
NO. 07-06-0062-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JULY 24, 2007
 ______________________________

TOM CASTILLEJA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE
_________________________________

FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2004-407067; HONORABLE CECIL G. PURYEAR, JUDGE
_______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION

	Appellant, Tom Castilleja, appeals from his conviction for murder and jury-assessed
punishment of 50 years incarceration in the Institutional Division of the Texas Department
of Criminal Justice.  We affirm.
Background
	Appellant and Maria Castilleja were married sometime during the year of 2000. 
However, within approximately three years of their marriage, the couple separated and
eventually divorced.  During the time of their separation, Maria began dating Angel Garcia. 
Before the finalization of the divorce, Maria discovered that she was pregnant with Garcia's
child.  
	By August 29, 2006, appellant and Maria had been legally divorced, but appellant
was living at Maria's residence because "he had no other place to go."  Maria and Garcia
spent the day together, along with their daughter.  While they were away, appellant
discovered information about a bank account that Garcia had opened for his daughter. 
Upon Maria's return to the residence, appellant confronted Maria about the bank account. 
Appellant was upset that Garcia had opened a bank account for the girl.  Maria testified
that she had previously informed appellant that the girl was not his and she was confused
by appellant becoming upset that the girl's father opened a bank account for her.
	Eventually, Garcia was called to the residence.  When Garcia arrived, a verbal
altercation began between appellant and Garcia, which quickly escalated into a fist fight. 
Garcia, the larger man, got the better of this altercation.  Eventually, the fight stopped and
appellant went to the kitchen.
	After approximately five minutes in the kitchen, appellant picked up two knives and
returned to the living area.  At this point, Garcia and appellant again got into an altercation
during which appellant stabbed Garcia repeatedly.  As a result of these stab wounds,
Garcia died.
	Appellant was charged with the murder of Garcia.  At trial, the State offered a
number of photographs, including photos of Garcia with his family and photos of his body
as found by police at the scene.  Appellant objected to these photographs on the basis that
their probative value was substantially outweighed by the risk of unfair prejudice.  The trial
court overruled these objections.  Throughout the trial, appellant contended that he killed
Garcia in self-defense.  The jury returned a verdict finding appellant guilty of murder. 
During the punishment phase of the trial, appellant contended that he had killed Garcia
while in the immediate influence of sudden passion.  In accordance with appellant's
election to have the jury assess punishment, the jury sentenced appellant to incarceration
in the Institutional Division of the Texas Department of Criminal Justice for a period of 50
years.  Appellant filed the present appeal of his conviction and sentence.
	By four issues, appellant appeals his conviction and sentence.  Appellant contends 
that (1) the trial court erred in overruling appellant's objection to certain photographs, (2)
the evidence was legally insufficient to support his conviction, (3) the evidence was
factually insufficient to support his conviction, and (4) the evidence was factually sufficient
to prove that appellant killed Garcia while acting under the immediate influence of sudden
passion.
Admission of Photographs
	By his first issue, appellant contends that the trial court abused its discretion in
admitting certain photographs into evidence over appellant's objection.  Three of these
photographs were pictures of Garcia with his family.  Appellant objected to these photos
as cumulative, irrelevant, and serving no other purpose than to inflame the passions of the
jury.  Appellant also objected to nine pictures of Garcia's dead body taken by police at the
crime scene.  Appellant's objection was that the probative value of these pictures was
substantially outweighed by the risk of unfair prejudice, under Texas Rule of Evidence 403. 
	The admissibility of photographs is within the sound discretion of the trial court, who
determines whether the exhibit serves a proper purpose in the enlightenment of the jury. 
See Ramirez v. State, 815 S.W.2d 636, 646-47 (Tex.Crim.App. 1991).  Generally,
photographs are admissible if verbal testimony as to the matters depicted in the
photographs would be admissible.  Id. at 647.  Upon objection under Rule 403, the trial
court must balance the probative value of the photographs against the danger of unfair
prejudice.  See Narvaiz v. State, 840 S.W.2d 415, 429 (Tex.Crim.App. 1992).  Factors in
the trial court's evaluation include: (1) the probative value of the evidence, (2) the potential
to impress the jury in some irrational, yet indelible, way, (3) the time needed to develop the
evidence, and (4) the proponent's need for the evidence.  See Erazo v. State, 144 S.W.3d
487, 489 (Tex.Crim.App. 2004) (citing Montgomery v. State, 810 S.W.2d 372, 389-90
(Tex.Crim.App. 1991) (op. on reh'g)).  In specific reference to photographs, the trial court
should consider, inter alia, the number of photographs offered, their size, whether they are
in color or black and white, their gruesomeness, whether the body is clothed or naked, and
whether the body has been altered by autopsy.  See Reese v. State, 33 S.W.3d 238, 241
(Tex.Crim.App. 2000).  However, after independently evaluating all of these factors, we will
reverse a trial court's admission of photographic evidence only when the probative value
of the evidence is small and its inflammatory potential is great.  Ramirez, 815 S.W.2d at
647.
	As to the photographs of Garcia with his family, appellant contends that these
pictures are rendered more prejudicial than probative when followed by pictures of Garcia
"with a knife gruesomely . . . protruding out of his bloody body."  Thus, appellant's objection
went to the crime scene photos of Garcia's body rather than to the family pictures. 
Appellant wholly fails to identify how these pictures would create an indelible and irrational
sympathy in the jury.  See Fails v. State, 999 S.W.2d 144, 146 (Tex.App.-Dallas 1999, pet.
ref'd).  Thus, we conclude that appellant has failed to show that the trial court abused its
discretion in admitting the family photos.
	Appellant further challenges the admission of nine crime scene photos of Garcia's
body.  These photos are color photos of the victim, a few are fairly close up, and they are
quite gruesome.  However, as the trial court correctly noted, each of these nine photos
showed the body as it was found by police and each showed a different angle or different
features of the body.  Appellant identifies no particular aspect or characteristic of any of
these nine photographs which would mislead the jury or produce some indelibly irrational
impression upon the jury.  Ultimately, appellant contends that the prejudicial effect of these
photos substantially outweigh their probative value because (1) the photos are gruesome
and (2) there was no dispute that appellant killed Garcia by stabbing him to death.
	Certainly the challenged photos are gruesome.  They portray the lifeless body of
Garcia, covered in blood, with a knife protruding from his chest.  However, these photos
do nothing more than portray what the appellant did.  Because there is no suggestion that
these photos were manipulated in a manner which would mislead the jury and were
testified as accurately portraying Garcia's body as it was found by police, we do not find
these photos to present a significant risk to impress the jury in some irrational way.  See
Sonnier v. State, 913 S.W.2d 511, 519 (Tex.Crim.App. 1995).
	The photographic evidence of Garcia's body as found by the police was not
rendered cumulative by appellant not contesting that he killed Garcia by stabbing him to
death.  Each of these photos corroborated testimony regarding the events occurring on the
night in question and the visual component provided by the photographs represents a
distinctive probative quality that testimony alone could not provide.  Further, as the
evidence was in conflict regarding exactly what occurred on the night in question, this
photographic evidence "gives the fact finder a point of comparison against which to test the
credibility of a witness and the validity of his conclusions."  Chamberlain v. State, 998
S.W.2d 230, 237 (Tex.Crim.App. 1999).  Thus, we conclude that appellant has failed to
establish that the probative value of the crime scene photographs was small.  Concluding
that appellant has failed to establish that either the probative value of the crime scene
photos was small or that their prejudicial potential is great, we affirm the trial court's
admission of the photographs and overrule appellant's first issue.  Ramirez, 815 S.W.2d
at 647.
	Appellant further contends that the trial court did not properly perform the balancing
test required upon a Rule 403 objection.  Appellant's contention appears to be premised
on the fact that the trial court simply listened to the objection and overruled it.  However,
unless the trial court expressly refuses to perform the balancing test, the trial court's
overruling of a Rule 403 objection without further comment does not establish that the trial
court did not conduct the required balancing test and will not support a finding of an abuse
of discretion.  See Santellan v. State, 939 S.W.2d 155, 173 (Tex.Crim.App. 1997).
Legal and Factual Sufficiency - Self-Defense
	By his second and third issues, appellant contends that the evidence was legally
and factually insufficient to support the jury's finding that he committed murder. 
Specifically, appellant contends that the State failed to present legally and factually
sufficient evidence to prove, beyond a reasonable doubt, that appellant did not act in self-defense.
 To prove that appellant was guilty of murder, the State was obligated to prove,
beyond a reasonable doubt, that appellant intentionally or knowingly caused the death of
an individual.  Tex. Pen. Code Ann. § 19.02(b)(1) (Vernon 2003). (1)  However, a person is
justified in using deadly force against another if he reasonably believes that deadly force
was immediately necessary to protect himself from the other's use or attempted use of
unlawful deadly force and a reasonable person in the actor's situation would not have
retreated.  §§ 9.31(a), 9.32(a).  A defendant must produce some evidence to raise the
issue of self-defense.  Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App. 2003).  Once
the defendant produces some evidence, it is incumbent upon the State to bear the burden
of persuasion to disprove the defense.  Id.  However, this burden does not require the
State to produce evidence, rather, the State must satisfy the fact finder of the guilt of the
defendant beyond a reasonable doubt.  Id.  A guilty verdict by the jury is an implied
rejection of the defensive theory.  Id.  Therefore, in the final analysis, the State was
required to prove appellant was guilty of murder beyond a reasonable doubt and to
persuade the jury, beyond a reasonable doubt, that appellant did not kill the victim in self-defense.  Id.  Finally, we note that the issue of self-defense is a fact issue for the jury, and
the jury is free to accept or reject defensive evidence.  Saxton v. State, 804 S.W.2d 910,
913-14 (Tex.Crim.App. 1991).
 When reviewing challenges to both the legal and factual sufficiency of the evidence
to support the verdict, we first review the legal sufficiency challenge.  See Clewis v. State,
922 S.W.2d 126, 133 (Tex.Crim.App. 1996).  In reviewing the legal sufficiency of the
evidence, we review all 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 offense
beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004).   The jury
is the sole judge of the weight and credibility to be afforded the evidence.   Jackson, 443
U.S. at 319. 
 When an appellant challenges the factual sufficiency of the evidence supporting his
conviction, the reviewing court must determine whether, considering all the evidence in a
neutral light, the jury was rationally justified in finding the appellant guilty beyond a
reasonable doubt.  See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006).  In
performing a factual sufficiency review, we are to give deference to the fact finder's
determinations if supported by the record and may not order a new trial simply because we
may disagree with the verdict.  See id. at 417.  As an appellate court, we are not justified
in ordering a new trial unless there is some objective basis in the record demonstrating that
the great weight and preponderance of the evidence contradicts the jury's verdict.  See id. 
Additionally, an appellate opinion addressing factual sufficiency must include a discussion
of the most important evidence that appellant claims undermines the jury's verdict.  Sims
v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). 
	Appellant does not specifically challenge the evidentiary support for any particular
element of the offense of murder.  Rather, appellant contends that the evidence was legally
insufficient to allow a rational jury to conclude that he was not acting in self-defense when
he killed Garcia.  Reviewing the evidence in the light most favorable to the verdict, there
is no evidence that the initial altercation between appellant and Garcia was anything more
than a fist fight.  While the evidence reflects that Garcia got the better of this fight, there
is no evidence that appellant ever believed that Garcia was using or attempting to use
deadly force against appellant.  See § 9.32(a)(3)(A).  Further, there is no record evidence
nor any allegation that Garcia was committing or attempting to commit any of the offenses
justifying the use of deadly force.  See § 9.32(a)(3)(B).  As such, even were we to assume
that appellant was justified in using force against Garcia to defend himself, we cannot
conclude that the jury acted irrationally in impliedly finding that appellant was not justified
in his use of deadly force.  We overrule appellant's second issue.
	Appellant's main argument that the evidence is factually insufficient to support his
conviction for murder is that the great weight of the evidence established that he was
acting in self-defense.  Again, however, there is no evidence that appellant believed that
Garcia was using or attempting to use deadly force against him.  See § 9.32(a)(3)(A).  Nor
is there any record evidence or allegation that Garcia was committing or attempting to
commit any of the offenses justifying the use of deadly force.  See § 9.32(a)(3)(B). 
Reviewing the evidence in a neutral light, pictures of appellant following his fight with
Garcia show that he was injured in the altercation, however, hospital records reveal that
his injuries included a laceration above his left eye and facial swelling.  Appellant was
advised to treat his injuries with ice and Tylenol.  Considering the absence of evidence that
Garcia provoked appellant to kill him by using or attempting to use deadly force against
appellant and considering that the extent of appellant's injuries did not allow a reasonable
inference that appellant was reasonably placed in fear for his life, we cannot conclude that
the jury acted irrationally in impliedly rejecting appellant's self-defense justification and
finding him guilty of the murder of Garcia.  We overrule appellant's third issue. 
Factual Sufficiency - Sudden Passion
	Appellant contends that the evidence was factually sufficient to prove that he killed
Garcia in the immediate influence of sudden passion.  During the punishment phase of a
murder trial, the defendant may raise the issue of whether he caused the death under the
immediate influence of sudden passion arising from an adequate cause. § 19.02(d). 
"Sudden passion" is "passion directly caused by and arising out of provocation by the
individual killed or another acting with the person killed which passion arises at the time of
the offense and is not solely the result of former provocation."  § 19.02(a)(2).  "Adequate
cause" is "cause that would commonly produce a degree of anger, rage, resentment, or
terror in a person of ordinary temper, sufficient to render the mind incapable of cool
reflection."  § 19.02(a)(1).  Sudden passion is a mitigating circumstance that, if proven by
a preponderance of the evidence, reduces the offense from a first degree felony and is
treated as a second degree felony. Id.; McKinney v. State, 179 S.W.3d 565, 569
(Tex.Crim.App. 2005).  It is the defendant that bears the burden of proving the issue of
sudden passion.  See Hernandez v. State, 127 S.W.3d 206, 211-12 (Tex.App.-Houston
[1st Dist.] 2003, pet. ref'd).  When a defendant seeks review of a jury's failure to make a
finding on which the defendant had the burden of proof, the defendant invokes our factual
review jurisdiction.  Naasz v. State, 974 S.W.2d 418, 421 (Tex.App.-Dallas 1998, pet.
ref'd) (citing Meraz v. State, 785 S.W.2d 146, 154-55 (Tex.Crim.App. 1990)).  In a factual
sufficiency review, we consider all of the evidence relevant to the issue to determine
whether the judgment is so against the great weight and preponderance of the evidence
as to be manifestly unjust.  Id.  
	Appellant focuses his argument in regard to the issue of sudden passion on which
party initiated the initial confrontation between appellant and Garcia.  Appellant contends
that the evidence is clear that Garcia was the aggressor in the initial confrontation, that
Garcia got the better of the ensuing fight, and that appellant attempted to halt the fight by
attempting to push Garcia out of the house.  Our review of the evidence reveals that
appellant's ex-wife, who witnessed the events on the night in question, was unable to
identify who was the aggressor in the initial confrontation.  However, regardless of who was
the aggressor in this initial confrontation, appellant indicates in the statement he gave to
the police that, after the initial confrontation, appellant went into the kitchen for
approximately five minutes to get a drink of water and to catch his breath.  While
appellant's statement indicates that Garcia taunted him during this five minute period,
appellant's ex-wife's testimony was that Garcia had left the residence during this time. 
Therefore, whether appellant killed Garcia while in the immediate influence of sudden
passion or whether appellant would have been capable of calm reflection during this five
minute cooling off period was a question of fact for the jury to resolve.  Because the
resolution of this conflicting evidence turns on an assessment of the weight and credibility
to be afforded the evidence, we will defer to the jury.  See Johnson v. State, 23 S.W.3d 1,
8 (Tex.Crim.App. 2000). 
	Appellant additionally indicates that he found out on the night in question that the
daughter that he thought was his was not.  Again, however, appellant's ex-wife testified in
a contrary manner.  Appellant's ex-wife testified that she had told appellant on a few
occasions months before the night of Garcia's death that the child was not appellant's. 
Thus, whether appellant learned that the child was not his on the night in question and
whether such fact would constitute adequate cause were fact questions for the jury to
resolve.  See id.  
	Because the evidence relating to whether appellant acted in the immediate influence
of sudden passion was subject to conflicting testimony and the resolution of the resulting
fact issues depended on a determination of the weight and credibility to be afforded the
evidence, we conclude that the jury's rejection of appellant's sudden passion defense is
not so against the great weight and preponderance of the evidence as to be manifestly
unjust.  See Naasz, 974 S.W.2d at 421.  We overrule appellant's fourth issue.
Conclusion
	We affirm the judgment of the trial court.

							Mackey K. Hancock
							          Justice




Do not publish.  



1.  Further reference to sections of the Texas Penal Code will be by reference to "§
__."

