GILBERT CHAVARRIA,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00678-CR
GILBERT CHAVARRIA,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE. DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES MCCLUNG, ROWE, AND BURNETT
OPINION BY JUSTICE BURNETT
JUNE 16, 1989
        A jury found appellant, Gibert Chavarria, guilty of the offense of murder and sentenced him to twenty-five years confinement in the Texas Department of Corrections and fined him $10,000.00. Appellant asserts three points of error. We affirm.
        In point of error one, appellant argues that the evidence is insufficient to support the conviction. On the evening of March 29, 1987, appellant, the deceased, and numerous other individuals engaged in a fight. One witness testified that he saw appellant's girlfriend hand appellant a knife, that he saw appellant engage in a fight with the deceased, and that he saw appellant stab the deceased with a knife. The deceased's girlfriend testified that she saw appellant fighting with the deceased but did not see the appellant with a knife. Two other witnesses testified that they never saw anyone stab the deceased. Appellant testified that he hit the deceased several times but that he did not have a knife and that he did not stab the deceased. The medical examiner testified that the deceased had four stab wounds to the body, three of which were fatal. The wounds appeared to have been inflicted by a straight-edged blade approximately four inches long. Appellant argues that the above evidence is insufficient to support the conviction.
        The standard of review is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Houston v. State, 663 S.W.2d 455, 456 (Tex. Crim. App. 1984). In a case tried before the jury, the jury is the sole judge of the weight and credibility of the evidence and can accept or reject any part or all the testimony, including that of the appellant. Ruiz v. State, 654 S.W.2d 488, 654 (Tex. App.--Corpus Christi 1983, no writ). When determining the sufficiency of the evidence, appellate courts must view the evidence in the light most favorable to the verdict. Id. The evidence regarding whether appellant had a knife and whether appellant stabbed the deceased was conflicting. In a jury trial, reconciliation of conflicts and contradictions in the evidence is within the province of the jury, and such conflicts will not cause reversal if there is enough credible testimony to support the conviction. Kirchner v. State, 739 S.W.2d 85, 88 (Tex. App.--San Antonio 1987, no writ). We hold that because there was evidence that appellant had a knife and that appellant stabbed the deceased, the evidence is sufficient to support the conviction. The appellant's first point of error is overruled.
        In point of error three, appellant asserts that the jury charge constituted reversible error because it authorized a conviction on a theory not supported by the evidence. The jury instructions contain an instruction on the law of parties. Appellant contends that the law of parties instruction was unsupported by the evidence, was prejudicial, and caused reversible error. Savant v. State, 544 S.W.2d 408, 409 (Tex. Crim. App. 1976). We disagree. Both the application portion and the instruction portion of the jury charge authorize the jury to find appellant guilty if he either acted alone or with another person as a party to the offense. The evidence shows that appellant participated in the fight with the deceased. Therefore, the evidence supports the instruction on the law of parties. Goff v. State, 681 S.W.2d 619, 622-23 (Tex. App.--Houston [14th Dist.] 1983), aff'd 720 S.W.2d 94 (Tex. Crim. App. 1986). Appellant's third point of error is overruled.
        In point of error two, appellant maintains that the prosecutor's improper question constituted error because it injected a harmful fact before the jury and that such harm could not be removed by the court's instructions. On cross-examination, the prosecutor asked a witness to the fight in question:
 
 
        Q.        Well, would it be part of your code that if somebody cussed you out, ya'll should take him out of this life? Would that be part of your code?
 
        A.        No, ma'am. He's just talking. Unless he hits me or does something. Let him go at it first. I don't know. What's the use of hitting him for? All you're going to do is --
        Q.        Good question, Robert. Good Question. Was there anybody else out there that you know of that would take up for Julia Annette Fuentes besides Gilbert, her boyfriend?
 
        A.        No, ma'am. Hardly anybody knew his girlfriend.
 
        Q.        Well, did you know that Annette got -- or whatever she goes by -- do you know that she took the knife, after this was over with, home and washed it and hid it in her nightgown? Did you know that?
 
        [DEFENSE COUNSEL]: Your Honor, I would object to that comment. I think counsel's asking questions referring to facts that are not in evidence here.
 
        THE COURT: Sustained the objection.
 
        [DEFENSE COUNSEL]: Your Honor, I would ask that the jury be instructed to disregard that last question of counsel.
 
        THE COURT: The jury will disregard the last question of the prosecution for all purposes, ladies and gentlemen.
 
        [DEFENSE COUNSEL]: Your Honor, I request a mistrial.
 
        THE COURT: That's overruled.
Appellant asserts that the above question constituted reversible error.
        An error when asking an improper question or when admitting testimony may be generally cured or rendered harmless by withdrawal of the testimony and by instructing the jury to disregard the same except in extreme cases where it appears that the question or evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury. White v. State, 444 S.W.2d 921, 922 (Tex. Crim. App. 1969). Merely asking an improper question does not call for reversal unless it results in obvious harm to the defendant. Ashley v. State, 527 S.W.2d 302, 306 (Tex. Crim. App. 1975). The above question suggests that appellant stabbed the deceased and then gave the knife to his girlfriend. Because the jury charge allowed the jury to convict appellant if he either stabbed the deceased himself or assisted in the deceased's killing, we hold that the error, if any, beyond a reasonable doubt, did not contribute to appellant's conviction or punishment. TEX. R. APP. P. 81(b)(2). Appellant's second point of error is overruled.
        The judgment of the trial court is affirmed.
                                                          
                                                          JOE BURNETT
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
88-00678.F
 
 
File Date[01-02-89]
File Name[880678]