Opinion issued November 10, 2015




                                   In The

                            Court of Appeals
                                   For The

                        First District of Texas
                          ————————————
                           NOS. 01-14-00389-CR
                                01-14-00390-CR
                          ———————————
             JOHNATHAN RENARD CASTANEDA, Appellant
                                     V.
                     THE STATE OF TEXAS, Appellee


                 On Appeal from the 263rd District Court
                           Harris County, Texas
                Trial Court Cause Nos. 1350501 and 1350815



                        MEMORANDUM OPINION

      A jury convicted Johnathan Renard Castaneda of aggravated sexual assault

and murder. Castaneda pleaded true to an enhancement paragraph, and the court

assessed his punishment at a mandatory life sentence for the aggravated sexual
assault and 45 years in prison for the murder. On appeal, Castaneda contends that

legally insufficient evidence supports his conviction for aggravated sexual assault

with a deadly weapon. He further contends that the trial court erred: (1) when it

denied his requests for lesser-included offense jury instructions for aggravated

assault and manslaughter; (2) in failing to instruct the jury that the State bears the

burden of disproving a self-defense claim; and (3) in failing to hold an evidentiary

hearing on his motion for a new trial. Finally, he contends that the DNA court cost

assessed against him is an unconstitutional tax. We affirm.

                                     Background

      The State charged Castaneda with the murder of Keith Armstrong and the

aggravated sexual assault of “P. Asberry.” 1 Armstrong lived down the street from

Castaneda’s grandfather. Castaneda frequently visited his grandfather and had

interacted with Armstrong a few times. Armstrong rented rooms in his home to

several people, including Asberry.

      Castaneda testified that, in June 2013, he visited Armstrong’s house and had

sex with Asberry, in exchange for giving her $20 worth of crack cocaine.

Armstrong was to have received $30 or $60 as well, but Castaneda left without

seeing him or providing the money. According to Castaneda, “I cheated him out of

his money. I jacked him.”


1
      The complainant is identified by a pseudonym to protect her anonymity.
                                          2
      Later that day, Castaneda went back to Armstrong’s house.       Castaneda

explained to Armstrong that he was going to pay Armstrong as soon as he located

some wholesale crack cocaine. Castaneda left again. Later, he passed in front of

Armstrong’s house on his way to a bus stop. As Castaneda walked by, Armstrong

ordered him into the house at gunpoint.     Armstrong was angry and accused

Castaneda of taking the keys to Armstrong’s truck, which Castaneda denied.

Armstrong also ordered the house’s other occupants into the home.

      Armstrong searched for the keys for approximately 30 minutes. He then

held the gun to Asberry’s head and demanded the keys. She told him she did not

have the keys. While still holding the gun, Armstrong approached Castaneda and

asked for the keys. Castaneda hit Armstrong. He knocked him to the couch and

then to the floor. Asberry tried to intervene and Castaneda hit her. The other

people in the house also joined the fight. After hitting Armstrong and knocking

him to the ground, Castaneda then repeatedly kicked Armstrong in the face while

Armstrong lay on the ground unconscious. He then beat him repeatedly in the face

and the torso with a pipe.

      Castaneda testified in his own defense.      He admitted that he kicked

Armstrong, stating that he was trying to keep him down. He beat Armstrong in the

head with the pipe “like five times.” Castaneda agreed that he continued to hit

Armstrong with the pipe even though Armstrong had stopped moving after the


                                       3
second hit. He also admitted that he told police after the incident that he also had

hit Armstrong with the gun. At trial, he denied hitting Armstrong with the gun.

      Castaneda hit another occupant of the house with a chair and broke her arm,

but testified that “he didn’t mean to break her arm.” He dragged her to the street

by the ankles and left her by a storm drain.

      Asberry fled to the bathroom to hide. She heard Castaneda struggle with the

others in the house. Then Castaneda kicked in the bathroom door, still holding the

pipe, and ordered her to “suck my dick.” After performing oral sex, Castaneda

ordered her to turn around and then penetrated her vaginally and anally. Castaneda

denied sexually assaulting Asberry, but he agreed that he had told police that he

had hit Asberry with “a pole” and kicked down the bathroom door.

      Police arrived shortly after the fight and the assault. They found Armstrong

dead on the floor.      They observed Armstrong’s home destroyed and blood

everywhere.     Officers testified that the house was “all torn up,” “extremely

bloody,” “looked like a tornado had gone through,” and that “there was blood on

the walls [and] blood on the carpet.” Armstrong was beaten to an unrecognizable

point with his face “mashed in,” many teeth missing, and his head completely

misshapen from skull and facial fractures. He also had broken ribs, multiple neck

fractures, and a lacerated liver.




                                          4
      I.     Legal Sufficiency

      Castaneda contends that the evidence is not legally sufficient to support a

conviction of aggravated sexual assault. Specifically, he contends that there was

no evidence to show that he used or exhibited a deadly weapon during the assault.

      Standard of Review

      Under the standard of review for legal sufficiency challenges, evidence is

insufficient to support a conviction if, considering all the record evidence in the

light most favorable to the verdict, no rational factfinder could have found that

each essential element of the charged offense was proven beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); In re

Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071 (1970); Laster v. State, 275

S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750

(Tex. Crim. App. 2007).        We determine whether necessary inferences are

reasonable in light of the combined and cumulative force of all the evidence,

viewed in the light most favorable to the verdict. Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007). We presume that the factfinder resolved any

conflicting inferences in favor of the verdict and defer to that resolution. See

Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778. We

additionally defer to the factfinder’s evaluation of the credibility and weight of the

evidence. Williams, 235 S.W.3d at 750. The standard of review is the same for


                                          5
circumstantial and direct evidence. King v. State, 29 S.W.3d 556, 565 (Tex. Crim.

App. 2000).

      The statutory elements of aggravated sexual assault are: A person commits

aggravated sexual assault if he (1) intentionally or knowingly causes the

penetration of the anus or sexual organ of another person by any means (2) without

that person’s consent and (3) uses or exhibits a deadly weapon in the course of the

same criminal episode. TEX. PENAL CODE ANN. § 22.021 (West 2011). As set

forth in the State’s indictment, the State was required to show Castaneda used and

exhibited a deadly weapon.

      It is the deadly weapon finding that Castaneda challenges on appeal. For a

jury to find that the defendant used or exhibited a deadly weapon there must be

evidence that (1) the object meets the statutory definition of a deadly weapon; (2)

the deadly weapon was used or exhibited during the felony crime; and (3) other

people were put in actual danger. Drichas v. State, 175 S.W.3d 795, 798 (Tex.

Crim. App. 2005). Castaneda contends there was no evidence to prove that he

used or exhibited a deadly weapon, nor that Asberry was in any actual danger from

it.

      In Patterson v. State, the Texas Court of Criminal Appeals held that to

“exhibit” a deadly weapon, a defendant need only to have consciously displayed it

during the commission of the required felony offense. Patterson v. State, 769


                                        6
S.W.2d 938, 941 (Tex. Crim. App. 1989). In Plummer, the court further explained

that, for violent offenses, the verb “exhibits” implicitly contains an element of

“facilitation;” thus, one can “exhibit,” or consciously display, a deadly weapon,

without overtly using it to harm or threaten, because its intimidation value assists

in the commission of the felony. Plummer v. State, 410 S.W.3d 855, 862 (Tex.

Crim. App. 2013). In a “nonviolent offense that does not involve harm or the

threat of harm, the presence of a deadly weapon does not necessarily further or

facilitate the offense.”   Id.   Aggravated sexual assault is a violent offense.

Accordingly, a jury reasonably could have concluded that Castaneda displayed the

pipe to intimidate Asberry and facilitate his commission of a sexual assault. See

Plummer, 410 S.W.3d at 862.

      Castaneda observes that the jury heard conflicting testimony as to whether

Castaneda held the metal pipe during the assault. Asberry testified Castaneda held

the metal pipe while he kicked the bathroom door down and when he ordered her

to “suck my dick.” After she complied, he put the metal pipe on a table within

arm’s reach. In contrast, Castaneda denied that he ever possessed the metal pipe.

We defer to the jury’s evaluation of the credibility and weight of this conflicting

evidence. See Williams, 235 S.W.3d at 750. We presume that the jury resolved

this conflicting testimony in favor of the verdict. See Jackson, 443 U.S. at 326, 99

S. Ct. at 2793; Clayton, 235 S.W.3d at 778. Accordingly, we hold that legally


                                         7
sufficient evidence supports the jury’s determination that Castaneda used or

exhibited a deadly weapon during the commission of a sexual assault.

      Castaneda further contends that insufficient evidence demonstrates that

Asberry was endangered by the pipe. But Asberry testified that she had just

witnessed Castaneda beat Armstrong to death with the pipe immediately before he

assaulted her. Castaneda also had previously hit Asberry with the pipe when she

attempted to intervene in his altercation with Armstrong. Viewing the evidence in

the light most favorable to the verdict, the jury could have rationally found beyond

a reasonable doubt that Asberry was put in actual danger. See Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; Williams, 235 S.W.3d at 750; Drichas, 175 S.W.3d at 798.

Accordingly, we hold that there was legally sufficient evidence to support the

jury’s finding that Castaneda committed aggravated sexual assault.

      II.   Jury Charge Error

      Castaneda contends that the trial court erred in its instructions to the jury

when it denied his request to charge the jury on the lesser-included offenses of

aggravated assault and manslaughter. Castaneda further contends the trial court

erred when it did not instruct the jury on the burden of proof on self-defense

claims, causing him egregious harm.




                                         8
      Standard of Review

      When reviewing a trial court’s jury charge, we first determine if there was

an error in the charge. Nguyen v. State, 811 S.W.2d 165, 167 (Tex. App.—

Houston [1st Dist.] 1991, pet. ref’d). “If the error in the charge was the subject of

a timely objection in the trial court, then reversal is required if the error is

‘calculated to injure the rights of defendant,’ which means no more than that there

must be some harm to the accused from the error.” Reeves v. State, 420 S.W.3d

812, 816 (Tex. Crim. App. 2013) (quoting Almanza v. State, 686 S.W.2d 157, 171

(Tex. Crim. App. 1985) (emphasis in original). If the defendant did not object at

trial to the error in the charge, he must demonstrate that the error was

“fundamental” and that he suffered “egregious harm.” Id. Egregious harm results

from errors that affect “the very basis of the case,” “deprive the defendant of a

valuable right,” or “vitally affect a defensive theory.” Ngo v. State, 175 S.W.3d

738, 750 (Tex. Crim. App. 2005).

      A. Lesser-Included Offenses

      With respect to his conviction for murder, Castaneda contends that the trial

court erred when it failed to instruct the jury on the lesser-included offenses of

manslaughter and aggravated assault. We use a two-pronged test in determining

whether a defendant is entitled to an instruction on a lesser-included offense. See

Guzman v. State, 188 S.W.3d 185, 188–89 (Tex. Crim. App. 2006); Salinas v.


                                         9
State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005).             The first prong is to

determine whether an offense is a lesser-included offense of the charged offense.

Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007); Salinas, 163 S.W.3d at

741. This determination is a question of law and is not based on the evidence to be

produced at trial. Hall, 225 S.W.3d at 535. The Code of Criminal Procedure

defines lesser-included offenses in terms of the offense charged. Hayward v. State,

158 S.W.3d 476, 478 (Tex. Crim. App. 2005).            A lesser-included offense is

established when

      (1) it is established by proof of the same or less than all the facts
      required to establish the commission of the offense charged; (2) it
      differs from the offense charged only in the respect that a less serious
      injury or risk of injury to the same person, property, or public interest
      suffices to establish its commission; (3) it differs from the offense
      charged only in the respect that a less culpable mental state suffices to
      establish its commission; or (4) it consists of an attempt to commit the
      offense charged or an otherwise included offense.

TEX. CODE CRIM. PROC. ANN. art. 37.09 (West 2006); Hayward, 158 S.W.3d

at 478.

      Under the second prong, we determine whether some evidence exists that

would permit a rational jury to find that the defendant is guilty of the lesser offense

but is not guilty of the greater. Hall, 225 S.W.3d at 536; Salinas, 163 S.W.3d at

741; Feldman v. State, 71 S.W.3d 738, 750 (Tex. Crim. App. 2002). We review all

of the evidence presented at trial in order to make this determination. Rousseau v.

                                          10
State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993). If the evidence raises the

issue of a lesser-included offense, the trial court must charge the jury based on that

evidence, “whether produced by the State or the defendant and whether it be

strong, weak, unimpeached, or contradicted.” Id. at 672 (quoting Bell v. State, 693

S.W.2d 434, 442 (Tex. Crim. App. 1985)). But some affirmative evidence must

support the lesser-included offense; it is not enough that a jury might have

disbelieved a witness’s testimony. Skinner v. State, 956 S.W.2d 532, 543 (Tex.

Crim. App. 1997). Thus, there must be some evidence directly germane to the

lesser-included offense for a jury to consider before an instruction on the lesser

offense is warranted. Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App.

2012); Sweed v. State, 351 S.W.3d 63, 68 (Tex. Crim. App. 2011) (quoting

Skinner, 956 S.W.2d at 543). We review any error in refusing to instruct the jury

on a lesser-included offense for harm. See Saunders v. State, 913 S.W.2d 564,

569–74 (Tex. Crim. App. 1995).

      1. Manslaughter

      In this case, Castaneda was charged with murder under two definitions of the

Penal Code: (1) a person commits the offense of murder if he “intentionally or

knowingly causes the death of an individual;” or (2) “intends to cause serious

bodily injury and commits an act clearly dangerous to human life that causes the

death of an individual.” See TEX. PENAL CODE ANN. § 19.02(b)(1)–(2) (West


                                         11
2011). A person acts knowingly with respect to the result of his conduct when he

is aware that his conduct is reasonably certain to cause the result. TEX. PENAL

CODE ANN. § 6.03(b) (West 2011). A person acts recklessly with respect to the

result of his conduct when he is aware of but consciously disregards a substantial

and unjustifiable risk that the result will occur. Id. § 6.03(c).

      Castaneda requested a jury instruction on the lesser-included offense of

manslaughter. A person commits manslaughter if “he recklessly causes the death

of an individual.” TEX. PENAL CODE ANN. §19.04. The State concedes that

manslaughter is a lesser-included offense in this case because it differs from the

offense charged only with respect to the defendant’s level of intent, requiring a

lesser culpable mental state.      See TEX. CODE CRIM. PROC. ANN. art. 37.09;

Hayward, 158 S.W.3d at 478.

      We consider the entire record and determine whether some evidence exists

that would permit a rational jury to find that the defendant is guilty of the lesser

offense but is not guilty of the greater. Hall, 225 S.W.3d at 536; Salinas, 163

S.W.3d at 741; Feldman, 71 S.W.3d at 750; Rousseau, 855 S.W.2d at 673.

      At trial, Castaneda testified that he did not intend to kill Armstrong, and also

agreed that it was “not his intention during that evening to have people sustain the

kind of injuries and things that occurred out there.” Because Castaneda expressly

denied any intent to kill Armstrong and denied any intent that “to have people


                                           12
sustain the kind of injuries and things that occurred here,” he raised some evidence

to support an instruction on manslaughter as a lesser-included offense.         See

Rousseau, 855 S.W.2d at 672.

      But Castaneda’s own testimony elsewhere in the record negates

recklessness. With respect to Armstrong, Castaneda admitted to going “above and

beyond what was immediately necessary”:

      Q: And the whole beating, right, kind of messed up, wasn’t it?

      A: Yes, it was. I shouldn’t – I admit I shouldn’t have went and killed
      the man. That was never my intention of doing.

      Q. If he wasn’t moving that second time you hit him with whatever it
      was, you probably didn’t need to hit him that third or fourth or fifth
      time, did you?

      A. Yeah, I agree.

      Q. That was a little bit too much, wasn’t it?

      A. Yes, sir.

      Q. Kind of went above and beyond what was immediately necessary,
      didn’t it?

      A. Yes, sir. Yes, sir. Looking back at it now, yes, sir, it did.

      Q. Kind of looking back at it how an ordinary person would look at
      it, right?

      A. Yes, sir.

      Castaneda also admitted that that he continued to hit Armstrong with the

pipe after Armstrong was on the ground and had stopped moving. The State
                                         13
proffered uncontradicted evidence that Armstrong’s house was “all torn up,”

“extremely bloody,” “like a tornado had gone through,” and with “blood on the

walls [and] blood on the carpet.” Armstrong was beaten to an unrecognizable

point with his face “mashed in,” many teeth missing, and his head completely

misshapen from skull and facial fractures. He also had broken ribs, multiple neck

fractures and a lacerated liver.

      Having denied any intent to kill, Castaneda nevertheless admitted that he

intentionally hit Armstrong in the head multiple times with a blunt object, beyond

what was necessary and after Armstrong stopped moving. He beat Armstrong’s

skull to a point that it was misshapen and Armstrong was unrecognizable, and

continued to strike Armstrong on his torso, fracturing other bones in Armstrong’s

body and lacerating Armstrong’s liver. Castaneda’s admission that what he did

was “messed up” and went “further than necessary” is evidence that he intended to

cause serious bodily injury. At trial, Castaneda testified that he acted in self-

defense, i.e., that he intentionally committed these acts but was justified in doing

so. Despite his testimony that he did not intend to kill Armstrong, Castaneda’s

own testimony elsewhere in the record acknowledges his intent to cause serious

bodily injury. The evidence is undisputed that he also committed acts clearly

dangerous to human life that caused the death of another. See TEX. PENAL CODE

ANN. § 19.02(b)(2) (West 2011).


                                        14
      Accordingly, because Castaneda negated recklessness with his own

testimony acknowledging that he intended to commit serious bodily injury, and

when coupled with acts dangerous to human life, such testimony establishes

murder as Section 19.02(b)(2) of the Penal Code defines it, we hold that any error

that the trial court committed in refusing to submit manslaughter as a lesser

included offense to murder was harmless. See id.; Saunders, 913 S.W.2d at 574

(“As with any purported errors in the jury charge, harm [in refusing to submit a

lesser offense] must be assayed in light of the entire jury 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.”) (internal quotation marks omitted). Nothing else in the

closing argument or other evidence adduced at trial pointed to a lack of intent.

      Castaneda further cites to Westbrook v. State to contend that the trial court

should have instructed the jury on manslaughter because there is evidence of

sudden passion. Westbrook v. State, 846 S.W.2d 155, 158 (Tex. App.—Fort Worth

1993, no pet.). Sudden passion, however, is not an element of manslaughter. See

TEX. PENAL CODE ANN. §19.04. Rather, it is a basis for mitigation at sentencing.

TEX. PENAL CODE ANN. §19.02(d). Because Castaneda elected to be sentenced by

the court, no jury instruction on mitigation for sudden passion was necessary.




                                         15
      2. Aggravated Assault

      Castaneda also requested a jury instruction on the offense of aggravated

assault as a lesser-included offense.         A person commits assault when he

“intentionally, knowingly, or recklessly causes bodily injury to another.” TEX.

PENAL CODE ANN. § 22.01(a)(1) (West 2011). An assault becomes an aggravated

assault if the offender additionally “causes serious bodily injury to another . . . ;

or . . . uses or exhibits a deadly weapon during the commission of the assault.” Id.

§ 22.02(a). The State concedes that aggravated assault is an available lesser-

included offense in this case. See also TEX. CODE CRIM. PROC. ANN. art. 37.09

(West 2006); Hayward, 158 S.W.3d at 478.

      Turning to the second prong, we again consider the entire record and

determine whether some evidence exists that would permit a rational jury to find

that the defendant is guilty of the lesser offense but is not guilty of the greater.

Hall, 225 S.W.3d at 536; Salinas, 163 S.W.3d at 741; Feldman, 71 S.W.3d at 750;

Rousseau, 855 S.W.2d at 673.

      We conclude that it does not. See Flores v. State, 245 S.W.3d 432, 439

(Tex. Crim. App. 2008) (“a defendant is not entitled to a jury instruction on a

lesser-included offense if the evidence on which the defendant is relying raises

another offense that ‘lies between’ the requested and charged offenses”); Forest v.

State, 989 S.W.2d 365, 368 (Tex. Crim. App. 1999) (defendant charged with


                                         16
murder was not entitled to lesser-included offense of aggravated assault because

“there was no evidence that [the defendant] was guilty only of anything less than

some form of murder,” as the evidence upon which he relied showed at least a

murder).

      In Forest v. State, the defendant was charged with murder and requested an

instruction on the lesser offense of aggravated assault. See Forest, 989 S.W.2d at

368. The Court of Criminal Appeals held that, because the evidence showed that

the defendant was at least guilty of intent to commit serious bodily injury, the trial

court did not err in refusing to submit aggravated assault as a lesser-included

offense.   See id.   Notably, the Court of Criminal Appeals observed that the

defendant’s own testimony demonstrated this intent. Id.; see also Jackson v. State,

992 S.W.2d 469, 475 (Tex. Crim. App. 1999) (“A murder defendant is not entitled

to an instruction on the lesser included offense of aggravated assault when the

evidence showed him, at the least, to be guilty of a homicide.”); Hernandez v.

State, 416 S.W.3d 522, 527 (Tex. App.—Eastland 2013, pet. ref’d) (upholding the

denial of a lesser-included offense instruction for aggravated assault when the

murder defendant beat the decedent to death with a baseball bat after decedent fell

to the ground).

      We conclude that the present facts are similar to Forest and Hernandez.

Although Castaneda denied any intent to commit murder, he did not deny that he


                                         17
intended to cause the serious bodily injuries that lead to Armstrong’s death. He

admitted that his acts were “messed up,” that he should not have continued to beat

Armstrong, and that he went beyond what was necessary and reasonable.

Accordingly, we hold that the trial court did not abuse its discretion in refusing to

submit aggravated assault as a lesser included offense.

      Castaneda cites Lawson v. State to support his contention that the trial court

erred in denying a charge for the lesser-included offense of aggravated assault,

because he contends that the evidence raises a fact issue as to whether he

committed only aggravated assault and not murder or manslaughter. Lawson v.

State, 775 S.W.2d 495, 499–500 (Tex. App.—Austin 1989, pet. ref’d). Lawson,

however, is distinguishable. In that case, the defendant testified at trial that he

struck the complainant with a pistol and the gun discharged, accidentally killing

the complainant, not because he intended to pull the trigger. Id. Unlike the facts in

Lawson, Castaneda cites no evidence adduced at trial that he did not intend to hit

Armstrong with the pipe or that he accidentally hit him.

      Because Castaneda did not raise any evidence from which the jury could

conclude that he did not intend to cause serious bodily injury leading to death, we

hold that the trial court did not err when it denied Castaneda’s request for a jury

instruction on aggravated assault. Forest, 989 S.W.2d at 368; Hernandez, 416

S.W.3d at 527.


                                         18
      B. Self-Defense Instruction

      The trial court instructed the jury on self-defense: “If you find from the

evidence beyond a reasonable doubt that the defendant, Johnathan Renard

Castaneda, did cause the death of Baron Keith Armstrong . . . under such

apprehension and reasonably believing that the use of deadly force on his part was

immediately necessary to protect himself . . . then you should acquit the defendant

on the grounds of self-defense.” The application paragraph of the jury charge on

self-defense further stated “if you have a reasonable doubt as to whether or not the

defendant was acting in self-defense . . . , then you should give the defendant the

benefit of that doubt and say by your verdict, not guilty.”

         Castaneda contends the jury charge on self-defense was confusing and

failed to properly identify who bore the burden of proof. We first examine whether

there is error in the charge. See Nguyen, 811 S.W.2d at 167.

      The trial judge must deliver to the jury a written charge distinctly setting

forth the law applicable to the case. TEX. CODE CRIM. PROC. ANN. art. 36.14 (West

2006).    Under a self-defense claim, the defendant has the initial burden of

producing some evidence to justify submission of a self-defense instruction.

Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003) (citing Saxton v.

State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991)).            The State must then

persuade the jury beyond a reasonable doubt the defendant did not act in self-


                                          19
defense. Id. (citing Saxton, 804 S.W.2d at 913–14). A jury finding that the

defendant is guilty is an implicit finding against the defensive theory. Id.

      Castaneda cites to Barrera v. State for the proposition that a trial court errs

when submitting a jury instruction that fails to apply the law of self-defense to the

facts of the case and to instruct the jury to acquit if they held a reasonable doubt

about self-defense. Barrera v. State, 982 S.W.2d 415, 416 (Tex. Crim. App.

1998). Castaneda argues that the trial court erred in its jury instructions because

jury could have understood the application paragraph to mean that Castaneda bore

the burden of proving self-defense beyond a reasonable doubt when it started “if

you find from the evidence beyond a reasonable doubt . . . .”

      We rejected a similar contention in Ryser v. State. Ryser v. State, 453

S.W.3d 17, 29 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d). In that case, the

jury was instructed: “[I]f you have a reasonable doubt as to whether or not the

defendant was justified in using force . . . then you should give the defendant the

benefit of that doubt and say by your verdict not guilty.” Ryser, 453 S.W.3d at 32.

We held that, in light of this language, the jury charge did not “improperly relieve

the State of its burden of proof.” Id.

      Additionally, other portions of the charge instructed the jury on the State’s

burden of proof, providing, “The burden of proof in all criminal cases rests upon

the State throughout the trial and never shifts to the defendant. . . .          The


                                          20
prosecution has the burden of proving the defendant guilty and it must do so by

proving each and every element of the offense charged beyond a reasonable doubt

and if it fails to do so, you must acquit the defendant.” Accordingly, we hold that

the jury charge did not improperly shift the burden of proof on self-defense. See

Zuliani, 97 S.W.3d at 594; Ryser, 453 S.W.3d at 32; Nguyen, 811 S.W.2d at 167.

      Castaneda further contends the application paragraph was too long and

confusing, citing Reeves v. State, in which the Court of Criminal Appeals found

harmful error when an erroneous jury instruction was embedded in a lengthy and

confusing jury charge. 420 S.W.3d 812, 818 (Tex. Crim. App. 2013). In Reeves,

the State conceded charge error, and the jury charge consisted of two application

paragraphs, one consisting of a 156-word sentence and one consisting of a 125-

word sentence, located within 6 pages of legal “argle-bargle” instruction on self-

defense. Id. at 817. While the jury charge in this case contained a 219-word

sentence application paragraph, the self-defense charge consisted of a straight-

forward abstract section defining terms and two application paragraphs; thus,

Reeves is inapposite.

      III.   Evidentiary Hearing on a Motion for New Trial

      Castaneda contends the court improperly denied him an evidentiary hearing

on his motion for a new trial, in which he claimed ineffective assistance of counsel

for failure to provide mitigating evidence during sentencing. We review a trial


                                        21
court’s denial of a motion for new trial under an abuse of discretion standard.

Lucero v. State, 246 S.W.3d 86, 94 (Tex. Crim. App. 2008). A trial court “abuses

[its] discretion in failing to hold a hearing if the motion and accompanying

affidavits: (1) raise matters which are not determinable from the record and

(2) establish reasonable grounds showing that the defendant could potentially be

entitled to relief.” Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009)

(citing Smith v. State, 286 S.W.3d 333, 338 (Tex. Crim. App. 2009)). “[A] hearing

is not required when the matters raised in the motion for new trial are subject to

being determined from the record.” Smith, 286 S.W.3d at 338 (emphasis omitted)

(quoting Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993)).

      A defendant is entitled to a hearing on a motion for new trial due to

ineffective assistance of counsel if he alleges sufficient facts from which a trial

court could reasonably conclude that (1) counsel failed to act as a reasonably

competent attorney; and (2) there is a reasonable likelihood the outcome of the trial

would have been different without counsel’s error. Smith, 286 S.W.3d at 340–41.

      When a judge who sentences a defendant also denies the defendant’s hearing

on a motion for new trial, we presume that the judge knew whether additional

testimony produced in affidavits would have influenced his normative sentencing

judgment. Id. at 344–345. Only the trial judge could have known what factors he

took into consideration when he assessed the punishment, and only he would know


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how additional testimony might have affected his assessment. Id. at 344. The trial

judge may conclude, without conducting a hearing, that the appellant suffered no

prejudice from any deficiency of the trial counsel with respect to the punishment

phase. Id. at 345.

      Here, the judge who sentenced Castaneda is the judge who signed the

presentment of the motion for a new trial. The evidence provided in the motion for

a new trial included affidavits from Castaneda’s friends and family. Consistent

with Smith, the judge could have determined without a hearing that the alleged

deficiencies of trial counsel by failing to provide this evidence at the punishment

phase would not have affected his sentencing decision. See id. at 344–45.

      Castaneda cites Milburn v. State, 15 S.W.3d 267 (Tex. App.—Houston [14th

Dist.] 2000, pet. ref’d), and Moore v. State, 983 S.W.2d 15 (Tex. App.—Houston

[14th Dist.] 1998, no pet.), in which the courts of appeals have held that failure to

investigate or present witnesses during the punishment phase amounted to

ineffective assistance of counsel. But both of these cases examined sentencing by

a jury, not a trial judge, and thus are inapposite here. Milburn, 15 S.W.3d at 270;

Moore, 983 S.W.2d at 22, 24.

      Further, we need not consider Castaneda’s complaint because he waived his

objection. An objection on substantive grounds does not preserve error as to the

trial court’s denial of a hearing or inquiry where the objecting party did not request


                                         23
the hearing. McGinn v. State, 961 S.W.2d 161, 166 (Tex. Crim. App. 1998); see

also Rodas-Rivera v. State, No. 01-12-00711-CR, 2014 WL 50809, at *3 (Tex.

App.—Houston [1st Dist.] 2014, no pet.) (mem. op., not designated for

publication). Castaneda did not request an evidentiary hearing in his motion for

new trial. Thus, he cannot complain about the trial court’s denial of a hearing.

      We hold that the trial court did not err in denying an evidentiary hearing on

Castaneda’s motion for new trial. See Hobbs, 298 S.W.3d at 199; Smith, 286

S.W.3d at 344–45; Lucero, 246 S.W.3d at 94.

      IV.    Court Costs

      Lastly, Castaneda complains that the trial court improperly assessed a DNA

testing fee as a court cost because such an assessment is unconstitutional.

      Standard of Review

      Determining whether a statute is facially constitutional is a question of law

that we review de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013);

Maloney v. State, 294 S.W.3d 613, 626 (Tex. App.—Houston [1st Dist.] 2009, pet.

ref’d). In our review, we “presume that the statute is valid and that the legislature

was neither unreasonable nor arbitrary in enacting it.” Curry v. State, 186 S.W.3d

39, 42 (Tex. App.—Houston [1st Dist.] 2005, no pet.); see also Rodriguez v. State,

93 S.W.3d 60, 69 (Tex. Crim. App. 2002). If the statute may be construed in two

different ways, and one construction sustains the validity of the statute, we must


                                         24
use the construction that sustains the statute’s validity. Maloney, 294 S.W.3d at

626. The party who challenges the statute bears the burden of establishing that it is

unconstitutional. State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013).

      Analysis

      Article 102.020(a)(1) of the Code of Criminal Procedure, “Costs Related to

DNA Testing,” provides that a defendant convicted of certain offenses, including

aggravated sexual assault, “shall pay as a cost of court: $250 [upon]

conviction . . . .” TEX. CODE CRIM. PROC. ANN. art. 102.020(a)(1) (West 2006);

TEX. GOV’T CODE ANN. § 411.1471 (West 2012).             Thirty-five percent of the

revenue received from the fee is dedicated to the state highway fund, while sixty-

five percent of the revenue is dedicated to the general revenue fund of the criminal

justice planning account. TEX. CODE CRIM. PROC. ANN. art. 102.020(h).

      Castaneda contends the “DNA Testing Fee” assessed against him is an

unconstitutional tax. The Court of Criminal Appeals, however, has upheld the fee

as facially constitutional. Peraza v. State, 467 S.W.3d 508, 517 (Tex. Crim. App.

2015); see also Rosseau, 396 S.W.3d at 557 (Tex. Crim. App. 2013) (“[T]o prevail

on a facial challenge, a party must establish that the statute always operates

unconstitutionally in all possible circumstances.”). The court conceded that the

Texas Constitution only allows the assessment of court costs for “legitimate

criminal justice purposes,” potentially permitting as-applied challenges to the


                                         25
statute. Peraza, 467 S.W.3d at 517. However, Castaneda does not allege that the

fees he paid were used improperly.        We therefore uphold the trial court’s

imposition of the fee. See id.

                                   Conclusion

      We hold that sufficient evidence supports the jury’s verdict finding. We

further hold that the trial court did not err in instructing the jury or denying

Castaneda an evidentiary hearing. We also uphold the trial court’s assessment of

court costs for DNA testing. We therefore affirm the judgment of the trial court.




                                               Jane Bland
                                               Justice

Panel consists of Justices Radack, Bland, and Huddle.

Do not publish. See TEX. R. APP. P. 47.2(b).




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