Terzandro Terrell James-Baines v. State

Affirmed and Memorandum Opinion filed January 20, 2009

Affirmed and Memorandum Opinion filed January 20, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-00265-CR

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TERZANDRO TERRELL JAMES-BAINES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause No. 1125974

M E M O R A N D U M  O P I N I O N

Appellant, Terzandro Terrell James-Baines, was indicted for murder.  A jury found him guilty of the lesser-included offense of manslaughter and assessed punishment at ten years= confinement.  The trial court sentenced him accordingly.  On appeal, he raises the following issues: (a) whether the trial court erred in denying his requests that the lesser-included offenses of (1) criminally negligent homicide and (2) aggravated assault be included in the charge; and (b) whether he was egregiously harmed by the trial court=s failure (1) to instruct the jury on his right to defend against multiple assailants and (b) at the punishment phase, to give a reasonable doubt instruction regarding proof of extraneous offenses.  Because our disposition is based on clearly settled law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

Factual Background^[1]

On a summer evening, outside a Houston church, appellant stabbed fifteen-year-old Jabot Phillips in the chest, causing Phillips=s death.  Appellant and Phillips knew each other from church and had loaned each other items. The stabbing occurred during a fight over some loaned property.

At trial, the State called three principal witnesses to the events leading up to, and during, the fight.  These witnesses also knew appellant and Phillips from church.  The witnesses were Cornelius Davis, who conveyed messages between appellant and Phillips on the day of the fight and accompanied Phillips to the fight; Aunesha Jackson, appellant=s girlfriend; and James Riley, who followed Phillips and Davis to the fight.  The teenagers were at the church to participate in, or watch, the praise dance practice.

Earlier in the evening, Davis had heard a conversation between Phillips and appellant, in which Phillips asked appellant to return a compact disc.  Appellant refused to do so.  Later Phillips sent Davis to the church to tell appellant Ahe was going to beat him up@ if Davis did not bring the compact disc back to Phillips.  Davis conveyed the message, and appellant became upset, telling Davis to Ago get@ Phillips.

Jackson and the pastor=s daughter, Brittany Reason, were present during the conversation between Davis and appellant.  Jackson testified appellant appeared angry after the conversation with Davis.  Appellant pulled a pocket knife from his pocket, displayed the blade, and said, AI=m tired of him messing with me.@ Jackson thought appellant intended to stab Phillips.  She and Brittany told appellant to put the knife away, and he complied.

Davis subsequently returned to the church with Phillips.  Phillips=s friend, James Riley, followed them.  When Phillips approached appellant, appellant repeated three times, A[S]o, you say you=re going to beat me up.@  Phillips said he was Ajust playing,@ but offered to fight if appellant wanted to fight.

Phillips removed his shirt and handed the shirt, his do-rag, and a compact disc player to Riley.  Appellant walked to the back of the church, removed his own shirt, and placed it on the ground.  Riley and Jackson believed the two intended to fight.^[2]

After appellant placed his shirt on the ground, Phillips approached him and struck him once in the face with his fist.  Appellant then swung at Phillips, stabbing him in the chest.  None of the witnesses saw the knife; and, according to Jackson, appellant did not warn Phillips he had one.  After realizing he had been stabbed, Phillips grabbed his side, declaring,  A[M]an, you don=t play fair.  You don=t fight fair.@  Phillips leaned against a car, then went  into the church, collapsing near the doorway.  The fight lasted about thirty seconds.

During the incident, Riley stood the same distance from appellant and Phillips as did Jackson.  Riley did not remove his shirt.  He held Phillips=s shirt and do-rag throughout the encounter, but did set the compact disc player down.  Jackson and Davis testified that Riley did not approach, swing at, or attempt to grab, appellant.  Both, however, also testified they thought Riley might enter the fight to assist Phillips.  Riley=s placing the disc player on the ground caused Jackson to fear Riley intended to fight.  Davis testified Riley told him he would not let appellant fight Phillips, causing Davis to believe Riley intended to participate.  Davis also testified, because he (Davis) believed Riley might enter the fight, he thought appellant might also have believed it.  Riley, however, denied he intended to participate because he considered it a one-on-one fight.

In addition to Jackson, Davis, and Riley, the State called Officer Bart Nabors, who investigated the case and videotaped appellant=s custodial statement, and assistant medical examiner, Marissa Feeney, who performed the autopsy on Phillips=s body.^[3] In the videotaped statement, which was played to the jury, appellant explained that he and Phillips had other arguments that had not resulted in a physical altercation.  Although Phillips had wanted to fight appellant, appellant chose not to participate.

Appellant explained the argument at church resulted from an exchange of sunglasses and compact discs, and he recalled Davis telling him if appellant did not return the compact discs the next time appellant saw Phillips, Phillips would Abeat [appellant] up.@ Appellant admitted removing his shirt and placing it by the church stairs.  He said Phillips then approached him and hit him on the cheek.  Appellant admitted he used a folding pocketknife to stab Phillips.  Appellant claimed he pulled the knife and opened it after Phillips hit him.  Appellant did not know where he stabbed Phillips, but admitted he Ajust swung the knife at him.@  He then saw Phillips grab his left side.

Appellant also admitted he threw the knife into some bushes because Athat was my first time doing something like that . . . I was kind of like shocked . . . . And I didn=t know he was gonna . . . be alright.@ Appellant claimed he panicked.  He admitted he was angry initially and then became frightened after the stabbing because he knew Phillips could pass out from excessive blood loss.  Appellant denied being frightened during the fight, stating he had not participated in a fight in a Along, long, long time@ and did not like to fight.

Appellant claimed Phillips was previously involved in a physical altercation with a girl from the church.  He believed Phillips and Riley Alike[d] to jump people.@  Nevertheless, he did not indicate he considered Riley a threat during his fight with Phillips.

Assistant medical examiner, Marissa Feeney, testified Phillips died from a stab wound to the chest with penetration of the heart.  The wound was three to five inches deep, front to back, and aimed slightly upward.  Feeney opined the wound was caused by a knife.^[4]  Feeney explained Phillips would have stopped functioning normally within a minute of receiving the injury and would have died shortly thereafter.  She considered the knife that had been recovered from the scene consistent with the wound and testified it was a deadly weapon.

Appellant did not testify.  He called Bridget Reason, co-pastor of the church, Marlan Sampson, the deacon, Ray Reason, the pastor, and Delores Campbell, a church member.  Bridget Reason testified she knew Phillips as a person who caused problems or fights at the church.  Phillips had admitted slapping his girlfriend.  Other than the day of the incident with Phillips, she had no difficulties with appellant.  After the fight, she saw appellant standing outside.  Appellant looked as if he were Acoming down,@ and told her Phillips had been picking on him and appellant was tired of it.

Sampson described Phillips as Ahot headed.@  In contrast, he described appellant as a peace maker.

Ray Reason testified he had talked with Phillips about his attitude.  Ray had also told appellant not to bring his knife to church.

Campbell testified that, in her opinion, appellant was not violent and was not a gangster.  She had never heard of appellant doing anything violent.

Discussion

A.        Denial of Appellant=s Requests for Lesser-included Offenses

In issue one, appellant contends the trial court erred in denying his request for an instruction on criminally negligent homicide.  In issue two, he argues the trial court erred in denying his request for an instruction on aggravated assault.

We apply the following two-pronged test to determine whether a trial court is required to submit a lesser-included offense instruction:  (1) the lesser-included offense must be included within the proof necessary to establish the offense charged, and (2) some evidence must exist in the record that, if the defendant is guilty, he is guilty of only the lesser-included offense.  Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993).  If the defendant presents more than a scintilla of evidence sufficient for a rational jury to find him guilty of the lesser-included offense, then he is entitled to a lesser-included offense instruction.  Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999).  We review all the evidence introduced at trial to determine whether the trial court erred by failing to instruct the jury on a lesser-included offense.  Enriquez v. State, 21 S.W.3d 277, 278 (Tex. Crim. App. 2000).

A person commits murder if he Aintentionally or knowingly causes the death of an individual [or] intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual . . . .@  Tex. Penal Code Ann. ' 19.02(b)(1), (2) (Vernon 2003).  A person commits manslaughter if he Arecklessly causes the death of an individual,@ and commits criminally negligent homicide if he Acauses the death of an individual by criminal negligence.@  Id. '' 19.04(a), .05(a).  Finally, a person commits aggravated assault if he Aintentionally, knowingly, or recklessly@ causes Aserious bodily injury@ to another.  See Tex. Penal Code Ann. '' 22.01(a)(1), .02(a)(1) (Vernon Supp. 2008).^[5]

The State concedes both criminally negligent homicide and aggravated assault meet the first prong of the test for submission of a lesser-included offense of the charged offense of murder.  The State, however, argues the evidence in the present case did not support submission of either offense, i.e., the evidence did not show appellant was guilty only of the lesser offense.

Issue one: criminally negligent homicide.  Both manslaughter and negligent homicide differ from the charged offense of murder because a less culpable mental state suffices to establish their commission.  See Tex. Code Crim. Proc. Ann. art. 37.09(3) (Vernon 2006) (providing offense is lesser-included offense if it differs from charged offense only in respect that less culpable mental state suffices to establish its commission);  Saunders v. State, 913 S.W.2d 564, 572 (Tex. Crim. App. 1995) (stating both involuntary manslaughter and negligent homicide are lesser-included offenses of murder).  The recklessness element of manslaughter, of which the jury convicted appellant, is Asatisfied by evidence showing that the defendant consciously disregarded a known substantial and unjustifiable risk that serious bodily injury would occur.@  Johnson v. State, 915 S.W.2d 653, 658 (Tex. App.CHouston [14th Dist.] 1996, pet. ref=d) (emphasis added).  In contrast, A[t]he key to criminal negligence is the failure of the actor to perceive the risk created by his conduct.@  Mendieta v. State, 706 S.W.2d 651, 652 (Tex. Crim. App. 1986) (emphasis added).  In involuntary manslaughter, Athe accused must be aware of the risk, and consciously disregard it.  In [criminally negligent homicide] it must be found that, though he ought to have been aware of the risk, he was not.@  Saunders, 913 S.W.2d at 572.   Before a charge on criminally negligent homicide is required, the record must contain evidence showing an unawareness of the risk.  Jackson v. State, 248 S.W.3d 369, 371B72 (Tex. App.CHouston [1st Dist.] 2007, pet. ref=d).

In the trial court, appellant argued that Athe deceased struck [appellant] from behind as he was turning around, it could be perceived . . . he turned around and thrust the knife in a neglect [sic] manner.@  On appeal, appellant contends Davis=s testimony that Phillips Asucker punch[ed]@ appellant warrants the instruction.

None of the witnesses saw the knife during the fight.  Earlier, appellant had taken the knife from his pocket, but Jackson testified appellant returned it to his pocket at that time.  In his statement, appellant admitted Phillips hit him, then appellant Awent right to [his] back pocket,@ pulled out the knife, and opened it.

The evidence in this case is virtually identical to Mendieta,  706 S.W.2d at 651B52.  The defendant in Mendieta was involved in a fight in which the other participant pushed the defendant.  Id. at 651.  When the defendant was pushed a second time, he fell and pulled a knife from his pocket, opened it, and swung it.  Id.  The court of criminal appeals summarized:

As the Court of Appeals correctly pointed out in its opinion, appellant testified that he pulled out his knife and began swinging it in order to keep the deceased away from him.  This testimony shows that appellant was aware of the risk he was creating. . . . [T]he evidence entitled appellant to a charge on involuntary manslaughter, but it did not raise criminally negligent homicide. Because there is nothing in the evidence presented which indicates that appellant was unaware of the risk his conduct created, we find that the issue of criminally negligent homicide was not raised and the trial court did not err in refusing to give appellant=s requested charge.

Id. at 653.

Similarly, the evidence in this case did not raise the issue of criminally negligent homicide. The trial court correctly denied appellant=s request.  We therefore overrule appellant=s first issue.

Issue two: aggravated assault.  When there is no evidence from which a rational jury could conclude a defendant did other than cause the death of the victim, he is not entitled to a lesser-included offense instruction on aggravated assault.  See Jackson v. State, 992 S.W.2d 469, 475 (Tex. Crim. App. 1999); see also Armstrong v. State, 179 S.W.3d 84, 87 (Tex. App.CFort Worth 2005, no pet.) (holding defendant not entitled to instruction on aggravated assault when he did not dispute causing complainant=s death and there was no evidence complainant suffered a lesser form of serious bodily injury).

In the present case, appellant admitted that he stabbed Phillips.  There was no evidence anyone other than appellant was close to Phillips during the fight. The medical examiner testified Phillips=s death was caused by a stab wound to the chest. Accordingly,  there is no evidence from which a rational jury could conclude appellant did anything other than cause Phillips=s death.  See Bergeron v. State, 981 S.W.2d 748, 752 (Tex. App.CHouston [1st Dist.] 1998, pet. ref=d) (reasoning, if defendant intentionally or knowingly caused injury that resulted in victim=s death, defendant would have committed both aggravated assault and murder as charged in the indictment; and holding jury could not have found defendant guilty only of aggravated assault when evidence showed he intentionally stabbed murder victim in groin area and held knife out at victim as victim was rushing back at him).

The trial court correctly denied appellant=s request for aggravated assault.  See id.  We therefore overrule appellant=s second issue.

B.        Failure to Instruct Absent a Request

In issue three, appellant argues he was egregiously harmed by the trial court=s failure to instruct the jury on his right to defend against multiple assailants.  In issue four, appellant argues he was egregiously harmed by the trial court=s failure, in the punishment phase, to instruct on reasonable doubt relative to extraneous offenses.

Appellant thus acknowledges he did not request such instructions; and, if the trial court erred, appellant has the burden to show egregious harm under the standard of Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).  See Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006) (regarding standard of appellate review when defendant has disregarded requirements, including requirement of objection to charge); Zarco v. State, 210 S.W.3d 816, 823 (Tex. App.CHouston [14th Dist.] 2006, no pet.) (applying Almanza standard to trial court=s failure to give reasonable doubt instruction relative to extraneous offenses at punishment phase); Mata v. State, 939 S.W.2d 719, 722B23 (Tex. App.CWaco 1997, no pet.) (applying Almanza standard to trial court=s failure to instruct on right to defend against multiple defendants). Errors causing egregious harm are those that affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defense theory. Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996).  Egregious harm is present whenever a reviewing court concludes the case for conviction or punishment was actually made clearly and significantly more persuasive by the error.  Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991).

Egregious harm is a difficult standard and must be proved on a case-by-case basis.  Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002).  In determining whether lack of an instruction caused egregious harm, we consider the following four factors:  (1) Athe entire jury charge,@ (2) Athe state of the evidence, including the contested issues and weight of probative evidence,@ (3) Athe argument of counsel,@ and (4) Aany other relevant information revealed by the record of the trial as a whole.@  Almanza, 686 S.W.2d at 171.

Issue three: multiple assailants.  Assuming, without deciding, the trial court erred in not giving a multiple assailants charge, we conclude appellant has not shown he was egregiously harmed.^[6]  Regarding the first Almanza factor, the jury was instructed on the law of self-defense, including the use of force and deadly force against another.  In the context of this instruction, the jury was informed, A[I]t is not necessary that there be an actual attack or attempted attack, as a person has a right to defend his life and person from apparent danger as fully and to the same extent as he would had the danger been real, provided that he acted upon a reasonable apprehension of danger . . . .@  The jury was further instructed that, to determine real or apparent danger, it Ashould consider all the facts and circumstances in the case in evidence . . . show[ing] the condition of the mind of the defendant at the time of the occurrence in question . . . .@  Thus, although the application paragraph referred to justification of appellant=s use of force only against Phillips, the instruction, as a whole, informed the jury it could look to Aall the facts and circumstances in the case@ to determine appellant=s state of mind.

Second, although appellant=s counsel elicited testimony from Jackson and Davis that they believed Riley might join the fight and that appellant might have entertained a similar belief, uncontroverted evidence showed Riley was about the same distance from appellant and Phillips as was Jackson.  Moreover, although Riley put the compact disc player down, he continued to hold Phillips=s shirt and do-rag, thus impeding his ability to assist Phillips.

Third, during closing argument, both the State and appellant referred to Riley during their discussions about self-defense.  Appellant argued,

Now how does [apparent danger] apply in this particular case? . . . Aunesha Jackson told you she thought [Riley] who=s two feet away, was going to jump in.  That=s two on one.  Cornelius Davis also said that he thought [Riley] was going to jump in.  Again, that=s two on one.

The State countered that the jury should not consider Riley a threat because he was only thirteen and was not acting as if he intended to participate.

Finally, the jury rejected appellant=s self-defense claim as contained in the jury charge. Instead, the jury returned a verdict of guilty to manslaughter.  The jury=s verdict suggests they would have rejected a multiple assailant defense even had an instruction been given.  See Dickey v. State, 22 S.W.3d 490, 493 (Tex. Crim. App. 1999) (Keller, J., concurring) (opining the jury=s rejection of theory defendant acted in self defense against victim necessarily showed jury would also have rejected multiple assailants theory).

Even if we assume the trial court erred in failing to give a multiple assailants instruction, we conclude appellant was not egregiously harmed.  Accordingly, we overrule appellant=s third issue.

Issue four: failure to instruct on reasonable doubt relative to extraneous offense evidence. Appellant=s fourth issue involves evidence, elicited at the punishment phase, indicating appellant had been involved in fights while in jail awaiting trial on the present offense.  If evidence of an extraneous offense is before the jury, Texas Code of Criminal Procedure article 37.07, section 3(a), requires the court to instruct the jurors they may not consider the extraneous offense in assessing the defendant=s punishment unless the offense was proved beyond a reasonable doubt.  Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a)(1) (Vernon Supp. 2008); Huizar v. State, 12 S.W.3d 479, 483B84 (Tex. Crim. App. 2000).  The State concedes the trial court erred in not giving a reasonable doubt instruction.  See Huizar, 12 S.W.3d at 484.  Because appellant did not request such an instruction or object to its omission, we apply the Almanza harm analysis, set forth above.  See id. at 484B85.

The State elicited the extraneous offense evidence during cross-examination of appellant=s grandmother, Chalethea Whittaker, who reared appellant.  On direct examination, Whittaker had testified appellant was a good child and had never been convicted of a felony.  Whittaker testified, if the jury recommended probation, appellant would live with her and she would ensure he did not violate the conditions of his probation.  She concluded by saying she believed appellant would be able to complete probation and be a productive citizen.

On cross-examination, Whittaker testified that she did not believe appellant stabbed Phillips on purpose and she thought it was an accident.  Whittaker repeated this opinion and added, ABut knowing him and knowing the type he is, he wouldn=t go after nobody to hurt them intentionally.@  The State then contended Whittaker had Aopened the door@ to evidence about the jailhouse fights and asked a series of question related to the purported fights.

Whittaker affirmed she knew appellant had been fighting in jail and had been involved in a riot.  In response to whether she knew he had been in three fights, Whittaker said she knew he had Abeen jumped.@  She denied knowing he had been bragging about his fighting or that he had laughed about it.  The series of questions ended when the State asked, Aso knowing that he could go to jail already, he=s still involved in fights at the jail?@  Whittaker responded, AYeah, because that=s a whole different setting.  Over there you get hit all the time.  They jump on you, too.  He=s even been hit by an officer.@

Appellant affirmatively stated that he had no objections to the punishment phase charge, which did not include an instruction requiring the jury to find that appellant=s participation in jailhouse fights had been proved beyond a reasonable doubt.  We turn now to an analysis of the four Almanza factors.

Considering the entire jury charge, we first observe that, during the guilt/innocense phase, the court instructed the jury, AThe burden of proof in all criminal cases rests upon the State throughout the trial and never shifts to the defendant.  All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.@  During the punishment phase, the court instructed the jury, AThe burden of proof in all criminal cases rests upon the State throughout the trial and never shifts to the defendant.@  Although the jury did not hear the punishment phase instructions the same day it heard the guilt/innocence instructions, we nevertheless conclude it would have followed the punishment phase instruction and held the State to the same burden of proof it did at trial.^[7]  See Gholson v. State, 5 S.W.3d 266, 271 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d) (holding no egregious harm shown when jury, during guilt/innocence phase, received proper reasonable doubt instruction regarding unadjudicated acts and received punishment charge the same day).

Regarding the second Almanza factor, a principal contested issue at sentencing was whether the defendant was an appropriate candidate for community supervision. The State argued for fifteen years= confinement; appellant, for community supervision.  The jury sentenced appellant to ten years, thus allowing community supervision had the jury so decided.  See Tex. Code Crim. Proc. Ann. art. 42.12 ' 4(d)(1) (Vernon Supp. 2008).

The evidence of appellant=s participation in jailhouse fights consisted of his grandmother=s reluctant admission she knew he had been fighting and in a riot while he was in jail.  The State offered no other evidence of the alleged fighting. In closing, appellant  emphasized the State=s lack of any documentary evidence regarding the fights.  The State responded, AHow many folks you think I=m gong to be able to get on that stand and snitch?  Do you think I=m going to be able to find anybody? No.  But does that mean it didn=t happen?  No.@  Nevertheless, appellant does not argue the evidence of the jailhouse fighting was insufficient, but only that the trial court erred in not giving the reasonable doubt instruction.  See Arnold v. State, 7 S.W.3d 832, 835 (Tex. App.CEastland 1999, pet. ref=d) (holding defendant not egregiously harmed by court=s failure to instruct because, among other factors, defendant did not contend evidence was insufficient to prove beyond a reasonable doubt he had committed extraneous offenses, but only that instruction was not given).

Relevant to the third Almanza factor, the State used the extraneous offense evidence to argue appellant should not be granted probation.  The State argued, A[Defense counsel is] telling you he should get probation.  But non-violent people don=t stab folks.  Non-violent people don=t carry weapons.  And non-violent people having been charged with murder and sitting in the Harris County jail, don=t get into fights in jail.@

The State, however, did not rely solely on the extraneous offense evidence to argue for a fifteen year sentence.  Instead, the State also emphasized the violent nature of the offense, the age of the victim, the fact the victim was appellant=s friend, and the fact the killing had occurred outside a church in view of friends of the participants.

Regarding the fourth factor, the crime involved violence.  It was undisputed appellant stabbed Phillips so severely Phillips would have lost the ability to function within a minute of being injured.  The offense of which the jury found appellant guilty carried a potential penalty of up to twenty years.  The State asked for fifteen years, and the jury assessed ten.  The jury=s assessment of ten years was within the mid-range of punishment for manslaughter and, therefore, demonstrates lack of egregious harm to appellant.  See Allen v. State, 47 S.W.3d 47, 53 (Tex. App.CFort Worth 2001, pet. ref=d) (reasoning jury=s sentence was within range of punishment for attempted murder and, therefore, did not demonstrate Aegregious harm@ to defendant).

Considering the totality of the evidence and the record on appeal, we conclude the State=s case for punishment was not made clearly and significantly more persuasive by the error.  See Saunders, 817 S.W.2d at 692.  Accordingly, we overrule appellant=s fourth issue.

Having overruled appellant=s four issues, we affirm the judgment.

/s/        Charles W. Seymore

Justice

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  We set forth the relevant procedural background in the discussion of the issues below.

^[2]  There is a conflict in the testimony about how evenly matched appellant and Phillips were.  According to Riley, both appeared to be the same size and weight.  The church deacon, however, testified Phillips was two or three inches taller than appellant and Aa little bit more muscular.@

^[3]  The State also called Officer Sherry Rowe, of the Houston Crime Scene Unit, and Felix Phillips, the victim=s father.  Their testimony is not germane to the issues on appeal.

^[4]  Feeney also observed an incised wound on Phillips=s upper left back, two incised wounds on his right hand, and abrasions on his chest.

^[5]  Texas Penal Code Section 6.03 defines the following culpable mental states:

(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

(b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist.  A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

(c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.  The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor=s standpoint.

(d) A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur.  The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor=s standpoint.

Tex. Penal Code Ann. ' 6.03 (Vernon 2003).

^[6]  Appellant relies on the testimony of Jackson and Davis as raising the issue of multiple assailants.  Jackson and Davis testified they believed Riley intended to fight.  Davis testified he believed appellant thought the same.

^[7]  The guilt/innocence phase ended March 28, 2008.  The evidentiary portion of the trial ended the same day, but the jury was instructed, and returned its verdict on, March 31, 2008.