                                    NUMBER 13-07-00752-CR

                                   COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


BRENT ANDERSON,                                                                                 Appellant,

                                                       v.

THE STATE OF TEXAS,                                                                              Appellee.


                        On appeal from the 130th District Court
                             of Matagorda County, Texas.


                                MEMORANDUM OPINION

            Before Chief Justice Valdez and Justices Yañez and Hill
                    Memorandum Opinion by Justice Hill1

        Appellant, Brent Anderson, appeals his conviction by a jury of the offense of capital

murder. See TEX . PENAL CODE ANN . § 19.03 (Vernon Supp. 2008). His punishment was

assessed by the trial court, in accordance with article 37.07 of the Texas Code of Criminal


        1
         Retired Second Court of Appeals Justice John G. Hill assigned to this Court by the Chief Justice of
the Suprem e Court of Texas pursuant to the governm ent code. See T EX . G O V ’T C OD E A N N . § 74.003 (Vernon
2005).
Procedure, at life imprisonment in the Texas Department of Criminal Justice, Institutional

Division, without parole. See TEX . CODE CRIM . PROC . ANN . art. 37.07 (Vernon Supp. 2008).

In five issues, he contends that: (1) the trial court erred by refusing to admit evidence of

drug use by Kendall Owen, one of two victims, at the time of the alleged offense; (2) the

trial court erred by permitting the State to demand that Anderson offer his opinion on the

credibility of the State’s witness; (3) the trial court erred by instructing the jury on his

“provoking the difficulty”; (4) the trial court erred by failing to quash his indictment on the

ground that the capital murder statute is unconstitutional as applied to him because it

denied him the right to have the issue of sudden passion heard by the jury; and (5) the trial

court erred by failing to quash his indictment on the ground that the capital murder statute

is unconstitutional as applied to him because it denied him the right to present punishment

mitigation evidence to the jury. We affirm.2

                                        I. EVIDENCE OF DRUG USE

        In his first issue, Anderson contends that the trial court erred by refusing to admit

evidence of Kendall Owen’s drug use at the time of the alleged offense.

A.      Relevant Facts

        Anderson went to the home of Owen’s grandmother and shot Owen twice with a

shotgun.      Although Anderson indicated that Owen had something in his hand that

Anderson thought was a gun, there was no indication that Owen was armed or was

threatening Anderson at the time of the shooting. After shooting Owen, Anderson went

inside the home and shot Tiffany Hansen.

        Anderson sought to present evidence before the jury showing that a toxicology


        2
         As this is a m em orandum opinion, and the parties are fam iliar with the facts, we will not recite them
except as necessary to explain the Court’s decision and the basic reasons for it. See T EX . R. A PP . P. 47.4.
                                                       2
report indicated that Owen, after his death, tested positive for cocaine metabolites and

Xanax metabolites, “Urine Cocaine metabolite, Benzodiazepines,” and “Blood

Benzoylecgonine.” Dr. Stephen Pustilnik, the medical examiner for Galveston County,

conducted the autopsies on Owen and Hansen on behalf of Matagorda County. Testifying

outside the presence of the jury, he identified the aforementioned substances as being

present in Owen’s body. However, he testified that cocaine had no effect on Owen at the

time of his death, because no cocaine was in his system at the time of his death. Dr.

Pustilnik said the drugs found in Owen did not suggest any effect on Owen’s mental state,

state of mind, or his actions or reactions at or near the time of his death. Dr. Pustlinik

indicated that Owen could have been using cocaine up to three days earlier. He related

that the Xanax was only in Owen’s urine, and was just “waiting to be excreted.” Dr.

Pustlinik concluded by saying that he could not say what effect, if any, the drugs might

have had on Owen’s relationship with anyone, especially Anderson.

       The State objected to the admission of this evidence, based upon its contention that

the evidence is more prejudicial than probative and not relevant to the facts of the offense.

The trial court sustained the State’s objection that the evidence is more prejudicial than

probative. As we understand Anderson’s contention, it is that this evidence is relevant to

the issue of the previous relationship between him and Owen and to show the condition

of Anderson’s mind at the time of the offense, for the purpose of showing whether there

was a real or apparent danger as viewed from his own standpoint.

B.     Analysis

       The trial court should be allowed the discretion to exclude or admit evidence before

the jury, and an appellate court should not set aside the trial court’s rulings absent a

showing in the record that the trial court has abused that discretion, which means we

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review whether the court’s ruling was within the zone of reasonable disagreement.

Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990); Whitmire v. State, 183

S.W.3d 522, 528-29 (Tex. App.–Houston [14th Dist.] 2006, pet. ref’d). We find that this

evidence has no relevance to the issue of the previous relationship between Owen and

Anderson, and no relevance to the condition of Anderson’s mind at the time of the offense.

Although Anderson suggests that the evidence supported his story of the events leading

up to the fatal shootings, we hold that any probative value such evidence might have is

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

misleading the jury. See TEX . R. EVID . 403.

       In urging that the evidence was admissible, Anderson relies on the cases of Booth

v. State, 679 S.W.2d 498, 502 (Tex. Crim. App. 1984) and Eisenman v. State, No.

13-05-705-CR, 2008 Tex. App. LEXIS 282 (Tex. App.–Corpus Christi January 10, 2008,

pet. ref’d) (mem. op., not designated for publication), cert. denied, 129 S.Ct. 1015 (2009).

However, Booth and Eisenman are inapposite to Anderson’s contention. In both of these

murder cases, the trial court excluded evidence of pornography which the defendant

sought to introduce—books and magazines in Booth, and computer images in Eisenman.

Booth, 679 S.W.2d at 502; Eisenman, 2008 Tex. App. LEXIS 282 at **34-35. In each

case, the court upheld the trial court’s decision to exclude the evidence. In Booth, the

court held that the books and magazines played no role in the killing. Booth, 679 S.W.2d

at 502. In Eisenman, the court held that there was no showing that the pornographic

images on the victim’s computer were related to the shooting, that they were the subject

of the argument that preceded the shooting, or that they played any part whatsoever during

the events leading up to the shooting. Eisenman, 2008 Tex. App. LEXIS 282 at **38-39.



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In light of these cases, we conclude that the trial court did not abuse its decision in

excluding the evidence of the substances found in Owen’s body. We overrule issue one.

                            II. ANDERSON ’S OPINION TESTIMONY

        In his second issue, Anderson argues that the trial court erred by permitting the

State to demand that he give his opinion on the credibility of the State's witnesses.

A.     Relevant Facts

       Anderson testified that he did not see how two of the witnesses, Debra Beck and

Ashley Love, could have seen how he shot Owen. He testified, without objection, that he

did not think all of their testimony was truthful. When he was subsequently asked if they

were lying, his counsel objected to the question on the basis that it was improper

impeachment. The trial court overruled the objection. Anderson then testified, without

further objection, that the witnesses were fabricating the truth, and lying about some of the

things they said.

B.     Analysis

       The opinion of a witness as to the truth or falsity of other testimony may not be

elicited. Ayala v. State, 352 S.W.2d 955, 956 (Tex. Crim. App. 1962). However, where,

as here, the testimony of the witness and other witnesses is conflicting, and where, as

here, testimony of the witness as to the truth or falsity of the other witnesses’ testimony is

admitted without objection, the defendant is not harmed. See id.; see also Taylor v. State,

774 S.W.2d 31, 35 (Tex. App.–Houston [14th Dist.] 1989, pet. ref’d).

       In arguing that there was harmful error, Anderson relies on the opinion in Good v.

State, 723 S.W.2d 734, 738 (Tex. Crim. App. 1986).             We find that opinion to be



                                              5
distinguishable because it involved an improper argument by the prosecution, not a

situation such as the one at bar where the defendant testified the other witnesses were

lying, at least in part, and where the jury could see by his testimony that he had a

disagreement with the witnesses involved as evidenced by his other testimony. Id. Good

was also not a case involving improper evidence that was previously and subsequently

admitted without objection. We overrule issue two.

            III. INSTRUCTION ON THE DOCTRINE OF PROVOKING THE DIFFICULTY

      In his third issue, Anderson insists that the trial court erred by including an

instruction on the doctrine of provoking the difficulty. Our first duty in analyzing a jury

charge issue is to decide whether error exists. Ngo v. State, 175 S.W.3d 738, 744 (Tex.

Crim. App. 2005).

A.    Relevant Facts

      Debra Beck, who identified herself as Owen’s biological mother, testified that before

the shooting, she saw and heard Owen in an angry telephone conversation with Anderson,

involving Anderson beating up Tiffany. She said that Anderson told Owen to meet him in

Bay City and that they were going to fight. She related that Owen agreed. According to

Beck, as Owen was leaving to go meet Anderson, Anderson’s truck was in her driveway.

As Owen approached the truck, Anderson jumped out of the truck and shot Owen.

B.    Analysis

      A trial court should charge a jury on provocation when there is sufficient evidence

to raise the issues of whether: (1) the defendant did some act or used some words that

provoked the attack on him; (2) such act or words were reasonably calculated to provoke




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the attack; and (3) the act was done or the words used for the purpose and with the intent

that the defendant would have a pretext for inflicting harm upon the other. Smith v. State,

965 S.W.2d 509, 513 (Tex. Crim. App. 1998). We must determine if there is sufficient

evidence from which a rational jury could have found provocation beyond a reasonable

doubt, viewing the evidence in the light most favorable to giving the instruction. Id. We

hold that, viewing the evidence in the light most favorable to giving the instruction, there

is sufficient evidence from which a rational jury could have found provocation beyond a

reasonable doubt. See Rogers v. State, 71 Tex. Crim. 271, 277-79 (1913).

       Anderson refers us to Beck’s testimony that Owen also suggested they meet for a

fight. He also refers to various incidents between him and Owen and threats that he says

Owen made. We hold that, despite the evidence to which Anderson refers, there is

sufficient evidence to support the giving of the instruction.

       Anderson relies on the unpublished case of Shivers v. State, No. 07-03-0521-CR,

2005 Tex. App. LEXIS 3204. **2-7 (Tex. App.–Amarillo April 26, 2005, pet. ref’d).

However, Shivers is distinguishable. Shivers killed a drug dealer after a confrontation

between them occurred. Id. at **2-4. Shivers was armed. Id. at *6. There was some

evidence that after the drug dealer had “talked trash” and tried to sell Shivers fake drugs,

Shivers had taken the dealer’s jacket and wallet. Id. at *6. The court, while acknowledging

that such acts could have provoked the victim to attack Shivers, held that it was error for

the trial court to instruct on provoking the difficulty because there was no evidence that

Shivers’s conduct was for the purpose or intent of having a pretext for killing the victim. Id.

at *7. In this case, the evidence reflects an ongoing feud between Anderson and Owen,

with Anderson arming himself, going to the location where Owen was, urging him to meet


                                              7
him at another location for a fight, then immediately shooting him with a shotgun as Owen

was leaving to go to that location. We find that these facts more closely resemble the facts

in Rogers than those in Shivers. See Rogers, 71 Tex. Crim. at 277-79. We overrule issue

three.

                                    IV. FAILURE TO QUASH

A.       Right to Due Process and Equal Protection

         In his fourth issue, Anderson asserts the trial court erred by failing to quash his

indictment on the ground that the capital murder statute is unconstitutional as applied to

him because it denied him the right to have the issue of sudden passion heard by the jury.

He urges that this violates his right to due process and equal protection under the United

States and Texas Constitutions. He frankly acknowledges that the Texas Court of Criminal

Appeals has rejected such claims in Wesbrook v. State, 29 S.W.3d 103, 112-113 (Tex.

Crim. App. 2000). He presents no federal authority contrary to Wesbrook. Relying on

Wesbrook, we overrule issue four. See id. (providing that “no equal protection concerns

are present” where the legislature “chose not to permit the defense of ‘sudden passion’ in

the context of capital murder”).

B.       Right to Present Punishment Mitigation Evidence

         In his fifth issue, Anderson contends the trial court erred by failing to quash his

indictment on the ground that the capital murder statute is unconstitutional as to him

because it denied him the right to present punishment mitigation evidence to the jury. He

contends that the mandatory sentence of life without parole upon conviction where the

State does not seek the death penalty violates his right to due process and a fair trial,



                                              8
pursuant to article I, sections 10 and 19 of the Texas Constitution, and Amendment

Fourteen of the United States Constitution. As noted in our discussion of issue four, the

Wesbrook court held that the mandatory sentence of life without parole upon conviction of

capital murder where the death penalty is not assessed does not violate a defendant’s right

to due process. Wesbrook, 29 S.W.3d at 112-13.

       Anderson also contends that the mandatory sentence of life without parole violates

his rights under article I, section 13, of the Texas Constitution and the Eighth and

Fourteenth Amendments to the United States Constitution, because it is arbitrary,

capricious, and constitutes cruel and unusual punishment. A mandatory sentence of life

without parole is not a cruel and unusual punishment prohibited by the Eighth Amendment

of the United States Constitution, Harmelin v. Michigan, 501 U.S. 957, 996 (1991), nor

does it violate the similar prohibition of article I, section 13 of the Texas Constitution,

Cienfuegos v. State, 113 S.W.3d 481, 496 (Tex. App.–Houston [14th Dist.] 2003, pet.

ref’d). We overrule issue five.

                                     V. CONCLUSION

       Having overruled all of Anderson’s issues, we affirm the trial court’s judgment.




                                                 JOHN G. HILL
                                                 Justice
Do Not Publish. TEX . R. APP. P. 47.2(b)
Memorandum Opinion delivered and
filed this the 27th day of August, 2009.




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