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                         NUMBER 13-10-00086-CR

      COURT OF APPEALS

      THIRTEENTH DISTRICT OF TEXAS

      CORPUS CHRISTI - EDINBURG


HAZAEL GONZALEZ,                                         Appellant,

                                   v.

THE STATE OF TEXAS,                                    Appellee.


                On appeal from the 139th District Court
                       of Hidalgo County, Texas.


                           MEMORANDUM OPINION

      Before Justices Rodriguez, Benavides and Perkes
      Memorandum Opinion by Justice Benavides

      A Hidalgo County jury convicted appellant Hazael Gonzalez of  the
capital  murder  of  Miguel  Cahue,  and  he  was  sentenced  to   life
imprisonment without parole.  Gonzalez appeals his  conviction  raising
five issues:  (1) whether the evidence  was  sufficient  to  sustain  a
capital murder  conviction;  (2)  whether  the  trial  court  committed
reversible error for not allowing him to present  evidence  in  support
of an  affirmative  defense  theory  of  an  independent  impulse;  (3)
whether the  trial  court  committed  reversible  error  for  providing
instructions on the law of principals;  (4)  whether  the  trial  court
committed reversible error when it prohibited Gonzalez’s attorney  from
arguing the  punishment  for  a  capital  murder  conviction;  and  (5)
whether the trial court committed reversible  error  when  it  admitted
the victim’s autopsy photos into evidence.  We affirm.
                             I. Background
      On August 6, 2008, seventy-six-year-old Miguel “Mike” Cahue  died
on the floor of his McAllen, Texas trailer home after robbers left  him
lying in a pool of his own blood.  The State  indicted,  among  others,
then 28-year-old Hazael “Ozzy” Gonzalez for Cahue’s murder and  charged
that Gonzalez was responsible for the crime under the law  of  parties,
even though he did not commit the act that actually killed Cahue.   See
Tex. Pen. Code Ann. § 7.02(b) (West  2003);  id.  §  19.03(a)(2)  (West
Supp. 2010).  Gonzalez pleaded not guilty to the charges.
      Prosecutors alleged that Gonzalez, who was  Cahue’s  friend,  was
cash-strapped and  devised  a  plan  with  then  fourteen-year-old  co-
defendant Wendy Gomez to trick Cahue  into  letting  someone  into  his
home, then subdue him, tie him up with duct tape, and rob  him.   Wendy
recruited her teenage brothers, Marvin and Alfredo Gomez,  and  teenage
friends, Michael Mancha and Jose Martinez, to assist  with  the  crime.
Witnesses testified that Cahue lived alone, was  described  by  friends
and family as  healthy  and  active,  and  was  known  to  have  sexual
encounters with  men.   Prosecutors  alleged  that  Gonzalez  used  his
friendship with Cahue  and  knowledge  of  Cahue’s  sexuality  to  gain
access to his home by introducing  Alfredo  to  Cahue  as  a  potential
tryst.
      The State presented evidence that on  August  6,  2008,  Gonzalez
drove Alfredo and Michael  to  Cahue’s  home  first,  while  the  other
defendants waited at another location.  Gonzalez introduced Alfredo  to
Cahue, while Michael  hid  outside  the  home  and  readied  to  invade
Cahue’s  home  after  Gonzalez  left.   Gonzalez  left  Alfredo  inside
Cahue’s home, as planned, and drove away to pick up Wendy, Marvin,  and
Jesus at an agreed location.  Gonzalez then drove back to Cahue’s  home
and dropped off the  three  co-defendants.   At  this  point,  Gonzalez
never  re-entered  Cahue’s  home,  but  instead  circled   around   the
neighborhood in his vehicle and waited  for  the  others  to  exit  the
home.  The  State  presented  evidence  that  Gonzalez’s  co-defendants
tackled the victim to the floor to subdue him  and  proceeded  to  beat
him with their fists, feet, and a candlestick.  The State alleged  that
Michael delivered the fatal blows to Cahue’s body, at which  point  the
group of teenagers moved Cahue’s beaten body to a bathroom floor.   The
co-defendants eventually ran out of  the  victim’s  home  with  various
stolen items, entered Gonzalez’s  vehicle,  and  Gonzalez  drove  away.
Among the items taken from the home were a digital  camera,  a  jewelry
bracelet, and a paper shredder.  Gonzalez never  received  any  of  the
stolen property  and  claims  that  at  all  relevant  times,  he  felt
threatened by Wendy and fearful  for  his  life  if  he  did  not  move
forward with the robbery.
      Gonzalez’s motion for a directed verdict after the State’s  case-
in-chief was denied.  After  a  three-day  trial,  the  jury  convicted
Gonzalez of capital murder under the law of  parties.   See  Tex.  Pen.
Code Ann. §§ 7.02(b), 19.03(a)(2).  Because the State did not seek  the
death penalty, the trial  court  automatically  sentenced  Gonzalez  to
life in prison  without  parole.   See  id.  §12.31(a)(2)  (West  Supp.
2010).  The trial court later denied Gonzalez’s motion for  new  trial,
and this appeal ensued.
              II. Issue One:  Sufficiency of the Evidence
      In his first issue, Gonzalez asserts that there was  insufficient
evidence to support his conviction for capital murder.
   A. Standard of Review and Applicable Law
      We must apply the Jackson v. Virginia, 443 U.S. 307, 319  (1979),
standard to determine whether the evidence  is  sufficient  to  support
each element of a criminal offense that the State is required to  prove
beyond a reasonable doubt.  See Brooks v. State, 323  S.W.3d  893,  895
(Tex. Crim. App.  2010)  (plurality  op.)  (holding  that  the  Jackson
standard of review is the “only standard” that should be applied  in  a
sufficiency review).  Under  Jackson,  this  Court  must  consider  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 crime beyond a reasonable  doubt.   Id.   Our  analysis
measures the elements of the offense as  defined  by  a  hypothetically
correct jury charge.  Villarreal v. State, 286 S.W.3d  321,  327  (Tex.
Crim. App. 2009) (citing Malik v. State,  953  S.W.2d  234,  240  (Tex.
Crim. App. 1997)).  We must  defer  to  the  jury’s  determinations  of
credibility and weight of the evidence because the jurors are the  sole
fact-finders.  See Brooks, 323 S.W.3d at 899; see also Tex. Code  Crim.
Proc. Ann. art. 38.04 (West 1979) (“The jury,  in  all  cases,  is  the
exclusive judge of the facts proved, and of the weight to be  given  to
the testimony. . . .”).
      A person is guilty of capital murder if he intentionally  commits
a murder in  the  course  of  committing  or  attempting  to  commit  a
robbery.   Tex.  Pen.  Code  Ann.  §   19.03(a)(2).    The   applicable
definition of  murder  in  this  case  is  intentionally  or  knowingly
causing the death of an individual. See id. § 19.02(b)(1) (West  2003).
 Robbery is classified as a second-degree  felony  and  is  defined  as
intentionally,  knowingly,  or  recklessly  causing  bodily  injury  to
another, or intentionally or knowingly threatening or  placing  another
in fear of imminent bodily injury  or  harm  while  in  the  course  of
committing a theft with the intent to obtain  or  maintain  control  of
one’s property.  Id. § 29.02 (West 2003).
      In this case, the State charged Gonzalez under what  is  commonly
referred to as the  “law  of  parties”  to  hold  him  responsible  for
Cahue’s murder that was allegedly committed  by  Michael  Mancha.   See
id. § 7.02(b).  One is criminally responsible under the law of  parties
if:
      [I]n the attempt to carry out a conspiracy to commit one  felony,
      another felony is committed  by  one  of  the  conspirators,  all
      conspirators are guilty of the felony actually committed,  though
      having no intent to commit it, if the offense  was  committed  in
      furtherance of the unlawful purpose and was one that should  have
      been  anticipated  as  a  result  of  the  carrying  out  of  the
      conspiracy.


Id.  Additionally, a person commits criminal conspiracy if he  has  the
intent to commit a felony, agrees with another  to  engage  in  conduct
that would constitute  the  offense,  and  performs  an  overt  act  in
pursuance of that agreement.  Id. § 15.02(a) (West 2003).
      Accordingly, a hypothetically correct capital murder jury  charge
in this case would state that  Gonzalez  is  guilty  if  a  jury  finds
beyond a reasonable doubt that (1) he entered into  an  agreement  with
Wendy Gomez, Marvin Gomez, Alfredo Gomez, Michael Mancha,  and/or  Jose
Martinez  to  intentionally,  knowingly,  or  recklessly  cause  bodily
injury to Cahue or to intentionally  or  knowingly  threaten  or  place
Cahue in fear of imminent bodily injury or harm while in the course  of
committing a theft with the intent to obtain  or  maintain  control  of
one’s property; (2)  performed  an  overt  act  in  pursuance  of  that
robbery; (3) during the attempt to carry out  this  conspiracy  to  rob
Cahue, Michael  Mancha  intentionally  murdered  Cahue;  and  (4)  this
murder was committed in furtherance of the robbery  and  was  one  that
should have been anticipated as a result of carrying out  the  robbery.

   B. Discussion
      On the first and second elements  of  the  charged  offense,  the
State introduced into evidence Gonzalez’s “Statement of  the  Accused,”
in which he voluntarily stated that he “told Wendy that  [Cahue]  would
be a good target”  to  rob  after  they  both  discussed  their  mutual
financial troubles.  During this discussion,  Gonzalez  told  Wendy  of
Cahue’s purported homosexuality, how Cahue allowed strangers  into  his
home for sexual rendezvous, and described  items  that  were  available
for the taking, such as a “real  big  TV  set.”   This  discussion  and
exchange of  information  formed  the  basis  of  the  group’s  motive,
opportunity, and agreement to rob Cahue.  The record  also  shows  that
their plan included subduing Cahue and tying him up with duct  tape  in
order to take his property.  Next,  despite  Gonzalez’s  statements  to
police that he did  not  want  to  go  forward  with  the  robbery  and
attempted to  avoid  fourteen-year-old  Wendy  after  their  agreement,
Gonzalez included in his statement that on the afternoon of  August  6,
2008,  the  group  (which  now  encompassed  the  other  co-defendants)
“started going over the plans.”  Gonzalez  also  stated  that  by  that
afternoon, he had called and set  up  Cahue  to  meet  Wendy’s  teenage
brother, Alfredo, who used the fake name “Edward”  when  introduced  to
Cahue for a fake rendezvous.   According  to  his  statement,  Gonzalez
continued to go along with the plans and drove Alfredo and  Michael  to
Cahue’s  home,  while  the  other  co-defendants  waited   at   another
location.  After dropping off Alfredo and  Michael,  Gonzalez  returned
to the agreed location to pick up the other defendants  and  took  them
to Cahue’s home, as planned.  While Alfredo,  Michael,  Wendy,  Marvin,
and  Jose  were  inside  Cahue’s  home,  Gonzalez  circled  around  the
neighborhood until they came out of Cahue’s house to flee the scene  in
Gonzalez’s vehicle.  The State  elicited  testimony  from  Marvin,  who
further corroborated that Gonzalez served as the  driver  for  the  co-
defendants.  Therefore, we see ample evidence to support the first  two
elements  of  the  hypothetically  correct  charge  that  Gonzalez  (1)
entered into an agreement with at least  one  co-defendant,  Wendy,  to
rob the victim through deception and surprise and (2)  committed  overt
acts in pursuance of the  planned  robbery,  such  as  setting  up  the
meeting between Alfredo and Cahue and serving as  the  group’s  driver.
Examined in a light favorable to  the  verdict,  we  determine  that  a
rational juror could find the first two elements of the  hypothetically
correct jury charge beyond  a  reasonable  doubt  as  the  evidence  is
sufficient to support these findings.
      As to the third element of the offense, if during the attempt  to
carry out this conspiracy to rob Cahue,  Michael  Mancha  intentionally
murdered Cahue, the State presented testimony from Marvin,  who  stated
that by the time he entered the victim’s residence, Michael was on  the
floor struggling with Cahue.  In order to subdue him, Marvin  testified
that Michael punched Cahue’s body with his fists and beat  him  with  a
candlestick holder, all while the victim pleaded with  Michael  not  to
kill  him.   After  the  beating,  Marvin  testified  that  he,  Wendy,
Michael, and Jose moved Cahue’s body into the bathroom  where  he  lied
severely beaten and unable to move.  To  support  Marvin’s  statements,
the State  presented  expert  testimony  from  Hidalgo  County  Medical
Examiner Norma Farley, M.D.,  who  performed  the  autopsy  on  Cahue’s
body.  Dr. Farley’s examination showed that the victim had  lacerations
around his right eyebrows, which are consistent with a beating  from  a
punch  or  a  kick.   She  also  testified  that  Cahue’s   skull   had
overwhelming hemorrhaging, which again was consistent with blunt  force
trauma and likely caused Cahue to  lose  consciousness.   Dr.  Farley’s
examination further showed rib fractures on both sides of the  victim’s
body and more hemorrhaging in his rib cage, which was further proof  of
a physical beating.  In her final  conclusion,  Dr.  Farley  classified
Cahue’s death as a homicide that was the result  of  blunt  force  head
and chest trauma.  Reviewed in a light most favorable to  the  verdict,
we conclude  that  sufficient  evidence  was  presented  to  support  a
finding of the third element beyond a reasonable doubt.
      With regard to the fourth element, that this murder was committed
in furtherance of the  robbery  and  was  one  that  should  have  been
anticipated as a result of carrying out the  robbery,  Gonzalez  argues
that the present case is similar to a case from the  Fort  Worth  Court
of Appeals, which held that no evidence existed to show that there  was
a plan to harm the victim.   See  Tippitt  v.  State,  41  S.W.3d  316,
324–25 (Tex. App.—Fort Worth 2001, no pet.) (holding that the  evidence
presented only showed an agreement to rob the victim,  but  not  murder
him).  We disagree  with  this  argument  and  find  the  Tippitt  case
readily distinguishable, as there is  ample  evidence  to  support  the
jury’s finding on this element beyond a reasonable  doubt.   Gonzalez’s
“Statement of the Accused”  disclosed  details  of  the  plans  to  rob
Cahue, which included a scheme to use force to tackle and  subdue  him,
as well as bind his hands and feet  with  duct  tape.   Throughout  his
statement, Gonzalez  contends  that  he  felt  threatened  by  his  co-
defendants and was told by one of his friends that  Wendy  was  capable
of hurting Gonzalez and his family.  Marvin and Dr. Farley’s  testimony
provided evidence of Cahue’s violent  beating  and  death,  which  took
place during the course of the robbery.  While  the  evidence  may  not
show that murder was in the original  plans  crafted  by  Gonzalez  and
Wendy, the crime  was  nonetheless  committed  in  furtherance  of  the
robbery, as the evidence shows that the original plans  to  tackle  and
duct tape Cahue were foiled when the 76-year-old  victim  resisted  his
attackers.  The State’s evidence also  shows  that  the  group  of  co-
defendants entered Cahue’s trailer with a BB gun that resembled a  real
pistol.  Gonzalez further admitted, in  his  statement  to  police,  to
being fearful of his  co-defendant(s),  including  Wendy,  who  had  an
apparent capability of hurting him and his family.   The  State  argued
that Wendy’s propensity for anger and  potential  violence  was  within
Gonzalez’s knowledge and Cahue’s murder should  have  been  anticipated
when the five teenagers entered Cahue’s  home  to  commit  the  robbery
with a BB gun, duct tape, and the element of surprise.   We  agree  and
conclude that the evidence, viewed in the light favorable  to  verdict,
was sufficient to allow the jury to  draw  reasonable  inferences  from
the evidence and support a finding  of  the  fourth  element  beyond  a
reasonable doubt.  See Hooper v.  State,  214  S.W.3d  9,  16–17  (Tex.
Crim. App. 2007).
      Gonzalez’s first issue is overruled.
 III. Issue Two: Refusal to Admit Evidence to Support Defensive Theory
      In his second  issue,  Gonzalez  asserts  that  the  trial  court
committed reversible error when it denied him the  ability  to  present
evidence on his defensive theory of independent impulse.
   A. Standard of Review and Applicable Law
      “A defendant has a fundamental right to  present  evidence  of  a
defense as long as the evidence is relevant and is not excluded  by  an
established evidentiary rule.”  Miller v. State,  36  S.W.3d  503,  507
(Tex. Crim. App. 2001) (en banc) (citing Chambers v.  Mississippi,  410
U.S. 284, 302 (1973)).  The prevailing policy behind this rule and  its
limits  is  to  “assure  both   fairness   and   reliability   in   the
ascertainment of guilt  and  innocence.”   Id.   We  review  the  trial
court’s  decision  to  bar  the  admission  of  evidence   to   support
Gonzalez’s independent impulse defense under  an  abuse  of  discretion
standard.  Id.
      For evidence to be relevant, it must  satisfy  two  requirements:
(1) that it is material; and (2) that it is probative.  See  id.;  Tex.
R. Evid. 401.  To be material, it “must be shown  to  be  addressed  to
the proof of material proposition;” to be probative, the evidence  must
“tend to make the existence of the fact ‘more or less probable than  it
would be without the evidence.’”  Miller, 36 S.W.3d at 507.
   B. Discussion
      Gonzalez argues that the  trial  court  erred  for  not  allowing
testimony to support his independent impulse defense.  The  independent
impulse  defense  “embraces  the  theory  that  the  accused,  although
admittedly intent on some wrongful conduct,  did  not  contemplate  the
extent  of  criminal  conduct  actually  engaged  in  by   his   fellow
conspirators, and thus  cannot  be  held  vicariously  responsible  for
their conduct.”  Fincher v. State, 980 S.W.2d 886, 888 (Tex.  App.—Fort
Worth 1998, pet. ref’d).
        On an offer of proof,  Gonzalez’s  counsel  proffered  evidence
that Michael told McAllen Police Department  crime-scene  investigators
that Cahue bit his hand and  that  he  knew  that  Cahue  carried  HIV.
While counsel argued—and the McAllen Police  Department  investigator’s
report apparently listed—that Cahue had AIDS,  the  record  appears  to
the  contrary  and  instead  indicates  that  the   victim   was   only
potentially HIV-positive. Gonzalez’s  counsel  then  argued  that  this
evidence would show that Michael murdered Cahue because Cahue  bit  him
and because Michael knew that Cahue carried  HIV.   Gonzalez’s  counsel
argued further that these events were unforeseen.  When  questioned  by
the trial court, the following colloquy took place:
      The Court:  How does that hinder your defensive  theory?  I  know
                            that you’re arguing sudden impulse.


      [Defense counsel]:     Well—
      The Court:  I mean, how does that help you to prove  your  sudden
                            impulse?  I  mean,  sudden  impulse,  your
                            whole case revolves around the  fact  that
                            your client was not inside  the—the  house
                            and that there was no plan as far as  that
                            they were going to kill him.


      [Defense Counsel]:     Okay.  That—that substantiates that.   The
                            killing came about because  of  the  rage,
                            which  was  also  substantiated   by   the
                            State’s  own  witness,  the  testimony  of
                            Marvin.  He went into a rage when  he  was
                            bitten because he knew that  he  had  AIDS
                            and this prompted them to kill.  This  was
                            an unforeseen situation,  could  not  have
                            been foreseen by [Gonzalez] and, therefore
                            we are entitled to a charge.


      The Court:  I just don’t—I just  don’t  see  it.   I  think  that
                            there’s too many assumptions to  get  into
                            that.


      The trial court barred  the  evidence  of  Cahue’s  possible  HIV
condition because it found it irrelevant and too  speculative  for  the
proceedings.  We agree  with  the  trial  court’s  determination.   The
proffered evidence  is  irrelevant  and  does  not  support  Gonzalez’s
defensive theory because all it shows is that  Cahue  bit  Michael,  as
the victim attempted to  defend  himself,  and  that  Michael  knew  of
Cahue’s possible HIV infection.  We fail to follow Gonzalez’s  position
that this evidence is enough to  support  his  defense  of  independent
impulse, because the excluded evidence is immaterial,  lacks  probative
value, and is highly speculative of Michael’s  motives,  if  any.   See
Tex. R. Evid. 403.  We agree with the trial court that  the  strongest,
and perhaps only, evidence in this case  that  would  tend  to  support
Gonzalez’s theory of independent impulse is Michael’s direct  testimony
about what his specific knowledge and intent were following  the  bite.
However, co-defendant Michael did  not  testify  at  Gonzalez’s  trial.
Accordingly, we conclude  that  the  trial  court  did  not  abuse  its
discretion in barring this testimony,  as  it  was  irrelevant  to  the
proposed reasons for its offer and highly  speculative.   See  Tex.  R.
Evid. 401; Miller, 36  S.W.3d  at  507.   Gonzalez’s  second  issue  is
overruled.
           IV. Issue Three:  Jury Charge on Law of Principals
      In his third issue, Gonzalez asserts that the trial  court  erred
in providing a jury instruction on the law  of  principals  when  there
was insufficient evidence to support the charge.
   A. Standard of Review
      Our first duty in analyzing a jury-charge issue is  to  determine
whether error exists.  See Ngo v. State,  175  S.W.3d  738,  743  (Tex.
Crim. App. 2005) (en banc).  If we find error, we analyze it for  harm.
 Id.  The degree of harm necessary for reversal depends on whether  the
error was preserved by objection.  Id.  If the error was  preserved  by
objection, we will reverse if we find “some harm”  to  the  defendant’s
rights.  Id.  If no objection was made, we will  reverse  only  if  the
record shows “egregious harm” to the defendant.  Id.
   B. Discussion
      Gonzalez argues that the charge erroneously instructed  the  jury
to convict him if, among other instructions, they  found  him  culpable
as the primary actor for the crimes  of  capital  murder,  murder,  and
aggravated robbery.  We agree..  Upon review of the  record,  we  found
no evidence to support the principal-actor instructions with regard  to
Gonzalez’s  actions  and  thus  conclude   that   the   principal-actor
instructions were erroneous.  See Goff v. State, 931  S.W.2d  537,  544
(Tex. Crim. App. 1996) (en banc) (holding that the  State  is  required
to properly instruct the jury if it proceeds upon parties theory).
      Because these instructions were erroneous, we  must  analyze  for
harm.   See  Ngo,  175  S.W.3d  at  743.   Gonzalez’s  appellate  brief
stipulates that defense counsel did not object at trial to any  portion
of the jury instruction, so we examine whether this error  amounted  to
egregious harm that requires reversal.  See id.  Gonzalez  argues  that
he was egregiously harmed because  the  effect  of  the  trial  court’s
erroneous instruction confused the  jury,  left  the  possibility  open
that the jury found him guilty as  a  principal  actor,  and/or  caused
egregious harm to the defendant  to  deny  him  a  fair  and  impartial
trial.  We disagree.  Egregious harm is defined as  those  errors  that
affect “‘the very basis of the  case,’  ‘deprive  the  defendant  of  a
valuable right,’ or ‘vitally affect a  defensive  theory.’”   Ngo,  175
S.W.3d at 750.
      Our review of the record reveals that  the  evidence  adduced  at
trial would not support a  verdict  against  Gonzalez  as  a  principal
actor, but rather supports a verdict against Gonzalez under the law  of
parties; therefore, any error by the trial court in  charging  Gonzalez
as a primary actor, when the evidence supports his guilt under the  law
of parties, and the jury was instructed  as  such,  is  harmless.   See
generally Ladd v. State, 3 S.W.3d 547, 564–65 (Tex. Crim.  App.  1999);
see also Black v. State, 723 S.W.2d 674, 675  (Tex.  Crim.  App.  1986)
(en banc) (holding the inverse, that trial court’s instruction  on  law
of  parties  was  harmless  because  the  evidence  clearly   supported
defendant’s guilt as a principal  actor).   Furthermore,  confusion  of
the jury,  if  any,  was  likely  minimal  because  the  law-of-parties
instruction accompanied  the  primary-actor  instruction.   The  record
does not indicate that these erroneous instructions were placed in  the
jury charge so as to injure Gonzalez’s rights,  and  we  also  conclude
from our review that this error did not deny him a fair  and  impartial
trial.  See Reyes v. State, 741 S.W.2d 414, 426 (Tex. Crim. App.  1987)
(en banc) (citing Carrillo v. State, 566 S.W.2d 902,  910  (Tex.  Crim.
App. 1978).[1]  Accordingly, any  error  by  the  trial  court  in  its
instructions to the jury on the primary-actor theory was harmless.
      We overrule Gonzalez’s third issue.
     V. Issue Four:  Mentioning Punishment During Closing Arguments
      In his fourth issue,  Gonzalez  contends  that  the  trial  court
committed reversible error when it prohibited his attorney from  making
closing arguments  that  Gonzalez  faced  mandatory  life  imprisonment
without parole if found guilty of capital murder.
   A. Standard of Review and Applicable Law
      In a capital murder trial in which the State does  not  seek  the
death penalty, prospective jurors shall  be  informed  that  the  State
will  not  seek  the  death  penalty  and  that  a  sentence  of   life
imprisonment without parole is mandatory on conviction.  See Tex.  Pen.
Code Ann. § 12.31(b)(2).  However, it is  improper  during  the  guilt-
innocence stage of a trial involving two or more  offenses  to  discuss
ranges of punishment because it encourages the jury to convict  on  the
basis of the amount of punishment, rather than facts surrounding  guilt
or  innocence.   See  Bruton  v.  State,  921  S.W.2d  531,  536  (Tex.
App.—Fort Worth 1996, writ ref’d).  Generally, an  improper  discussion
of ranges of punishment during closing arguments  may  be  sufficiently
cured and remedied by a limiting instruction, unless the  argument  was
so manifestly improper to inflame and prejudice the minds of the  jury.
 Id.
   B. Discussion
      The following exchange is at the  crux  of  Gonzalez’s  issue  on
appeal.
        [DEFENSE COUNSEL]:  The law of parties is what the State  will
                                  have you convict Hazael  Gonzalez  of
                                  the crime of Capital  Murder  causing
                                  this judge to sentence him to life in
                                  the penitentiary.


        [PROSECUTOR]:   Your  honor,  I’m  going  to  object,   Judge.
                                  Improper argument.


        THE  COURT:      Sustained,  [Defense  Counsel].   Ladies  and
                                  gentlemen, the only issue before  you
                                  is guilt or innocence.


                                  . . . .
        THE COURT:     Remember what I told you that what the  lawyers
                                  say is not evidence.


      The trial court’s ruling during this exchange was not  erroneous.
We hold that the trial court properly sustained the  State’s  objection
and properly cured the improper argument by admonishing the  jury  that
their sole role was to determine  Gonzalez’s  guilt  or  innocence  and
that  counsel’s  argument  was  not   evidence   to   be   taken   into
deliberations. See id.
      Furthermore, the record shows that during voir dire,  prospective
jurors were informed by the trial court, pursuant to  statute,  of  the
State’s decision not to seek the death penalty and decision  to  pursue
life imprisonment without parole instead if  the  jury  found  Gonzalez
guilty of capital murder.  See  Tex.  Pen.  Code  Ann.  §  12.31(b)(2).
Gonzalez cites no authority, and we find none, to support his  argument
that the court was required to instruct the jury in its charge  of  the
possible mandatory punishment.  Instead, our reading of the penal  code
requires that only prospective jurors need be informed of the  possible
life imprisonment without parole punishment,  which  was  satisfied  in
this case.  See id.  Because we do not  find  error,  our  analysis  on
this issue concludes here.  See Tex. R. App. P. 44.2.
      Gonzalez’s fourth issue is overruled.
              VI. Issue Five:  Admission of Autopsy Photos
      In  his  final  issue,  Gonzalez  argues  that  the  trial  court
committed reversible error when it  admitted  photos  of  the  victim’s
autopsy.
   A. Standard of Review
      Admissibility of photographs is within the  sound  discretion  of
the trial court.  See Paredes v.  State,  129  S.W.3d  530,  539  (Tex.
Crim. App. 2004).  Generally, a  photograph  is  admissible  if  verbal
testimony about the matters in the photograph is also admissible.   Id.
 We will review the trial court’s ruling for an  abuse  of  discretion.
Id.  A trial court’s ruling on admissibility of evidence should not  be
disturbed  if  the  ruling  was   within   the   zone   of   reasonable
disagreement, and we should not substitute our own  decision  for  that
of the trial court.  See Moses v. State,  105  S.W.3d  622,  627  (Tex.
Crim. App. 2003).
   B. Discussion
      Gonzalez argues that at trial,  he  objected  to  autopsy  photos
(State’s Exhibits 101, 102, 104–11) first on relevance grounds, and  in
the alternative, on rule of evidence 403 grounds.  See  Tex.  R.  Evid.
401, 403.  The trial court overruled all of Gonzalez’s  objections  and
admitted  the  photographs.   First,  relevant  evidence,  as   defined
earlier in this opinion, is “evidence that has a 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.”  Tex.  R.  Evid.  401.   The  photographs  at  issue  depict
matters that Dr. Farley testified to about the  manner  and  method  of
Cahue’s death, including lacerations to Cahue’s head,  hemorrhaging  of
blood in the head and chest, and fractured rib bones.  Gonzalez  argues
that the photos lack relevance because he did not challenge  the  cause
of death.  While it is  accurate  that  Gonzalez’s  counsel  agreed  to
stipulate to Cahue’s cause of death,  the  State  nonetheless  had  the
burden to prove to the jury the manner and  method  of  Cahue’s  death,
which it elicited through Dr. Farley’s testimony.  See Reese v.  State,
33 S.W.3d 238, 240 (Tex. Crim. App. 2000).   We  hold  that  the  trial
court did not abuse its discretion by finding the  autopsy  photographs
relevant in this case.
      Next, we examine whether the trial court abused its discretion by
ruling that  the  probative  value  of  the  photographs  substantially
outweighed the danger of unfair prejudice to  support  their  admission
into evidence.  Gonzalez contends that the photos are more  prejudicial
than probative because they depict the bloody,  bruised,  and  gruesome
state of the victim’s body  at  the  time  of  the  autopsy.   Further,
Gonzalez argues that the photos served more to inflame the jury  rather
than assist them in any relevant part of the trial.  We  disagree.   “A
court may consider many factors in determining  whether  the  probative
value of photographs is  substantially  outweighed  by  the  danger  of
unfair prejudice.  These factors include:  (1) the number  of  exhibits
offered; (2) their gruesomeness; (3) their detail; (4) their size;  (5)
whether they are in color or  black-and-white;  (6)  whether  they  are
close-up; (7) whether the body depicted is clothed or  naked;  (8)  the
availability of other means  of  proof;  and  (9)  other  circumstances
unique to the individual case.”  Williams v.  State,  301  S.W.3d  675,
690 (Tex. Crim. App. 2009).   The ten photographs  at  issue  were  not
any more gruesome than what would be expected in a case such  as  this,
where Dr. Farley testified that Cahue’s cause  of  death  was  repeated
blunt force trauma to the head and abdomen.  Further,  the  photographs
tracked Dr. Farley’s testimony that presented  a  clinical  examination
and autopsy of Cahue’s body following his death.   Gonzalez’s  argument
that the photos were unfairly prejudicial is not  persuasive  in  light
of the State’s need for the photographs to prove its case.  The  photos
depicted Cahue’s bloody and bruised face and were vital to the  State’s
case to the jury with regard  to  the  manner  and  method  of  Cahue’s
death.  We have reviewed these photographs and conclude that the  trial
court’s ruling was within the zone of reasonable disagreement and  that
it did not abuse its discretion in admitting them.  See id.;  see  also
Tex. R. Evid. 403.  Gonzalez’s fifth issue is overruled.
                            VII. Conclusion
      We affirm the judgment of the trial court.


                                             ________________________
                                             GINA M. BENAVIDES,
                                             Justice


Do not publish.
Tex. R. App. P. 47.2(b).

Delivered and filed the
2nd day of February, 2012.


                                  -----------------------
[1] Gonzalez’s reliance on two cases for support are distinguishable
from the present case.  In Savant v. State, defense counsel timely
preserved error at trial, which was not done in this case, and
requires a “some harm,” rather than “egregious harm” analysis under
Ngo; and in Oliver v. State, the trial court provided a limited
instruction that was not supported by the evidence, which was also not
done in this case because instructions on the law of parties were
nonetheless provided to the jury.  See Savant v. State, 544 S.W.2d
408, 409 (Tex. Crim. App. 1976); Oliver v. State, 268 S.W.2d 467, 470
(Tex. Crim. App. 1954).

