
    Andres Alfredo SEGOVIA, Appellant v. The STATE of Texas, Appellee
    No. 04-14-00367-CR
    Court of Appeals of Texas, San Antonio.
    Delivered and Filed: April 29, 2015
    Discretionary Review Refused September 16, 2015
    
      Barry P. Hitchings, Hitchings & Pollock, San Antonio, TX, for Appellant.
    Nathan Morey, Bexar County District Attorney’s Office, San Antonio, TX, for Appellee.
    Sitting: Patricia 0. Alvarez, Justice, Luz Elena D. Chapa, Justice, Jason Pulliam, Justice
   OPINION

Opinion by:

Patricia O. Alvarez, Justice

Appellant Andres Alfredo Segovia was charged by indictment with the murder of Joel Flores; the State provided notice of intent to enhance Segovia’s penalty with two prior felony convictions. The jury subsequently found Segovia guilty and assessed punishment at fifty-five years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. On appeal, Segovia contends the trial court erred as follows: (1) denying the testimony of defense investigator Manuel Alfaro; (2) allowing the testimony of Bexar County Sheriffs Deputy Miguel Tena Mora; (3) failing to include a sudden passion instruction in the court’s jury charge; and (4) instructing the jury “you will find” Segovia’s enhancement allegations to be true. We affirm the trial court’s judgment.

Factual and Procedural Background

Because whether Appellant Andres Alfredo Segovia shot and killed Joel Flores is not at issue, we need not provide an in-depth recitation of the facts.

The incident leading to Flores’s death began earlier in June of 2012. Segovia and his girlfriend, Shannon Rodriguez, were at a bar when a fight ensued between Segovia and the Flores brothers. Segovia and the Flores brothers all lived in the same apartment complex. By his own admission, on June 8, 2012, Segovia came home from work, set out to find Joel Flores, and approached the Flores apartment with a bat. The testimony supports that Segovia screamed up at the apartment, but did not actually approach the apartment. Segovia ultimately left the area and returned to his apartment.

After several hours, Segovia returned to the parking area outside the Flores apartment and, from the parking lot, called up to Joel Flores. Instead of a bat, however, Segovia brought a .40 caliber firearm. A friend of Flores attempted to calm the situation, but things unraveled quickly and the friend soon found himself being used by Segovia as a shield. Flores and Segovia shot at each other. Flores died as a result of a gunshot wound.

Segovia was indicted for murder and the State filed a notice of intent to use two prior convictions for enhancement purposes. Segovia elected to have his case heard before a jury. After five days of trial, the jury convicted Segovia and ultimately assessed punishment at fifty-five years’ confinement in the Institutional Division of the Texas Department of Criminal Justice.

On appeal, Segovia contends the trial court erred in allowing the State to present evidence that Segovia was affiliated with the Mexican Mafia and in excluding pictures of the crime scene taken by the defense. Segovia also contends the trial court erred in failing to include a sudden passion instruction in the jury charge on punishment; and, in the absence of a plea of true, the charge incorrectly directed the jury that “you will find,” rather than “if you find,” Segovia’s enhancement allegations to be true.

We first address Segovia’s evidentiary issues.

Admission of Evidence

Segovia contends the trial court erred in excluding the testimony of the defense investigator, Manuel Alfaro, and the pictures that Alfaro took of the crime scene. Segovia also argues the trial court erred in allowing the testimony of Bexar County Deputy Miguel Tena Mora regarding Segovia’s gang affiliation.

We address each witness individually.

A. Standard of Review

We review a trial court’s decision to admit or exclude evidence under an abuse of discretion standard. Rodriguez v. State, 203 S.W.3d 837, 841 (Tex.Crim.App.2006); Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000); Sandoval v. State, 409 S.W.3d 259, 297 (Tex.App.—Austin 2013, no pet.). A trial court abuses its discretion if it acts arbitrarily or unreasonably; without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App.1991) (op. on reh’g); accord Thompson v. State, 274 S.W.3d 776, 778 (Tex.App.—San Antonio 2008, no pet.). When considering a trial court’s decision to admit or exclude evidence, we will not reverse the ruling unless it falls outside the “zone of reasonable disagreement.” McGee v. State, 233 S.W.3d 315, 318 (Tex.Crim.App.2007); see also Jessop v. State, 368 S.W.3d 653, 686 (Tex.App.—Austin 2012, no pet.).

B. Testimony of Manuel Alfaro and Photographs Taken by Alfaro

Segovia sought to have Alfaro testify about photographs he took of the crime scene. The trial court sustained the State’s objection and did not admit the photographs or allow Alfaro to testify. Segovia claims the trial court erroneously excluded the, testimony of Alfaro due to Alfaro’s testimony allegedly violating Texas Rule of Evidence 614, the witness sequestration rule. See Tex. R. Evid. 614.

1. Arguments of the Parties

Segovia argues that Rule 614’s concerns for any improper influence on a witness do not apply because Alfaro’s proffered testimony was limited to when and where the proposed photographs were taken. Accordingly, any testimony heard by Alfaro during the trial would not influence his testimony before the jury. Additionally, Segovia contends Alfaro was never listed as a defense witness because no one either contemplated or planned for Alfaro to testify.

The State counters that the trial court’s exclusion was based on a determination that the photographs were not relevant because the photographs were taken in 2014, two years after the fact and were of little probative value.

2. Trial Court Ruling

Alfaro was hired as the defense investigator.- He consulted with the defense throughout pretrial, during trial, provided his opinions to defense counsel, and reviewed the State’s file. After the fourth day of trial, defense counsel requested Al-faro return to the scene of the shooting and take additional photographs, specifically focusing on the balcony and the parking lot. Alfaro was prepared to testify there were trees obstructing the view from the balcony to the parking lot area where the alleged shooting took place. Alfaro took photographs from the balcony, looking down into the parking lot. The State objected to the witness and photographs, and defense counsel argued there was no violation under Rule 614. See id.

The trial court held as follows:

You know, I don’t think it’s relevant because it’s not the same view that they had when it happened. It’s a completely different view now and for that reason and for him being — you invoked the Rule, he was present. I’m not going to allow him to testify.

Because the trial court excluded the evidence based on relevancy, we need not address whether Alfaro violated the Witness Sequestration Rule. Cf. Russell v. State, 155 S.W.3d 176, 179-80 (Tex.Crim.App.2005) (explaining the purpose of invoking the rule is to prevent potential witnesses from being influenced by, or modifying their testimony because of, the testimony of other witnesses). We, therefore, turn to a determination of whether the trial court erred in excluding the testimony and photographs based on relevancy.

3.Relevancy Determination

Although Segovia contends the jury and not the trial court should have determined whether the photographs were taken from a “completely different view,” Texas Rule of Evidence 104(a) dictates the initial question in deciding whether to admit evidence at trial is a preliminary question to be decided by the trial court. Tex.R. Evid. 104(a); Tienda v. State, 358 S.W.3d 633, 637 (Tex.Crim.App.2012). Only relevant evidence is admissible. Tex. R. Evid. 402; Montgomery, 810 S.W.2d at 375.

“Relevant evidence is ‘evidence having 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.’ ” Manuel v. State, 357 S.W.3d 66, 74 (Tex.App.—Tyler 2011, pet. ref'd) (quoting Tex. R. Evid. 401). A proponent of evidence is not required to “rule out all possibilities inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to be.” Campbell v. State, 382 S.W.3d 545, 549 (Tex.App.—Austin 2012, no pet.) (internal quotation marks omitted). “The preliminary question for the trial court to decide is simply whether the proponent of the evidence has supplied facts that are sufficient to support a reasonable jury determination that the evidence he has proffered is authentic.” Tienda, 358 S.W.3d at 638; see also Manuel, 357 S.W.3d at 74 (stating “proponent must only produce sufficient evidence that a reasonable fact finder could properly find genuineness”).

Under Rule 403, even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or needless presentation of cumulative evidence. See Tex. R. Evid. 403. To be relevant, the photograph must “be a correct representation of the subject at a given time.” Delacerda v. State, 425 S.W.3d 367, 393 (Tex.App.—Houston [1st Dist.] 2011, pet. ref'd) (citing Huffman v. State, 746 S.W.2d 212, 222 (Tex.Crim.App.1988)). “[A] trial court may exclude any relevant evidence if its probative value is substantially outweighed by any or all of the countervailing factors specified in Rule 403.” Winegarner v. State, 235 S.W.3d 787, 791 (Tex.Crim.App.2007) (citing Gigliobianco v. State, 210 S.W.3d 637, 640 (Tex.Crim.App.2006)).

k- Analysis

Here, the photographs were taken from the apartment balcony looking into the parking lot. The purpose was to show the jury the obstructed view created by the trees. But the photographs actually depicted what the trees and parking lot looked like on May 2, 2014, not on the night of the alleged offense — June 8, 2012. The trial court concluded the photographs were not relevant because they did not depict the scene as it was on the night in question. See Saldano v. State, 232 S.W.3d 77, 101-02 (Tex.Crim.App.2007) (holding photographs may be admitted to show what verbal testimony described).

We cannot conclude that the trial court’s determination was outside the zone of reasonable disagreement or that the trial court abused its discretion when conducting a relevancy determination. See Winegarner, 235 S.W.3d at 791 (providing trial court “considerable latitude” in determining “impact upon the jury, and to conduct the necessary balancing”). We, therefore, overrule Segovia’s first issue.

C. Testimony of Segovia’s Alleged Gang Affiliation

Segovia next contends the trial court erred when it allowed the testimony of Bexar County Deputy Miguel Tena Mora.

1. Arguments of the Parties

Segovia argues the State’s testimony regarding Segovia’s involvement in the Mexican Mafia violated the requirement that the State provide timely notice of its intent to offer extraneous bad acts evidence.

The State counters that because the testimony was offered during the punishment phase, the proper test was an application of Texas Code of Criminal Procedure arti-ele 37.07 which only requires reasonable notice be given to the defendant. The State further argues that any error was harmless because Segovia was not surprised by the evidence and was able to counter with an explanation.

2. Testimony in Question

On April 30, 2014, during the guilt/innocence phase of the trial, but outside the presence of the jury, the State moved to supplement its witness list and its Notice of Intent to Introduce Evidence of Extraneous Offenses. The original notice was filed on September 13, 2012.

The State: All right. Judge, for the record, at this time, based on some new information that was discovered this morning, the State needs to supplement its witness list and supplement the 404(b).
At this time, we need to supplement that Andres Segovia has been identified as a member of the Mexican Mafia and, in fact, a ranking member of the Mexican Mafia. We need to add that to the 404(b).
We are adding Bexar County Sheriff Deputy Miguel Tenamora [sic] to our witness list and he’s a gang officer at the jail.
And this information just came to us this morning. We’re still checking into it. So as soon as we learned of it, I wanted to notify the Court and the defense. As we get more information we’ll make the defense aware.
The Court: All right.
Defense: Judge, it’s not in compliance with the statute that requires the State to turn over any 404(b) evidence in anticipation of the trial.
This case has been going on for quite some time. The idea that the State did not know that there was an association is unfathomable to me. Again, it’s not proper notice to the defense.
What?
The State: Your Honor, last setting or a setting ago, I handed a paper to Mr. Segovia and I — and the bailiffs admonished me for doing that. They said because he is a known gang member, I couldn’t do that. So it’s been in the purview of the State. So I don’t see that coming in the middle of trial and if — this was the March setting. It wasn’t even this setting. Was it even the March setting? There’s been so many. I don’t believe that it’s—
Defense: Proper notice, Judge, it’s not.
The State: For the record, it sounds like the defense has been aware of his gang membership. The new information that we received this morning is regarding his ranking position within the Mexican Mafia.
Defense: That’s not true. They told her he had some membership. They didn’t tell them Mexican Mafia.
The State: They didn’t tell me—
Defense: Whenever I went to go visit him at the county jail, nobody ever told me that I had to wait for an additional period of time because he was in lockdown or he was in that particular mod. -1 had no knowledge of this, Judge.
The Court: All right. Well, just get the information, and then I’ll make a ruling later.

The testimony was not offered during the guilt/innocence portion of the trial. However, five days later, on May 5, 2014, during the punishment phase of the trial, the State again offered evidence of Segovia’s gang affiliation through a signed “gang letter.” The State explained that a gang letter is provided to an individual upon entry into the Bexar County Jail.

The State: ... they’re given an opportunity to state if they are a member of a gang. The purpose of it is to try to house those same members together so they cannot try to either recruit others in the jail to join their gang or have potential conflict with others in the gang.

In this case, because Segovia signed a letter acknowledging his membership in the Mexican Mafia, he was placed in the unit with other Mexican Mafia members. The prosecutor, however, argued that she did not learn until that morning that Segovia was “a ranking member — the ranking member of the Mexican Mafia.”

Defense counsel objected to the admission of any evidence pertaining to Segovia’s gang membership explaining that Segovia had been incarcerated since shortly after the incident in 2012 and the State should have had knowledge of (1) the alleged gang affiliation, and (2) his signing of a gang letter, prior to April 80, 2014. The State responded that Segovia himself signed the gang letter and, thus, the State’s evidence that Segovia is a “ranking member of the Mexican Mafia” could not cause any type of undue surprise to the defense.

The trial court opined there was a difference between the information that he is a gang member and the specific evidence of his being “a ranking member.” In overruling defense counsel’s objection, the trial court warned:

I’m going to tell [the State] to be very, very careful. I think the prospect that he is a gang member is probably— should be admissible, despite the lack of notice. Going any further, this ranking member business, or any of — you know, gang government protocol, for lack of a better way to say it, I’ve got problems with that.

Defense counsel followed up with an objection that the evidence being offered was more prejudicial than probative. See Tex. R. Evid. 401, 403. After Deputy Tena Mora testified under a proffer of testimony, the trial court again overruled defense counsel’s objection. Once again, the trial court warned that its ruling was not “with regard to each and every specific question that was asked during the proffer.” The trial court clarified that it was not ruling on the admissibility of the gang letter itself.

3. Proper Punishment Evidence

Evidence offered during the punishment phase establishing Segovia’s membership, affiliation, or association with a gang, specifically the Mexican Mafia, constitutes extraneous evidence of crimes or bad acts governed by article 37.07 of the Texas Code of Criminal Procedure and Rule of Evidence 404(b). See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g) (West Supp. 2014) (citing Tex. R. Evid. 404(b)).

Article 37.07 provides that, “[o]n timely request of the defendant,” the State must provide “reasonable notice ... in advance of trial” of its intent to introduce extraneous-conduct evidence. See Nance v. State, 946 S.W.2d 490, 492 (Tex.App.—Fort Worth 1997, pet. ref'd). “The purpose of the notice requirement is to enable the defendant to prepare to meet the extraneous offense evidence.” Roethel v. State, 80 S.W.3d 276, 282 (Tex.App.—Austin 2002, no pet.) (op. on reh’g). Any deficiency in notice is analyzed on how it affected a defendant’s “ability to prepare for the evidence.” Id.; see also Nance, 946 S.W.2d at 493 (explaining the notice requirement avoids unfair surprise and trial by ambush). The reasonableness of the notice turns on the facts and circumstances of each case. Scott v. State, 57 S.W.3d 476, 480 (Tex.App.—Waco 2001, pet. ref'd); Patton v. State, 25 S.W.3d 387, 392 (Tex.App.—Austin 2000, pet. ref'd).

The trial court has broad discretion to admit or exclude extraneous-conduct evidence. See Garcia v. State, 239 S.W.3d 862, 866 (Tex.App.—Houston [1st Dist.] 2007, pet. ref'd) (citing Brooks v. State, 76 S.W.3d 426, 435 (Tex.App.—Houston [14th Dist.] 2002, no pet.)) (applying this standard of review to admission of extraneous conduct evidence over objection based on article 37.07, section 3(g)’s notice requirements). The courts have long held that testimony regarding a defendant’s affiliation with a gang may be relevant and admissible at the punishment phase to show the defendant’s character. See Beasley v. State, 902 S.W.2d 452, 456 (Tex.Crim.App.1995); Anderson v. State, 901 S.W.2d 946, 950 (Tex.Crim.App.1995); Ho v. State, 171 S.W.3d 295, 305 (Tex.App.—Houston [14th Dist.] 2005, pet. ref'd) (“Even if appellant was no longer affiliated with the gang at the time of the shooting, evidence that he was a gang member is relevant — and thus admissible at punishment — because it relates to his character”). The evidence need not link the accused to the bad acts or misconduct generally engaged in by gang members, so long as the fact-finder is

1) provided with evidence of the defendant’s gang membership,
2) provided with evidence of character and reputation of the gang,
3) not required to determine if the defendant committed the bad acts or misconduct, and
4) only asked to consider reputation or character of the accused.

See Beasley, 902 S.W.2d at 457; accord Jessop, 368 S.W.3d at 693.

A Analysis of Evidence under Texas Code of Criminal Procedure Article 37.07

Deputy Tena Mora’s testimony that Segovia signed a form indicating his affiliation with the Mexican Mafia is sound evidence of his gang membership. Deputy Tena Mora also provided testimony consistent with the requirements set forth in Beasley. See Beasley, 902 S.W.2d at 457. Accordingly, the trial court did not abuse its discretion in admitting the evidence under article 37.07.

We acknowledge, however, Segovia’s complaint is focused specifically on the lack of notice. Tex.Code Crim. Proc. Ann. art. 37.07, § 3(g). The State possessed this information for almost two years and provided notice of extraneous offenses— but without the gang-affiliation information — more than eighteen-months prior to the trial.

Whether the notice was timely is of no accord if Segovia did not suffer harm. We, therefore, look at any harm associated with the State’s amended notice of extraneous bad acts offered after the start of the trial.

5. Harm Analysis

“ ‘The admission of an extraneous offense into evidence during the punishment phase when the State failed to provide notice required by statute is non-constitutionai error.’ ” Gonzalez v. State, 337 S.W.3d 473, 485 (Tex.App.—Houston [1st Dist.] 2011, pet. ref'd) (quoting Ruiz v. State, 293 S.W.3d 685, 695 (Tex.App.—San Antonio 2009, pet. refd)). “An appellate court may reverse a judgment of conviction or punishment based on a non-constitutional error only if that error affected the defendant’s substantial rights.” Id. (citing Tex. R. App. P. 44.2(b)). Because the purpose of article 37.07, section 3(g) is to avoid unfair surprise and enable the defendant to prepare to answer the extraneous misconduct evidence, this court must analyze whether and how the notice deficiency affected Segovia’s ability to prepare for this evidence. Roethel, 80 S.W.3d at 281-82.

This court’s examination analyzes the record to determine whether the deficient notice resulted from prosecutorial bad faith or prevented the defendant from preparing for trial. Id. at 282. Specifically, this court must answer whether Segovia was surprised by the substance of the testimony and whether any surprise affected his ability to prepare for cross-examination or present mitigating evidence. Id. at 282; see also Allen v. State, 202 S.W.3d 364, 369 (Tex.App.—Fort Worth 2006, pet. ref'd). A 37.07 violation of a notice requirement does not have an “injurious” effect on the verdict if the defendant was not surprised by the evidence. See Hernandez v. State, 176 S.W.3d 821, 825 (Tex.Crim.App.2005) (holding that evidence admitted in violation of rule of evidence 404(b)’s notice requirement is not harmful error if defendant not surprised by evidence); see also Roethel, 80 S.W.3d at 281-82.

Segovia’s counsel was provided with notice that the State intended to use the testimony of Deputy Tena Mora on Wednesday, April 30, 2014. The testimony was offered to the jury on Monday, May 5, 2014. Defense counsel did not request a continuance or indicate that he needed additional time to prepare his defense in light of the State’s proffer. See Pelache v. State, 324 S.W.3d 568, 577 (Tex.Crim.App.2010) (identifying “appellant did not request a continuance, appear surprised by the allegations, or argue that he was unprepared to defend against the prior conviction allegations”).

It would be difficult to imagine that Segovia would be surprised by his gang involvement considering that he signed the paperwork upon which the State relied. Segovia testified that he initialed “affiliated” because “the only option on there was member.” He further explained the officer brought the paper in and told him to initial it, so he did. Segovia testified that his only option was “active or nonactive.” Keeping in mind that Segovia had numerous previous arrests and had been processed by the Bexar County Jail on numerous occasions, the process would not have been new to Segovia.

Segovia further denied that he had been associated with the Mexican Mafia since 1994. To the contrary, Segovia testified that the only reason they classified him as a gang member was because of his tattoos: if you have a Spurs tag, “you will be classified as the Tango Orejón ... for any type of cultura ... you are classified as Mexican Mafia over anything else.” Segovia knew his classification was Mexican Mafia. He signed the form and resided in the Bexar County Jail with the other Mexican Mafia inmates. The trial court could have reasonably determined that Segovia did not suffer any surprise.

Accordingly, we cannot say that Segovia was surprised by the substance of Deputy Tena Mora’s testimony, i.e., Segovia’s affiliation with the Mexican Mafia. Roethel, 80 S.W.3d at 282; Hernandez, 176 S.W.3d at 825; Allen, 202 S.W.3d at 369. Neither can we say that five-days’ notice adversely affected Segovia’s ability to prepare his defense. Roethel, 80 S.W.3d at 282. Because the testimony did not affect Segovia’s substantial rights, we overrule Segovia’s second issue. See Gonzalez, 337 S.W.3d at 485 (citing Tex. R. App. P. 44.2(b)).

We turn next to Segovia’s alleged error in the trial court’s charge on punishment.

Punishment Charge

A. Arguments of the Parties

Segovia asserts two errors in the trial court’s charge: (1) failure to include a sudden passion instruction and (2) instructing the jury that “you will find” rather than “if you find” on the habitual offender instruction.

The State counters that Segovia’s testimony, specifically his admission to committing the enhancement allegations, foreclosed any possibility that he would be eligible for a reduced penalty range provided by the “sudden passion” finding. Additionally, even assuming the trial court’s charge was in error, Segovia did not suffer any harm.

B. Standard of Review

A trial court’s denial of a requested jury instruction on a defensive issue is reviewed for abuse of discretion. See Wesbrook v. State, 29 S.W.3d 103, 122 (Tex.Crim.App.2000); accord Serrano v. State, 464 S.W.3d 1, 7(Tex.App.—Houston [1st Dist.] 2015, no pet. h.). Appellate review of alleged jury charge error generally' involves a two step process. Kirsch v. State, 357 S.W.3d 645, 649 (Tex.Crim.App.2012); Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App.2005). First, we must determine whether error occurred. Wooten v. State, 400 S.W.3d 601, 606 (Tex.Crim.App.2013). If there is error in the charge, we must then analyze whether sufficient harm resulted from the error to require reversal. Id.; Ngo, 175 S.W.3d at 744. If error has been properly preserved, as is the case here, reversal is required if the error is “calculated to injure the rights of defendant,” meaning there must be some harm. See Tex. Code Crim. Proc: Ann. art. 36.19 (West 2006); Sakil v. State, 287 S.W.3d 23, 25-26 (Tex.Crim.App.2009). The defendant must have “ ‘suffered some actual, rather than merely theoretical, harm from the error.’ ” Reeves v. State, 420 S.W.3d 812, 816 (Tex.Crim.App.2013) (quoting Warner v. State, 245 S.W.3d 458, 462 (Tex.Crim.App.2008)). We consider “ ‘the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.’ ” Barron v. State, 353 S.W.3d 879, 883 (Tex.Crim.App.2011) (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (op. on reh’g), superseded on other grounds by rule as stated in Rodriguez v. State, 758 S.W.2d 787, 788 (Tex.Crim.App.1988)).

C. Sudden Passion Instruction

The defense requested a sudden passion instruction to be included in the trial court’s charge on punishment.

1. Texas Penal Code Section 19.02(d)

In a murder trial, a defendant may raise the issue of whether he caused the victim’s death under the immediate influence of sudden passion arising from an adequate cause. See Tex. Penal Code Ann. § 19.02(d) (West 2011); Wooten, 400 S.W.3d at 605. “Sudden passion” is defined as “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.” Tex. Penal Code Ann. § 19.02(a)(2); Wooten, 400 S.W.3d at 605. “The mere fact that a defendant acts in response to the provocation of another is not sufficient to warrant a charge on sudden passion.” Trevino v. State, 100 S.W.3d 232, 241 (Tex.Crim.App.2003).

“ ‘Adequate cause’ means 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); accord Wooten, 400 S.W.3d at 605. Adequate cause is not determined by considering the defendant’s peculiar conditions, such as low mentality or unstable emotions. See Gonzales v. State, 689 S.W.2d 900, 904 (Tex.Crim.App.1985) (quoting Hart v. United States, 130 F.2d 456, 458 (D.C.Cir.1942)). Instead, adequate cause is determined by applying the “person of ordinary temper” standard, which is the same as the reasonable person standard. See id. at 903. This approach is used to avoid differing applications of the law. See id.

Segovia contends the jury would at least have had the benefit of receiving the “sudden passion arising from an adequate cause” instruction which Appellant’s attorney could have more effectively argued for a sentence at the lower range of punishment.

2. Charge Conference

The record indicates the trial court was concerned about jury confusion and provided a relatively detailed explanation of why it chose to deny the defense request. As this court has previously stated, “ ‘It is not the function of the charge merely to avoid misleading or confusing the jury: it is the function of the charge to lead and to prevent confusion.’ ” Vogt v. State, 421 S.W.3d 233, 238-39 (Tex.App.—San Antonio 2013, pet. ref'd) (quoting Reeves, 420 S.W.3d at 818). The trial court explained as follows:

I understand the defendant’s special requested charge wanting to get voluntary manslaughter, thereby reducing the punishment. However, when the defendant testified, the defendant admitted to the two prior felony convictions. With that admission in the record and the state of the record, that would mean the punishment range would be a minimum of 25 to 99 or life in the penitentiary.
So despite the argument that the evidence could be construed to show some evidence from somewhere — which I understand. I understand the burden and I understand the requirement, a scintilla of evidence raising the issue that if a murder happened or the taking of a life was the result of adequate cause and sudden passion, then the defense is required — or the Court is required to submit that to the jury.
However, since the defendant has admitted that he does have two prior felony convictions, then that would make that practically moot.
Due to the fact that I believe that submitting it would be confusing — I haven’t heard — I haven’t heard a whole lot of lawyers who understand it. That it would — the only reason to raise it is for the lower possible punishment range.
Since that lower possible punishment range is no longer a legal possibility, it is in fact a legal impossibility, I think it would be superfluous and confusing and actually impede the jury’s deliberation on this.

The trial court subsequently denied the instruction. Defense counsel argued the sudden passion instruction would provide a comparison for the jury when assessing the range of punishment. The trial court overruled defense counsel’s objections.

3. Application

Segovia argued before the trial court, and again on appeal, that the sudden passion charge would have allowed' the jury to consider the lower end of the penalty range. Specifically, Segovia contends that being able to point to the charge with a definition of sudden passion would have persuaded the jury to impose a lesser sentence. We disagree.

During closing arguments, defense counsel argued “sudden passion” before the jury. He argued that Segovia’s actions were in the heat of the moment and, based on a “situations like that,” Segovia did not deserve “a harsh sentence.”

And again, if you put yourself in that situation or if you’ve ever seen a situation where things happen instantaneously — and we’ve all been involved in situations like that, thankfully they’re not as tragic as this — that you’re not making rational judgments. So in his mind’s eye, there’s shooting going on and there’s shooting and Eric is shooting. And you saw all the physical evidence pointing to the fact that my client’s hiding for cover and shooting back.
We don’t know. They never properly told us in fact who shot who, if in fact it happened. But you found him guilty and, again, we accept it for whatever reason or logic that you came to that conclusion. We accept it. But the fact of the matter is, it’s important because it goes to punishment.
My client did not turn around and, bang, shoot him point-blank in the head. That is absolutely impractical. It couldn’t happen under those circumstances because of the fear that was expressed by my client, the fear for his own life. And he ran away.
As the State pointed out, he made choices. But does this circumstance of what happened that night truly justify a harsh sentence? Truly? I think not. But that’s your decision.

The trial court clearly believed the instruction would confuse, as opposed to assist the jury in its understanding of the charge. See Vogt, 421 S.W.3d at 238-39; Reeves, 420 S.W.3d at 818. In this case of first impression, we are asked to determine whether a defendant who presents evidence on the statutory requirements of the requested instruction, but is prohibited from receiving the statutory benefit of the requested instruction, is entitled to the instruction. Compare Vogt, 421 S.W.3d at 238-39; Reeves, 420 S.W.3d at 818 with Bufkin v. State, 207 S.W.3d 779, 781-82 (Tex.Crim.App.2006); Wesbrook, 29 S.W.3d at 122. Here, although Segovia may have presented evidence on the question of sudden passion, as a felony habitual offender, Segovia was not entitled to the second-degree penalty range contained within the instruction.

To give the instruction requested by defense counsel could have potentially led jurors to believe that a penalty range of two years to twenty years’ confinement was a possibility. See Bufkin, 207 S.W.3d at 782 (reviewing court’s denial of the defendant’s requested instruction). Such a discrepancy in the charge could have potentially been misleading or allowed for some form of jury nullification. Based on the record before this court, we cannot say the trial court abused its discretion in denying the requested instruction. See Wesbrook, 29 S.W.3d at 122. Accordingly, we overrule Segovia’s issue regarding the sudden passion instruction.

E. Habitual Felony Offender

Segovia next argues that the trial court’s failure to solicit a plea on the State’s enhancement allegations required the State to prove each enhancement allegation beyond a reasonable doubt. Without a plea of true, Segovia contends the trial court erred in instructing the jury “you will find” Segovia’s enhancement allegations to be true.

1. Texas Penal Code Section 12.Jp2(d)

The State timely provided notice of its intent to use two prior convictions for enhancement of punishment under Texas Penal Code section 12.42. See Tex. Penal Code Ann. § 12.42 (West Supp.2014). Texas Penal Code section 12.42(d), describing the penalty for habitual felony offenders generally, provides that

if it is shown on the trial of a felony offense other than a state jail felony punishable under Section 12.85(a) that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished by imprisonment ... for life, or for any term of not more than 99 years or less than 25 years.

Id. § 12.42(d) (emphasis added); see also Allen v. State, 865 S.W.2d 472, 474 (Tex.Crim.App.1993) (concluding 12.42(d) is mandatory operation).

“To establish a prior conviction for purposes of enhancement, the State must prove two elements beyond a reasonable doubt: (i) the existence of a prior conviction; and (ii) the defendant’s link to that conviction.” Wood v. State, 453 S.W.3d 488, 491 (Tex.App.—San Antonio 2014, pet. filed) (citing Flowers v. State, 220 S.W.3d 919, 921 (Tex.Crim.App.2007)). A defendant’s plea of “true” to the enhancement allegation satisfies the State’s burden of proof. Wilson v. State, 671 S.W.2d 524, 525 (Tex.Crim.App.1984). Absent a plea of “true,” the State must prove the two elements by proof beyond a reasonable doubt, including introducing evidence such as the defendant’s admission or stipulation or documentary proof. Flowers, 220 S.W.3d at 921-22. Both parties agree the trial court’s instruction was proper had Segovia actually entered a plea of true. However, because there was no plea, the burden of proof rested on the State and the trial court’s charge usurped that burden. Id. Accordingly, the charge was in error.

Finding error, we must conduct a harm analysis.

2. Harm Analysis

“Harm does not emanate from the mere failure to include the requested instruction.” Wooten, 400 S.W.3d at 606 (citing Trevino, 100 S.W.3d at 241). In analyzing harm resulting from a jury charge error, “[n]either the State nor the defense has a burden to prove harm.” Reeves, 420 S.W.3d at 816; accord Wooten, 400 S.W.3d at 606; Trevino, 100 S.W.3d at 241 (recognizing lack of burdens in harm analysis and “the appellate court should make its own assessment as to whether harm occurred”). Theoretical harm, however, is not sufficient. Reeves, 420 S.W.3d at 816.

3. Roberts v. State Analogy

The court’s analysis in Roberts v. State, 321 S.W.3d 545 (Tex.App.—Houston [14th Dist.] 2010, pet. ref'd), is instructive. Cf. Washington v. State, 677 S.W.2d 524 (Tex.Crim.App.1984), overruled on other grounds, Bell v. State, 994 S.W.2d 173, 175 (Tex.Crim.App.1999) (reviewing testimony adduced during the guilt/innocence phase of the trial); Lewis v. State, 814 S.W.2d 513 (Tex.App.—Houston [14th Dist.] 1991, pet. ref'd) (reviewing appellant’s entry of a plea of not true to the enhancement allegations).

In Roberts, the State sought to use four prior convictions to enhance Robert’s punishment. Roberts, 321 S.W.3d at 553. Roberts entered a plea of true to the first three enhancement allegations, but “not true” to the fourth. Id. The trial court’s punishment charge instructed the jury “to find” all four allegations true. Id. The appellate court looked at the entire record: (1) the evidence adduced at both the guilt/innocence and the punishment phase, (2) the penitentiary packets offered for the first three enhancement allegations, (3) the trial court judgment convicting Roberts on the fourth enhancement allegation, and (4) Roberts’s testimony. The court acknowledged that because Roberts entered a plea of not true, the State was required to prove beyond a reasonable doubt the existence of the prior conviction and Roberts’s link to the conviction. Id. In proving such, the court noted, “[a]ny type of evidence, documentary or testimonial, can suffice.” Id. Reviewing the entire record, the court concluded that the evidence was sufficient to make a finding of true as to the fourth enhancement allegation and Roberts did not suffer egregious harm. Id. at 556.

Importantly, because Roberts’s attorney did not object to the charge, the harm analysis was a question of egregious harm. Id. at 553-54; cf. Vogt, 421 S.W.3d at 239 (explaining “where the error is urged for the first time on appeal, a reviewing court will search for ‘egregious harm’ ”). In this case, Segovia’s attorney did object to the wording of the court’s charge, so this court need only find “some harm” as a result of the error to obtain a reversal. Ngo, 175 S.W.3d at 743 (citing Almanza, 686 S.W.2d at 171). The analysis, however, is the same. Roberts, 321 S.W.3d at 554.

I. Review of the Record

The State introduced ten prior judgments of conviction, without objection from defense counsel. During his testimony, Segovia admitted to the two prior convictions set forth in the State’s enhancement allegations; both allegations were convictions for felony assault on a family member in cause number 2006-CR-6793 (convicted August 27, 2007) and 2001-CR-5442 (convicted June 13, 2002). He also admitted to the other convictions offered by the State.

The State: Are you the same Andres Alfredo Segovia who in 2011-CR-5442 was convicted of the offense of assault family-second offense on August 6th, 2002?
Segovia: Yes, sir.
The State: And I apologize for the cause number. It’s 2001-CR-5442. Is that — are you the same person?
Segovia: Yes, sir.
The State: Are you also the same Andres Alfredo Segovia who in Cause Number 2006-CR-6793 was convicted of the offense of assault family-second offense on August 27th of 2007? Are you the same individual?
Segovia: Yes.
The State: And rather than spend another few minutes here, you earlier heard the State admit Exhibit No. 69 through 78, your criminal judgments, correct?
Segovia: Yes, sir.
The State: Are you the same individual who was convicted in each of those cases?
Segovia: Yes, sir, I am.
The State: All 10 of them?
Segovia: Yes, sir.

Additionally, during closing argument, defense counsel acknowledged his criminal history — “Yes, [Segovia] does have a criminal history. We don’t deny that.”

5. Application

Although it was the State’s burden to obtain a plea of true on the record, Segovia must have suffered “some” harm. See Reeves, 420 S.W.3d at 816. On the record before this court, there was no evidence refuting the enhancement allegations. Segovia did not plead true to some and not true to others. He admitted both of the enhancement allegations, as well as the eight other offenses presented during the punishment phase. “During trial proceedings, the evidence of [Segovia’s guilt on the enhancement allegations] was undisputed, uncontradicted, and seemed to have been taken as a ‘given’ by the parties.” Buckley v. State, No. 14-12-00202-CR, 2013 WL 865567, at *3 (Tex.App.—Houston [14th Dist.] 2013, Mar. 7, 2013, pet. ref'd) (mem. op., not designated for publication) (citing Kucha v. State, 686 S.W.2d 154, 156 (Tex.Crim.App.1985)). Even assuming error, the record does not support any finding of harm. The appellant conceded as much during oral argument. Segovia admitted the prior convictions and the .jury therefore had no other options. The jury was compelled to sentence Segovia under the enhanced penalty range.

Segovia does not contend that the evidence is insufficient to support a finding of true. Although the trial court erred in not obtaining an actual plea to the enhancement allegations, the record overwhelming supports (1) the existence of Segovia’s pri- or convictions, and (2) Segovia’s link to those convictions. Flowers, 220 S.W.3d at 921. Based on Segovia’s testimony and the convictions admitted during the punishment phase, we cannot conclude that Segovia suffered any harm and we, therefore, overrule Segovia’s last issue on appeal.

Conclusion

Having overruled each of Segovia’s issues on appeal, we affirm the trial court’s judgment. 
      
      . The additional offenses included two felony convictions for unauthorized use of a motor vehicle, one misdemeanor conviction for un-. lawful carrying of a firearm, four misdemeanor convictions for assault causing bodily injury, and one misdemeanor conviction for failure to identity to a police officer.
     