                                  NO. 07-06-0062-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                  JULY 24, 2007
                         ______________________________

                           TOM CASTILLEJA, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2004-407067; HONORABLE CECIL G. PURYEAR, JUDGE
                       _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION


      Appellant, Tom Castilleja, appeals from his conviction for murder and jury-assessed

punishment of 50 years incarceration in the Institutional Division of the Texas Department

of Criminal Justice. We affirm.


                                      Background


      Appellant and Maria Castilleja were married sometime during the year of 2000.

However, within approximately three years of their marriage, the couple separated and
eventually divorced. During the time of their separation, Maria began dating Angel Garcia.

Before the finalization of the divorce, Maria discovered that she was pregnant with Garcia’s

child.


         By August 29, 2006, appellant and Maria had been legally divorced, but appellant

was living at Maria’s residence because “he had no other place to go.” Maria and Garcia

spent the day together, along with their daughter. While they were away, appellant

discovered information about a bank account that Garcia had opened for his daughter.

Upon Maria’s return to the residence, appellant confronted Maria about the bank account.

Appellant was upset that Garcia had opened a bank account for the girl. Maria testified

that she had previously informed appellant that the girl was not his and she was confused

by appellant becoming upset that the girl’s father opened a bank account for her.


         Eventually, Garcia was called to the residence. When Garcia arrived, a verbal

altercation began between appellant and Garcia, which quickly escalated into a fist fight.

Garcia, the larger man, got the better of this altercation. Eventually, the fight stopped and

appellant went to the kitchen.


         After approximately five minutes in the kitchen, appellant picked up two knives and

returned to the living area. At this point, Garcia and appellant again got into an altercation

during which appellant stabbed Garcia repeatedly. As a result of these stab wounds,

Garcia died.


         Appellant was charged with the murder of Garcia. At trial, the State offered a

number of photographs, including photos of Garcia with his family and photos of his body

                                              2
as found by police at the scene. Appellant objected to these photographs on the basis that

their probative value was substantially outweighed by the risk of unfair prejudice. The trial

court overruled these objections. Throughout the trial, appellant contended that he killed

Garcia in self-defense. The jury returned a verdict finding appellant guilty of murder.

During the punishment phase of the trial, appellant contended that he had killed Garcia

while in the immediate influence of sudden passion. In accordance with appellant’s

election to have the jury assess punishment, the jury sentenced appellant to incarceration

in the Institutional Division of the Texas Department of Criminal Justice for a period of 50

years. Appellant filed the present appeal of his conviction and sentence.


       By four issues, appellant appeals his conviction and sentence. Appellant contends

that (1) the trial court erred in overruling appellant’s objection to certain photographs, (2)

the evidence was legally insufficient to support his conviction, (3) the evidence was

factually insufficient to support his conviction, and (4) the evidence was factually sufficient

to prove that appellant killed Garcia while acting under the immediate influence of sudden

passion.


                                 Admission of Photographs


       By his first issue, appellant contends that the trial court abused its discretion in

admitting certain photographs into evidence over appellant’s objection. Three of these

photographs were pictures of Garcia with his family. Appellant objected to these photos

as cumulative, irrelevant, and serving no other purpose than to inflame the passions of the

jury. Appellant also objected to nine pictures of Garcia’s dead body taken by police at the


                                              3
crime scene. Appellant’s objection was that the probative value of these pictures was

substantially outweighed by the risk of unfair prejudice, under Texas Rule of Evidence 403.


       The admissibility of photographs is within the sound discretion of the trial court, who

determines whether the exhibit serves a proper purpose in the enlightenment of the jury.

See Ramirez v. State, 815 S.W.2d 636, 646-47 (Tex.Crim.App. 1991).                  Generally,

photographs are admissible if verbal testimony as to the matters depicted in the

photographs would be admissible. Id. at 647. Upon objection under Rule 403, the trial

court must balance the probative value of the photographs against the danger of unfair

prejudice. See Narvaiz v. State, 840 S.W.2d 415, 429 (Tex.Crim.App. 1992). Factors in

the trial court’s evaluation include: (1) the probative value of the evidence, (2) the potential

to impress the jury in some irrational, yet indelible, way, (3) the time needed to develop the

evidence, and (4) the proponent’s need for the evidence. See Erazo v. State, 144 S.W.3d

487, 489 (Tex.Crim.App. 2004) (citing Montgomery v. State, 810 S.W.2d 372, 389-90

(Tex.Crim.App. 1991) (op. on reh’g)). In specific reference to photographs, the trial court

should consider, inter alia, the number of photographs offered, their size, whether they are

in color or black and white, their gruesomeness, whether the body is clothed or naked, and

whether the body has been altered by autopsy. See Reese v. State, 33 S.W.3d 238, 241

(Tex.Crim.App. 2000). However, after independently evaluating all of these factors, we will

reverse a trial court’s admission of photographic evidence only when the probative value

of the evidence is small and its inflammatory potential is great. Ramirez, 815 S.W.2d at

647.




                                               4
       As to the photographs of Garcia with his family, appellant contends that these

pictures are rendered more prejudicial than probative when followed by pictures of Garcia

“with a knife gruesomely . . . protruding out of his bloody body.” Thus, appellant’s objection

went to the crime scene photos of Garcia’s body rather than to the family pictures.

Appellant wholly fails to identify how these pictures would create an indelible and irrational

sympathy in the jury. See Fails v. State, 999 S.W.2d 144, 146 (Tex.App.–Dallas 1999, pet.

ref’d). Thus, we conclude that appellant has failed to show that the trial court abused its

discretion in admitting the family photos.


       Appellant further challenges the admission of nine crime scene photos of Garcia’s

body. These photos are color photos of the victim, a few are fairly close up, and they are

quite gruesome. However, as the trial court correctly noted, each of these nine photos

showed the body as it was found by police and each showed a different angle or different

features of the body. Appellant identifies no particular aspect or characteristic of any of

these nine photographs which would mislead the jury or produce some indelibly irrational

impression upon the jury. Ultimately, appellant contends that the prejudicial effect of these

photos substantially outweigh their probative value because (1) the photos are gruesome

and (2) there was no dispute that appellant killed Garcia by stabbing him to death.


       Certainly the challenged photos are gruesome. They portray the lifeless body of

Garcia, covered in blood, with a knife protruding from his chest. However, these photos

do nothing more than portray what the appellant did. Because there is no suggestion that

these photos were manipulated in a manner which would mislead the jury and were

testified as accurately portraying Garcia’s body as it was found by police, we do not find

                                              5
these photos to present a significant risk to impress the jury in some irrational way. See

Sonnier v. State, 913 S.W.2d 511, 519 (Tex.Crim.App. 1995).


       The photographic evidence of Garcia’s body as found by the police was not

rendered cumulative by appellant not contesting that he killed Garcia by stabbing him to

death. Each of these photos corroborated testimony regarding the events occurring on the

night in question and the visual component provided by the photographs represents a

distinctive probative quality that testimony alone could not provide. Further, as the

evidence was in conflict regarding exactly what occurred on the night in question, this

photographic evidence “gives the fact finder a point of comparison against which to test the

credibility of a witness and the validity of his conclusions.” Chamberlain v. State, 998

S.W.2d 230, 237 (Tex.Crim.App. 1999). Thus, we conclude that appellant has failed to

establish that the probative value of the crime scene photographs was small. Concluding

that appellant has failed to establish that either the probative value of the crime scene

photos was small or that their prejudicial potential is great, we affirm the trial court’s

admission of the photographs and overrule appellant’s first issue. Ramirez, 815 S.W.2d

at 647.


       Appellant further contends that the trial court did not properly perform the balancing

test required upon a Rule 403 objection. Appellant’s contention appears to be premised

on the fact that the trial court simply listened to the objection and overruled it. However,

unless the trial court expressly refuses to perform the balancing test, the trial court’s

overruling of a Rule 403 objection without further comment does not establish that the trial



                                             6
court did not conduct the required balancing test and will not support a finding of an abuse

of discretion. See Santellan v. State, 939 S.W.2d 155, 173 (Tex.Crim.App. 1997).


                        Legal and Factual Sufficiency - Self-Defense


       By his second and third issues, appellant contends that the evidence was legally

and factually insufficient to support the jury’s finding that he committed murder.

Specifically, appellant contends that the State failed to present legally and factually

sufficient evidence to prove, beyond a reasonable doubt, that appellant did not act in self-

defense.


           To prove that appellant was guilty of murder, the State was obligated to prove,

beyond a reasonable doubt, that appellant intentionally or knowingly caused the death of

an individual. TEX . PEN . CODE ANN . § 19.02(b)(1) (Vernon 2003).1 However, a person is

justified in using deadly force against another if he reasonably believes that deadly force

was immediately necessary to protect himself from the other’s use or attempted use of

unlawful deadly force and a reasonable person in the actor’s situation would not have

retreated. §§ 9.31(a), 9.32(a). A defendant must produce some evidence to raise the

issue of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App. 2003). Once

the defendant produces some evidence, it is incumbent upon the State to bear the burden

of persuasion to disprove the defense. Id. However, this burden does not require the

State to produce evidence, rather, the State must satisfy the fact finder of the guilt of the



       1
           Further reference to sections of the Texas Penal Code will be by reference to “§
__.”

                                              7
defendant beyond a reasonable doubt. Id. A guilty verdict by the jury is an implied

rejection of the defensive theory. Id. Therefore, in the final analysis, the State was

required to prove appellant was guilty of murder beyond a reasonable doubt and to

persuade the jury, beyond a reasonable doubt, that appellant did not kill the victim in self-

defense. Id. Finally, we note that the issue of self-defense is a fact issue for the jury, and

the jury is free to accept or reject defensive evidence. Saxton v. State, 804 S.W.2d 910,

913-14 (Tex.Crim.App. 1991).


       When reviewing challenges to both the legal and factual sufficiency of the evidence

to support the verdict, we first review the legal sufficiency challenge. See Clewis v. State,

922 S.W.2d 126, 133 (Tex.Crim.App. 1996). In reviewing the legal sufficiency of the

evidence, we review all the evidence in the light most favorable to the verdict to determine

whether any rational trier of fact could have found the essential elements of the offense

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). The jury

is the sole judge of the weight and credibility to be afforded the evidence. Jackson, 443

U.S. at 319.


       When an appellant challenges the factual sufficiency of the evidence supporting his

conviction, the reviewing court must determine whether, considering all the evidence in a

neutral light, the jury was rationally justified in finding the appellant guilty beyond a

reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). In

performing a factual sufficiency review, we are to give deference to the fact finder’s

determinations if supported by the record and may not order a new trial simply because we

                                              8
may disagree with the verdict. See id. at 417. As an appellate court, we are not justified

in ordering a new trial unless there is some objective basis in the record demonstrating that

the great weight and preponderance of the evidence contradicts the jury’s verdict. See id.

Additionally, an appellate opinion addressing factual sufficiency must include a discussion

of the most important evidence that appellant claims undermines the jury’s verdict. Sims

v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).


       Appellant does not specifically challenge the evidentiary support for any particular

element of the offense of murder. Rather, appellant contends that the evidence was legally

insufficient to allow a rational jury to conclude that he was not acting in self-defense when

he killed Garcia. Reviewing the evidence in the light most favorable to the verdict, there

is no evidence that the initial altercation between appellant and Garcia was anything more

than a fist fight. While the evidence reflects that Garcia got the better of this fight, there

is no evidence that appellant ever believed that Garcia was using or attempting to use

deadly force against appellant. See § 9.32(a)(3)(A). Further, there is no record evidence

nor any allegation that Garcia was committing or attempting to commit any of the offenses

justifying the use of deadly force. See § 9.32(a)(3)(B). As such, even were we to assume

that appellant was justified in using force against Garcia to defend himself, we cannot

conclude that the jury acted irrationally in impliedly finding that appellant was not justified

in his use of deadly force. We overrule appellant’s second issue.


       Appellant’s main argument that the evidence is factually insufficient to support his

conviction for murder is that the great weight of the evidence established that he was

acting in self-defense. Again, however, there is no evidence that appellant believed that

                                              9
Garcia was using or attempting to use deadly force against him. See § 9.32(a)(3)(A). Nor

is there any record evidence or allegation that Garcia was committing or attempting to

commit any of the offenses justifying the use of deadly force. See § 9.32(a)(3)(B).

Reviewing the evidence in a neutral light, pictures of appellant following his fight with

Garcia show that he was injured in the altercation, however, hospital records reveal that

his injuries included a laceration above his left eye and facial swelling. Appellant was

advised to treat his injuries with ice and Tylenol. Considering the absence of evidence that

Garcia provoked appellant to kill him by using or attempting to use deadly force against

appellant and considering that the extent of appellant’s injuries did not allow a reasonable

inference that appellant was reasonably placed in fear for his life, we cannot conclude that

the jury acted irrationally in impliedly rejecting appellant’s self-defense justification and

finding him guilty of the murder of Garcia. We overrule appellant’s third issue.


                          Factual Sufficiency - Sudden Passion


       Appellant contends that the evidence was factually sufficient to prove that he killed

Garcia in the immediate influence of sudden passion. During the punishment phase of a

murder trial, the defendant may raise the issue of whether he caused the death under the

immediate influence of sudden passion arising from an adequate cause. § 19.02(d).

“Sudden passion” is “passion directly caused by and arising out of provocation by the

individual killed or another acting with the person killed which passion arises at the time of

the offense and is not solely the result of former provocation.” § 19.02(a)(2). “Adequate

cause” is “cause that would commonly produce a degree of anger, rage, resentment, or

terror in a person of ordinary temper, sufficient to render the mind incapable of cool

                                             10
reflection.” § 19.02(a)(1). Sudden passion is a mitigating circumstance that, if proven by

a preponderance of the evidence, reduces the offense from a first degree felony and is

treated as a second degree felony. Id.; McKinney v. State, 179 S.W.3d 565, 569

(Tex.Crim.App. 2005). It is the defendant that bears the burden of proving the issue of

sudden passion. See Hernandez v. State, 127 S.W.3d 206, 211-12 (Tex.App.–Houston

[1st Dist.] 2003, pet. ref’d). When a defendant seeks review of a jury’s failure to make a

finding on which the defendant had the burden of proof, the defendant invokes our factual

review jurisdiction. Naasz v. State, 974 S.W.2d 418, 421 (Tex.App.–Dallas 1998, pet.

ref’d) (citing Meraz v. State, 785 S.W.2d 146, 154-55 (Tex.Crim.App. 1990)). In a factual

sufficiency review, we consider all of the evidence relevant to the issue to determine

whether the judgment is so against the great weight and preponderance of the evidence

as to be manifestly unjust. Id.


       Appellant focuses his argument in regard to the issue of sudden passion on which

party initiated the initial confrontation between appellant and Garcia. Appellant contends

that the evidence is clear that Garcia was the aggressor in the initial confrontation, that

Garcia got the better of the ensuing fight, and that appellant attempted to halt the fight by

attempting to push Garcia out of the house. Our review of the evidence reveals that

appellant’s ex-wife, who witnessed the events on the night in question, was unable to

identify who was the aggressor in the initial confrontation. However, regardless of who was

the aggressor in this initial confrontation, appellant indicates in the statement he gave to

the police that, after the initial confrontation, appellant went into the kitchen for

approximately five minutes to get a drink of water and to catch his breath.           While


                                             11
appellant’s statement indicates that Garcia taunted him during this five minute period,

appellant’s ex-wife’s testimony was that Garcia had left the residence during this time.

Therefore, whether appellant killed Garcia while in the immediate influence of sudden

passion or whether appellant would have been capable of calm reflection during this five

minute cooling off period was a question of fact for the jury to resolve. Because the

resolution of this conflicting evidence turns on an assessment of the weight and credibility

to be afforded the evidence, we will defer to the jury. See Johnson v. State, 23 S.W.3d 1,

8 (Tex.Crim.App. 2000).


       Appellant additionally indicates that he found out on the night in question that the

daughter that he thought was his was not. Again, however, appellant’s ex-wife testified in

a contrary manner. Appellant’s ex-wife testified that she had told appellant on a few

occasions months before the night of Garcia’s death that the child was not appellant’s.

Thus, whether appellant learned that the child was not his on the night in question and

whether such fact would constitute adequate cause were fact questions for the jury to

resolve. See id.


       Because the evidence relating to whether appellant acted in the immediate influence

of sudden passion was subject to conflicting testimony and the resolution of the resulting

fact issues depended on a determination of the weight and credibility to be afforded the

evidence, we conclude that the jury’s rejection of appellant’s sudden passion defense is

not so against the great weight and preponderance of the evidence as to be manifestly

unjust. See Naasz, 974 S.W.2d at 421. We overrule appellant’s fourth issue.



                                            12
                                      Conclusion


      We affirm the judgment of the trial court.




                                                   Mackey K. Hancock
                                                        Justice




Do not publish.




                                           13
