                                 NO. 07-07-0128-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL B

                                FEBRUARY 25, 2010
                             ________________________

                          JOHN KEVIN OAKES, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE
                          __________________________

            FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY;
               NO. 0955781D; HONORABLE SCOTT WISCH, JUDGE
                        ___________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                              MEMORANDUM OPINION


      Appellant John Kevin Oakes appeals from his conviction for murder and the

resulting sentence of twenty years confinement in the Institutional Division of the Texas

Department of Criminal Justice. Via four points of error, appellant contends the trial

court reversibly erred. We disagree, and affirm.
                                        Background


       By indictment, appellant was charged with intentionally or knowingly causing the

death of Ronnie Oakes by shooting him with a firearm.1 Following appellant=s plea of

not guilty, the case was tried to a jury. The State’s evidence showed that on October

21, 2004, appellant fatally shot his brother, Ronnie. Appellant had been estranged from

his family but on that evening, happened to run into Ronnie at a local bar. After talking

and drinking for a while, appellant and Ronnie left the bar together and went to their

mother’s home. While in front of the home, appellant argued with his mother and the

brothers engaged in a fist fight during which Ronnie yelled that he was going to kill

appellant.2 Appellant went to his truck and retrieved a handgun. Appellant fired a shot

in the air and his mother Elma pleaded with her sons to act reasonably. 3 Elma stood

between her sons, attempting to block Ronnie from appellant. As Ronnie came toward

him, telling him he would stop him from shooting anyone, appellant, with his mother

standing just to his left, raised his arm and shot Ronnie in the chest, killing him.



       1
        See Tex. Penal Code Ann. ' 19.02 (Vernon 2003). This is a first degree felony
punishable by imprisonment in the institutional division for life or for any term of not
more than 99 years or less than 5 years. Tex. Penal Code Ann. ' 12.32 (Vernon 2003).
       2
         Appellant=s mother testified that after appellant called her a name, Ronnie
kneed appellant in the groin, grabbed him and started hitting him. She testified that she
believed Ronnie had killed appellant. During cross-examination, Elma acknowledged
she did not know how many times Ronnie hit appellant or what it takes to kill someone
with bare hands.
       3
       Two neighbors heard this shot and witnessed the events that followed. One of
them called 911 as he observed the events. A recording of this call was admitted into
evidence.

                                              2
       Over appellant’s defensive theory of self-defense at trial, the jury found him guilty

as charged in the indictment and assessed punishment at twenty years imprisonment.

Appellant timely filed his notice of appeal.4

                                          Analysis

Extraneous Offense

       By his first point of error, appellant contends the trial court reversibly erred by

admitting evidence of an extraneous offense occurring outside a bar in Arizona in 2006,

some two years after the shooting of his brother. Appellant’s objection at trial included

relevance grounds, and those under Rules 404(b) and 403.5 On appeal he similarly

contends evidence of the offense was inadmissible because it was too dissimilar and

too far removed in time from the offense being tried. We disagree.


       In the 2006 offense, appellant was out drinking with several other individuals at

the end of the work day. Two brothers, Rick and Robert, began arguing and appellant

and another individual attempted to intervene. Appellant told the brothers to Aknock it

off@ and the men got into a vehicle. The two brothers began arguing again and Rick


       4
          Following appellant=s notice of appeal, appellant=s attorney died. We abated
and remanded the appeal for appointment of a new attorney and an opportunity for re-
briefing. See Oakes v. State, No. 07-07-0128-CR, 2008 WL 449860 (Tex.App.BAmarillo
February 19, 2008, no pet.). No additional briefs were received.
       5
         The trial court first sustained appellant=s objections with regard to the 2006
offense, finding it Ajust too remote, too unrelated and it just doesn=t fit the clear,
unequivocal 404(b) exceptions, based on the current state of the record.@ After the
defense rested, the court reconsidered this evidence with regard to the State=s rebuttal
and admitted it. The court provided an instruction limiting the jury’s consideration of the
evidence to rebuttal of a defensive theory and proof of appellant’s state of mind at the
time and place of the offense.

                                                3
started to reach for Robert. Appellant physically tried to stop him and verbally engaged

both brothers, at one point threatening to “cut [Rick’s] head off.” Appellant then cut Rick

in the throat.6


Rule 404(b)


       Rule of Evidence 404(b) provides that evidence of other crimes, wrongs or acts is

not admissible to prove the character of a person in order to show action in conformity

therewith, but such evidence may be admissible to show Amotive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.@ Tex. R. Evid.

404(b).    Appellant received his requested jury instruction on self-defense.7          An

extraneous offense may be used to rebut a defensive theory, such as self-defense,

even though this purpose is not mentioned in Rule 404(b). Crank v. State, 761 S.W.2d

328, 341 (Tex.Crim.App. 1988); Halliburton v. State, 528 S.W.2d 216, 219

(Tex.Crim.App. 1975). Here, appellant testified he was not trying to kill his brother, only

to keep his brother from killing him. In order to refute appellant’s claim, it became

relevant for the State to show that on another occasion appellant used a knife to cut a

man, without provocation or threat of harm to himself. Thus, the 2006 offense was


       6
          Several photographs depicting the injury to Rick were admitted at trial. State=s
exhibit 94 shows blood on appellant=s hands.
       7
          A defendant has the burden of producing evidence to raise the issue of self-
defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App. 2003). The State then
has the burden of persuasion to disprove the defense. Id. This burden does not require
the production of evidence; rather, it requires only that the State prove its case beyond
a reasonable doubt. Id. When the jury finds the defendant guilty, there is an implicit
finding against the defensive theory. Id.

                                            4
relevant under Rule 401 to rebut appellant=s self-defense theory, and his testimony

claiming no intent to kill Ronnie. Tex. R. Evid. 401; Salazar v. State, 222 S.W.3d 10, 15

(Tex.App.—Amarillo 2006, pet. ref’d); Lemmons v. State, 75 S.W.3d 513, 523

(Tex.App.BSan Antonio 2002, no pet.); Robinson v. State, 844 S.W.2d 925, 929

(Tex.App.BHouston [1st Dist.] 1992, no pet.).


Rule 403

      Under Rule of Evidence 403, evidence that is relevant may be excluded if its

probative value is Asubstantially outweighed by the danger of unfair prejudice, confusion

of the issues, or misleading the jury, or by considerations of undue delay, or needless

presentation of cumulative evidence.@      Tex. R. Evid. 403.     When conducting the

balancing test under Rule 403, the trial court determines whether the probative value of

the evidence is substantially outweighed by one of the countervailing considerations

listed in the rule.8 Rule 403 favors the admission of relevant evidence and carries a

presumption that relevant evidence will be more probative than prejudicial. Montgomery

v. State, 810 S.W.2d 372, 389 (Tex.Crim.App. 1990) (op. on reh=g).


     We have already determined the 2006 offense was relevant to rebut appellant’s

self-defense theory and his testimony regarding his intent.     We also find the 2006


      8
        A trial court must balance (1) the inherent probative force of the proffered item
of evidence along with (2) the proponent's need for that evidence against (3) any
tendency of the evidence to suggest decision on an improper basis, (4) any tendency of
the evidence to confuse or distract the jury from the main issues, (5) any tendency of
the evidence to be given undue weight by a jury that has not been equipped to evaluate
the probative force of the evidence, and (6) the likelihood that presentation of the
evidence will consume an inordinate amount of time or repeat evidence already
admitted. Casey v. State, 215 S.W.3d 870, 880 (Tex.Crim.App. 2007).
                                            5
offense to be sufficiently similar to the 2004 offense so as to be of significant probative

value to rebut appellant’s self-defense claims and testimony. See Rogers v. Peeler, 146

S.W.3d 765, 776 (Tex.App.BTexarkana 2004, no pet.) (extraneous offenses admissible

in self-defense case). In both incidents, appellant was drinking and involved in a

confrontation with a person he knew, a co-worker in the 2006 incident and his brother in

the 2004 incident. In both incidents, appellant used a weapon capable of inflicting

serious bodily injury, a knife in the 2006 offense and a gun in the 2004 offense. In both

instances, appellant engaged in an argument with the victim prior to using the weapon.

In both altercations, the victim was unarmed. Additionally, while appellant asserts Rick

provoked the difficulty in the 2006 incident, we cannot agree the record before us

supports the assertion. We find also the two-year length of time between the offenses

is not so significant that it weighs against the probative value of the evidence. See

Rogers, 146 S.W.3d at 776 (finding thirteen and fourteen year separation between the

prior violent acts and the act for which the defendant was prosecuted weighed against

the probative value of the evidence).


       The prejudicial effect of evidence of the 2006 offense was minimized by the

court’s proper instruction limiting the jury’s consideration to its specific purpose. Morrow

v. State, 735 S.W.2d 907, 912 (Tex.App.—Houston [14th Dist.] 1987, pet. ref’d);

Robinson, 701 S.W.2d at 899. We also find no attempt by the State to over-emphasize

or inflame the jury with the extraneous offense. The State was brief in its reference to

the 2006 incident and used it only for its limited purpose and as a point of comparison to

the offense for which appellant was tried. Morrow, 735 S.W.2d at 912. Lastly, although

                                             6
the jury convicted appellant of murder, the twenty-year sentence imposed suggests the

jury was not unduly influenced by the introduction of the 2006 offense evidence. Tex.

Penal Code Ann. ' 12.32 (Vernon 2003) (providing applicable range of punishment for a

first degree felony as any term of not more than 99 years or less than 5 years).


       After careful consideration of all the facts and circumstances of this case, we find

the probative value of the evidence concerning the 2006 offense was not substantially

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

jury, or by considerations of undue delay, or needless presentation of cumulative

evidence. Appellant=s first point of error is overruled.


Jury Charge on Provoking the Difficulty


       Through appellant=s second point of error, he contends the trial court reversibly

erred by including an instruction on Aprovoking the difficulty@ in the jury charge. Over

appellant’s objection that no evidence or rational inference supported the instruction, the

trial court concluded that appellant’s action of obtaining his pistol from his truck and

firing it into the air could be seen as provoking his brother to further aggression,

particularly in view of the effort required of appellant to remove the pistol from its

carrying case in the truck. In its section concerning self-defense, the court’s charge

effectively instructed the jury, in pertinent part, that a defense of self-defense was not

available to appellant if the jury found beyond a reasonable doubt appellant “did display

and discharge a firearm” with the intent to produce the occasion for killing Ronnie and to



                                             7
bring on the difficulty with him, that the conduct was reasonably calculated to, and did,

provoke a difficulty, and appellant killed Ronnie “in pursuance of his original design.”


       On appeal, appellant argues there was no showing that his intent by shooting

into the air was to induce Ronnie to charge him. Appellant further asserts that because

appellant had been Abeaten bloody@ by Ronnie, there is Ano way he could=ve made a

reasonable calculation to provoke the difficulty by firing a shot into the air.@ Instead, he

argues his action of firing a shot into the air was an attempt to abandon the difficulty.


       Provoking the difficulty can limit or bar a defendant=s right to the benefit of self-

defense. Tex. Penal Code Ann. ' 9.31(b)(4) (Vernon 2003); Smith v. State, 965 S.W.2d

509, 512 (Tex.Crim.App. 1998) (Penal Code § 9.31(b)(4) codifies doctrine of

provocation); see Dorsey v. State, No. 01-08-00411-CR, 2009 Tex.App. LEXIS 8370

(Tex.App.--Houston [1st Dist.) 2009 no pet.); Harrod v. State, 203 S.W.3d 622, 628-29

(Tex.App.BDallas 2006, no pet.) (both applying Smith). An instruction on provocation is

proper when the evidence, viewed in the light most favorable to giving the instruction,

would permit a rational jury to find beyond a reasonable doubt: (1) the defendant did

some act or said some words that provoked the attack on him; (2) the act or words were

reasonably calculated to instigate the attack; and (3) the defendant did the act or said

the words meaning and intending that the defendant would have a pretext for harming

the victim. Smith, 965 S.W.2d at 513. Each of the factors is a fact question.9 Id. at

514-18.


       9
         Earlier case law described the prerequisites to giving the charge as follows:
viewing the evidence in the most favorable light, a charge on provoking the difficulty is
                                          8
       Here, it is undisputed that Ronnie first physically attacked appellant, and there is

evidence he was approaching appellant again when he was shot. Appellant testified

that as his brother came charging toward him after he fired the gun, Ronnie said,

“You’re not going to shoot anybody . . . I’m going to stop you.” He testified he believed

his brother then intended to make good on his threat to kill appellant, which Ronnie

made earlier during their fight. He said his brother was not armed but he believed him

capable of killing with his bare hands. A rational jury well could have found appellant’s

actions of retrieving the gun from his truck and firing it into the air caused his brother to

take the action appellant said caused him to fear for his life, and appellant’s actions

were reasonably calculated to elicit such a response from his brother. See Smith, 965

S.W.2d at 517 (act is reasonably calculated to cause an attack if it has a reasonable

tendency to do so).     Accordingly, we find the evidence readily meets the first two

elements of provocation.


       Application of the third element of the doctrine of provocation to these facts

requires evidence that appellant retrieved and fired the gun for the purpose and with the

intent to give him a pretext for shooting his brother. Even though a person does an act,

even a wrongful act, that provokes an attack by another, if he lacked the intent that the

act would have such an effect “as part of a larger plan of doing the victim harm, he does

not lose his right of self-defense.” Smith, 965 S.W.2d at 518. Intent is a matter of fact,

properly given when: (1) self-defense is an issue; (2) there are facts in evidence which
show that the deceased made the first attack on the defendant; and (3) the defendant
did some act or used some words intended to and calculated to bring on the difficulty in
order to have a pretext for inflicting injury on the deceased. Matthews v. State, 708
S.W.2d 835, 837-38 (Tex.Crim.App. 1986).

                                             9
to be determined from all of the circumstances. A defendant's intentions are “concealed

within his own mind and can only be determined from his words, acts, and conduct." Id.


      The evidence here, viewed in the light most favorable to the instruction, shows

Ronnie and appellant engaged in a fist fight after drinking at a bar.            Appellant

acknowledged he was intoxicated. There was a history of animosity between the

brothers. Appellant and his mother also were somewhat estranged. While appellant

and his mother argued, Ronnie took appellant=s keys and threw them away.              The

brothers began to fight. Appellant was beaten and both brothers suffered injury. At one

point during the fight, Ronnie told appellant he was going to kill him. Although appellant

testified he could not remember doing so, the evidence was clear that appellant then

went to his truck and retrieved a handgun. He fired a shot in the air, after which Ronnie

came straight at appellant and closed the space between them, according to appellant,

Ain the blink of an eye.@ The brothers continued to fight verbally. The fight ended when

appellant shot Ronnie in the chest, causing his death.


      The jury rationally could have seen appellant’s conduct with the gun as

escalating the fight, causing it to continue rather than be abandoned. Appellant agreed

that he intentionally pointed his gun at Ronnie, intentionally pulled the trigger when

Ronnie was right in front of appellant, and intentionally shot Ronnie. Looking to all the

circumstances, a rational jury also properly could conclude that appellant retrieved and

fired his pistol with the intention of provoking his brother into further fighting, so that

Ronnie’s response would justify his shooting. Smith, 965 S.W.2d at 519.


                                            10
       Viewing the evidence, as we must, in the light most favorable to the instruction,

we find the evidence sufficient to support the trial court=s inclusion of the instruction. We

overrule appellant=s second issue.


Failure to Grant Mistrial


       In appellant=s third point of error, he contends the trial court erred by refusing to

grant his request for a mistrial during the State’s closing argument. Appellant complains

of three statements made by the prosecutor: (1) AI want to preface it by saying that

when you call a witness, you=re saying three things, number one, you=re saying I believe

that person@; (2) A[t]he truthful person says Ayeah I checked it, so what?= But the

untruthful person knows the significance of that act@; and (3) AMarco and Manny. Is the

only impeached statement that Defense can point to is the screen? Oh, goodness, oh,

no, they disagreed about whether there was a screen or not. Wow. Man, that=s self-

defense, he didn=t do it, not guilty. Is that the only thing that he can point to to contradict

his statement?@ The trial court sustained appellant’s objections to the first two

statements, and instructed the jury to disregard them, reminding the jury that what the

lawyers say is not evidence. As to the third statement, by which the prosecutor was

belittling appellant’s efforts to point out contradictions between two witnesses’ versions

of events, appellant objected that the State was Astriking at Defendant over the

shoulders of counsel . . . misstating the record and asking the jury to disregard other

testimony about contradictions in the statements . . . .@ The trial court sustained

appellant=s objection as to any attack on defense counsel and again instructed the jury

to disregard. On all three occasions, the court denied appellant’s requests for mistrial.
                                           11
       Considering each of the prosecutor’s remarks in their contexts, we do not find

them, singly or together, so inflammatory that any prejudicial effect could not be

removed by the court’s admonition to the jury to disregard them. The court did not err

by denying a mistrial. See Andujo v. State. 755 S.W.2d 138, 144 (Tex.Crim.App. 1988)

(any injury from improper argument ordinarily cured by instruction to disregard). We

overrule appellant=s third point of error.


Admission of Photograph


       In appellant=s last point of error, he complains of the admission of a particular

photograph admitted at trial. The admissibility of a photograph is within the sound

discretion of the trial judge. Ramirez v. State, 815 S.W.2d 636, 646-47 (Tex.Crim.App.

1991). We may consider several factors in determining whether the probative value of

photographic evidence is substantially outweighed by the danger of unfair prejudice.

These factors include, but are not limited to: the number of exhibits offered, their

gruesomeness, their detail, their size, whether they are black and white or color,

whether they are close-up, and whether the body is depicted naked or clothed.

Robinson, 844 S.W.2d at 928, citing Long v. State, 823 S.W.2d 259, 271-73

(Tex.Crim.App. 1991). The availability of other means of proof and the circumstances

unique to each individual case must also be considered. Id.




                                             12
       State=s Exhibit 54 is a single black and white photograph showing a side view of

Ronnie=s upper torso and head, an endotracheal tube protruding from his mouth, EKG

pads, and certain identifying information.       A similar photograph, Exhibit 50, was

admitted at trial without objection. However, Exhibit 54 included identifying information

not included in the other admitted autopsy photographs. Appellant was charged with

intentionally killing Ronnie by shooting him in the chest. The State was required to

prove that a death of a particular individual had occurred in the manner alleged. The

photograph helped supply such proof and thus had a Atendency to make the existence

of [a] fact that is of consequence to the determination of the action more probable . . .

than it would be without the evidence.@ Tex. R. Evid. 401, Robinson, 844 S.W.2d at

927.


       The challenged photograph is no more gruesome or prejudicial than other

photographs admitted at trial. See Robinson, 844 S.W.2d at 928. We find the probative

value of the photograph was not substantially outweighed by its possible prejudicial

effect. Id.; Tex. R. Evid. 403. We find no abuse of discretion in the admittance of

Exhibit 54, and overrule appellant=s fourth point of error.


       Having overruled each of appellant=s four points of error, we affirm the judgment

of the trial court.



                                                         James T. Campbell
                                                              Justice

Do not publish.
