Opinion
Number 13-01-227-CR.
Opinion Delivered and Filed February 13, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).
Appeal from the 93rd District Court of Hidalgo County, Texas.
Before Chief Justice VALDEZ and Justices YAÑEZ and CASTILLO.
OPINION
Appellant, Armando Arispe, Jr., was indicted for the murder of Arnulfo Garcia, Jr. A jury found Arispe guilty and sentenced him to thirty years imprisonment in the Institutional Division of the Texas Department of Criminal Justice. See Tex. Pen. Code Ann. § 19.02(b)(1) (Vernon 1994). Arispe attacks this conviction by fifteen points of error. We affirm.
Background
On May 14, 2000, appellant and a friend were "cruising" and drove by Arnulfo Garcia, Jr.'s house where a family gathering was in progress. According to appellant, Garcia gave him an angry look and asked him "what was happening." Appellant left his vehicle and approached Garcia on foot. Appellant argued with Garcia and struck him in the face knocking him to the ground. The two men began fighting. Dune Garcia, Arnulfo's brother, approached appellant and Garcia and attempted to separate the men. Although Dune was carrying a wooden board in his hands, the evidence suggests that he did not use the board to hit either combatant. At one point during the fight, Garcia restrained appellant by holding him around the neck and forced him to assume a kneeling position. Appellant testified that he could not breathe and was afraid for his life, so he took out his knife and stabbed Garcia repeatedly. Garcia released him, and appellant left the scene. Garcia died as a result of the wounds he received. At trial, appellant admitted that he stabbed Garcia, but claimed that he did so in self-defense because he feared for his life. Legal and Factual Sufficiency of the Evidence In his first, second, and third issues, appellant attacks the legal and factual sufficiency of the evidence to prove that "Armando Villarreal Arispe, Jr." committed the offense, and argues that the trial court erred in failing to grant a directed verdict on this basis. In the instant case, the indictment provided that the offense was committed by "Armando Villarreal Arispe, Jr.," and the jury charge required a finding that "Armando Villarreal Arispe, Jr." committed the offense. Appellant essentially argues that the State failed to prove that Villarreal was his middle name, and the evidence adduced at trial instead showed that he was known as Armando Arispe or Ronald Arispe. The record fails to support appellant's argument. Appellant was identified as Armando Villarreal Arispe, Jr. through his own testimony at a pre-trial hearing, when the indictment was read at trial, and when he was introduced to the jury panel during voir dire. Appellant failed to object or except to this version of his name on any occasion. The Texas Code of Criminal Procedure states that when a defendant is arraigned, his name, as stated in the indictment, will be called and unless the defendant objects, "it shall be taken that his name is truly set forth, and he shall not thereafter be allowed to deny the same by way of defense." Tex.Crim. Proc. Code Ann. art. 26.07 (Vernon 1989). Given that appellant failed to object at trial to the reading of the indictment, we conclude that this issue has not been preserved for our review. Tex. R. App. P. 33.1(a). Moreover, given that appellant admitted to stabbing Garcia during the trial, we conclude that the evidence is legally and factually sufficient to prove the identity of the appellant as Armando Villarreal Arispe, Jr. Accordingly, we overrule appellant's first and third points of error. Appellant's second point of error claims the trial court erred in denying his motion for instructed verdict because no witness identified the defendant on trial as Armando Villarreal Arispe, Jr. A challenge to the ruling on a motion for instructed verdict is a legal sufficiency challenge. See Madden v. State, 799 S.W.2d 683, 686 (Tex.Crim.App. 1990). As stated previously, the evidence is legally sufficient to support the identity of the defendant as the person who committed the crime. The trial court properly denied the instructed verdict. See Jones v. State, 504 S.W.2d 442, 443-44 (Tex.Crim.App. 1974). We overrule appellant's second point of error. Reasonable Doubt In his fourth issue, appellant argues the trial court erred in submitting a jury instruction including the Geesa definition of reasonable doubt. See Geesa v. State, 820 S.W.2d 154, 165 (Tex.Crim.App. 1991), overruled by Paulson v. State, 28 S.W.3d 570, 573 (Tex.Crim.App. 2000). The definition of reasonable doubt articulated in Geesa states that reasonable doubt is "a doubt based on reason and common sense after a careful and impartial consideration of all the evidence in the case." See Geesa, 820 S.W.2d at 165. Proof beyond a reasonable doubt must be proof "of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs." Id. The Texas Court of Criminal Appeals expressly overruled Geesa and disapproved this definition in Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000). According to Paulson, "the better practice is to give no definition of reasonable doubt at all to the jury." Id. at 573. However, if both the State and the defense were to agree to give the Geesa instruction to the jury, "it would not constitute reversible error for the trial court to acquiesce in their agreement." Id.; cf. Colbert v. State, 56 S.W.3d 857, 860 (Tex.App.-Corpus Christi 2001, pet. granted) ("If the State and defendant do not agree to the Geesa instruction, it constitutes reversible error for the trial court to submit the definitional instruction."). In the instant case, the record reveals that appellant requested the Geesa instruction over the State's objection. Although after hearing the arguments of the parties, the trial court indicated that he would not give the instruction, the trial court nevertheless provided the Geesa instruction to the jury. Neither the State nor the appellant objected to the instruction. Inclusion of the Geesa instruction does not mean that the jury's verdict is erroneous as a matter of law. Dooley v. State, 65 S.W.3d 840, 844 (Tex.App.-Dallas 2002, pet. ref'd) (noting that Paulson does not hold that inclusion of the instruction constitutes reversible error). Moreover, having requested the trial court to include the Geesa instruction in the charge, appellant cannot now complain on appeal that the instruction was improper. Prystash v. State, 3 S.W.3d 522, 531 (Tex.Crim.App. 1999) (discussing invited error doctrine); see Rodriguez v. State, No. 03-01-00573-CR, 2002 Tex.App. LEXIS 5418, *16 (Austin July 26, 2002, pet. ref'd) ("lack of reversible error may well turn on the appealing party's agreement to submit the Geesa definition constituting a waiver of any complaint on appeal"). Accordingly, we overrule appellant's fourth issue.Self-Defense
In appellant's fifth issue, he argues that the trial court committed reversible error in failing to "initially" grant a jury instruction on self-defense. According to appellant, although he did in fact receive the requested instruction on self-defense, he was "forced" to testify, with the resulting harm being that his prior convictions "were insinuated to in front of the jury." An accused has the right to an instruction on any defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may or may not think about the credibility of the defense. See Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim. App. 1996). A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. Tex. Pen. Code Ann. § 19.31 (Vernon Supp. 2002); see Holloman v. State, 948 S.W.2d 349, 350-51 (Tex.App.-Amarillo 1997, no pet.). A person is justified in using deadly force against another if (1) he would be justified in using deadly force against the other as set out above; (2) he reasonably believes such deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force; and (3) a reasonable person in his situation would not have retreated. Tex. Pen. Code Ann. § 19.32(a) (Vernon Supp. 2002). Furthermore, to be entitled to an instruction on self-defense, an appellant is required first to admit the conduct charged in the indictment, and then to offer evidence justifying the conduct. Anderson v. State, 11 S.W.3d 369, 372 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd); see Young v. State, 991 S.W.2d 835, 839 (Tex.Crim. App. 1999). When the trial court initially denied the requested instruction, appellant had not presented any evidence admitting the conduct charged or justifying his use of a deadly weapon. Thus, the trial court did not err in initially refusing appellant's request for a self-defense instruction in the charge. Holloman, 948 S.W.2d at 350-51; Anderson, 11 S.W.3d at 372. Moreover, it was not error for the court to refuse to instruct the jury on self-defense where the state of the evidence at the time suggested that the appellant initiated the altercation. See Lockhart v. State, 847 S.W.2d 568, 574-75 (Tex.Crim.App. 1992). Accordingly, we overrule appellant's fifth point of error.Manslaughter
In his sixth issue, appellant contends the trial court erred by not granting a jury instruction on the lesser included offense of manslaughter. In determining whether a trial court erred in failing to give a charge on a lesser included offense, an appellate court reviews all evidence presented at trial. Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim.App. 1993). A defendant is entitled to an instruction on a lesser included offense where the proof for the offense charged includes the proof necessary to establish the lesser included offense and there is some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser included offense. Forest v. State, 989 S.W.2d 365, 367 (Tex.Crim.App. 1999); see also Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App. 1994); Rousseau, 855 S.W.2d at 672-75. The first prong of this test is satisfied herein because the proof for murder includes the proof necessary to establish the lesser included offense of manslaughter. See Lugo v. State, 667 S.W.2d 144, 147 (Tex.Crim.App. 1984); Johnson v. State, 915 S.W.2d 653, 657 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd). We next examine whether the second prong of the test is satisfied, that is, whether there is some evidence that would permit a rational jury to find that appellant was guilty only of the manslaughter, that is, that appellant recklessly caused the death of the victim. See Tex. Pen. Code Ann. § 19.04 (Vernon Supp. 2003); Rousseau, 855 S.W.2d at 672. There are two ways the evidence may indicate a defendant is guilty only of a lesser offense. Saunders v. State, 840 S.W.2d 390, 392 (Tex.Crim.App. 1992). First, there may be evidence that negates or refutes other evidence establishing the greater offense. Id. Second, the evidence presented may be subject to two different interpretations. Id. Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge. Bignall, 887 S.W.2d at 23. In other words, the evidence must establish the lesser included offense as a "valid, rational alternative to the charged offense." Forest, 989 S.W.2d at 367. In the instant case, appellant testified that he did not intend to kill Garcia. However, in determining whether there is evidence to support a charge on recklessness, a statement that a defendant did not intend to kill the victim "cannot be plucked out of the record and examined in a vacuum." Godsey v. State, 719 S.W.2d 578, 584 (Tex.Crim.App. 1986); Martinez v. State, 16 S.W.3d 845, 847 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). Appellant further testified that he acted in self-defense; however, one cannot act accidentally or recklessly in self-defense. Martinez, 16 S.W.3d at 848; see Johnson, 915 S.W.2d at 659; Avila v. State, 954 S.W.2d 830, 843 (Tex.App.-El Paso 1997, pet. ref'd) (defendant's testimony that he acted in self-defense precluded an instruction on manslaughter by acting recklessly). Appellant's own testimony that he acted in self defense precludes an instruction on manslaughter. Thus, the trial court did not err in refusing appellant's requested instruction on manslaughter. We overrule appellant's sixth point of error.Autopsy Photographs
In his seventh issue, appellant contends the trial court erred in admitting overly prejudicial autopsy photographs. The exhibits at issue are State's exhibits 58, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 73, 77, and 78. These are photographs of the decedent's body taken during the autopsy which were introduced into evidence in conjunction with the testimony of the medical examiner. Some photographs depict the external knife wounds on the decedent's torso, and some depict internal views of the victim's chest, brain, and organs. The admission of autopsy photographs is within the sound discretion of the trial court. See Sonnier v. State, 913 S.W.2d 511, 518 (Tex.Crim.App. 1995). It is within the trial court's discretion to admit photographs, and its decision will be reversed only if it was "outside the zone of reasonable disagreement." Narvaiz v. State, 840 S.W.2d 415, 429 (Tex.Crim. App. 1992). Appellant objected to many of the photographs on grounds that they were irrelevant. A photograph is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401. The trial court acted within his discretion when he determined that the evidence was relevant to material issues in the case. The photographs were relevant to show the injuries that were sustained and the cause of death. See Wyatt v. State, 23 S.W.3d 18, 29 (Tex.Crim.App. 2000); Ladner v. State, 868 S.W.2d 417, 426 (Tex.App.-Tyler 1993, pet. ref'd) (autopsy or post-autopsy photographs can be used to illustrate injuries and to reveal the cause of death). Appellant further objected to some of the photographs on grounds that their probative value was outweighed by their prejudicial effect. Autopsy photographs are generally admissible unless they depict mutilation of the victim caused by the autopsy itself. Rojas v. State, 986 S.W.2d 241, 249 (Tex.Crim. App. 1998); Santellan v. State, 939 S.W.2d 155, 172 (Tex.Crim.App. 1997). As long as the post-autopsy photograph aids the jury in understanding the injury and does not emphasize mutilation caused by the autopsy, the photograph is admissible. Todd v. State, 911 S.W.2d 807, 819 (Tex.App.-El Paso 1995, no pet.). To determine whether the danger of unfair prejudice substantially outweighs the probative value of photographs, we consider a number of factors, including the number of exhibits offered, their gruesomeness, their detail, their size, whether they are black and white or color, whether they are close-up shots, whether the body is naked or clothed, the availability of other means of proof, and other circumstances unique to the individual case. Wyatt, 23 S.W.3d at 29; Chamberlain v. State, 998 S.W.2d 230, 237 (Tex.Crim.App. 1999); Santellan, 939 S.W.2d at 172. Even if the photographs are gruesome, that fact alone does not render them more prejudicial than probative. See Shavers v. State, 881 S.W.2d 67, 77 (Tex.App.-Dallas 1994, no pet.). In this case, the trial court admitted sixteen color photographs that are four by six inches in size. The photographs are gruesome and depict the victim's naked body, the location and size of the external knife wounds, the exposed brain, other exposed organs, and the victim's open chest cavity. The photographs were used at trial in conjunction with the medical examiner's testimony to show the victim's wounds, illustrate the cause of death, and exclude any potential causes of death other than the injuries inflicted by appellant. See Izaguirre v. State, 695 S.W.2d 224, 226 (Tex.App.-Corpus Christi 1985, no pet.). Similar post-autopsy photographs have been held admissible for the purpose of aiding the jury in understanding the victim's injuries and cause of death. See, e.g., Drew v. State, 76 S.W.3d 436, 453 n. 4 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) (discussing cases allowing admission of post-autopsy photographs). We determine that the trial court did not err in finding that the probative value of the photographs outweighed the danger of unfair prejudice. See Santellan, 939 S.W.2d at 179; Burdine v. State, 719 S.W.2d 309, 316 (Tex.Crim.App. 1986). Although we agree with appellant that some of the photographs may be repetitive or duplicative, we conclude that the trial court's decision to admit the photographs was not outside the zone of reasonable disagreement. See Narvaiz, 840 S.W.2d at 429. Moreover, even if the trial court had erred in admitting any of the photographs, a conviction will not be reversed "merely because the jury was exposed to numerous admittedly gruesome pictures." Drew, 76 S.W.3d at 453 (quoting Long v. State, 823 S.W.2d 259, 272 (Tex.Crim.App. 1991)). After examining the record, we conclude the admission of the photographs did not affect appellant's substantial rights. Id.; see Tex. R. App. P. 44.2(b). Appellant's seventh issue is overruled.Improper Argument
Appellant's eighth point of error asserts the trial court erred in allowing the State to call him an "animal" on two occasions during closing arguments. Appellant's attorney objected following both instances, but the trial judge overruled the objections. Permissible jury argument must fall within one of the following four areas: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answers to opposing counsel's argument; or (4) a plea for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000); Cantu v. State, 939 S.W.2d 627, 633 (Tex.Crim.App. 1997). The reviewing court must examine the alleged instances of improper argument in light of the facts adduced at trial and in the context of the entire argument. See McGee v. State, 774 S.W.2d 229, 239 (Tex.Crim.App. 1989). Whether an argument will constitute reversible error must be decided on an ad hoc basis. State v. Tompkins, 774 S.W.2d 195, 217 (Tex.Crim.App. 1987). Even if an argument is improper, it will not constitute grounds for reversal unless, in the light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts, harmful to the accused, into the trial. See Felder v. State, 848 S.W.2d 85, 95 (Tex.Crim. App. 1992); McGee, 774 S.W.2d at 238. In determining whether improper jury argument is harmful, we look to three factors: (1) the severity of the misconduct; (2) measures adopted to cure the misconduct; and (3) the certainty of conviction absent the misconduct. Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998). We conclude that, although the prosecutor's characterization of appellant as an "animal" was improper, it was not so extreme or harmful as to warrant a reversal of appellant's conviction. The prosecutor's improper references were brief and the instances were limited in number. Moreover, we note that similar epithets were utilized during trial by the appellant, who testified that the victim was known as the "Monster." Further, based on the facts of the instant crime and appellant's criminal history, the trial court may have concluded that the comments were supported by the record. See, e.g., Broussard v. State, 910 S.W.2d 952, 959 (Tex.Crim.App. 1995) (facts supported characterization of defendant as a "volcano"); Burns v. State, 556 S.W.2d 270, 280-81 (Tex.Crim.App. 1977) (use of term "animal" to describe defendant held not error); Belton v. State, 900 S.W.2d 886, 898 (Tex.App.-El Paso 1995, pet. ref'd) (facts supported characterization of defendant as "animal"). Appellant's eighth issue is overruled. Jurors Appellant's ninth and twelfth issues relate to the trial's courts handling of the jury. In his ninth issue, appellant argues that the trial court committed reversible error in failing to excuse a disabled juror. During trial, a juror approached the bailiff and told him that she was feeling "stressed out." Following a conference in chambers, the court questioned the juror as follows:Court: . . . I believe you told my bailiff earlier that you were feeling a little bit stressed out or nervous.
Juror: Yes, very anxious, very nervous. And I suffer from anxiety and I'm taking medication for anxiety and I can't rest. I have been taking it a lot.
Court: Let me ask you this, first of all: The anxiety you feel, the anxiety attack, whatever they might be, did these start just right now or have you been taking medication for this in the past?
Juror: No, no, I didn't start right now. They were there.
Court: You had this medical condition before?
Juror: Yes, sir . . . But with this it has been increasing, let's say.
Court: It increased because of the case? Is that what you're telling me?
Juror: Maybe the stress.
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Court: Has it — do you think you can continue on this case?
Juror: I don't know. I'm not sure.
Court: Do you think that your illness has reached a point that you cannot continue?
Juror: I cannot tell you that right now.
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Court: Can you continue to be fair and impartial and can you continue to serve on the jury or if it were possible, would you rather not serve?
Juror: I would rather not serve because if I'm not going to be partial, if I'm not going to be fair because I get all nervous and everything, I don't want to be a part of it. Do you understand what I mean? I want to be fair and impartial and if I am all nervous, how can I be that? I don't know. It is — you're the Judge.Counsel for the State and counsel for the appellant refused the opportunity to further question the juror. After an extended consultation with counsel, the trial court concluded that the juror had not manifested an inability or incapacity that rose to a level requiring disqualification. No less than twelve jurors can render and return a verdict in a felony case. Tex.Crim. Proc. Code Ann. art. 36.29 (Vernon Supp. 2002). However, after the trial begins and a juror dies or, as determined by the judge, becomes disabled from sitting at any time before the charge of the court is read to the jury, the remainder of the jury shall have the power to render the verdict. Id. The determination regarding whether a juror is disabled is within the discretion of the trial court, and absent an abuse of that discretion, no reversible error will be found. Brooks v. State, 990 S.W.2d 278, 286 (Tex.Crim.App. 1999). However, the exercise of the trial court's discretion is limited to situations where there exists some physical illness, mental condition, or emotional state which hinders one's ability to perform one's duties as a juror. Landrum v. State, 788 S.W.2d 577, 579 (Tex.Crim.App. 1990). In the instant case, appellant declined the opportunity to question the juror, and the trial court made detailed comments on the record regarding his analysis of the juror's condition and ability to proceed. We conclude that the trial court was in the best position to evaluate the juror's mental condition and emotional state, and find that the trial court acted within its discretion in failing to excuse the juror. See Bass v. State, 622 S.W.2d 101, 106-07 (Tex.Crim.App. 1981). Appellant's ninth issue is overruled. In his twelfth issue, appellant contends that the trial court committed reversible error in allowing the jury to separate. During the punishment phase of the trial but before the jury was charged as to punishment, the trial court dismissed the jury and allowed them to separate for lunch. Under article 35.23 of the code of criminal procedure, the court may permit the jurors to separate until the court has given its charge to the jury. Tex.Crim. Proc. Code Ann. § 35.23 (Vernon Supp. 2002). After the charge has been given, the court may, on its own motion, or shall on the motion of either party, order that the jury not be allowed to separate "until a verdict has been rendered or the jury finally discharged." Id. Citing cases construing the pre-1989 version of this article, appellant argues that we are required to reverse the verdict because he did not consent to the separation. See, e.g., McDonald v. State, 597 S.W.2d 365, 367 (Tex.Crim.App. 1980). However, the applicable version of the statute does not require consent. Tex.Crim. Proc. Code Ann. § 35.23 (Vernon Supp. 2002); see Rojas v. State, 986 S.W.2d 241, 248 (Tex.Crim.App. 1998). In the instant case, where the separation occurred after the guilty phase and before deliberations began on the punishment phase, the court acted within its discretion to allow the jurors to separate. See Rojas, 986 S.W.2d at 248. We overrule appellant's twelfth issue. Victim's Criminal Record In appellant's tenth issue, he contends that the trial court erred in not allowing the discovery of the deceased's criminal record. According to appellant, the defendant's state of mind is relevant when self-defense is an issue and the appellant is then permitted to show the decedent's reputation for violence about which he knows or has been informed by others. See Brown v. State, 477 S.W.2d 617, 621 (Tex.Crim.App. 1972); Mahaffey v. State, 471 S.W.2d 801, 808-09 (Tex.Crim.App. 1971). Appellant argues that he could have utilized the decedent's criminal record to "buttress" his position that he acted in self defense because of the victim's propensity for violence, to question the jury panel about gang membership, and to impeach the mother of the victim who testified that her son was a "good boy." Appellant does not raise any due process concerns, or other issues, or provide any other argument or authorities regarding discovery of the decedent's criminal record. Appellant has made no showing that the State possessed any information regarding the decedent's alleged criminal record or any records pertaining to the victim's alleged criminal history. Appellant admits that he does not know if the decedent actually possessed a criminal record. Appellant therefore cannot argue that the decedent's alleged criminal record affected his state of mind during his confrontation with the decedent. Based on the testimony regarding the altercation between appellant and the decedent, it is not reasonable to assume that the fight and the victim's death were the result of the decedent's propensity for violence. Rather, the evidence at trial showed that appellant drove to the decedent's house, got out of his vehicle and approached the decedent, and struck the first blow. Moreover, appellant was armed with a deadly weapon. Appellant admitted stabbing the decedent. Accordingly, any such criminal history, if it existed, was not material and could not create a reasonable probability sufficient to affect the outcome of the appellant's trial. See Rodriguez v. State, 513 S.W.2d 22, 27 (Tex.Crim.App. 1974) (prosecution must disclose criminal records of witnesses if defendant establishes good cause, materiality, and possession by State); Medina v. State, 986 S.W.2d 733, 736 (Tex.App.-Amarillo 1999, pet. ref'd) (same). We overrule appellant's tenth point of error.Ineffective Assistance of Counsel In his eleventh issue, appellant argues that he received ineffective assistance of counsel because counsel failed to object to the jury's instruction on provoking the difficulty. A person who would otherwise be entitled to act in self-defense forfeits the right to defend himself if he provoked the other's use or attempted use of unlawful force. Tex. Pen. Code. Ann. § 9.31(b)(4) (Vernon Supp. 2002). A charge on provoking the difficulty is required when the evidence shows (1) that the defendant did some act or used some words which provoked the attack on him, (2) that such act or words were reasonably calculated to provoke the attack, and (3) that the act was done or the words were used for the purpose and with the intent that the defendant would have a pretext for inflicting harm upon the other. Smith v. State, 590 S.W.2d 509, 513 (Tex.Crim.App. 1998). Strickland v. Washington, 466 U.S. 668 (1984), sets forth the proper standard of review for effectiveness of counsel. See Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999); Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999). Strickland requires a two-part inquiry. The defendant must first show that counsel's performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. Thompson, 9 S.W.3d at 812. Second, the defendant must further prove that there is a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. The determination regarding whether a defendant received effective assistance of counsel must be made according to the facts of each case. Id. An appellate court looks to the totality of the representation and the particular circumstances of the case in evaluating the effectiveness of counsel. Id. The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Id. at 813. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689; see Davis v. State, 930 S.W.2d 765, 767 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd). To defeat the presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996) (per curiam). Given the standard of review for effectiveness of counsel, appellant has not met his burden to prove that trial counsel's representation fell below an objective standard of reasonableness and that this deficient performance prejudiced his defense. In the instant case, the record does not address counsel's rationale for failing to object to the trial court's instruction on provoking the difficulty. Thus, the record is not sufficient to rebut Strickland's presumption that the challenged action of trial counsel was the result of "sound trial strategy." See Strickland, 466 U.S. at 689. Moreover, viewing the evidence in the light most favorable to giving the instruction, there was sufficient evidence from which the jury could find that the appellant's words or acts, or both, caused the attack upon him by the decedent. Smith, 590 S.W.2d at 513. Appellant's eleventh issue is overruled.