Affirmed and Opinion filed November 1, 2011.




                                         In The

                      Fourteenth Court of Appeals

                                  NO. 14-10-00286-CR

                          VICTOR ZAVALA, JR., Appellant

                                            V.

                          THE STATE OF TEXAS, Appellee

                       On Appeal from the 434th District Court
                             Fort Bend County, Texas
                            Trial Court Cause No. 44055



                                      OPINION

       Appellant, Victor Zavala, Jr., challenges his conviction for murder. In fifteen
issues, he alleges error in almost every aspect of his trial, from denial of challenges for
cause and improper commitment questions during voir dire, to numerous evidentiary
rulings, restriction of cross-examination, and charge error during guilt-innocence, as well
as challenging several overruled objections made during the State‘s closing argument.
After a thorough review of the record and applicable law, we affirm.
                                         BACKGROUND

        Appellant has not challenged the sufficiency of the evidence, so we relate the facts
briefly here and throughout the opinion as necessary to address his issues.

        On March 23, 2006, appellant drove to the apartment he shared with his ex-wife,
Karen Goodspeed-Zavala.1 Karen had moved out of their shared residence a few days
before but was there with movers to take some of the furniture. Appellant entered the
apartment and asked the movers to step outside. According to appellant, after the movers
went outside, Karen started ―screaming and . . . making numerous remarks,‖ including
allegations that appellant had sexually molested her daughters. Appellant went outside to
ask the movers how much they were owed. Karen locked the door and refused to admit
him back into the apartment. Appellant tried to unlock the door but was unable to do so
and kicked in the door of the apartment. Karen retreated to her daughter‘s (appellant‘s
stepdaughter‘s) room and called 911; appellant pursued her into that room by kicking that
door in as well. Appellant took Karen‘s cell phone away from her, and she bit his finger.
Appellant stated that he calmed Karen down, and the two went into the dining room to
talk. Because they were thirsty, they went into the kitchen to get a bottle of water. While
appellant‘s back was turned, Karen took a knife from a butcher‘s block on the counter.
According to appellant, she stated, ―[I]f I can‘t kill you, I‘m going to kill myself[.]‖

        Appellant claimed that he moved towards Karen in an attempt to disarm her, and
the two struggled. As he took the knife from her, he accidentally cut her arm when they
fell. Appellant stated that Karen bit his finger again when he took the knife from her. He
stabbed her once more as they were struggling. He testified that he suffered a cut on his
forearm, although none of the other witnesses confirmed this cut. Appellant stated that
he then ―blacked out‖ and did not remember anything until an officer arrived at the scene.



        1
          Although they had divorced several years before this incident, Karen and appellant continued to
live together. Karen, however, had moved out at least once before.
                                                   2
However, he stated that he thought he heard Karen telling him to ―stop‖ as he was
struggling with or stabbing her. Karen ultimately died from multiple stab wounds.

        Appellant admitted stabbing Karen but claimed that he did so in self-defense. A
jury convicted him of murder, and the trial court sentenced him to thirty years‘
confinement. Appellant‘s motion for new trial was denied by the trial court. This appeal
timely ensued.

                                             ANALYSIS

        For ease of analysis, we group appellant‘s issues into several main categories.

A.      Burden of Proof

        In his first issue, appellant asserts that the trial court erred in placing the burden of
proof on him regarding sudden passion. He asserts that doing so violates the Sixth
Amendment and his due process rights. The Texas Penal Code provides as follows:

        At the punishment stage of a trial, the defendant may raise the issue as to
        whether he caused the death under the immediate influence of sudden
        passion arising from an adequate cause. If the defendant proves the issue in
        the affirmative by a preponderance of the evidence, the offense is a felony
        of the second degree.

Tex. Penal Code Ann. § 19.02(d) (West 2011). Thus, the question of ―sudden passion‖ is
not an aggravating fact that exposes the defendant to a potentially greater sentence;2
rather it is an issue in mitigation of punishment. ―A state may, without violating due
process, . . . require a defendant to prove facts in mitigation of punishment . . . [like]
extreme emotional disturbance.‖ Perry v. State, 158 S.W.3d 438, 448 n.14 (Tex. Crim.
App. 2004); see also Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—Houston [1st
Dist.] 2007, pet. ref‘d) (holding that section 19.02(d) of the Texas Penal Code does not


        2
          Aggravating facts, i.e., those that would increase a defendant‘s punishment, must be proven
beyond a reasonable doubt. See Perry v. State, 158 S.W.3d 438, 446–47 & n.8 (Tex. Crim. App. 2004)
(noting that this requirement is based on the Sixth Amendment right to a jury trial and the right to have
every element of an offense proven beyond a reasonable doubt).
                                                   3
violate the Sixth Amendment); Green v. State, 971 S.W.2d 639, 643–44 (Tex. App.—
Houston [14th Dist.] 1998, pet. ref‘d) (explaining that requiring a defendant to prove
issues in mitigation of punishment by a preponderance of the evidence does not violate
due process). Accordingly, this issue is without merit and is overruled.

B.     Voir Dire Issues

       1.     Challenges for Cause

       In his second and third issues, appellant contends that the trial court erred by
denying his challenges for cause to venire members 38 and 68. We afford the trial judge
considerable deference in determining challenges for cause because he or she is in the
best position to evaluate a prospective juror‘s demeanor and responses. Russeau v. State,
171 S.W.3d 871, 879 (Tex. Crim. App. 2005). We will reverse a trial court‘s ruling on a
challenge for cause only when a clear abuse of discretion is evident. Id. When a
prospective juror‘s answers are vacillating, unclear, or contradictory, we defer to the trial
court‘s decision on a challenge for cause. Segundo v. State, 270 S.W.3d 79, 93 (Tex.
Crim. App. 2008).

       Both of these panel members initially indicated in their voir dire responses that
they could not consider probation in a murder case. However, both venire members were
called back before the trial court and individually questioned. During their individual
questioning, both panel members stated that they could consider probation in a murder
case under the appropriate circumstances.       For example, venireperson 38 stated, ―I
wouldn‘t categorically exclude [probation] as an option.‖ Further, venire member 68
stated that she would be ―open‖ to probation in the ―appropriate case.‖ Thus, these panel
members were, at most, vacillating jurors. Accordingly, the trial court was in the best
position to determine whether they could be fair and impartial. See id.

       Appellant further asserts that panel member 68 had language difficulties, which
should have precluded her from jury eligibility. However, the trial judge spoke directly
with her and concluded:       ―Based on what I heard and saw and observed in her
                                          4
responsiveness to the questions I believe that she understands really, even though she has
had to overcome a language barrier better than many people who have been here all their
lives.‖ Under these circumstances, appellant has not established that the trial court
clearly abused its discretion in denying his challenges for cause. Russeau, 171 S.W.3d at
879. We overrule his second and third issues.

       2.     Commitment Questions

       In issue four, appellant complains that the State was permitted to ask improper
commitment questions of venireperson 26, which lead to this juror‘s being rehabilitated
and serving on the jury. The scope of permissible voir dire examination is necessarily
broad to enable litigants to discover bias or prejudice so that they may make challenges
for cause or peremptory challenges. Sanchez v. State, 165 S.W.3d 707, 711–12 (Tex.
Crim. App. 2005). But questions that are not intended to discover bias or prejudice and
instead seek only to determine how jurors would respond to the anticipated evidence and
commit them to a specific verdict on that evidence are not proper. Id.

       Appellant contends that the following exchange between the State and
venireperson 26 consisted of improper commitment questions leading to the juror‘s
rehabilitation and service on the jury:

              [The State]: Okay. I understand where you‘re coming from, [venire
       person 26], but what I want you to do is think about this: About what
       might be an appropriate case, and can you keep an open mind to what
       different kinds of cases there could be of an intentional murder. Let me --
       go for it. And I‘m not asking you if you‘d do it in this particular case or in
       any particular case. I just want to try to demonstrate to you the different
       ranges of things that could be encompassed in that.

              Someone goes up to a stranger in the street --

             [Appellant]: Objection to the specific hypotheticals and ask for a
       running objection.

              [The Court]: Overruled. You may have a running objection.


                                             5
                                           ...

             [The State]: And we go through -- someone walks up to someone
      in the street, pulls out a gun and just shoots them right there and they‘re
      gone; that‘s an intentional murder, okay. I‘m not asking what you‘d do in
      that case, I‘m not asking what you‘d do in this case, but intentional murder
      can also encompass what [another venireperson] was talking about.
      Someone‘s child has been hurt or harmed some way. The parent knows
      who they are. Do you remember [the other venireperson] talking about this
      today and then goes and finds him and eliminates them. For [the other
      venireperson], that was the bell that rung it for her saying there may be
      circumstances out there where I could consider probation. That may or
      may not be an appropriate case for you. I don‘t know, and I‘m not asking
      you to clear that now.

             I talked yesterday about the husband and wife where one is critically
      ill and in a lot of pain and then the other spouse unhooks the life support
      knowing what the consequences would be and actually wanting those
      consequences to happen. I‘m not asking if you can give probation in that
      case or not, but can you recognize that there‘s all different kinds of how
      those are very different from the first one that I talked about?

             [Venireperson]: Yes.

              [The State]: And understanding that, I‘m not asking you to come up
      with facts in which you would give it, I‘m certainly not trying to do that;
      could you keep an open mind to the possibility that that situation exists, and
      if it does, will you give probation in an appropriate case?

             [Venireperson]: Yes.

                                           ...

             [Appellant]: You‘re now saying you can conceive of a murder case
      where you could consider the possibility of giving as light as a five-year
      probated sentence?

             [Venireperson]: Yes, if the situation allows that.

      Although appellant objected to the ―specific hypotheticals,‖ it is not clear that he
was complaining about ―improper commitment questions.‖ In fact, not all commitment
questions are improper. Commitment questions are permissible, for example, when such

                                            6
questions would result in a challenge to a prospective juror for cause, so long as the
question includes only those facts necessary to establish the challenge.                      Id. at 712.
Moreover, appellant‘s counsel challenged this prospective juror because he did not
believe, based on the specific facts of this case, that this panel member would have an
open mind regarding probation.3 Such a challenge is not a valid ground to remove a
panel member for cause.4 Rather, appellant‘s counsel himself anticipated the evidence
and determined that this particular juror would refrain from considering probation based
on the facts of this specific case. Cf. Sanchez, 165 S.W.3d at 711–12 (providing that
seeking to commit a juror to an outcome based on specific facts of the case is improper).
In short, appellant has established neither that the State raised improper commitment
questions nor that his objection to this particular panel member had any valid legal basis.
For the foregoing reasons, we overrule appellant‘s fourth issue.

C.     Evidentiary Issues

       In issues five, seven, eight, and nine, appellant challenges several of the trial
court‘s evidentiary rulings. A trial court‘s evidentiary rulings are reviewed for an abuse
of discretion. Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990) (en
banc). An appellate court must uphold a trial court‘s evidentiary rulings if they are




       3
           Specifically, appellant‘s counsel asserted:
       Well, I still challenge because we ain‘t going to have no mercy killing evidence in this
       case. And I think the truth of the matter is for this type of case, his mind is closed to the
       option of probation. And so he is not really -- and I think that played out in the way we
       questioned him. That‘s why I don‘t want to give him the mercy killing example because
       this is not a mercy killing, and it will be nothing close to that in this case. So, when they
       say they wouldn‘t consider probation for murder, they mean it, and they will not -- he
       will not -- if he sits on this jury, he will not consider -- he will not give meaningful
       consideration to the option of probation.
       4
          As is relevant here, a juror who cannot keep an open mind to the full range of punishment—that
is, remain open to the idea that in some circumstances the minimum punishment will be appropriate and
in some circumstances the maximum will be—is challengeable for cause. See Tex. Code Crim. Proc.
Ann. art. 35.16(b)(3), (c)(2) (West 2006).
                                                         7
reasonably supported by the record and correct on any applicable theory of law. Willover
v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).

        1.      Admission of Exhibits 87 and 87A

        Appellant asserts in issue five that the trial court erred in admitting State‘s exhibits
87 and 87A, consisting of a recorded jail-house telephone call he made and a transcript of
the call. In this phone call, appellant commented that he wanted the police to find a
computer he had left in his truck. In his brief, appellant asserts only that this evidence
wasted the jury‘s time on a collateral matter having nothing to do with his guilt or
innocence.5 Appellant has failed to describe how the contents of the recording were
unfairly prejudicial. To be error, the trial court‘s ruling must amount to an abuse of
discretion. Montgomery, 810 S.W.2d at 379. Appellant cites no authority to support a
claim that the trial court abused its discretion and has shown no harm. Accordingly, we
overrule his fifth issue.

        2.      Exclusion of Prosecutor’s Testimony Regarding Alleged Brady Information

        In his seventh issue, appellant argues that the trial court erred by refusing to allow
one of the prosecutors to be called as a witness to testify about an email including alleged
Brady6 statements.        Specifically, appellant wanted to call this prosecutor to testify
regarding an email the prosecutor had sent to appellant‘s counsel, in which the prosecutor
related statements made by one of the detectives who had interviewed appellant. In this
email, the prosecutor stated: ―For what it is worth, I spoke with Detective Colunga today.
She is of the opinion that [appellant] was in such a rage that he did not
understand/appreciate/know his actions after the first stab.‖ As discussed in more detail
below, appellant thoroughly cross-examined Detective Colunga regarding this email,

        5
          The State asserts that this phone call cast doubt on his claim of self-defense: had appellant not
expected police involvement when he went to his apartment to confront his ex-wife, why would he have
stated that he wanted the police to discover the computer in his vehicle at the scene of the offense?
        6
          See Brady v. Maryland, 373 U.S. 83, 87–88 (1963) (requiring prosecution to disclose
exculpatory evidence to defendants in criminal cases).
                                                    8
even providing a copy to her to refresh her memory. Detective Colunga stated that,
although she believed that people could suffer black outs such as that described by
appellant, she did not tie her general belief to the facts of this case. Thus, this allegedly
exculpatory evidence was provided to appellant by the State, and he was able to cross-
examine the alleged communicant. Accordingly, there was no Brady violation in this
case.

        Moreover, allowing the prosecutor to testify about an email—an out-of-court
statement7—regarding another out-of-court statement allegedly made by Detective
Colunga would have involved violations of the hearsay rules. See Tex. R. Evid. 801, 805
(defining hearsay and hearsay within hearsay).                        Appellant has not identified any
exception to the hearsay rules applicable to this evidence.                         See Tex. R. Evid. 802
(providing that hearsay is generally not admissible except as provided by statute or rules
of evidence or other rules prescribed pursuant to statutory authority). Appellant has not
established that the trial court abused its discretion in refusing to permit the prosecutor to
testify about this email. We overrule appellant‘s seventh issue.

        3.         Admission of Sexually-Oriented Emails and Alleged Sexual Fantasizing by
                   Appellant
        In issue eight, appellant contends that, despite his Texas Rules of Evidence 403
and 404 objections, the trial court erred in admitting evidence regarding extraneous
offenses, including sexually-oriented emails sent to his stepdaughter and an admission by
appellant to his stepdaughter that he was fantasizing about her. Rule 403 provides that
relevant evidence ―may be excluded if its probative value is 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.‖ Tex. R.
Evid. 403. Rule 404 limits admission of character evidence and admission of other
crimes, wrongs, or acts, unless certain exceptions apply. Tex. R. Evid. 404. The Rules of


        7
            Tex. R. Evid. 801(a) (―A ‗statement‘ is . . . an oral or written verbal expression. . . .‖).
                                                         9
Evidence favor admissibility of relevant evidence, and the presumption is that relevant
evidence will be more probative than prejudicial. Smith v. State, 105 S.W.3d 203, 207
(Tex. App.—Houston [14th Dist.] 2003, pet. ref‘d) (citing Montgomery, 810 S.W.2d at
389).

        Outside the presence of the jury, the State proffered emails sent by appellant to his
stepdaughter from an email account he had set up under the name ―Jason.‖ These emails
were sexual in nature. Appellant stated that he, with Karen‘s knowledge and consent,
sent these emails as part of an ―internet sting‖ to see if his stepdaughter would respond to
them in a sexual manner. His stepdaughter was unaware that it was appellant who had
sent these emails.      The State additionally proffered the testimony of appellant‘s
stepdaughter that appellant admitted to her that he was fantasizing about her.           His
stepdaughter stated that she and her mother moved out of the apartment they had shared
with appellant shortly after she told her mother that appellant disclosed that he was
fantasizing about her. The State argued that this evidence helped establish appellant‘s
motive and intent in killing Karen. Appellant objected to the admission of this evidence
under Rules 403 and 404. After a hearing outside the presence of the jury, the trial court
overruled his objections and this evidence was presented to the jury.

        As noted above, we must uphold a trial court‘s evidentiary rulings if they are
reasonably supported by the record and correct on any applicable theory of law.
Willover, 70 S.W.3d at 845. All of this evidence was admitted after appellant‘s cousin
testified that appellant treated his stepdaughters ―awesome‖ and ―loved the girls.‖
Additionally, appellant testified about his own good conduct involving his stepdaughters.
Thus, the challenged evidence was admissible as rebuttal under the Texas Rules of
Evidence, which provide that character evidence is admissible to rebut an accused‘s
character evidence. Tex. R. Evid. 404(a)(1)(A). Further, the State‘s theory was that
appellant killed his wife in a rage when she confronted him about inappropriate sexual
conduct involving her daughter. In fact, appellant admitted in his statements to law

                                             10
enforcement that his ex-wife had accused him of molesting his stepdaughter before he
stabbed her. This evidence was thus probative of his motive and intent. See Tex. R.
Evid. 404(b) (stating that evidence of other crimes, wrongs, or acts is admissible for
proof of motive and intent, among other things). Additionally, the trial court provided
limiting instructions, both orally and in its written instructions to the jury, that the jury
could consider this evidence only if it believed that these acts occurred beyond a
reasonable doubt and then only for the limited purpose of establishing appellant‘s motive
or intent to kill Karen. Under these circumstances, we cannot say the trial court abused
its discretion in admitting this evidence. We overrule appellant‘s eighth issue.

        4.      Admission of Psychologist’s Testimony

        In issue nine, appellant asserts that the trial court erred in admitting the testimony
of a psychologist, Dr. Karen Gollaher, over his (1) Daubert/Kelly objection,8
(2) objection that she could not tie her general testimony to the specific facts of the case,
and (3) objection that her opinion was essentially an opinion on his truthfulness. Expert
testimony must aid, not supplant, the jury‘s fact-finding role, and expert testimony that
constitutes a direct opinion on the truthfulness of a witness does not assist the jury, and is
thus inadmissible. Schutz v. State, 957 S.W.2d 52, 70 (Tex. Crim. App. 1997) (en banc);
Yount v. State, 872 S.W.2d 706, 708 (Tex. Crim. App. 1993) (en banc).

        Before Dr. Gollaher testified, the trial court conducted a hearing outside the
presence of the jury. At the conclusion of the hearing, the trial court determined that Dr.
Gollaher was qualified, her testimony would aid the jury, and she could tie her testimony
to the specific facts of the case without reaching an ultimate conclusion regarding
whether appellant suffered from dissociative amnesia.



        8
          Our review of the record indicates that appellant did not preserve this issue for appeal. On the
referenced portion of the record, appellant objected to Dr. Gollaher‘s testimony because she could not tie
it to the specific facts of the case, it would be more prejudicial than probative under Texas Rule of
Evidence 403, and it amounted to an opinion on appellant‘s truthfulness.
                                                   11
        Before the jury, Dr. Gollaher testified that some aspects of appellant‘s description
of the events surrounding Karen‘s death were consistent with dissociative amnesia, but
others were consistent with malingering.                 She specifically referenced appellant‘s
testimony and the interviews he gave to detectives in making these statements. Thus, her
testimony was sufficiently tied to the facts of the case. Further, as discussed next,
appellant has failed to identify what harm, if any, resulted from Dr. Gollaher‘s testimony.

        Although testimony by an expert that a witness displays malingering behavior may
approach the line of commenting on the witness‘s truthfulness,9 in this case, appellant has
not explained how Dr. Gollaher‘s testimony caused him harm. In fact, she informed the
jury that she could not express an ultimate opinion as to whether appellant suffered from
dissociative amnesia without interviewing and testing appellant.                          Under these
circumstances, we conclude that Dr. Gollaher‘s testimony was, at most, unhelpful to the
jury because she described part of his behavior as consistent with dissociative amnesia
and part of his behavior as consistent with malingering. ―Any error . . . that does not
affect substantial rights must be disregarded.‖              Tex. R. App. P. 44.2(b).            Because
appellant has not explained how any error the trial court may have committed in
admitting Dr. Gollaher‘s testimony harmed him and harm is not apparent from the record,
we cannot say the trial court abused its discretion in admitting her testimony. We
overrule appellant‘s ninth issue.




        9
           We note, however, that at least one court of appeals has approved an expert‘s testimony that she
has ―ruled out‖ malingering. Dolan v. State, No. 11-00-00306-CR2001 WL 34373584, at *3 (Tex.
App.—Eastland Sept. 20, 2001, no pet.) (not designated for publication). Additionally, in the context of a
competency hearing, doctors often testify that a defendant‘s symptoms are suggestive of malingering.
See, e.g., Davis v. State, 313 S.W.3d 317, 336 (Tex. Crim. App. 2010) (noting that doctor, after reviewing
a DVD statement appellant made at the police station, concluded that appellant‘s complaints were
indicative of malingering); Williams v. State, 191 S.W.3d 242, 250 (Tex. App.—Austin 2006, pet. ref‘d)
(―Dr. Schmidt, who had not personally examined appellant, testified that appellant‘s medical record
reflected inconsistent symptoms that suggested malingering or faking symptoms for a secondary gain or
to go to a hospital.‖).
                                                    12
D.      Restriction of Cross Examination

        In his sixth issue, appellant complains that the trial court denied him due process,
due course of law, effective assistance of counsel, and the right to confront and cross-
examine Detective Colunga by unduly restricting his examination of this detective. ―The
U.S. Constitution ensures that criminal defendants will have a ‗meaningful opportunity to
present a complete defense.‘‖ Miller v. State, 36 S.W.3d 503, 506 (Tex. Crim. App.
2001) (quoting Gilmore v. Taylor, 508 U.S. 333, 343 (1993)). This principal has been
invoked in cases in which the trial court has excluded evidence. Id.

        Appellant provides the following laundry list of allegedly erroneous rulings made
during his examination of Detective Colunga, without providing any specific argument as
to how these rulings were erroneous:10

1.      Excluding appellant‘s video statement;
2.      Barring the answer to a question about the written statement being based on the
        questioning shown in the video statement;
3.      Barring the answer to the question as to appellant‘s being observed by the
        detective during the questioning;
4.      Barring the answer to the question as to whether appellant was crying during the
        questioning;
5.      Barring the answer to the question of whether appellant was disoriented during the
        questioning;
6.      Barring the answer to the question of whether Detective Callie told appellant that
        she appreciated him being honest;
7.      Barring the answer to the question about appellant‘s being told the complainant
        was dead;
8.      Barring the answer to the question about whether the witness formed the opinion
        that appellant did not appreciate or understand his actions after the first stab;
9.      Barring the answer to the question as to whether the witness told appellant that she
        believed him;

        10
           Arguably, appellant has waived this issue by failing to properly brief it. See Tex. R. App. P.
38.1(i) (providing that a brief must contain a clear and concise argument for the contentions made with
appropriate citations to authorities and the record).
                                                   13
10.    Barring the answer to the question that appellant gave a lot more detail in his
       video statement;
11.    Barring the answer to the question about whether appellant clarified his previous
       statement in his video interview; and
12.    Refusing to admit into evidence a redacted email from the trial prosecutor to
       defense counsel that the witness had told him that appellant did not
       understand/appreciate/know his actions after the first stab.
       With the exception of numbers 8 and 12, all of appellant‘s complaints concern the
admission of the second interview appellant had with Detective Colunga. Number 12 is
discussed supra, in section C.2 of this opinion. Regarding number 8, appellant actually
provided the email at issue to Detective Colunga and questioned her about this issue. As
noted above in section C.2, Detective Colunga testified that she believed people could
black out, but she expressed no opinion regarding whether appellant blacked out in this
case. Thus, complaints 8 and 12 are meritless.

       The remainder of appellant‘s complaints concern questions asked of Detective
Colunga regarding his behavior or statements made during his second interview. This
interview was video-taped at the police station several hours after appellant gave his
initial recorded statement at the scene of the offense. The trial court refused to admit this
video-taped statement during appellant‘s examination of Detective Colunga. However,
this statement was admitted in its entirety later in his trial. Thus, the jury was able to
view the video, see appellant‘s demeanor, and hear the statements made during the
interview. Accordingly, any error the trial court may have made in refusing to admit the
video-taped interview during Detective Colunga‘s examination was rendered harmless
beyond a reasonable doubt by the later admission of the same evidence. See Tex. R. App.
P. 44.2(a); see also Bolen v. State, 321 S.W.3d 819, 826–27 (Tex. App.—Amarillo 2010,
pet. ref‘d) (citing Preston v. State, 481 S.W.2d 408, 409 (Tex. Crim. App. 1972)). We
overrule appellant‘s sixth issue.




                                             14
E.     Charge Error

       In his tenth through fourteenth issues, appellant complains about several specific
aspects of the trial court‘s charge to the jury on guilt-innocence.         When reviewing
allegations of charge error, an appellate court must first determine whether error actually
exists in the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (en
banc). Only if error is found must we determine whether it caused sufficient harm to
require reversal. Id.

       1.       Reasonable Doubt Instruction

       In issue ten, appellant asserts that the trial court erred in instructing the jury over
his objection that ―[i]t is not required that the prosecution prove guilt beyond all possible
doubt; it is required that the prosecution‘s proof exclude all ‗reasonable doubt‘
concerning the defendant‘s guilt.‖ Appellant asserts in his brief that this language is
prohibited by Paulson v. State. 28 S.W.3d 570 (Tex. Crim. App. 2000). To the contrary,
however, this language was not prohibited by Paulson, although the Court of Criminal
Appeals stated that the better practice is to give to the jury no definition of reasonable
doubt at all.    Id. at 572–73.   Moreover, the Texas Court of Criminal Appeals has
determined repeatedly that including this instruction in a jury charge is not an abuse of
discretion. Mays v. State, 318 S.W.3d 368, 389 (Tex. Crim. App. 2010); Woods v. State,
152 S.W.3d 105, 115 (Tex. Crim. App. 2004) (en banc). Appellant‘s tenth issue is
without merit and is overruled.

       2.       Right to Continue Attacking

       Appellant contends that the trial court erred by refusing to submit an instruction on
the right to continue attacking in his eleventh issue. He relies on Key v. State, a 1946
opinion from the Court of Criminal Appeals, to support his argument. 192 S.W.2d 563,
(Tex. Crim. App. 1946). In Key, the Court determined that, if the facts raise the issue, an
instruction should be given that a defendant may continue to shoot (or continue attacking)
so long as there was an appearance of danger to himself from the threatened assault. Id.
                                          15
at 567. Here, the facts do not raise this issue: appellant testified that, after the first time
he stabbed his ex-wife, he blacked out and could not remember what happened until the
police arrived. Thus, there is no evidence to support the instruction because there is
nothing in the record to suggest the decedent‘s continuing to threaten appellant after he
stabbed her with the knife for the first time. Because the facts of this case do not raise
this issue, appellant‘s requested instruction was not necessary. We therefore overrule his
eleventh issue.

       3.      Felony-Murder Instruction

       In his related twelfth and thirteenth issues, appellant contends that the trial court
erred in submitting the alternative of convicting him for felony murder and refusing to
submit a requested instruction on jury unanimity and separate verdict forms for each
manner of committing the offense. Here, the trial court submitted three manners by
which appellant could have murdered his ex-wife:

       (1) Intentionally or knowingly causing her death;

       (2) Intentionally causing serious bodily injury and committing an act clearly
            dangerous to human life that caused her death; or

       (3) Committing or attempting to commit a felony offense and while in the course
            of and in furtherance of the commission or attempt, committing an act clearly
            dangerous to human life that caused her death.

These instructions comports with the Texas Penal Code‘s definition of the offense of
murder. See Tex. Penal Code Ann. § 19.02(b)(1), (2), (3). The third definition is known
commonly as ―felony murder.‖

       Appellant claims that aggravated assault cannot be used in an allegation of felony
murder because it is potentially a lesser-included offense of manslaughter. See Johnson
v. State, 4 S.W.3d 254, 258 (Tex. Crim. App. 1999) (―[A] conviction for felony murder
under section 19.02(b)(3) will not lie when the underlying felony is manslaughter or a

                                              16
lesser included offense of manslaughter.‖). However, the Court of Criminal Appeals has
since concluded that aggravated assault is not a lesser-included offense of manslaughter
and may serve as the predicate offense for felony murder. Lawson v. State, 64 S.W.3d
396, 397 (Tex. Crim. App. 2001) (―An ‗intentional and knowing‘ aggravated assault is
not a lesser included offense of manslaughter, nor is it statutorily includable in
manslaughter.‖). Hence, appellant‘s twelfth issue is without merit and is overruled.

         In appellant‘s thirteenth issue, he asserts that the trial court erred by refusing to
submit three separate verdict forms for the three different manners of committing murder.
As appellant concedes in his brief, the Court of Criminal Appeals has approved the use of
a general verdict form when the State alleges both intentional and felony murder. See
Aguirre v. State, 732 S.W.2d 320, 326 (Tex. Crim. App.1987) (en banc) (op. on reh‘g)
(―Because appellant‘s indictment did not allege different offenses but only alleged
different ways of committing the same offense, the court properly furnished the jury with
a general verdict form.‖). Under these circumstances, we overrule appellant‘s thirteenth
issue.

         4.     “Provoking-the-Difficulty” Instruction

         In his fourteenth issue, appellant contends that the trial court erroneously
instructed the jury regarding the concept of ―provoking the difficulty.‖ The doctrine of
provocation is codified in the Texas Penal Code and has its roots in the common law. See
Tex. Penal Code Ann. § 9.31(b)(4) (West 2011); Smith v. State, 965 S.W.2d 509, 513
(Tex. Crim. App. 1998) (en banc). The Penal Code provides that the use of force against
another is not justified

         if the actor provoked the other‘s use or attempted use of unlawful force,
         unless:

                (A) the actor abandons the encounter, or clearly communicates to the
         other his intent to do so reasonably believing he cannot safely abandon the
         encounter; and


                                              17
              (B) the other nevertheless continues or attempts to use unlawful
       force against the actor[.]

Tex. Penal Code Ann. § 9.31(b)(4).

       An instruction on provocation is required when there is sufficient evidence that
(1) the defendant did some act or used some words which provoked the attack on him, (2)
such act or words were reasonably calculated to provoke the attack, and (3) the act was
done or the words were used for the purpose and with the intent the defendant would
have a pretext for inflicting harm upon the other. Smith, 965 S.W.2d at 513. Each of
these elements is a question of fact. Id. An instruction on provocation should be given
only when there is evidence from which a rational jury could find every element of
provocation beyond a reasonable doubt. Id. at 514. If a jury finds that the defendant
provoked an attack and then assaulted the other person, self-defense is not available as a
defense. Id. at 513. On appellate review, we ask whether there was 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. at 514.

       Here, the following evidence supports the trial court‘s instruction.       Appellant
discovered that Karen was with movers at his apartment. He drove from work to his
apartment to confront her and, when he arrived, he asked the movers to step outside the
apartment. According to appellant, Karen accused him of molesting her daughters. After
he went outside the apartment to ask the movers how much they were owed, Karen
locked the apartment door and refused him entry. Instead of leaving, appellant kicked in
the apartment door. Karen retreated to her daughter‘s room, locked that door, and called
911. Appellant kicked in that door and took Karen‘s phone from her. Although he
claimed she calmed down and they went into the living room to talk, his behavior of
kicking in two doors to pursue his ex-wife and removing her cell phone from her when
she was contacting emergency services provides sufficient evidence from which a
rational jury could have found provocation beyond a reasonable doubt.               See id.


                                            18
Accordingly, the trial court did not err by including this instruction in its charge to the
jury. Appellant‘s fourteenth issue is overruled.

F.     Closing Argument

       In his fifteenth and final issue, appellant asserts that the trial court erred in
overruling several objections to the State‘s closing argument. Specifically, he objected
that the prosecutor‘s comments during closing regarding his failure to produce his
medical records or expert testimony regarding whether he suffered from dissociative
amnesia were prejudicial and shifted the burden of proof to the defense. However, the
State may comment on a defendant‘s failure to produce evidence, as long as the remarks
do not fault the defendant for exercising his right not to testify. Jackson v. State, 17
S.W.3d 664, 674 (Tex. Crim. App. 2000) (citing Patrick v. State, 906 S.W.2d 481, 491
(Tex. Crim. App. 1995) and Livingston v. State, 739 S.W.2d 311, 338 (Tex. Crim. App.
1987)). These comments did not fault appellant for not testifying, and in fact, appellant
did testify in this case. Thus, appellant‘s fifteenth issue is without merit and is overruled.

                                        CONCLUSION

       We have overruled each of appellant‘s fifteen issues. Accordingly, we affirm the
trial court‘s judgment.




                                              /s/     Adele Hedges
                                                      Chief Justice


Panel consists of Chief Justice Hedges, Justice Christopher, and Judge Hill.*
Publish — Tex. R. App. P. 47.2(b).


       *
          Hon. Belinda Hill, Judge, 230th District Court, Harris County, Texas, sitting by assignment
pursuant to section 74.003(h) of the Government Code. See Tex. Gov‘t Code Ann. § 74.003(h) (West
2005).
                                                 19
