Appellant was convicted of murder and sentenced to twenty-five years' incarceration in the Texas Department of Corrections. The Fort Worth Court of Appeals decided that appellant's request for a relative size, weight and strength paragraph in the court's charge to the jury was properly denied, even though the self defense charge included was limited by a "provoking the disturbance" charge.Rodriquez v. State, 641 S.W.2d 669 (Tex.App. — Ft. Worth 1982). We granted appellant's petition for discretionary review in order to determine whether the trial court erred in not granting appellant's requested charge on relative size, weight and strength.
ght most favorable to giving the instruction." Id. Here, among appellant's contradictory statements to Ibarra about the shooting is appellant's admission that he returned to the bootleg house with the assault rifle, knowing the deceased would be there. His wife had warned him not to return with the rifle. Yet he persisted in going to the house to ask the deceased if he actually wanted to kill him. He admitted his intent was to have a confrontation with the deceased. Appellant stated, "Well I just thought, well, we'll both get to fight it out once and for all. . . . And if he kills me, let him kill me once and for all." He later clarified, "Either he kills me or I kill him once and for all." Viewing this evidence in the light most favorable to the jury receiving the provocation instruction, we conclude a rational jury could have found every element of provocation beyond a reasonable doubt. See Fink v. State, 97 S.W.3d 739, 742 (Tex. App.-Austin 2003, pet. ref'd); Rodrigquez v. State, 641 S.W.2d 669, 673 (Tex. App.-Fort Worth 1982), aff'd, 710 S.W.2d 60 (Tex. Crim. App. 1986). By this evidence, appellant returned to the bootleg house looking for a fight with the deceased and believing that when the fight was over one of them would be dead. The trial court did not err in including this instruction in the jury charge. We resolve appellant's second issue against him. In his third issue, appellant complains he received ineffective assistance of counsel. He alleges that his trial counsel may have failed to object adequately to the provocation instruction discussed above and failed to request an instruction on his right to arm himself and seek an explanation from the deceased. Because we have already determined the trial court did not err in giving the provocation instruction, we will address appellant's second allegation only. The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). Strickland requires a two-step analysis wh
The determination of whether to admit or exclude evidence lies within the discretion of the trial court and will not be reversed unless a clear abuse of discretion is shown. Rodriguez v. State, 641 S.W.2d 669, 674 (Tex.App. — Fort Worth 1982, pet. granted) (a murder case). The excluded testimony of this witness went only to a collateral issue in this case and did not contradict the eyewitness accounts of the shooting.