OPINION
Opinion by:
Appellant, Charles Reese, was indicted for the murder of his wife, Shanika Sanford. The indictment was enhanced with a prior conviction for felon in possession of a firearm. A jury found appellant guilty and assessed punishment at life in prison and a $5000 fine. We affirm.
FACTUAL BACKGROUND
On the evening of March 9, 2009, аppellant’s cousin, Richard Chew, a friend of Chew’s, appellant, and appellant’s wife, Shanika Sanford, all spent the night at Chew’s apartment. The next morning, Chew left to take his friend home, leaving appellant and Sanford behind in his apartment. Chew said appellant and Sanford got along the previous evening, but when he returned to his apartment on March 10th, appellant and Sanford were calling each other names. The name-calling escalated to a physical confrontation. Chew witnessed appellant and Sanford “wrestling аnd grabbing, [and] bouncing off walls” and hitting each other. He also saw appellant kick Sanford. When asked about Sanford’s demeanor during the fight, Chew said she was crying and she “was just like, you know, I’m going to get you locked up.” Chew said appellant’s reaction was “I aint’t going to jail over yоu.”
The trio then walked outside to take Sanford to her home. Chew got into the driver’s seat of his truck, appellant got into the front passenger seat, but Sanford began to walk away from the truck. Chew testified appellant said, “Shit, I’m fixing to do her ... I’m about to Ml her,” then he pulled out a gun, еxited the truck, and walked toward Sanford. Chew described Sanford’s reaction to seeing appellant with the gun as “She backed up, ... [and] she raised her hands.” Chew testified that Sanford said “stop” and “I’m going to send you to jail.” Chew testified appellant shot Sanford, Sanford fell to the ground, and appellant continued to shoot at her.
PHOTOGRAPHS OF THE VICTIM AFTER THE SHOOTING
On appeal, appellant asserts the trial court erred by admitting into evidence several photographs of Sanford at the scene of the murder.
We review a trial court’s ruling on the admissibility of a photograрh for an abuse of discretion.
Gallo v. State,
When determining whether to admit or exclude photographic evidence of a victim’s injuries, a court may also consider: (1) the number of photographs; (2) their size; (3) whether they are black and white or color; (4) their gruesomeness; (5) whether any bodies depicted are clothed or naked; and (6) whether any bodies depicted have been altered by autopsy.
Erazo,
Appellant objected to five of the photographs showing Sanford’s lifeless body at the crime scene, which were Exhibits 17-21. Only two of the photographs might be considered close-ups. None are autopsy photos. Each photograph shows Sanford’s body from a different angle, illustrating the manner and direction from which she was shot. Exhibit 17 is taken from an angle slightly above and to the left of Sanford’s body. Exhibit 18 shows аn entry or exit wound on the right side of her face. Exhibit 19 shows a bullet wound to her left cheek. Exhibit 20 is a photograph of Sanford positioned on her left side, illustrating bullet wounds to her right shoulder and back. Exhibit 21 shows bullet wounds to Sanford’s neck and back. These photographs corroborate thе testimony of both the responding officer and the pathologist as to the location and manner of the crime. After reviewing the photographs, we conclude the photographs are not so gruesome that they would “impress the jury in some irrational, yet indelible, way.”
See Erazo,
As tо the victim’s state of dress in the photographs, because Sanford was wearing a short dress at the time of her murder, her underwear is partially visible in one of the photographs. Appellant argues that because the photograph “draws attention to [Sanford’s] skimpy clоthing, ... [it] suggests that the victim suffered sexual assault as well.” We disagree. The photograph in Exhibit 17 is taken from an angle above and to the side of Sanford’s body and does not emphasize or enhance the view of her underwear, which is only barely visible in the wide-angle shot. The photogrаph itself does not indicate Sanford was sexually assaulted, nor did the State present any evidence at trial suggesting a sexual assault took place. Thus, we conclude the photographs were not unduly inflammatory in their depiction of the victim’s state of dress.
SUDDEN PASSION INSTRUCTION
Appellant asserts thе trial court erred by denying his request for a sudden passion charge during the punishment phase of trial. During the punishment phase, a defendant may attempt to mitigate his punishment by raising the issue as to whether “he caused the death under the immediate influence of sudden passion arising from аn adequate cause.” Tex. Penal Code Ann. § 19.02(d) (West 2003). Before a defendant is allowed a sudden passion instruction, there must be some evidence “that there was an adequate provocation, that a passion or an emotion such as fear, terror, anger, ragе, or resentment existed, that the homicide occurred while the passion still existed and before there was reasonable opportunity for the passion to cool; and that there was a causal connection between the provocation, the pаssion, and the homicide.”
McKinney v. State,
During his videotaped interrogation, appellant said that when they were outside, Sanford refused to get into Chew’s truck, saying “I got you now,” which appellant believed meant she would turn him into the poliсe. Appellant said he continued to shoot Sanford after she fell to the ground because he did not want her to suffer by living with the fact that the man she loved had shot her. On appeal, appellant contends this “betray[al of] their marriage” provoked him into shooting her. Appellant argues he was entitled to a sudden passion instruction because he acted immediately upon Sanford’s provocation of refusing to get into Chew’s truck and threatening him with jail.
We cannot agree with appellant’s characterization of Sanford’s aсtions as such a betrayal of their marriage as to cause him to lose control. “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.” Tex. Penal Code Ann. § 19.02(a)(1) (West 2003). Even if Sanford’s actions and words provoked appellant’s anger, his reaction of shooting her to death was not triggered by “adequate cause.” We believe shooting Sanford after she walked awаy from the truck and then backed away from appellant with her hands raised when he approached her with the gun is not an objectively common response in an ordinary, reasonable person. Neither is shooting her several more times because appellant did not want Sanford to suffer by living with the fact that the man she loved had shot her. Therefore, the trial court did not err in denying appellant a sudden passion instruction.
PUNISHMENT PHASE EVIDENCE
At the beginning of the punishment phase of trial, the State failed to read the enhancement allegation regarding а January 2004 conviction contained in the indictment; therefore, appellant did not enter a plea on the allegation. Nevertheless, testi
The next day the State realized it had not read the enhancement allegation, and the prosecutor asked the trial court to properly аrraign appellant on the January 2004 felon in possession of a firearm enhancement allegation. The trial court did so, but told the State it would need to reoffer its evidence on the enhancement unless appellant stipulated to the evidence. Appеllant pled not true to the enhancement allegation and refused to stipulate. The State reoffered to the bench the prior testimony of Sanford’s grandmother and the police officer. The State also recalled Jimenez, who testified again before the jury regarding appellant’s prior felon in possession of a firearm conviction. Finally, the State reoffered the exhibits relating to the prior conviction.
On appeal, appellant raises several complaints. First, appellant contends the trial court should have instructed the jury to disregard all the testimony and evidence heard prior to the reading of the enhancement allegation. Appellant cites to no authority for this argument and we find no statute or case law requiring such an instruction. Even if such an instruction was apрropriate, appellant did not request one of the trial court. Therefore, we conclude the trial court did not err by failing to give such an instruction.
Appellant next asserts that because he refused to stipulate to any testimony or evidence offered prior to the reading of the indictment, the State was required to re-offer all such testimony and evidence. We disagree. The Texas Code of Criminal Procedure requires the prosecuting attorney to read the indictment to the jury. Tex.Code Crim. Proc. Ann. art. 36.01(a)(1) (West 2007). “When prior conviсtions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment is held as provided in Article 37.07.”
Id.
Reading the enhancement paragraph at the punishment phase in a bifurcated trial, such as here, is mandatory; however, the failure to do so may be cured.
Turner v. State,
The requirement that enhancement allegations be read to the jury joins the issue on which to enhance punishment.
See Ex parte Sewell,
CONCLUSION
We overrule appellant’s issues on appeal and affirm the trial court’s judgment.