Proc. Ann. arts. 46B.079(b)(1), (c) (West. Supp.
2014); Act of June 15, 2007, 80th Leg., R.S., ch. 1307, 2007 Tex. Gen. Laws 4390 (current
version at Tex. Code Crim. Proc. Ann. art. 46B.081 (West Supp. 2014)).
          4
         Act of June 15, 2007, 80th Leg., R.S., ch. 1307, 2007 Tex. Gen. Laws 4390 (amended
2011) (current version at Tex. Code Crim. Proc. Ann. art. 46B.084(a) (West Supp. 2014)); and
Act of May 14, 2003, 78th Leg., R.S., ch. 35, 2003 Tex. Gen. Laws 64 (amended 2005, 2007,
2011) (current version at Tex. Code Crim. Proc. Ann. art. 46B.084(d) (West Supp. 2014)).

                                             4
by a preponderance of the evidence and did not shift to him to prove incompetence
until after the trial court made a judicial determination.

      Appellant relies upon Manning v. State, 730 S.W.2d 744, 748 (Tex. Crim.
App. 1987), and Schaffer v. State, 583 S.W.2d 627, 630 (Tex. Crim. App. [Panel
Op.] 1979). In Manning, the court noted that “the case law through the years is
fairly clear that a defendant has the burden of proving by a preponderance of the
evidence, his incompetency to stand trial or his insanity at the time of the offense.
Case law is also clear that the burden of proof shifts to the State if a prior,
unvacated adjudication of incompetency or insanity is shown.” Manning, 730
S.W.2d at 748 (citations omitted). The court then held “consistent with common
law, that if such prior adjudication for incompetency is shown, the State must then
prove the accused’s competency to stand trial beyond a reasonable doubt.” Id. The
Manning court pointed out that “[n]othing in the Penal Code or Code of Criminal
Procedure suggests we abandon this long established burden shifting on the issue
of incompetency or insanity and we decline to do so in the instant case.”

      In Shaffer, the defendant argued the notification by the superintendent of the
facility that he was competent to stand trial was not a judicial determination and
that there should be some form of judicial restoration before the trial on the merits.
Shaffer, 583 S.W.2d at 628. The Shaffer court agreed and noted, “[t]he general rule
would seem to be that a person is presumed competent to stand trial until he is
found incompetent to stand trial, and once found to be so incompetent, he is
presumed to be incompetent to stand trial until such time as it has been determined
in accordance with the law that he is competent to stand trial.” Id. at 630. The
Shaffer court found there was no evidence in the record that the trial court ever
made a determination of the defendant’s competency to stand trial prior to the trial
on the merits after he had earlier been found incompetent to stand trial by a jury.

                                           5
The court then abated the appeal for the trial court to make such a determination.
Shaffer did not address the burden shift. Unlike Shaffer, in this case the trial court
did make a judicial determination prior to the trial on the merits.

       We find Manning is also distinguishable since the legislature has
subsequently shifted the burden on the issue of incompetency in certain
circumstances. Article 46B.113(d) 5 provides: “If the head of a facility or outpatient
treatment provider to which the defendant was committed as a result of a finding of
incompetency to stand trial has provided an opinion that the defendant has
regained competency, competency is presumed at a hearing under this subchapter
and continuing incompetency must be proved by a preponderance of the evidence.”
Under the statutory scheme, placement of the burden of proof at the hearing
depends upon whether the head of the facility determines the defendant has been
restored to competency. Per subsection (d), competency will be presumed at the
hearing if the head of the facility or outpatient treatment provider has tendered an
opinion that the defendant has been restored to competency. In such a case,
incompetency must be proven by a preponderance of the evidence. In contrast, if
the facility head or outpatient treatment provider has not provided an opinion that
the defendant has been restored to competency, subsection (e) directs that the
defendant is presumed still incompetent and competency must be established by a
preponderance of the evidence by whichever party is contending the defendant is
competent.6 See also 7A Tex. Prac., Criminal Forms and Trial Manual § 81.13
(11th ed.) (charge of the court on restoration of competency).

       5
         Act of June 15, 2007, 80th Leg., R.S., ch. 1307, 2007 Tex. Gen. Laws 4394 (amended
2011) (current version at Tex. Code Crim. Proc. Ann. arts. 46B.113(d (West. Supp. 2014)).
Article 46B.113 is contained in Subchapter E and became applicable in this case upon issuance
of the Second Amended Order for Extended Commitment and Compelled Medications. See Tex.
Code Crim. Proc. Ann. arts. 46B.085(b) (West. Supp. 2014)).
       6
           Act of June 15, 2007, 80th Leg., R.S., ch. 1307, 2007 Tex. Gen. Laws 4389 (amended
                                               6
      Because the head of the facility provided the trial court with an opinion that
appellant had been restored to competency, he had the burden to prove by a
preponderance of the evidence that he was incompetent. See Howard v. State, 01-
07-00686-CR, 2008 WL 3876227 (Tex. App.—Houston [1st Dist.] Aug. 21, 2008,
pet. ref’d) (mem. op.) (not designated for publication). Accordingly, the trial
court’s charge to the competency jury instructing them that appellant had the
burden of proof, by a preponderance of the evidence, to establish that he was
incompetent to stand trial was correct. Id. Having rejected both of appellant’s
arguments, we overrule appellant’s first issue.

      II.    Sufficiency of the Evidence

      In his second issue, appellant challenges the legal sufficiency of the
evidence to support the jury’s finding that he was competent to stand trial. Within
this issue, appellant also argues the trial court’s charge to the jury misstated the
burden of proof. As noted above, the charge correctly instructed the jury.
Accordingly, we review the evidence adduced at the hearing on appellant’s
competency to determine if appellant proved, by a preponderance of the evidence,
that he was incompetent to stand trial.

      A. The Evidence

      Dr. Fuller was qualified as an expert to testify on appellant’s behalf. As part
of his job, Fuller evaluates defendants to determine whether or not they are
competent to stand trial. Fuller first assessed appellant’s competency to stand trial
in July 2011. It was his opinion at that time that appellant was not competent to
stand trial. It appeared appellant was having auditory hallucinations and Fuller felt
he was delusional. Fuller believed appellant could not rationally pursue a defensive

2007, 2011) (current version at Tex. Code Crim. Proc. Ann. arts. 46B.113(e) (West. Supp.
2014)).

                                           7
strategy and questioned whether or not he had a rational understanding of the
charges pending against him. Fuller’s initial diagnosis was an unspecified
psychotic disorder. Fuller testified that appellant had no prior psychiatric history
and no documented history of mental illness. According to Fuller, this could have
been appellant’s initial episode of psychosis.

      After the Agreed Judgment of Incompetency was signed in October 2011,
appellant was sent to North Texas State Hospital, the Vernon Campus. A report
from Dr. Joyce dated February 2012 was admitted into evidence. Joyce concluded
appellant was unable to demonstrate an adequate rational understanding of the
charges or the proceedings and could not collaborate effectively with an attorney.
In March 2012, the trial court entered an order extending appellant’s commitment
and compelling medication.

      In May 2012, Fuller visited appellant and found significant improvement.
Appellant was disinterested and not cooperative with the examination but Fuller
found his comments reflected a much more coherent state of mind. Because
appellant refused to answer many questions, Fuller was unable to thoroughly
examine him. The questions appellant did answer were generally reality-based and
thoughtful enough that Fuller felt appellant could go to trial, if he were so
motivated. Fuller determined appellant was competent to stand trial but admitted it
was “borderline.”

      Fuller believed appellant’s medications had been discontinued about a
month earlier. He feared that appellant would deteriorate but found that he was
actually improved. Dr. Emory, a jail psychiatrist, revised the diagnosis of
undifferentiated    schizophrenia   and   discontinued   appellant’s   psychotropic
medication. Fuller testified that it was Emory’s impression appellant was



                                          8
malingering his residual symptoms and was not certain that he had a mental
illness. 7 Fuller is confident appellant is schizophrenic.

       Evidence was introduced that appellant was refusing to take medication
while in the hospital in February 2012. Fuller testified that medication is an
essential part of the treatment plan for schizophrenia and agreed compelled
medication would help appellant respond faster. Fuller agreed that appellant’s
avoidance of taking medication could be part of his illness and not evidence of
malingering. According to Fuller, a large percentage of people with schizophrenia
do not take their medications regularly because they do not think they are ill. Fuller
also said appellant’s refusal to answer questions was not necessarily malingering
and could have been a rational decision. It was Fuller’s impression the refusal was
willful but the motive was unclear. Regardless of appellant’s reason for not taking
the medication, it delayed his treatment and response.

       Appellant requested to attend his recommitment hearing. Fuller testified that
indicated some comprehension of the proceedings. Fuller said it was his clinical
impression that a significant amount of appellant’s behavior reflected an attempt to
avoid prosecution.

       An affidavit by Sandy Le asked for an extension of treatment because
appellant was responding slowly to treatment. In July 2012, appellant’s
commitment was again extended by the trial court. Appellant was returned to the
hospital, this time in Rusk, and continued on medication.

       Fuller examined appellant again on November 9, 2012, and reported that he
was competent to stand trial. Fuller found progress in appellant’s ability to have a
reasonable reality-based conversation, his awareness of the consequences that he
       7
        Fuller defined malingering as faking symptoms and said that in the patients he sees the
most common reason is to avoid prosecution.

                                              9
potentially faces, his ability to share with his attorney the events and state of mind
that was transpiring at the time of the alleged crime, and his overall psychic health.
Fuller testified that he felt appellant was competent to stand trial before he was
returned to the state hospital and he had certainly improved further from that point.
Fuller testified that appellant was currently taking medication — Risperdal, an
antipsychotic medication, and Prozac, an antidepressant.

      Fuller reviewed the report of Dr. Erick Lenert, a psychologist at Rusk State
Hospital, dated September 2012. Lenert determined appellant was competent to
stand trial and Fuller testified that decision was consistent with his own perception.
Lenert’s report included a letter of discharge from Dr. Jill Pontius, the staff
psychiatrist. Pontius reported appellant “is at risk for relapse of his severe
psychotic illness. Though he is being released to the court as competent to stand
trial, he is at high risk of relapse in a less secure environment; especially if his
medication adherence is not strictly monitored.”

      At the hearing, Fuller testified that he had seen appellant in the last week and
appellant was much improved compared to May 2012. Fuller testified appellant
had the capacity to rationally understand the charges and potential consequences of
the pending proceedings. In Fuller’s opinion, appellant had the capacity to disclose
to counsel pertinent facts, events, and states of mind. Appellant was able to
describe some details of the alleged offense. Appellant had the capacity to engage
in legal strategies and opinions and to exhibit appropriate courtroom behavior.
Appellant had the capacity to testify and consult with counsel.

      Dr. Lenert was qualified as an expert to testify on the State’s behalf. Lenert
performed an independent evaluation of appellant’s competence to stand trial in
September 2012. Appellant was on medication, an antipsychotic and an
antidepressant. Appellant’s mood appeared stable and he was polite and

                                         10
cooperative. Appellant was responsive and spoke in a logical and goal-directed
fashion to Lenert’s inquiries. Appellant indicated that he was aware of the charges
pending against him.

      Lenert determined appellant could communicate with his counsel in a
rational manner. Appellant stated facts and gave details about the circumstances
surrounding his arrest, and spoke to his state of mind at the time of the offense.
Appellant was able to recall details of the offense. Lenert determined appellant was
competent to stand trial. Appellant had sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding. Appellant had a rational
and factual understanding of the proceedings against him.

      After appellant began taking an antidepressant, he relaxed more and was
more socially available. Lenert testified that drug use can sometimes mimic the
symptoms of schizophrenia and his report mentioned substance abuse. Fuller had
also testified that substance abuse may contribute to mental illness.

      Lenert estimated appellant’s IQ to be below average. Lenert assessed
appellant’s ability to function at 50. Upon his initial admission, appellant’s ability
to function was assessed at 28. Lenert testified that showed improvement.

      Lenert did not find any evidence appellant was malingering. Lenert found
appellant gave his best effort, did not appear to be malingering memory or
cognitive difficulties, and was not exaggerating his psychiatric symptoms.

      Linda Smith is a qualified mental health professional employed by the Gulf
Coast Center. She supervises a program for offenders that have mental health
issues. Smith met appellant at the jail on November 19, 2010. She saw no
indication that he was responding to internal stimuli. On January 3, 2011, she again
came into contact with appellant. Appellant made eye contact and again gave no


                                         11
indication that he was responding to internal stimuli. Smith was able to hold a
conversation with him. On January 4, 2011, she evaluated appellant again and he
denied any suicidal tendencies. Appellant made eye contact, held a conversation,
and did not appear as if he was responding to internal stimuli.

      The next time Smith saw appellant was September 29, 2011, after he got into
a fight with officers. Appellant communicated with her, made eye contact, and
denied responding to any type of internal stimuli. Smith saw no indication that
appellant was responding to any type of internal stimuli.

      Smith saw appellant again on March 19, 2012, to let him know that he had
been recommitted to the state hospital. Smith saw no difference in appellant from
before he went to the state hospital and after he came back. Appellant
communicated with her, made eye contact, and was not responding to any type of
internal stimuli.

      On April 17, 2012, Smith checked on appellant because his psychiatric
medications had been discontinued by Emory. Appellant seemed to understand that
he was no longer required to take medication and told Smith that he felt better. The
last time Smith saw appellant was October 12, 2012.

      Smith testified that on the various occasions she spoke with appellant, he
was able to communicate with her, made eye contact, and did not respond to any
type of internal stimuli. Smith never felt the need to refer appellant for a
competency evaluation. Smith testified that based on the ten meetings, at least, she
had with appellant and her twenty-four years of experience dealing with
schizophrenic people, she would disagree appellant is schizophrenic. Smith did not
believe appellant had the symptoms that he reported and she saw no change in him.
Smith testified that she believed appellant is competent to stand trial. She agreed


                                         12
that he has the ability to communicate with his attorneys about the issues in this
case and is aware of the charges and the proceedings in the courtroom.

      Sergeant Patrick Matocha, a mental health deputy for the Brazoria County
Sheriff’s Department, testified he came into contact with appellant when he first
came to the jail. Matocha did not notice anything about appellant’s mental health
or competency that alarmed him but was concerned whether appellant posed a
safety risk to himself. Matocha transported appellant to and from the state hospital
three or four times. Coming back from the state hospital in Vernon, an eight-hour
car drive, appellant did not interact with Matocha at all. As they were entering the
jail, Matocha asked him, “why he didn’t sign the piece of paper to stay in Vernon
State Hospital where it was nice and more medical care, mental care.” Appellant
said, “that he couldn’t stay at that hospital because they – they wrote down and
took notes of everything that he said or done to prove that he was capable of
standing trial.” According to Matocha, appellant said “that the doctors couldn’t
make a decision on whether he was mental or not if they – if he couldn’t talk to
them.” Matocha said appellant got that advice from Lionell West, another inmate
in the jail. West has been through the detention center more than once and is
involved in the mental health system as well.

      Matocha picked appellant up from the state hospital in Rusk in September
2012. Appellant had gained some weight and was more talkative. Appellant had
three large sacks of possessions and Matocha asked him to go through the sacks
and decide what he wanted. Appellant was able to do that on his own and verbalize
what he wanted to keep. Appellant also indicated his favorite items. Matocha was
able to communicate with him and make eye contact. Appellant did not appear to
be responding to anything that was not there. Matocha admitted that he had no
training to determine competency.

                                        13
      B. Analysis

      We measure the propriety of the competency verdict based on the evidence
before the jury at the time of the verdict under the relevant legal standard set out in
out in art. 46B.113(d). See Morris v. State, 301 S.W.3d 281, 292 (Tex. Crim. App.
2009). Fuller and Lenert were both qualified to testify as experts and both testified
to their opinion that appellant was competent to stand trial. According to Fuller and
Lenert, appellant had “a sufficient present ability to consult with the lawyer with a
reasonable degree of rational understanding” and “a rational as well as factual
understanding of the proceedings against him.” See id at 292-93 (citing Tex. Code
Crim. Proc. Art. 46B.003(a) (West. 2006)). The competency jury was entitled to
credit the opinion testimony of these experts. The jury also heard Smith testify to
her opinion that appellant was competent and heard Matocha’s description of
appellant’s behavior when taken from Rusk two months before the hearing. No
evidence to the contrary was presented at the hearing.

      We find the jury’s verdict rejecting appellant’s claim of incompetency was
not against the great weight and preponderance of the evidence. Id. Appellant’s
second issue is overruled.

                                      MOTION TO SUPPRESS

      Appellant’s third issue argues the trial court erred denying his motion to
suppress. Appellant moved to exclude all statements obtained from him and any
and all physical evidence obtained as a result of those statements. Following a
hearing, the trial court denied appellant’s motion.

      Appellant testified during the guilt-innocence phase of trial and admitted to
killing the complainant. It is well-settled that the improper admission of evidence
does not constitute reversible error if the same facts are shown by other evidence


                                          14
which is not challenged. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App.
1998). An exception arises when the defendant is impelled to testify either (1) to
overcome the impact of the objected-to evidence that the State allegedly obtained
in violation of the law; or (2) to meet, destroy, or explain the objected-to evidence
offered by the State by presenting rebutting evidence. Id. at 718–19. However,
appellant did not argue at trial, nor does he on appeal, that his testimony was
impelled by the introduction of the allegedly illegally obtained statements and
evidence. We cannot speculate as to whether appellant would have testified under
different circumstances. See Davis v. State, 203 S.W.3d 845, 855 (Tex. Crim. App.
2006).

      Moreover, the record clearly shows that the purpose of appellant’s testimony
was to present his claim of self-defense, not to overcome the impact of the State’s
evidence or to rebut it. Thus neither exception applies and any error in admitting
the statements or evidence obtained therefrom was rendered harmless by
appellant’s own testimony. Appellant’s third issue is overruled.

                                      SELF-DEFENSE

      In his fourth issue, appellant claims the State failed to prove that he did not
kill the complainant in self-defense. A person is justified in using deadly force
against another “when and to the degree the actor reasonably believes the force is
immediately necessary to protect the actor against the other’s use or attempted use
of unlawful deadly force.” Tex. Penal Code Ann. § 9.32(a)(2)(A) (West 2011).
“Deadly force” is force “intended or known by the actor to cause, or in the manner
of its use or intended use is capable of causing, death or serious bodily injury.” Id.
§ 9.01(3).

      The initial burden to produce evidence supporting self-defense rests with the
defendant. See Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003);
                                         15
Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991). Once the defendant
produces some evidence, the State bears the ultimate burden of persuasion to
disprove the raised defense. Saxton, 804 S.W.2d at 913. This burden of persuasion
does not require that the State produce evidence, but it does require that the State
prove its case beyond a reasonable doubt. Id. The issue of self-defense is a fact
issue to be determined by the jury, which is free to accept or reject any defensive
evidence on the issue. Id. at 913–14. If the jury finds the defendant guilty, then it
implicitly finds against the defensive theory. Id. at 914.

      When reviewing a sufficiency challenge on the issue of self-defense, a
reviewing court views the evidence in the light most favorable to the verdict to see
if any rational trier of fact could have found (1) the essential elements of murder
beyond a reasonable doubt, and (2) against appellant on the self-defense issue
beyond a reasonable doubt. See Saxton, 804 S.W.2d at 914. The jury is the
exclusive judge of the credibility of the witnesses and of the weight to be given to
their testimony. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).
Reconciliation of conflicts in the evidence is within the exclusive province of the
jury. Id. We resolve any inconsistencies in the testimony in favor of the verdict.
Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

      I.     The Evidence

      In his testimony, appellant admitted to the elements of the offense with the
exception of whether he acted with the requisite intent. See Tex. Penal Code §
19.02(b) (West 2011). The question, therefore, is whether a rational trier of fact
could have found (1) appellant intentionally or knowingly caused the
complainant’s death, or intended to cause serious bodily injury and committed an
act clearly dangerous to human life that caused the complainant’s death, and (2)
that appellant did not act in self-defense.

                                              16
       A. Appellant’s Testimony

       Appellant testified the complainant gave him a ride home from school that
day because he wanted to see appellant’s marijuana plants. Appellant suggested the
complainant drive to the back and park close to the backyard. Appellant testified
that was in case his parents came home early. While appellant was taking care of
his plants, the complainant kicked his dog. Appellant yelled at the complainant and
the complainant pushed him. Appellant pushed him back and they began to fight.
The complainant punched appellant in the face. Appellant had a scrape near his eye
on the left side of his face. They were on the ground and then “it got serious
because we started to choke each other…” Appellant testified that the complainant
had a longer reach and choked him first. He stated, “I had to get close. Well, I had
to get closer to inflict any damage to him, you know. I am a trained fighter. I know
how to fight. Though I was getting hit, you know, because of the reach of his arms
and I just got close and I was able to inflict damage on him.” The complainant got
him in a choke hold and said, “I’m not going to stop until you fall asleep.”
Appellant took that as dangerous to his life. He testified that he “feared passing
out” and death was in his mind. Appellant said he was scared and “tried my best to
defend myself even more by just being more forceful and attempting to inflict
more damage to him.” Appellant got out of the choke hold and grabbed a closet
rod from the ground and struck the complainant in the side of head, shattering the
rod.8 Appellant testified that “he did not get up after that.” Appellant testified,
“that’s when I panicked of him not being alive.”

       Appellant said he did not mean to kill the complainant. Appellant did not
know what to do and “wanted to cover it up.” Appellant washed down the blood in

       8
         The rod was described as a closet or curtain rod. It was three and a half feet in length
and did not appear to be rotten or weakened.

                                               17
the backyard. He put the complainant’s shirt over his face. He tied up the body
and put it into the back of the truck and drove to a wooded area where he could
dump it. Before he got there, he bought gasoline. He set the body on fire and ran
away. Appellant then took the truck and parked it in front of a “grill place.” He put
everything in the truck in the backpack and threw it in a trash can along with the
complainant’s shoes. He kept the key to the truck. Appellant claimed the
complainant’s shoes fell off. He also claimed the complainant’s socks came off
while he was taking the body into the woods.

      Appellant then went to the movies. When asked, “Didn’t you feel
uncomfortable going to a movie after all this happened,” appellant answered, “It
didn’t feel weird.”

      Appellant testified that he weighed 150 pounds. He said he had been a
trained martial arts fighter for about four years and was a black belt and assistant
instructor for a black belt karate school.

      Appellant said he did not kick the complainant, but “might have kneed him”
in the sides and stomach a couple of times. Appellant stated that he used a
combination of simple front punches to the nose that might have crushed it, “with a
counter of back — back punch and the combination of hitting the sides with a
powerful left hand.” Appellant targeted his punch to complainant’s cheek and nose
in order to impair his vision. Appellant demonstrated that he grabbed the
complainant by the hands and forced his knee into the complainant’s side.
Appellant could not estimate how many times he hit the complainant in the face
but claimed that he did not hit the complainant after he went down on the ground.

      Appellant admitted that he hit the complainant in the face with the closet rod
and it broke. He agreed that he used it as a deadly weapon but said he did not want
to kill him. Appellant testified the complainant was getting up off the ground when
                                             18
he swung the rod and hit him in the face with it. According to appellant, they
tripped over each other and both of them fell to the ground. Appellant also testified
that he strangled the complainant with his hands by squeezing his throat while the
complainant was on the ground. According to appellant, they were both trying to
choke each other. Appellant testified that he had “been taught different ways to,
well, hurt someone to death.”

      B. Other Evidence

      Geoffrey Weis testified that about two weeks before the complainant was
killed, appellant asked him what he would do with the body if he ever killed
someone. Appellant had also asked Weis if he knew where to scrap a car.

      Daira Chavira, appellant’s former girlfriend, testified that appellant told her
if someone hurt her, “[h]e would tie them down, torture them, burn them, cut their
fingers off;” [h]e would burn them, watch them die, make them suffer;” “[he]
would torture them.” Chavira said he made those statements more than once.

      The complainant’s body was found with his hands tied behind his back and
his ankles tied together; his feet were bare. A shirt was over his head and there was
a rope around his neck. The complainant, with his clothing on and the body bag,
weighed 100 pounds. The complainant was described as less than five foot eight
inches, small-boned, and not muscular. Appellant was described as in shape,
muscular, and very fit.

      The evidence showed three fatal injuries had been inflicted on the
complainant: blunt head trauma, blunt abdominal trauma, and strangulation. The
complainant had been beaten in the head and had bruises and fractures. He had
hemorrhaging in his brain and around his mouth. The complainant’s eyes showed
evidence of strangulation, probably by hands or a forearm. He was strangled and


                                         19
released, over and over again. The complainant was not strangled with a ligature.
The complainant had a significant amount of hemorrhaging to his voice box and
larynx, which was cracked in half. The damage to the larynx was caused by
strangulation plus a blow to the neck. It takes approximately four minutes to
strangle a person. There was bruising on the complainant’s neck from hands or
fingers. The complainant also suffered a blow to the ear. The complainant had
significant liver and spleen damage caused by blunt force trauma. The spleen was
hemorrhaged, an injury consistent with a kick. The liver showed hemorrhaging and
was lacerated.

      II.    Analysis

      Appellant contends the evidence tended to prove he was justified in using
deadly force against the complainant because he reasonably believed that deadly
force was immediately necessary to protect himself against the complainant’s use
of unlawful deadly force. The only evidence appellant refers to is his own
testimony. Appellant’s testimony alone does not conclusively prove self-defense as
a matter of law. See Saxton, 804 S.W.2d at 914; Hull v. State, 871 S.W.2d 786, 789
(Tex. App.—Houston [14th Dist .] 1994, pet. ref’d); and Denman v. State, 193
S.W.3d 129, 133 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (providing that
appellant’s testimony of self-defense is not enough to render evidence insufficient).
Because the jury is the sole judge of credibility and weight to be given the
testimony, the jury was not obligated to believe appellant’s account. See Saxton,
804 S.W.2d at 914.

      The record contains evidence from which a rational trier of fact could have
found appellant acted with intent, either to cause the complainant’s death or serious
bodily injury. Appellant was a trained martial arts fighter with four years of
experience and a black belt. He testified that he was capable of hurting someone

                                         20
“to death” and said that he struck the complainant “to inflict damage.” Appellant
claimed not to have struck the complainant after the blow with the rod rendered
him unconscious. However, from the substantial amount of damage inflicted the
jury could have found the complainant was beaten severely prior to that blow —
only one of the three fatal injuries suffered by the complainant. From the evidence,
the jury could have found appellant punched the complainant in the face hard
enough to crush his nose, kneed him in the body causing his spleen to hemorrhage
and lacerating his liver, and either delivered a blow or squeezed his throat hard
enough to break the complainant’s larynx in half. The jury was entitled to infer
appellant intended to injure or kill the complainant from all of his conduct,
including his act of tying him up and burning his body to cover up the death. See
Meadoux v. State, 307 S.W.3d 401, 415 (Tex. App.—San Antonio 2009) aff’d, 325
S.W.3d 189 (Tex. Crim. App. 2010). Reviewing the evidence in the light most
favorable to the verdict, a rational trier of fact could have found the essential
elements of murder beyond a reasonable doubt. See Saxton, 804 S.W.2d at 914.

      By its verdict, the jury believed appellant was not justified in using deadly
force against the complainant and implicitly rejected appellant’s claim of self-
defense. See Zuliani, 97 S.W.3d at 594. Viewing the evidence in the light most
favorable to the verdict, we cannot conclude the jury was irrational. The
complainant was found tied up with his head covered and his body was burned.
Appellant’s former girlfriend testified that he had described killing someone in that
manner more than once. Although appellant claimed that he and the complainant
were trying to choke each other, only the complainant had bruises on his neck and
injuries consistent with strangulation. The single scrape on appellant’s cheek was
the only injury he suffered in what he described as an ongoing struggle. The
complainant, on the other hand, suffered three fatal injuries to his head, neck and


                                         21
body. The jury rationally could have disbelieved appellant’s testimony that his use
of deadly force was immediately necessary to protect himself from the
complainant’s choke hold, which appellant had already escaped. See Tex. Penal
Code § 9.32(a). Considering all the evidence in the light most favorable to the
jury’s verdict, we conclude a rational jury could have rejected appellant’s self-
defense claim. See Saxton, 804 S.W.2d at 914. We overrule appellant’s fourth
issue.

                         ADMISSION OF PHOTOGRAPHIC EVIDENCE

         Appellant’s fifth issue contends the trial court erred by admitting
photographs of the complainant in violation of Rule 403 of the Texas Rules of
Evidence. The record reflects the State introduced into evidence State’s exhibits 27
through 38. Exhibit 38 is a DVD recording of the discovery of the complainant’s
body and Exhibits 27 through 37 are photographs of the body taken after its
discovery. Appellant objected on the grounds the photographs were more
prejudicial than probative. See Tex. R. Evid. 403. The trial court overruled the
objection.

         “The decision to admit or exclude photographic evidence is generally left to
the sound discretion of the trial court. In deciding whether photographs are unfairly
prejudicial, we must also consider the following factors: the number of
photographs, the size, whether they are in color or black and white, whether they
are gruesome, whether any bodies are clothed or naked, and whether a body has
been altered by autopsy.” Prible v. State, 175 S.W.3d 724, 734 (Tex. Crim. App.
2005). The number of complained-of exhibits is eleven. The photographs are 7 by
10 ¾ inches and in color. The DVD is in color. The body is clothed and has not
been altered by autopsy. The photographs and DVD depict the complainant’s body



                                          22
as discovered. The crime scene photographs and recording were limited in number
to eleven.

      Photographs depicting the location of a body at the crime scene and the
complainant’s injuries are relevant. Shuffield v. State, 189 S.W.3d 782, 787 (Tex.
Crim. App. 2006). “A visual image of the injuries appellant inflicted on the victim
is evidence that is relevant to the jury’s determination. The fact that the jury also
heard testimony regarding the injuries depicted does not reduce the relevance of
the visual depiction.” Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007).
Even if photographs are gruesome, their probative value is not substantially
outweighed by the danger of unfair prejudice under Rule 403 if “they are no more
gruesome than the crime scene itself as it was found by the police.” Shuffield, 189
S.W.3d at 787. Photographs of a complainant’s injuries are admissible under Rule
403 if they “show only the injuries that the victim received and are no more
gruesome than would be expected.” Id. at 787–88. The exhibits added to the
probative value of the State’s case by assisting the jury in understanding the
testimony presented regarding the injuries sustained by the complainant. Although
the exhibits are disturbing and graphic, they “were no more gruesome than would
be expected in this sort of crime.” Gallo, 239 S.W.3d at 763.

      Considering the requisite factors, we cannot conclude that the prejudicial
effect of the disputed photographs substantially outweighed their probative value.
Accordingly, we find the trial court did not abuse its discretion in admitting the
exhibits. Appellant’s fifth issue is overruled.

                                  EXTRANEOUS OFFENSES

      In his sixth issue, appellant claims the trial court erred by admitting evidence
of extraneous offenses. A hearing was held outside the presence of the jury to
determine whether the testimony of Daira Chavira should be admitted. Appellant
                                          23
objected to her testimony on the grounds it was more prejudicial than probative.
See Tex. R. Evid. 403. The trial court overruled the objection, finding that the
testimony “is more probative than prejudicial. And with regard to the incidents that
have been discussed with the witness by the defendant, they go to intent, to plan, to
scheme, and are, therefore, more probative than prejudicial. . . . I will find that the
proffered testimony is relevant to the issues in dispute, in this case specifically, that
it deals with the specific defense that has been presented by the defendant in, so
far, the ten hours of testimony with regard to self-defense, in that it is relevant with
regard to the issues of preparation and absence of mistake or accident under
404(b).”

      Chavira then testified that she met appellant when she was 15 and they dated
for two years. According to Chavira, appellant was very passionate about his
hobby, martial arts, and he had a black belt. Chavira testified that appellant told her
if someone hurt her, “[h]e would tie them down, torture them, burn them, cut their
fingers off;” [h]e would burn them, watch them die, make them suffer;” “[he]
would torture them.” Chavira said he made those statements more than once.
Chavira testified that on more than one occasion they had a conversation about
what would happen if he was ever caught doing something bad and he told her that
“[h]e would act like he was crazy. . . [s]o he could get out of it.”

      Evidence is relevant if it tends to make the existence of any consequential
fact more or less probable than it is without the evidence. Tex. R. Evid. 401;
Goldberg v. State, 95 S.W.3d 345, 374 (Tex. App. — Houston [1st Dist.] 2002,
pet. ref’d). The trial court found the evidence was relevant to establish intent, plan,
and scheme, and to rebut appellant’s claim of self-defense. We agree.

      Even if evidence is relevant, however, the trial court may nevertheless
exclude it if the probative value of the evidence is substantially outweighed by

                                           24
unfair prejudice. Tex. R. Evid. 403; Mason v. State, 416 S.W.3d 720, 739 (Tex.
App.—Houston [14th Dist.] 2013, pet. ref’d). When balancing probativeness and
prejudice, a presumption exists favoring probative value. Montgomery v. State, 810
S.W.2d 372, 389 (Tex. Crim. App. 1990). The following factors are included in a
Rule 403 balancing test:

      (1) how compellingly the evidence serves to make a fact of
      consequence more or less probable;
      (2) the potential the evidence has to impress the jury “in some
      irrational but nevertheless indelible way;”
      (3) the time the proponent will need to develop the evidence; and
      (4) the force of the proponent’s need for this evidence to prove a fact
      of consequence.
Wyatt v. State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000) (citing Montgomery, 810
S.W.2d at 389–90). We will reverse only upon a clear abuse of discretion.
Montgomery, 810 S.W.2d at 390 (stating that as long as the trial court operates
within the boundaries of its discretion, an appellate court should not disturb its
decision, whatever it may be).

      The evidence in question served to make it more probable that appellant did
not mutilate and burn the appellant to cover-up the killing of complainant in self-
defense. Although the nature of appellant’s threats could potentially impress the
jury, we do not find it would necessarily be in an irrational manner. The time
needed to develop the evidence was short. The evidence was important to the
State’s contention that appellant intentionally committed the murder and to dispel
appellant’s claim of self-defense. For these reasons, we conclude the trial court did
not abuse his discretion in concluding the danger of unfair prejudice did not
substantially outweigh the probative value of this evidence. See Montgomery, 810
S.W.2d at 387. Appellant’s sixth issue is overruled.


                                         25
                 EXCLUSION OF EVIDENCE DURING PUNISHMENT PHASE

      Appellant’s final issue argues the trial court erred during the punishment
phase by excluding from admission into evidence the order finding him
incompetent. The record reflects appellant attempted to introduce into evidence the
Agreed Judgment of Incompetency signed by the trial court on October 7, 2011.
The State objected the order was not relevant and the trial court sustained the
objection.

      Evidence is relevant at the punishment stage if it helps the factfinder decide
what sentence is appropriate for a particular defendant given the facts of the case.
Ex parte Lane, 303 S.W.3d 702, 714 (Tex. Crim. App. 2009). Appellant argues the
order was relevant as mitigating evidence. He contends the jury would have
reduced his sentence if it had the opportunity to consider the actual order.

      The fact that appellant was found incompetent to stand trial prior to the
current proceeding was known to the jury. As appellant notes in his brief, six
psychiatrists and psychologists had already testified about his mental illness,
including the judicial finding of appellant’s incompetency which necessitated the
need for his treatment in a state hospital. Thus the jury was well aware that
appellant had previously been found incompetent to stand trial when it determined
his sentence. Accordingly, any error in excluding the order was harmless. See Tex.
R. App. P. 44.2(b). Appellant’s seventh issue is overruled.




                                          26
                                      CONCLUSION

      Having overruled all of appellant’s issues, the judgment of the trial court is
affirmed.




                                      /s/    Ken Wise
                                             Justice



Panel consists of Justices McCally, Brown, and Wise.
Publish — Tex. R. App. P. 47.2(b).




                                        27
