Edmond Demond Waites v. State ( 2006 )


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  •                                   NO. 07-05-0061-CR
    IN THE COURT OF APPEALS
    FOR THE SEVENTH DISTRICT OF TEXAS
    AT AMARILLO
    PANEL B
    NOVEMBER 21, 2006
    ______________________________
    EDMOND WAITES, APPELLANT
    V.
    THE STATE OF TEXAS, APPELLEE
    _________________________________
    FROM THE 27TH DISTRICT COURT OF BELL COUNTY;
    NO. 52925; HONORABLE MARTHA J. TRUDO, JUDGE
    _______________________________
    Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
    MEMORANDUM OPINION
    Following a plea of not guilty, appellant Edmond Waites was convicted by a jury of
    murder and sentenced to sixty years confinement. Presenting two issues, he maintains
    (1) the evidence is factually insufficient to support a negative finding on a punishment
    “affirmative defense,” and (2) the punishment charge was fundamentally defective for
    failing to instruct the jury on the law as contained in article 38.36 of the Texas Code of
    Criminal Procedure. We affirm.
    Appellant and his wife, Terri, had a brief and tumultuous relationship that culminated
    in her death. After meeting on the internet, they began dating in the spring of 2001, when
    both were nineteen years old. According to testimony, they married on either August 31
    or September 1 of that year. Law enforcement officers were dispatched to their residence
    in Killeen on three occasions on October 21. The first and second responses were
    domestic disturbance calls involving a dispute over ownership of a computer. Appellant
    wanted a divorce, and Terri was resisting, but there was no physical altercation. On the
    third occasion, officers were dispatched in response to a 9-1-1 call placed by appellant,
    who confessed to killing Terri.
    When officers arrived, they observed appellant’s car backed up to the front door of
    the residence. Appellant had his hands on his head and posed no threat. He was placed
    in a patrol car, read his rights, and transported to jail. Detectives began processing the
    crime scene. Terri’s body was on the floor, lying partially on a blanket a few feet inside the
    front door. According to a paramedic, the body was face down and rigor mortis had set in.
    Garbage bags covered Terri’s head and her legs. Her bagged legs were positioned inside
    a duffle bag.    She was topless and her body was covered in blood.              One of the
    investigating officers detected the smell of bleach throughout the apartment.
    Dr. Lynn Salzberger, the medical examiner who performed the autopsy, testified that
    Terri died from homicidal violence including strangulation and sharp force injuries.
    Salzberger described the factors that indicated strangulation, which included indications
    of burst capillaries on her face, eyes and heart, bruises on the neck and thyroid gland, and
    a severely bruised tongue. Terri also sustained stab wounds to the left and right sides of
    2
    her neck and a stab wound to her left abdomen. According to the doctor, the wound to the
    right side of Terri’s neck penetrated the jugular vein.
    By his first issue, appellant contends the evidence is factually insufficient to support
    a negative finding on the punishment “affirmative defense” of sudden passion.1 When, as
    here, we are called on to review the factual sufficiency of evidence supporting the jury’s
    rejection of the defendant’s position on an issue on which he bore the burden of proof by
    a preponderance of the evidence, we consider all the evidence relevant to the issue and
    determine whether the jury’s finding is so against the great weight and preponderance of
    the evidence as to be manifestly unjust. Meraz v. State, 
    785 S.W.2d 146
    , 154-55
    (Tex.Crim.App. 1990); see Moranza v. State, 
    913 S.W.2d 718
    , 724 (Tex.App.–Waco 1995,
    pet. ref’d) (applying standard to rejection of insanity defense). In reviewing a sudden
    passion issue, we consider the evidence adduced at both the guilt/innocence and
    punishment phases. Trevino v. State, 
    100 S.W.3d 232
    , 237 (Tex.Crim.App. 2003) (per
    curiam). There is no requirement that evidence admitted during guilt/innocence be re-
    offered during punishment to be considered. 
    Id. During the
    punishment phase of a murder trial, the defendant may argue that he
    caused the death while under the immediate influence of sudden passion arising from an
    1
    Effective September 1, 1994, the Legislature amended the murder statute to
    provide for sudden passion to be raised by a defendant during punishment. See Act of
    May 27, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3613.
    Although appellant identifies sudden passion as an “affirmative defense,” under the statute
    it is a mitigating circumstance and not a true affirmative defense. Tex. Pen. Code. Ann.
    § 19.02(d); cf. Tex. Pen. Code Ann. § 2.04(a) (Vernon 2003). Appellant is correct,
    however, that the statute places on him the burden to “prove the issue in the affirmative
    by a preponderance of the evidence . . . .” Tex. Pen. Code Ann. § 19.02(d).
    3
    adequate cause. Tex. Pen. Code Ann. § 19.02(d) (Vernon 2003); 
    Trevino, 100 S.W.3d at 238
    . Sudden passion is a mitigating circumstance that, if proven by a preponderance of
    the evidence, reduces the offense from a first degree felony to a second degree felony.
    Tex. Pen. Code Ann. § 19.02(d) (Vernon 2003); McKinney v. State, 
    179 S.W.3d 565
    , 569
    (Tex.Crim.App. 2005).2 “Sudden passion” is 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.
    Pen. Code Ann. § 19.02(a)(2) (Vernon 2003). “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. 
    Id. at (a)(1).
    Testimony indicated appellant came from a structured home environment with a
    supportive family. He was a good student in high school and participated in extracurricular
    activities. He dated one girl during the latter part of high school and was otherwise
    inexperienced with women.        Appellant graduated early from high school, earned
    scholarships, and enrolled in a junior college. One month into college, he joined the
    military and decided to make it his career.
    In 2000, appellant was stationed at Fort Hood. He met Terri the following year and
    after an uneventful first date, she called him a few days later. He visited her at her
    apartment and spent the night, but they were not intimate. Appellant was then deployed
    for a brief period and on his return, he and Terri began seeing each other regularly.
    2
    We note that the Court of Criminal Appeals’ opinion in McKinney was issued after
    appellant’s brief was 
    filed. 179 S.W.3d at 565
    .
    4
    Terri had two young sons by two different men and was unemployed. According to
    the testimony of Dr. Timothy Branaman, a forensic psychologist, Terri had a volatile
    personality and struggled with abandonment issues concerning men.3 Terri’s younger
    brother, who lived with her when she and appellant met, testified that Terri’s financial
    resources consisted of State assistance and help from her grandparents. Appellant
    testified that Terri and her family asked him for financial assistance even though he still
    resided in the barracks.
    Eventually, appellant and Terri’s relationship became sexual, and sometime in late
    spring she told him she was pregnant. About that same time, appellant discovered he had
    contracted a sexually transmitted disease which he attributed to Terri because he had
    never been intimate with anyone else. Terri, however, blamed him for the disease.
    Appellant asked Terri to marry him because he did not want to have a baby out of wedlock
    or be labeled a “runaway guy.” He testified Terri did not want to get married.
    According to appellant, he notified his parents of the pregnancy and moved some
    of his belongings into Terri’s apartment. He began providing financial support to Terri and
    her family, and began to look forward to his impending fatherhood. He made an effort to
    accept Terri and develop a closer relationship. Not long after announcing she was
    pregnant, Terri told appellant she had miscarried while he was at work.
    3
    Branaman never met Terri, and his testimony was based on information from
    reports and records.
    5
    During the summer months appellant spent most of his leisure time at Terri’s
    apartment even though he still had a room at the barracks.           Terri began initiating
    arguments over insignificant matters and when appellant would attempt to leave, she would
    cry and plead with him not to do so. He said at times she would lock the door and stand
    in front of it to prevent his departure. He testified he did not physically move her from
    blocking the door because he believed any type of physical altercation between a soldier
    and a female would cause problems that would hinder his military career.
    During this time, Terri began causing problems for appellant at work by placing
    frequent phone calls to him, sometimes calling every five minutes. The disruptions
    reflected poorly on his job performance reports prepared by his supervising sergeant. In
    an effort to remedy the situation, they invested in a cell phone. Nevertheless, Terri
    continued calling appellant at work to accuse him of being with another woman during
    working hours.
    On August 20, while Terri’s sons were not in the apartment, she started an
    argument with appellant. Both were without working vehicles at that time and Terri blamed
    him for their lack of transportation. Appellant decided to pack his belongings in his duffle
    bag and walk the long distance to Fort Hood. As he was walking down the street, he heard
    Terri screaming that her apartment was on fire. Both returned to the apartment, where the
    fire department was already on the scene extinguishing the fire. Terri suffered smoke
    inhalation. Most of her property was destroyed and the apartment was uninhabitable.
    6
    Appellant and Terri decided to stay together after the fire, and both thought it was
    the right time to marry and build a family with Terri’s two sons. Appellant testified he was
    hopeful that he and Terri could build a marriage similar to that of his parents. With the
    expense of leasing a new apartment, appellant was unable to afford a marriage license
    until his next pay period. He chose not to notify his parents of his impending marriage
    because he did not want to burden them with his finances. He and Terri were married by
    a justice of the peace on either August 31 or September 1.
    According to appellant, after the ceremony, he and Terri went out to eat and spent
    the day together.    When they returned to their apartment, Terri “flipped out” and
    announced she was going out to a night club. She borrowed a car and left appellant home.
    She telephoned him several times that night to argue and scream at him, and he eventually
    hung up on her. She drove back to the apartment but remained in the car honking the horn
    and causing a scene. Appellant testified that he considered his predicament and, feeling
    ashamed and foolish, attempted suicide on his wedding night. He locked the apartment
    door, turned on the gas stove, and stuck his head inside the oven. Terri knocked on the
    front door and when he did not answer, she broke a window and entered. Appellant was
    rescued by the fire department and taken to a military hospital.
    After his attempted suicide, appellant was counseled by one of his sergeants not
    to abandon Terri. At the suggestion of two other sergeants, he consulted a military
    attorney about a divorce. The Army attorney recommended a civilian attorney to appellant,
    but he did not then pursue a divorce.
    7
    After appellant was discharged from the hospital, he returned to work on September
    11, 2001. He testified that the terrorist attacks that occurred on that date increased his
    stress level due to the frequency of alerts and preparedness exercises. Appellant was also
    stressed because Terri began making frequent phone calls to him at work again.
    In mid-October shortly before Terri’s death, appellant, Terri, and her sons drove to
    Dallas to spend time with his family. According to Mrs. Waites, Terri began treating her
    rudely after appellant and Terri married because she had expressed her reservations to
    Terri about the marriage. Mrs. Waites had chosen not to confront appellant on the subject
    because she did not want to cause any problems for Terri and appellant. When they
    arrived at appellant’s parents’ home, Terri refused to enter. Instead, she remained outside
    cursing, screaming and uttering threats which resulted in a call to the police. Mrs. Waites
    explained to the officers that Terri was welcome in her home if she could behave
    respectfully. After the officers calmed Terri down, she, her sons, and appellant left Dallas
    escorted by police to the county line. They stayed at appellant’s brother’s home near
    Dallas.
    Terri telephoned a friend in Killeen to drive her and the boys home. Appellant
    stayed behind, and he and his mother visited his sick aunt in Dallas. Appellant sought his
    mother’s help in getting a divorce, and she called a relative who prepared some divorce
    papers with a software program.
    Divorce papers in hand, appellant drove back to Killeen on October 20 intent on
    moving back into the barracks. Upon arriving, he discovered his wallet containing his
    8
    military identification was missing. He testified he could not enter the base without his
    identification because of heightened security. After searching his car to no avail, he called
    his mother and brother to check if he had left the wallet in Dallas. They could not find it.
    Appellant asked his mother to come to Killeen.
    Appellant returned to the apartment, and Terri arrived later. He informed her he had
    divorce papers and she began crying and locked herself in the bathroom. Just as appellant
    stepped outside to sit in his car, his mother and uncle arrived, and Terri left. While
    appellant’s uncle was offering to help him move, his mother found his wallet in the trunk
    of his car. After appellant’s mother and uncle left for Dallas, Terri returned home. She
    wanted to reconcile, but appellant told her his mind was made up and he would be leaving
    in the morning.
    The next morning he unplugged the computer and began loading his possessions
    into his car. Terri opposed appellant removing any property and called the police to settle
    the dispute. Appellant was informed he could not remove any property that might be
    community property, but could remove clothes and personal hygiene items. Appellant
    packed his clothes and some personal items and drove to the base.
    When appellant arrived at the base, he was notified that Terri had been calling him.
    They spoke on the phone, and she declared her love for him and pleaded with him to come
    home. He responded that if he returned, it would be to pack the rest of his things.
    Appellant then discovered that his room at the barracks had been assigned to another, so
    he loaded his clothes back into his car and drove to the apartment. He testified that he
    9
    parked his car at a nearby fast food restaurant and walked to the apartment because “Terri
    was acting crazy again and I didn’t know what [she’d] do.” He did not know where he
    would be staying that night after discovering he no longer had a room at the barracks.
    Appellant testified that shortly after he entered the apartment, a police officer
    knocked on the door. Terri had again summoned officers and made accusations that
    appellant was trying to remove the computer, which he conceded was true because he had
    discovered a photo of a naked man on it. The officer informed appellant that because he
    and Terri were married, he could not prevent her from using the computer. Appellant
    decided to remain in the apartment, in part to protect his possessions. He and Terri sat
    on the couch and watched television. Terri cooked them something to eat, and then
    appellant overheard her speaking to someone on the phone in an excited state. According
    to appellant, Terri was happy when she hung up, and announced she and her sons were
    moving to Mississippi with someone named Joe. Appellant responded for her to “go ahead
    and leave, that would be the best thing that had ever happened to me.” As he grabbed his
    keys and prepared to leave, Terri positioned herself in front of the door to prevent his
    departure. Appellant’s testimony indicates that Terri’s physical effort to keep him from
    leaving the apartment led to a further struggle between them. He testified he “tried to tell
    her to stop. She’s beating at me and the next thing I know . . . I have her in a choke hold.
    I’m choking her. I’m mad at her. It’s not as much as mad about - - I’m mad about the fight
    more than whatever else was going on between us because now, you know, she’s - - she’s
    trying to whoop me now.”
    10
    When appellant was taken to jail, he gave a written statement summarizing the
    events that led to his choking Terri. The next day he gave a second, more detailed
    statement regarding the circumstances of her death. In his second written statement,
    appellant confessed that when he reached around Terri for the knob to their apartment
    door, attempting to leave, she “pushed him.” The written statement continued:
    [t]hat’s the point when I grabbed her around the neck and she started to
    swing her arms around, trying to get me off. She went down to the ground
    kicking. She was looking at me and I was telling her, I don’t like what you’re
    doing, I want all this to work, we can’t have all these problems, you’re
    pushing me to [sic] far. I remember her saying ok, ok. It was hard for her to
    breathe and I told her that I was trying to make her understand, I was only
    trying to scare her but I went to [sic] far. She got all blue and purple, her
    neck looked real bad. I let go and stood up and looked at her. She couldn’t
    breathe, it was just short breaths. I started thinking, what have I done, I
    needed to call somebody to get help, I needed to call 911. I started to pray
    and she was still alive then. I was praying and praying and asking for
    forgiveness. . . . I started to think that I couldn’t call the police because they
    would take me to jail, and that would mess up my career and I would go to
    prison. So I thought I had to get rid of her, I can’t let her stop me from going
    on with my life, I have to overcome this situation. So I got the idea that if
    she’s still breathing and I choked her as much as I could, I could fill the
    bathtub with water and throw her in, she would drown. So I turned on the
    water in the bathtub and I started dragging her body to the bathtub. She was
    still alive at this point, her breathing was getting worse, like louder like she
    was gasping. I thought somebody’s gonna here [sic], I didn’t want to get
    caught so I turned the radio on. I drug her to the bathtub, I had a hard time
    but I got her inside the tub. I filled the bathtub with water enough that it was
    about halfway full. I leaned her body over the tub and her face was in the
    water. Her face was facing down and she didn’t have the strength to move.
    I left her there hoping she would die so I could get done with her and get
    over it. I pulled her head up to see if she had died yet but she was still
    breathing and I was afraid, I knew that I choked her and put her head in the
    water and that she was still alive. I knew I had made a mistake, that it wasn’t
    supposed to be like this, I started to pray again asking for forgiveness and
    I started to think again that I can’t let her to [sic] determine my life, that I had
    to get rid of her so I went to the kitchen and I grabbed a blade, a box cutter
    to slice her throat. I went back to the bathroom and made one attempt of
    slicing her neck but it was not easy to do so I tried again and I saw blood, a
    lot of blood and I panicked. I thought that I had to get out of the apartment,
    11
    I thought I could leave her there and say that I hadn’t seen her all day, that
    someone else did it, then I thought again I had to get rid of her because
    somebody would find out it was me. So I went to the living room and put on
    my pants and shoes, my white pants, the first pants I had on were the brown
    pants. I walked to the Jack-In-The-Box to get my car and drove it back to the
    house. I went in the bathroom and checked on her. She was bleeding
    blood, there was a lot of blood but it bothered me to see her lying there in the
    blood so I went back into the living room to take my mind off of it. I sat there
    and watched TV, she’s dead at this time. That didn’t take my mind off of it.
    I opened my bible and read some pages and I started to pray again, begging
    for forgiveness. Then I went and checked on her, she wasn’t bleeding fast
    enough so I ran and grabbed a second knife, the serrated knife on the
    dresser in the bedroom by the TV. I tried to stab her in the stomach, maybe
    she would bleed faster and I came [sic] with the idea that I needed to cut her
    body parts off so that she would be easier to carry but I couldn’t bring myself
    to do it. I tried stabbing her in the stomach but there was no hole or marks
    or anything. I tried to again and this time there was a hole but no blood yet.
    I started getting more nervous, shaking, thinking I have to fix this problem
    and maybe I would be able to go on with my life once I got rid of her. So I
    went to the closet and got blankets and laid them on the floor in the front of
    the bed. I went to drag Terri from the bathtub to those blankets. Blood was
    getting all over the bathroom, and me and I wrapped her up in those blankets
    in the bedroom. Then it dawned on me that here was blood on my hands
    and blood all over the apartment, the bathroom and bedroom at that time so
    I knew I had to clean up. I started cleaning the bathroom with bleach and
    alcohol. I went to the kitchen and grabbed some trash bags and latex
    gloves. I started to clean everywhere with bleach and paper towels or
    regular towels where I thought I had touched with my hands. Then I put a
    plastic bag over her feet and taped the trash bag together to her body. I
    placed one over her head as far as it would go and I taped it to her body.
    After further descriptions of his unsuccessful efforts to dispose of Terri’s body, appellant’s
    statement provided:
    . . . [A]t that point I called my mother in Dallas and I told here that I had done
    something real bad. She asked what and I told her she wouldn’t want to
    hear it. I asked to talk to my dad and I told him that I had killed Terri. He
    asked if I called anybody because she may still be alive and I said no, she’s
    not alive.
    12
    Appellant continued in his statement that after speaking with his parents, he called his
    sergeant and then 9-1-1. He told the dispatcher he had killed his wife. He concluded in
    his statement that he was wrong to kill Terri and believed he should receive the death
    penalty.
    During the punishment phase at trial, appellant’s family members testified to his
    good character and offered to help him if he was granted community supervision. A
    Christian counselor testified that she met with appellant while he was in jail and he
    expressed remorse.
    Dr. Branaman, the forensic psychologist, testified during punishment that he
    interviewed and tested appellant. He said appellant was depressed and very critical of
    himself. He had no history of violent behavior, substance abuse, or mental illness. In his
    opinion, appellant’s family and the military provided structure which was important to
    appellant. By entering into a relationship with Terri and her sons, appellant was searching
    for additional structure. Branaman’s evaluation of appellant suggested his family members
    were “extremely important” and he felt threatened when separated from those
    relationships.
    The doctor’s findings regarding Terri were that she “manifested unstable personality
    features, volatility, reactivity, indications of manipulative behavior, potentially self-
    destructive,” and she did not trust relationships. He opined that the dynamics of the
    relationship between Terri and appellant were “pathological in nature.”
    13
    The doctor described appellant’s conduct as an “extraordinary response growing out
    of the circumstances . . . .” He said that after killing Terri, appellant panicked, which
    caused his anxiety level to rise and impair his judgment, which was evidenced by the
    “multiple, unorganized attempts that he made to cope with the situation . . . .” Regarding
    future dangerousness, the doctor testified there is a “low likelihood of committing any
    violent acts in the future.”
    Appellant argues the evidence that he wanted a divorce, that Terri attempted to
    make him jealous, and that she attacked him when he tried to leave the apartment on
    October 21 is sufficient to establish he was acting under the influence of sudden passion
    arising from an adequate cause when he killed her. We cannot agree that the jury’s
    rejection of appellant’s contention was so against the great weight and preponderance of
    the evidence as to be manifestly unjust. The jury could well have concluded from
    appellant’s own testimony that he long had regretted his decision to become involved with
    Terri. He had been considering divorce for some time, and had told her of the existence
    of the divorce papers on the day before the murder. Although her attempt to prevent him
    from leaving their apartment led to tragic events on this occasion, it was not a new
    occurrence in their relationship. By appellant’s testimony, she had behaved in a similar
    fashion before. The State points out the similarities in the facts of this case and those in
    Richardson v. State, 
    83 S.W.3d 351
    (Tex.App.–Corpus Christi 2002, pet. ref’d), in which
    the defendant also argued the evidence supporting the jury’s rejection of his sudden
    passion contention was factually insufficient. After recounting the evidence concerning the
    couple’s relationship, the court in Richardson found, “[t]he jury could easily have
    14
    determined from the evidence that [the defendant] was resentful about his wife as a result
    of numerous things . . . , and that any passion arising as a result of any or all of these
    things was not sudden, but had been building up over time.” 
    Id. at 350.
    The same could
    be said here. The jury could have concluded that appellant acted not out of the immediate
    influence of sudden passion arising at the time of the offense but out of emotions that built
    up over time.
    The jury also could have been influenced by the length of time involved in
    appellant’s fatal assault on his wife and the multiple means by which he attacked her. As
    noted, evidence established that when emergency personnel arrived at the scene, Terri’s
    body already was experiencing rigor mortis. Appellant’s written statement indicates that,
    in his repeated attempts to insure Terri was dead, he first strangled her, then drowned her,
    cut her throat, and inflicted stab wounds. In Richardson, a forensic psychologist testified
    that “in view of the fact that there was a knock down, a strangling, and then a stabbing, that
    the murder took place over a period of 
    time.” 83 S.W.3d at 340
    . The doctor concluded the
    murder was not the result of sudden passion because it was not a single impulsive act in
    the heat of passion. 
    Id. Here, by
    appellant’s statement, while his wife still was breathing
    he rationally considered the consequences of his actions on his career before resuming
    his brutal activities.
    Appellant’s testimony also provided the jury with ample reason to disbelieve he killed
    his wife because of his reaction to her announcement she was moving to Mississippi with
    another man. Appellant responded to that statement by telling Terri her leaving “would be
    the best thing that ever happened to [him].” Further, given the evidence of his relationship
    15
    with Terri, the jury could have concluded that none of the causes appellant relies on for his
    sudden passion contention would, in a person of ordinary temper, commonly produce a
    degree of anger, rage or resentment sufficient to render his mind incapable of cool
    reflection. In sum, having reviewed the voluminous record from appellant’s trial, we are led
    to the conclusion the jury’s failure to find appellant acted under the immediate influence
    of sudden passion was supported by factually sufficient evidence. 
    Meraz, 785 S.W.2d at 154-55
    ; see 
    McKinney, 179 S.W.3d at 569
    . Issue one is overruled.
    Appellant maintains by his second issue that the punishment charge was
    fundamentally defective because the trial court erred in failing to instruct the jury on the law
    as contained in article 38.36 of the Texas Code of Criminal Procedure.               Appellant
    concedes he failed to object to the omission, but argues the alleged error caused him
    egregious harm, under the analysis prescribed in Almanza v. State, 
    686 S.W.2d 157
    , 171
    (Tex.Crim.App. 1985). We overrule the issue.
    Article 38.36(a) provides:
    [i]n all prosecutions for murder, the state or the defendant shall be permitted
    to offer testimony as to all relevant facts and circumstances surrounding the
    killing and the previous relationship existing between the accused and the
    deceased, together with all relevant facts and circumstances going to show
    the condition of the mind of the accused at the time of the offense.
    Article 38.36(a) is essentially a rule of evidence. See Johnson v. State, 
    140 Tex. Crim. 145
    ,
    149, 
    143 S.W.2d 771
    , 773-74 (1940) (on reh’g) (interpreting a predecessor statute to
    article 38.36(a)). In Huizar v. State, 
    720 S.W.2d 651
    , 654 (Tex.App.–San Antonio 1986,
    16
    pet. ref’d), the court noted that it was not mandatory to give an instruction based on a
    predecessor statute to article 38.36 nor reversible error to refuse to do so even though
    evidence contemplated by the statute had been introduced. See Roberson v. State, 
    144 S.W.3d 34
    , 42 (Tex.App.–Fort Worth 2004, pet. ref’d); Richardson v. State, 
    906 S.W.2d 646
    , 649 (Tex.App.–Fort Worth 1995, pet. ref’d).
    Facts surrounding Terri’s death and evidence of appellant’s previous relationship
    with her, as well as his state of mind, were presented.            The court’s charge on
    guilt/innocence included language substantially tracking the language of article 38.36(a).
    The charge on punishment instructed the jury that “in deliberating on the punishment to be
    assessed, you may take into consideration all of the evidence admitted before you in the
    full trial of the case and the law submitted to you by the court.” The trial court did not err
    by failing to include an instruction tracking article 38.36(a) in the punishment charge.
    See Jones v. State, 
    689 S.W.2d 510
    , 512 (Tex.App.–El Paso 1985, pet. ref’d), opinion
    vacated, 
    720 S.W.2d 535
    (Tex.Crim.App. 1986). Because we conclude no error occurred,
    we need not address appellant’s argument that the punishment charge was fundamentally
    defective and caused him egregious harm.
    Having overruled appellant’s issues, we affirm the trial court’s judgment.
    James T. Campbell
    Justice
    Do not publish.
    17