                               Fourth Court of Appeals
                                      San Antonio, Texas
                                                OPINION
                                          No. 04-14-00367-CR

                                      Andres Alfredo SEGOVIA,
                                              Appellant

                                                     v.

                                         The STATE of Texas,
                                               Appellee

                    From the 399th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2012CR8592
                             Honorable Ray Olivarri, Judge Presiding 1

Opinion by:      Patricia O. Alvarez, Justice

Sitting:         Patricia O. Alvarez, Justice
                 Luz Elena D. Chapa, Justice
                 Jason Pulliam, Justice

Delivered and Filed: April 29, 2015

AFFIRMED

           Appellant Andres Alfredo Segovia was charged by indictment with the murder of Joel

Flores; the State provided notice of intent to enhance Segovia’s penalty with two prior felony

convictions. The jury subsequently found Segovia guilty and assessed punishment at fifty-five

years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. On

appeal, Segovia contends the trial court erred as follows: (1) denying the testimony of defense



1
  The Honorable Ray Olivarri presided over the guilt/innocence portion of the trial. The punishment phase was
presided over by the Honorable George Godwin.
                                                                                       04-14-00367-CR


investigator Manuel Alfaro; (2) allowing the testimony of Bexar County Sheriff’s Deputy Miguel

Tena Mora; (3) failing to include a sudden passion instruction in the court’s jury charge; and (4)

instructing the jury “you will find” Segovia’s enhancement allegations to be true. We affirm the

trial court’s judgment.

                             FACTUAL AND PROCEDURAL BACKGROUND

       Because whether Appellant Andres Alfredo Segovia shot and killed Joel Flores is not at

issue, we need not provide an in-depth recitation of the facts.

       The incident leading to Flores’s death began earlier in June of 2012. Segovia and his

girlfriend, Shannon Rodriguez, were at a bar when a fight ensued between Segovia and the Flores

brothers. Segovia and the Flores brothers all lived in the same apartment complex. By his own

admission, on June 8, 2012, Segovia came home from work, set out to find Joel Flores, and

approached the Flores apartment with a bat. The testimony supports that Segovia screamed up at

the apartment, but did not actually approach the apartment. Segovia ultimately left the area and

returned to his apartment.

       After several hours, Segovia returned to the parking area outside the Flores apartment and,

from the parking lot, called up to Joel Flores. Instead of a bat, however, Segovia brought a .40

caliber firearm. A friend of Flores attempted to calm the situation, but things unraveled quickly

and the friend soon found himself being used by Segovia as a shield. Flores and Segovia shot at

each other. Flores died as a result of a gunshot wound.

       Segovia was indicted for murder and the State filed a notice of intent to use two prior

convictions for enhancement purposes. Segovia elected to have his case heard before a jury. After

five days of trial, the jury convicted Segovia and ultimately assessed punishment at fifty-five years’

confinement in the Institutional Division of the Texas Department of Criminal Justice.



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       On appeal, Segovia contends the trial court erred in allowing the State to present evidence

that Segovia was affiliated with the Mexican Mafia and in excluding pictures of the crime scene

taken by the defense. Segovia also contends the trial court erred in failing to include a sudden

passion instruction in the jury charge on punishment; and, in the absence of a plea of true, the

charge incorrectly directed the jury that “you will find,” rather than “if you find,” Segovia’s

enhancement allegations to be true.

       We first address Segovia’s evidentiary issues.

                                      ADMISSION OF EVIDENCE

       Segovia contends the trial court erred in excluding the testimony of the defense

investigator, Manuel Alfaro, and the pictures that Alfaro took of the crime scene. Segovia also

argues the trial court erred in allowing the testimony of Bexar County Deputy Miguel Tena Mora

regarding Segovia’s gang affiliation.

       We address each witness individually.

A.     Standard of Review

       We review a trial court’s decision to admit or exclude evidence under an abuse of discretion

standard. Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006); Weatherred v. State,

15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Sandoval v. State, 409 S.W.3d 259, 297 (Tex. App.—

Austin 2013, no pet.). A trial court abuses its discretion if it acts arbitrarily or unreasonably,

without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380

(Tex. Crim. App. 1991) (op. on reh’g); accord Thompson v. State, 274 S.W.3d 776, 778 (Tex.

App.—San Antonio 2008, no pet.). When considering a trial court’s decision to admit or exclude

evidence, we will not reverse the ruling unless it falls outside the “zone of reasonable

disagreement.” McGee v. State, 233 S.W.3d 315, 318 (Tex. Crim. App. 2007); see also Jessop v.

State, 368 S.W.3d 653, 686 (Tex. App.—Austin 2012, no pet.).
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B.     Testimony of Manuel Alfaro and Photographs Taken by Alfaro

       Segovia sought to have Alfaro testify about photographs he took of the crime scene. The

trial court sustained the State’s objection and did not admit the photographs or allow Alfaro to

testify. Segovia claims the trial court erroneously excluded the testimony of Alfaro due to Alfaro’s

testimony allegedly violating Texas Rule of Evidence 614, the witness sequestration rule. See

TEX. R. EVID. 614.

       1.      Arguments of the Parties

       Segovia argues that Rule 614’s concerns for any improper influence on a witness do not

apply because Alfaro’s proffered testimony was limited to when and where the proposed

photographs were taken. Accordingly, any testimony heard by Alfaro during the trial would not

influence his testimony before the jury. Additionally, Segovia contends Alfaro was never listed

as a defense witness because no one either contemplated or planned for Alfaro to testify.

       The State counters that the trial court’s exclusion was based on a determination that the

photographs were not relevant because the photographs were taken in 2014, two years after the

fact and were of little probative value.

       2.      Trial Court Ruling

       Alfaro was hired as the defense investigator. He consulted with the defense throughout

pretrial, during trial, provided his opinions to defense counsel, and reviewed the State’s file. After

the fourth day of trial, defense counsel requested Alfaro return to the scene of the shooting and

take additional photographs, specifically focusing on the balcony and the parking lot. Alfaro was

prepared to testify there were trees obstructing the view from the balcony to the parking lot area

where the alleged shooting took place. Alfaro took photographs from the balcony, looking down

into the parking lot. The State objected to the witness and photographs, and defense counsel argued

there was no violation under Rule 614. See id.
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       The trial court held as follows:

       You know, I don’t think it’s relevant because it’s not the same view that they had
       when it happened. It’s a completely different view now and for that reason and for
       him being—you invoked the Rule, he was present. I’m not going to allow him to
       testify.

Because the trial court excluded the evidence based on relevancy, we need not address whether

Alfaro violated the Witness Sequestration Rule. Cf. Russell v. State, 155 S.W.3d 176, 179–80

(Tex. Crim. App. 2005) (explaining the purpose of invoking the rule is to prevent potential

witnesses from being influenced by, or modifying their testimony because of, the testimony of

other witnesses). We, therefore, turn to a determination of whether the trial court erred in

excluding the testimony and photographs based on relevancy.

       3.        Relevancy Determination

       Although Segovia contends the jury and not the trial court should have determined whether

the photographs were taken from a “completely different view,” Texas Rule of Evidence 104(a)

dictates the initial question in deciding whether to admit evidence at trial is a preliminary question

to be decided by the trial court. TEX. R. EVID. 104(a); Tienda v. State, 358 S.W.3d 633, 637 (Tex.

Crim. App. 2012). Only relevant evidence is admissible. TEX. R. EVID. 402; Montgomery, 810

S.W.2d at 375.

       “Relevant evidence is ‘evidence having any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable or less probable than it would

be without the evidence.’” Manuel v. State, 357 S.W.3d 66, 74 (Tex. App.—Tyler 2011, pet. ref’d)

(quoting TEX. R. EVID. 401). A proponent of evidence is not required to “rule out all possibilities

inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports

to be.” Campbell v. State, 382 S.W.3d 545, 549 (Tex. App.—Austin 2012, no pet.) (internal

quotation marks omitted). “The preliminary question for the trial court to decide is simply whether


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the proponent of the evidence has supplied facts that are sufficient to support a reasonable jury

determination that the evidence he has proffered is authentic.” Tienda, 358 S.W.3d at 638; see

also Manuel, 357 S.W.3d at 74 (stating “proponent must only produce sufficient evidence that a

reasonable fact finder could properly find genuineness”).

       Under Rule 403, even relevant evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the

jury, or needless presentation of cumulative evidence. See TEX. R. EVID. 403. To be relevant, the

photograph must “be a correct representation of the subject at a given time.” Delacerda v. State,

425 S.W.3d 367, 393 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (citing Huffman v. State,

746 S.W.2d 212, 222 (Tex. Crim. App. 1988)). “[A] trial court may exclude any relevant evidence

if its probative value is substantially outweighed by any or all of the countervailing factors

specified in Rule 403.” Winegarner v. State, 235 S.W.3d 787, 791 (Tex. Crim. App. 2007) (citing

Gigliobianco v. State, 210 S.W.3d 637, 640 (Tex. Crim. App. 2006)).

       4.      Analysis

       Here, the photographs were taken from the apartment balcony looking into the parking lot.

The purpose was to show the jury the obstructed view created by the trees. But the photographs

actually depicted what the trees and parking lot looked like on May 2, 2014, not on the night of

the alleged offense—June 8, 2012. The trial court concluded the photographs were not relevant

because they did not depict the scene as it was on the night in question. See Saldano v. State, 232

S.W.3d 77, 101–02 (Tex. Crim. App. 2007) (holding photographs may be admitted to show what

verbal testimony described).

       We cannot conclude that the trial court’s determination was outside the zone of reasonable

disagreement or that the trial court abused its discretion when conducting a relevancy

determination. See Winegarner, 235 S.W.3d at 791 (providing trial court “considerable latitude”
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in determining “impact upon the jury, and to conduct the necessary balancing”). We, therefore,

overrule Segovia’s first issue.

C.     Testimony of Segovia’s Alleged Gang Affiliation

       Segovia next contends the trial court erred when it allowed the testimony of Bexar County

Deputy Miguel Tena Mora.

       1.      Arguments of the Parties

       Segovia argues the State’s testimony regarding Segovia’s involvement in the Mexican

Mafia violated the requirement that the State provide timely notice of its intent to offer extraneous

bad acts evidence.

       The State counters that because the testimony was offered during the punishment phase,

the proper test was an application of Texas Code of Criminal Procedure article 37.07 which only

requires reasonable notice be given to the defendant. The State further argues that any error was

harmless because Segovia was not surprised by the evidence and was able to counter with an

explanation.

       2.      Testimony in Question

       On April 30, 2014, during the guilt/innocence phase of the trial, but outside the presence

of the jury, the State moved to supplement its witness list and its Notice of Intent to Introduce

Evidence of Extraneous Offenses. The original notice was filed on September 13, 2012.

       The State: All right. Judge, for the record, at this time, based on some new
                  information that was discovered this morning, the State needs to
                  supplement its witness list and supplement the 404(b).

                            At this time, we need to supplement that Andres Segovia has
                     been identified as a member of the Mexican Mafia and, in fact, a ranking
                     member of the Mexican Mafia. We need to add that to the 404(b).

                              We are adding Bexar County Sheriff Deputy Miguel Tenamora
                     [sic] to our witness list and he’s a gang officer at the jail.


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                          And this information just came to us this morning. We’re still
                   checking into it. So as soon as we learned of it, I wanted to notify the
                   Court and the defense. As we get more information we’ll make the
                   defense aware.

       The Court: All right.

       Defense: Judge, it’s not in compliance with the statute that requires the State to
                turn over any 404(b) evidence in anticipation of the trial.

                           This case has been going on for quite some time. The idea that
                   the State did not know that there was an association is unfathomable to
                   me. Again, it’s not proper notice to the defense.

                   What?

       The State: Your Honor, last setting or a setting ago, I handed a paper to Mr.
                  Segovia and I—and the bailiffs admonished me for doing that. They said
                  because he is a known gang member, I couldn’t do that. So it’s been in
                  the purview of the State. So I don’t see that coming in the middle of trial
                  and if—this was the March setting. It wasn’t even this setting. Was it
                  even the March setting? There’s been so many. I don’t believe that it’s—

       Defense: Proper notice, Judge, it’s not.

       The State: For the record, it sounds like the defense has been aware of his gang
                  membership. The new information that we received this morning is
                  regarding his ranking position within the Mexican Mafia.

       Defense: That’s not true. They told her he had some membership. They didn’t tell
                them Mexican Mafia.

       The State: They didn’t tell me—

       Defense: Whenever I went to go visit him at the county jail, nobody ever told me
                that I had to wait for an additional period of time because he was in
                lockdown or he was in that particular mod. I had no knowledge of this,
                Judge.

       The Court: All right. Well, just get the information, and then I’ll make a ruling later.

The testimony was not offered during the guilt/innocence portion of the trial. However, five days

later, on May 5, 2014, during the punishment phase of the trial, the State again offered evidence




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of Segovia’s gang affiliation through a signed “gang letter.” The State explained that a gang letter

is provided to an individual upon entry into the Bexar County Jail.

       The State: . . . they’re given an opportunity to state if they are a member of a gang.
                   The purpose of it is to try to house those same members together so they
                   cannot try to either recruit others in the jail to join their gang or have
                   potential conflict with others in the gang.

       In this case, because Segovia signed a letter acknowledging his membership in the Mexican

Mafia, he was placed in the unit with other Mexican Mafia members. The prosecutor, however,

argued that she did not learn until that morning that Segovia was “a ranking member—the ranking

member of the Mexican Mafia.”

       Defense counsel objected to the admission of any evidence pertaining to Segovia’s gang

membership explaining that Segovia had been incarcerated since shortly after the incident in 2012

and the State should have had knowledge of (1) the alleged gang affiliation, and (2) his signing of

a gang letter, prior to April 30, 2014. The State responded that Segovia himself signed the gang

letter and, thus, the State’s evidence that Segovia is a “ranking member of the Mexican Mafia”

could not cause any type of undue surprise to the defense.

       The trial court opined there was a difference between the information that he is a gang

member and the specific evidence of his being “a ranking member.” In overruling defense

counsel’s objection, the trial court warned:

       I’m going to tell [the State] to be very, very careful. I think the prospect that he is
       a gang member is probably—should be admissible, despite the lack of notice.
       Going any further, this ranking member business, or any of—you know, gang
       government protocol, for lack of a better way to say it, I’ve got problems with that.

       Defense counsel followed up with an objection that the evidence being offered was more

prejudicial than probative. See TEX. R. EVID. 401, 403. After Deputy Tena Mora testified under

a proffer of testimony, the trial court again overruled defense counsel’s objection. Once again, the

trial court warned that its ruling was not “with regard to each and every specific question that was
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asked during the proffer.” The trial court clarified that it was not ruling on the admissibility of the

gang letter itself.

        3.      Proper Punishment Evidence

        Evidence offered during the punishment phase establishing Segovia’s membership,

affiliation, or association with a gang, specifically the Mexican Mafia, constitutes extraneous

evidence of crimes or bad acts governed by article 37.07 of the Texas Code of Criminal Procedure

and Rule of Evidence 404(b). See TEX. CODE CRIM. PROC. ANN. art 37.07, § 3(g) (West Supp.

2014) (citing TEX. R. EVID. 404(b)).

        Article 37.07 provides that, “[o]n timely request of the defendant,” the State must provide

“reasonable notice . . . in advance of trial” of its intent to introduce extraneous-conduct evidence.

See Nance v. State, 946 S.W.2d 490, 492 (Tex. App.—Fort Worth 1997, pet. ref’d). “The purpose

of the notice requirement is to enable the defendant to prepare to meet the extraneous offense

evidence.” Roethel v. State, 80 S.W.3d 276, 282 (Tex. App.—Austin 2002, no pet.) (op. on reh’g).

Any deficiency in notice is analyzed on how it affected a defendant’s “ability to prepare for the

evidence.” Id.; see also Nance, 946 S.W.2d at 493 (explaining the notice requirement avoids unfair

surprise and trial by ambush).       The reasonableness of the notice turns on the facts and

circumstances of each case. Scott v. State, 57 S.W.3d 476, 480 (Tex. App.—Waco 2001, pet.

ref’d); Patton v. State, 25 S.W.3d 387, 392 (Tex. App.—Austin 2000, pet. ref’d).

        The trial court has broad discretion to admit or exclude extraneous-conduct evidence. See

Garcia v. State, 239 S.W.3d 862, 866 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (citing

Brooks v. State, 76 S.W.3d 426, 435 (Tex. App.—Houston [14th Dist.] 2002, no pet.)) (applying

this standard of review to admission of extraneous conduct evidence over objection based on

article 37.07, section 3(g)’s notice requirements). The courts have long held that testimony

regarding a defendant’s affiliation with a gang may be relevant and admissible at the punishment
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phase to show the defendant’s character. See Beasley v. State, 902 S.W.2d 452, 456 (Tex. Crim.

App. 1995); Anderson v. State, 901 S.W.2d 946, 950 (Tex. Crim. App. 1995); Ho v. State, 171

S.W.3d 295, 305 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (“Even if appellant was no

longer affiliated with the gang at the time of the shooting, evidence that he was a gang member is

relevant—and thus admissible at punishment—because it relates to his character.”). The evidence

need not link the accused to the bad acts or misconduct generally engaged in by gang members, so

long as the fact-finder is

                1) provided with evidence of the defendant’s gang membership,
                2) provided with evidence of character and reputation of the gang,
                3) not required to determine if the defendant committed the bad acts or
                   misconduct, and
                4) only asked to consider reputation or character of the accused.

See Beasley, 902 S.W.2d at 457; accord Jessop, 368 S.W.3d at 693.

         4.     Analysis of Evidence under Texas Code of Criminal Procedure Article 37.07

         Deputy Tena Mora’s testimony that Segovia signed a form indicating his affiliation with

the Mexican Mafia is sound evidence of his gang membership. Deputy Tena Mora also provided

testimony consistent with the requirements set forth in Beasley. See Beasley, 902 S.W.2d at 457.

Accordingly, the trial court did not abuse its discretion in admitting the evidence under article

37.07.

         We acknowledge, however, Segovia’s complaint is focused specifically on the lack of

notice. TEX. CODE CRIM. PROC. ANN. art 37.07, § 3(g). The State possessed this information for

almost two years and provided notice of extraneous offenses—but without the gang-affiliation

information—more than eighteen-months prior to the trial.

         Whether the notice was timely is of no accord if Segovia did not suffer harm. We,

therefore, look at any harm associated with the State’s amended notice of extraneous bad acts

offered after the start of the trial.
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       5.      Harm Analysis

       “‘The admission of an extraneous offense into evidence during the punishment phase when

the State failed to provide notice required by statute is non-constitutional error.’” Gonzalez v.

State, 337 S.W.3d 473, 485 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (quoting Ruiz v.

State, 293 S.W.3d 685, 695 (Tex. App.—San Antonio 2009, pet. ref’d)). “An appellate court may

reverse a judgment of conviction or punishment based on a non-constitutional error only if that

error affected the defendant’s substantial rights.” Id. (citing TEX. R. APP. P. 44.2(b)). Because the

purpose of article 37.07, section 3(g) is to avoid unfair surprise and enable the defendant to prepare

to answer the extraneous misconduct evidence, this court must analyze whether and how the notice

deficiency affected Segovia’s ability to prepare for this evidence. Roethel, 80 S.W.3d at 281–82.

       This court’s examination analyzes the record to determine whether the deficient notice

resulted from prosecutorial bad faith or prevented the defendant from preparing for trial. Id. at

282. Specifically, this court must answer whether Segovia was surprised by the substance of the

testimony and whether any surprise affected his ability to prepare for cross-examination or present

mitigating evidence. Id. at 282; see also Allen v. State, 202 S.W.3d 364, 369 (Tex. App.—Fort

Worth 2006, pet. ref’d). A 37.07 violation of a notice requirement does not have an “injurious”

effect on the verdict if the defendant was not surprised by the evidence. See Hernandez v. State,

176 S.W.3d 821, 825 (Tex. Crim. App. 2005) (holding that evidence admitted in violation of rule

of evidence 404(b)’s notice requirement is not harmful error if defendant not surprised by

evidence); see also Roethel, 80 S.W.3d at 281–82.

       Segovia’s counsel was provided with notice that the State intended to use the testimony of

Deputy Tena Mora on Wednesday, April 30, 2014. The testimony was offered to the jury on

Monday, May 5, 2014. Defense counsel did not request a continuance or indicate that he needed

additional time to prepare his defense in light of the State’s proffer. See Pelache v. State, 324
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S.W.3d 568, 577 (Tex. Crim. App. 2010) (identifying “appellant did not request a continuance,

appear surprised by the allegations, or argue that he was unprepared to defend against the prior

conviction allegations”).

       It would be difficult to imagine that Segovia would be surprised by his gang involvement

considering that he signed the paperwork upon which the State relied. Segovia testified that he

initialed “affiliated” because “the only option on there was member.” He further explained the

officer brought the paper in and told him to initial it, so he did. Segovia testified that his only

option was “active or nonactive.” Keeping in mind that Segovia had numerous previous arrests

and had been processed by the Bexar County Jail on numerous occasions, the process would not

have been new to Segovia.

       Segovia further denied that he had been associated with the Mexican Mafia since 1994. To

the contrary, Segovia testified that the only reason they classified him as a gang member was

because of his tattoos: if you have a Spurs tag, “you will be classified as the Tango Orejon . . . for

any type of cultura . . . you are classified as Mexican Mafia over anything else.” Segovia knew

his classification was Mexican Mafia. He signed the form and resided in the Bexar County Jail

with the other Mexican Mafia inmates. The trial court could have reasonably determined that

Segovia did not suffer any surprise.

       Accordingly, we cannot say that Segovia was surprised by the substance of Deputy Tena

Mora’s testimony, i.e., Segovia’s affiliation with the Mexican Mafia. Roethel, 80 S.W.3d at 282;

Hernandez, 176 S.W.3d at 825; Allen, 202 S.W.3d at 369. Neither can we say that five-days’

notice adversely affected Segovia’s ability to prepare his defense. Roethel, 80 S.W.3d at 282.

Because the testimony did not affect Segovia’s substantial rights, we overrule Segovia’s second

issue. See Gonzalez, 337 S.W.3d at 485 (citing TEX. R. APP. P. 44.2(b)).

       We turn next to Segovia’s alleged error in the trial court’s charge on punishment.
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                                       PUNISHMENT CHARGE

A.     Arguments of the Parties

       Segovia asserts two errors in the trial court’s charge: (1) failure to include a sudden passion

instruction and (2) instructing the jury that “you will find” rather than “if you find” on the habitual

offender instruction.

       The State counters that Segovia’s testimony, specifically his admission to committing the

enhancement allegations, foreclosed any possibility that he would be eligible for a reduced penalty

range provided by the “sudden passion” finding. Additionally, even assuming the trial court’s

charge was in error, Segovia did not suffer any harm.

B.     Standard of Review

       A trial court’s denial of a requested jury instruction on a defensive issue is reviewed for

abuse of discretion. See Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000); accord

Serrano v. State, No. 01-13-00975-CR, 2015 WL 456511, at *4 (Tex. App.—Houston [1st Dist.]

Feb. 3, 2015, no pet. h.). Appellate review of alleged jury charge error generally involves a two–

step process. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012); Ngo v. State, 175

S.W.3d 738, 743 (Tex. Crim. App. 2005). First, we must determine whether error occurred.

Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013). If there is error in the charge, we

must then analyze whether sufficient harm resulted from the error to require reversal. Id.; Ngo,

175 S.W.3d at 744. If error has been properly preserved, as is the case here, reversal is required if

the error is “calculated to injure the rights of defendant,” meaning there must be some harm. See

TEX. CODE CRIM. PROC. ANN. art. 36.19 (West 2006); Sakil v. State, 287 S.W.3d 23, 25–26 (Tex.

Crim. App. 2009). The defendant must have “‘suffered some actual, rather than merely theoretical,

harm from the error.’” Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013) (quoting

Warner v. State, 245 S.W.3d 458, 462 (Tex. Crim. App. 2008)). We consider “‘the entire jury
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charge, the state of the evidence, including the contested issues and weight of probative evidence,

the argument of counsel and any other relevant information revealed by the record of the trial as a

whole.’” Barron v. State, 353 S.W.3d 879, 883 (Tex. Crim. App. 2011) (quoting Almanza v. State,

686 S.W.2d 157, 171 (Tex. Crim. App. 1981) (op. on reh’g), superseded on other grounds by rule

as stated in Rodriguez v. State, 758 S.W.2d 787, 788 (Tex. Crim. App. 1988)).

C.     Sudden Passion Instruction

       The defense requested a sudden passion instruction to be included in the trial court’s charge

on punishment.

       1.      Texas Penal Code Section 19.02(d)

       In a murder trial, a defendant may raise the issue of whether he caused the victim’s death

under the immediate influence of sudden passion arising from an adequate cause. See TEX. PENAL

CODE ANN. § 19.02(d) (West 2011); Wooten, 400 S.W.3d at 605. “Sudden passion” is defined as

“passion directly caused by and arising out of provocation by the individual killed or another acting

with the person killed which passion arises at the time of the offense and is not solely the result of

former provocation.” TEX. PENAL CODE ANN. § 19.02(a)(2); Wooten, 400 S.W.3d at 605. “The

mere fact that a defendant acts in response to the provocation of another is not sufficient to warrant

a charge on sudden passion.” Trevino v. State, 100 S.W.3d 232, 241 (Tex. Crim. App. 2003).

       “‘Adequate cause’ means cause that would commonly produce a degree of anger, rage,

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

reflection.” TEX. PENAL CODE ANN. § 19.02(a)(1); accord Wooten, 400 S.W.3d at 605. Adequate

cause is not determined by considering the defendant’s peculiar conditions, such as low mentality

or unstable emotions. See Gonzales v. State, 689 S.W.2d 900, 904 (Tex. Crim. App. 1985)

(quoting Hart v. United States, 130 F.2d 456, 458 (D.C. Cir. 1942)). Instead, adequate cause is

determined by applying the “person of ordinary temper” standard, which is the same as the
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reasonable person standard. See id. at 903. This approach is used to avoid differing applications

of the law. See id.

       Segovia contends the jury would at least have had the benefit of receiving the “sudden

passion arising from an adequate cause” instruction which Appellant’s attorney could have more

effectively argued for a sentence at the lower range of punishment.

       2.      Charge Conference

       The record indicates the trial court was concerned about jury confusion and provided a

relatively detailed explanation of why it chose to deny the defense request. As this court has

previously stated, “‘It is not the function of the charge merely to avoid misleading or confusing

the jury: it is the function of the charge to lead and to prevent confusion.’” Vogt v. State, 421

S.W.3d 233, 238–39 (Tex. App.—San Antonio 2013, pet. ref’d) (quoting Reeves, 420 S.W.3d at

818). The trial court explained as follows:

              I understand the defendant’s special requested charge wanting to get
       voluntary manslaughter, thereby reducing the punishment. However, when the
       defendant testified, the defendant admitted to the two prior felony convictions. With
       that admission in the record and the state of the record, that would mean the
       punishment range would be a minimum of 25 to 99 or life in the penitentiary.

       ....

               So despite the argument that the evidence could be construed to show some
       evidence from somewhere—which I understand. I understand the burden and I
       understand the requirement, a scintilla of evidence raising the issue that if a murder
       happened or the taking of a life was the result of adequate cause and sudden passion,
       then the defense is required—or the Court is required to submit that to the jury.

              However, since the defendant has admitted that he does have two prior
       felony convictions, then that would make that practically moot.

              Due to the fact that I believe that submitting it would be confusing—I
       haven’t heard—I haven’t heard a whole lot of lawyers who understand it. That it
       would—the only reason to raise it is for the lower possible punishment range.




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                 Since that lower possible punishment range is no longer a legal possibility,
       it is in fact a legal impossibility, I think it would be superfluous and confusing and
       actually impede the jury’s deliberation on this.

The trial court subsequently denied the instruction. Defense counsel argued the sudden passion

instruction would provide a comparison for the jury when assessing the range of punishment. The

trial court overruled defense counsel’s objections.

       3.      Application

       Segovia argued before the trial court, and again on appeal, that the sudden passion charge

would have allowed the jury to consider the lower end of the penalty range. Specifically, Segovia

contends that being able to point to the charge with a definition of sudden passion would have

persuaded the jury to impose a lesser sentence. We disagree.

       During closing arguments, defense counsel argued “sudden passion” before the jury. He

argued that Segovia’s actions were in the heat of the moment and, based on a “situations like that,”

Segovia did not deserve “a harsh sentence.”

               And again, if you put yourself in that situation or if you’ve ever seen a
       situation where things happen instantaneously—and we’ve all been involved in
       situations like that, thankfully they’re not as tragic as this—that you’re not making
       rational judgments. So in his mind’s eye, there’s shooting going on and there’s
       shooting and Eric is shooting. And you saw all the physical evidence pointing to
       the fact that my client’s hiding for cover and shooting back.

                 We don’t know. They never properly told us in fact who shot who, if in fact
       it happened. But you found him guilty and, again, we accept it for whatever reason
       or logic that you came to that conclusion. We accept it. But the fact of the matter
       is, it’s important because it goes to punishment.

               My client did not turn around and, bang, shoot him point-blank in the head.
       That is absolutely impractical. It couldn’t happen under those circumstances
       because of the fear that was expressed by my client, the fear for his own life. And
       he ran away.

       ....




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               As the State pointed out, he made choices. But does this circumstance of
       what happened that night truly justify a harsh sentence? Truly? I think not. But
       that’s your decision.

       The trial court clearly believed the instruction would confuse, as opposed to assist the jury

in its understanding of the charge. See Vogt, 421 S.W.3d at 238–39; Reeves, 420 S.W.3d at 818.

In this case of first impression, we are asked to determine whether a defendant who presents

evidence on the statutory requirements of the requested instruction, but is prohibited from

receiving the statutory benefit of the requested instruction, is entitled to the instruction. Compare

Vogt, 421 S.W.3d at 238–39; Reeves, 420 S.W.3d at 818 with Bufkin, 207 S.W.3d at 781–82;

Wesbrook, 29 S.W.3d at 122. Here, although Segovia may have presented evidence on the

question of sudden passion, as a felony habitual offender, Segovia was not entitled to the second-

degree penalty range contained within the instruction.

       To give the instruction requested by defense counsel could have potentially led jurors to

believe that a penalty range of two years to twenty years’ confinement was a possibility. See

Bufkin, 207 S.W.3d at 782 (reviewing court’s denial of the defendant’s requested instruction).

Such a discrepancy in the charge could have potentially been misleading or allowed for some form

of jury nullification. Based on the record before this court, we cannot say the trial court abused its

discretion in denying the requested instruction. See Wesbrook, 29 S.W.3d at 122. Accordingly,

we overrule Segovia’s issue regarding the sudden passion instruction.

E.     Habitual Felony Offender

       Segovia next argues that the trial court’s failure to solicit a plea on the State’s enhancement

allegations required the State to prove each enhancement allegation beyond a reasonable doubt.

Without a plea of true, Segovia contends the trial court erred in instructing the jury “you will find”

Segovia’s enhancement allegations to be true.



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       1.      Texas Penal Code Section 12.42(d)

       The State timely provided notice of its intent to use two prior convictions for enhancement

of punishment under Texas Penal Code section 12.42. See TEX. PENAL CODE ANN. § 12.42 (West

Supp. 2014). Texas Penal Code section 12.42(d), describing the penalty for habitual felony

offenders generally, provides that

       if it is shown on the trial of a felony offense other than a state jail felony punishable
       under Section 12.35(a) that the defendant has previously been finally convicted of
       two felony offenses, and the second previous felony conviction is for an offense
       that occurred subsequent to the first previous conviction having become final, on
       conviction the defendant shall be punished by imprisonment . . . for life, or for any
       term of not more than 99 years or less than 25 years.

Id. § 12.42(d) (emphasis added); see also Allen v. State, 865 S.W.2d 472, 474 (Tex. Crim. App.

1993) (concluding 12.42(d) is mandatory operation).

       “To establish a prior conviction for purposes of enhancement, the State must prove two

elements beyond a reasonable doubt: (i) the existence of a prior conviction; and (ii) the defendant’s

link to that conviction.” Wood v. State, 453 S.W.3d 488, 491 (Tex. App.—San Antonio 2014, pet.

filed) (citing Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007)). A defendant’s plea

of “true” to the enhancement allegation satisfies the State’s burden of proof. Wilson v. State, 671

S.W.2d 524, 525 (Tex. Crim. App. 1984). Absent a plea of “true,” the State must prove the two

elements by proof beyond a reasonable doubt, including introducing evidence such as the

defendant’s admission or stipulation or documentary proof. Flowers, 220 S.W.3d at 921–22. Both

parties agree the trial court’s instruction was proper had Segovia actually entered a plea of true.

However, because there was no plea, the burden of proof rested on the State and the trial court’s

charge usurped that burden. Id. Accordingly, the charge was in error.

       Finding error, we must conduct a harm analysis.




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       2.      Harm Analysis

       “Harm does not emanate from the mere failure to include the requested instruction.”

Wooten, 400 S.W.3d at 606 (citing Trevino, 100 S.W.3d at 241). In analyzing harm resulting from

a jury charge error, “[n]either the State nor the defense has a burden to prove harm.” Reeves, 420

S.W.3d at 816; accord Wooten, 400 S.W.3d at 606; Trevino, 100 S.W.3d at 241 (recognizing lack

of burdens in harm analysis and “the appellate court should make its own assessment as to whether

harm occurred”). Theoretical harm, however, is not sufficient. Reeves, 420 S.W.3d at 816.

        3.     Roberts v. State Analogy

       The court’s analysis in Roberts v. State, 321 S.W.3d 545 (Tex. App.—Houston [14th Dist.]

2010, pet. ref’d), is instructive. Cf. Washington v. State, 677 S.W.2d 524 (Tex. Crim. App. 1984),

overruled on other grounds, Bell v. State, 994 S.W.2d 173, 175 (Tex. Crim. App. 1999) (reviewing

testimony adduced during the guilt/innocence phase of the trial); Lewis v. State, 814 S.W.2d 513

(Tex. App.—Houston [14th Dist.] 1991, pet. ref’d) (reviewing appellant’s entry of a plea of not

true to the enhancement allegations).

       In Roberts, the State sought to use four prior convictions to enhance Robert’s punishment.

Roberts, 321 S.W.3d at 553. Roberts entered a plea of true to the first three enhancement

allegations, but “not true” to the fourth. Id. The trial court’s punishment charge instructed the

jury “to find” all four allegations true. Id. The appellate court looked at the entire record: (1) the

evidence adduced at both the guilt/innocence and the punishment phase, (2) the penitentiary

packets offered for the first three enhancement allegations, (3) the trial court judgment convicting

Roberts on the fourth enhancement allegation, and (4) Roberts’s testimony.                The court

acknowledged that because Roberts entered a plea of not true, the State was required to prove

beyond a reasonable doubt the existence of the prior conviction and Roberts’s link to the

conviction. Id. In proving such, the court noted, “[a]ny type of evidence, documentary or
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testimonial, can suffice.” Id. Reviewing the entire record, the court concluded that the evidence

was sufficient to make a finding of true as to the fourth enhancement allegation and Roberts did

not suffer egregious harm. Id. at 556.

        Importantly, because Roberts’s attorney did not object to the charge, the harm analysis was

a question of egregious harm. Id. at 553–54; cf. Vogt, 421 S.W.3d at 239 (explaining “where the

error is urged for the first time on appeal, a reviewing court will search for ‘egregious harm’”). In

this case, Segovia’s attorney did object to the wording of the court’s charge, so this court need

only find “some harm” as a result of the error to obtain a reversal. Ngo, 175 S.W.3d at 743 (citing

Almanza, 686 S.W.2d at 171). The analysis, however, is the same. Roberts, 321 S.W.3d at 554.

         4.      Review of the Record

        The State introduced ten prior judgments of conviction, without objection from defense

counsel. During his testimony, Segovia admitted to the two prior convictions set forth in the

State’s enhancement allegations; both allegations were convictions for felony assault on a family

member in cause number 2006-CR-6793 (convicted August 27, 2007) and 2001-CR-5442

(convicted June 13, 2002). He also admitted to the other convictions offered by the State. 2

        The State: Are you the same Andres Alfredo Segovia who in 2011-CR-5442 was
                   convicted of the offense of assault family-second offense on August 6th,
                   2002?

        Segovia:     Yes, sir.

        The State: And I apologize for the cause number. It’s 2001-CR-5442. Is that—are
                   you the same person?

        Segovia:     Yes, sir.




2
 The additional offenses included two felony convictions for unauthorized use of a motor vehicle, one misdemeanor
conviction for unlawful carrying of a firearm, four misdemeanor convictions for assault causing bodily injury, and
one misdemeanor conviction for failure to identify to a police officer.

                                                      - 21 -
                                                                                    04-14-00367-CR


       The State: Are you also the same Andres Alfredo Segovia who in Cause Number
                  2006-CR-6793 was convicted of the offense of assault family-second
                  offense on August 27th of 2007? Are you the same individual?

       Segovia:   Yes.

       The State: And rather than spend another few minutes here, you earlier heard the
                  State admit Exhibit No. 69 through 78, your criminal judgments,
                  correct?

       Segovia:   Yes, sir.

       The State: Are you the same individual who was convicted in each of those cases?

       Segovia:   Yes, sir, I am.

       The State: All 10 of them?

       Segovia:   Yes, sir.

       Additionally, during closing argument, defense counsel acknowledged his criminal

history—“Yes, [Segovia] does have a criminal history. We don’t deny that.”

       5.     Application

       Although it was the State’s burden to obtain a plea of true on the record, Segovia must have

suffered “some” harm. See Reeves, 420 S.W.3d at 816. On the record before this court, there was

no evidence refuting the enhancement allegations. Segovia did not plead true to some and not true

to others. He admitted both of the enhancement allegations, as well as the eight other offenses

presented during the punishment phase. “During trial proceedings, the evidence of [Segovia’s

guilt on the enhancement allegations] was undisputed, uncontradicted, and seemed to have been

taken as a ‘given’ by the parties.” Buckley v. State, No. 14-12-00202-CR, 2013 WL 865567, at *3

(Tex. App.—Houston [14th Dist.] 2013, Mar. 7, 2013, pet. ref’d) (mem. op., not designated for

publication) (citing Kucha v. State, 686 S.W.2d 154, 156 (Tex. Crim. App. 1985)). Even assuming

error, the record does not support any finding of harm. The appellant conceded as much during



                                              - 22 -
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oral argument. Segovia admitted the prior convictions and the jury therefore had no other options.

The jury was compelled to sentence Segovia under the enhanced penalty range.

       Segovia does not contend that the evidence is insufficient to support a finding of true.

Although the trial court erred in not obtaining an actual plea to the enhancement allegations, the

record overwhelming supports (1) the existence of Segovia’s prior convictions, and (2) Segovia’s

link to those convictions. Flowers, 220 S.W.3d at 921. Based on Segovia’s testimony and the

convictions admitted during the punishment phase, we cannot conclude that Segovia suffered any

harm and we, therefore, overrule Segovia’s last issue on appeal.

                                          CONCLUSION

       Having overruled each of Segovia’s issues on appeal, we affirm the trial court’s judgment.


                                                 Patricia O. Alvarez, Justice

PUBLISH




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