*1 showing her fundamental meet burden
error. point second
We overrule
error.
Conclusion trial judgment
We affirm the
court. CLEVELAND, Appellant,
Andre Texas, Appellee.
The STATE of
No. 01-03-01040-CR. Texas, Appeals of
Court of (1st Dist.).
Houston
April 2005.
Discretionary Review Refused
Sept. *4 Burkholder, Houston,
Henry III, L. Appellant. Fix, Atty.,
Lоri Dist. Deangelo Asst. Rosenthal, Jr., Atty.-Har- Charles A. Dist. Houston, County, ris Appellee. ALCALA, ELSA Justice. Cleveland, Appellant, pleaded Andre guilty charge murdering to the his wife. murder, A appellant guilty found against appellant special found on the is- passion, sue of pun- and assessed ishment at in prison. confinement for life Appellant brings points four error con- cerning guilt-innocence of his phase error, trial. In first two points his that trial court contends by denying suppress erred his motion to kitchen, evidence of the of his residence and Jessica saw her mother seated search Appellant on a was his knees in by overruling objection closing sofa. argu- his front of her. Jessica heard tell allegedly ment com- State divorce, he but Carolyn that wanted appellant’s post-arrest mented on silence. “he kill he would let her error, would her before points his third fourth get a divorce and take house.” When appellant contends that the failed to State Jessica, her, appellant saw cursed disprove beyond a doubt reasonable problems in causing her of accused acting he killed his wife while self- go marriage, upstairs. her to back told defense, and the evidence is therefore got baby’s began Jessica formula and legally factually insufficient sustain to her return room. Concerning his murder conviction. trial,
punishment of his stage stairs, top As Jessica reached that, fifth and sixth of error assert points her “squeal” loudly. she heard mother although prove by he had the burden to put baby upstairs Jessica her in a room preponderance of the evidence that he mother, to help ran downstairs her wife killed his out of sudden aris- *5 Andrea, had accompanied by who also ing cause, adequate out of an and heard the scream. Andrea Jessica insufficient factually and to legally sus- pin Carolyn with one appellant saw down jury’s negative tain to the the answer sud- to knees as used one arm beat his he special den affirm. issue. We to her and the other arm stab her. An- Carolyn, to help
drea and Jessica tried but Background Although appellant “wrestled” them. Jes- managed escape sica into the kitchen to and Carolyn appellant, Cleveland her knife, and a took the knife get appellant husband, together approxi- for been from her and it to her the used stab years. They mately Spring, lived Carolyn bleeding, collapsed, chest. When Texas, County, 15-year- with their Harris door, by on front the floor the Jessica went Andrea, 20-year- daughter Carolyn’s old call upstairs to Jessica, and infant daughter, old Jessica’s firearms, baby. handgun Two a and a scrubbed the sofa with towel Appellant were in the house. On the shotgun, kept seated, Carolyn where had been but then 6, 2003, Carolyn gave afternoon March stabbing Carolyn to as she re- returned the handgun shotgun the and the shells for face on the floor. mained down Andrea Carolyn planned to to because Jessica hide help Carolyn striking appellant to tried appellant papers to serve with divorce cooking had to pan, with a but she back evening. swung he at away from him when her. 911, she and Andrea After Jessica called appellant arrived at the house When Carolyn. Appellant CPR did attempted on Carolyn downstairs p.m., about 6:00 went assist, scream, cry, or anything do give papers. the divorce An- appellant did, however, treat his help Carolyn. He drea, baby were in Jessica and Jessica’s around the injury wrapping cloth own portion of house. upstairs Appel- on his hand. small cut discussing Carolyn had been mat- lant and County Harris p.m., deputy half At 8:39 ters about an hour and a when for baby approached house hungry. Jessica constable Jessica’s became downstairs, response stabbing-in-progress to a call. holding her five-month- walked house towards Appellant walked out baby, get old the child’s formula from said, very calmly “I deputy refrigerator. approached Jessica As always ,” Carolyn attempt persuade her because she but before stabbed — complete depu- his The marriage counseling did not sentence. with her to attend ty him handcuffed and took into him, that was pulled she four-inch knife deputy custody. When the heard Andrea from slightly larger than a steak knife screaming hysterically Jessica sofa, him to feаr side of the which caused help, brought he entered the house. He According appellant, Caro- his life. handcuffs, him, in appellant with because once, lyn him but she swung the knife at no present other officers were assist. him, quickly did not cut and he disarmed As Andrea and Jessica continued to at- that, point, at that Appellant her. stated mother, tempt appellant ap- CPR their stabbing “I and I her.” panicked started peared “very, very calm” he as observed his Appellant described mental state his wife the floor. world,” “in stabbing time of the as another personnel emergency
After arrived at life,” and in “fear of but “panicking,” [his] dead, pronounced Carolyn house being upset. Appellant he ac- denied deputy appel- returned handcuffed nothing knowledged prevented him patrol lant to the car. County Harris after simply leaving from house he Deputy Sheriffs Gideon J.D. arrived Carolyn took the knife from Jes- rights. Ap- scene and read his sica, knife, him cut with inflicted the who pellant rights agreed waived his to only night. received that wound speak to the offiсers. Appellant stabbing denied and de- Jessica Ortiz, a deputy J. assigned as crime- making any stabbing nied statement about *6 scene fingerprint technician and latent ex- his the who first deputy wife to constable aminer in the identification division of the Appellant arrived the acknowl- house. County Department, Harris Sheriffs ob- that, respond- edged peace before officers tained consent to search the house, stabbing spoke ed to at his he the Deputy house, house. Ortiz entered the members, telephone family his the to it, photographed and videotaped and col- employer, operator, and to the 911 whom lected evidence that included six knives. wife, he told that he had stabbed his but autopsy The that Carolyn showed received mentioning without self-defense. 22 stab wounds and died as a result of injuries. multiple, sharp-force Sufficiency to of the Evidence Appellant gave oral statement to Establish Murder Dis- Deputy custody Gideon while in the proving Self-Defense conversation, police In that appel- station. issue Deputy lаnt told that in- Because raised the Gideon his wife self-defense, murder, divorce, formed him that had she filed for to convict him for that she would take the house and the prove the had to the elements of the State it,” that money, he “lost walked to doubt, the beyond offense a reasonable and kitchen, couch, went back the jury the had to that persuade State the stabbed her. appellant did not kill his wife in self-de State, 589, fense. Zuliani v. 97 S.W.3d trial, appellant
At
testified that
did
594
In his third and
Carolyn
not want to divorce
still
loved
error, appellant
fourth
contends
points
her,
he acknowledged
pre-
but
that he had
legally
factually
that the evidence is
they
filed for
viously
divorce and that
his
support
insufficient
conviction
Appel-
discussed divorce months earlier.
that,
lant claimed
when
murder
the
did not rebut his
he knelt down
because
State
dangerous to
clearly
a reason-
commits an act
hu
beyond
assertion of self-defense
death
indi
man life that causes the
of an
able doubt.
19.02(b)(1),
§§
vidual.
Tex.
Ann.
Pen.Code
legal sufficiency,
In
we
assessing
(Vernon 2003).
19.02(b)(2)
However, a
whether,
of the
determine
based on all
justified
using dead
generally
is
person
evidence,
most
light
record
viewed in the
reasonably
if he
against
force
another
ly
verdict,
jury
favorable
the
a rational
necessary
that
force was
deadly
believed
of all
guilty
could have found the accused
the
use
protect
against
other’s
himself
beyond
of the
essential elements
offense
force, and a
attempted
or
use of unlawful
Virginia,
reasonable doubt.
Jackson v.
person in the actor’s situation
reasonable
318-19,
2781,
443 U.S.
2788-
S.Ct.
not have retreated.
would
Pen.Code
(1979);
v.
Swearingen
L.Ed.2d
9.32(a) (Vernon 2003).
9.31(a),
A
§§
Ann.
(Tex.Crim.App.
has
of producing
defendant
the burden
2003).
conducting
our review of the
a claim of self-
some evidence to
evidence,
legal sufficiency
we do not
Zuliani,
97 S.W.3d
594. Once
defense.
weight
credibility
reevaluate the
evidence,
produces
the defendant
evidence,
only
ensure
but
of persuasion
then
the burden
State
bears
reached
rational
Muniz
decision.
disprove
raised defense.
Id. The
(Tex.Crim.App.
persuasion
require
does
burden
1993).
еvidence;
it
produce
requires
State
case
beyond
its
State
review,
In a factual
A determination of
reasonable doubt.
Id.
light
view all the evidence in a neutral
implies
guilt by
factfinder
only if the
and will
the verdict aside
set
theory.
Id. The is
against the defensive
verdict
evidence is so weak
is a fact issue to be
sue
self-defense
unjust
clearly wrong
manifestly
or
jury,
free to
which is
determined
contrary
strong that
evidence is so
reject
defensive issue. Sax
accept
beyond
proof
standard
a reasonable
(Tex.
913-14
ton
not have been met. Escamil
doubt could
*7
Crim.App.1991).
judge
As the sole
of
(Tex.Crim.
814,
State,
la v.
817
wit
credibility
any
and
accorded
weight
conducting
suffi
App.2004).
In
a factual
free
jury is
to believe
testimony,
ness’s
review,
ciency
we must discuss the evi
testimony of all wit
or disbelieve the
most under
appellant
dence that
contends
nesses,
reject any
or all of
accept
and
or
v.
Sims
jury’s
mines the
verdict. See
produced by
respective
the evidence
State,
600,
(Tex.Crim.App.
99
603
S.W.3d
State,
Upton
v.
parties.
2003).
clearly
Unless the available reсord
548,
(Tex.Crim.App.1993).
552
appropri
is
reveals that a different result
that the
Appellant contends
evidence
ate,
to the
determina
jury’s
we must defer
dis-
factually
insufficient to
legally
give con
concerning
weight
tion
what
he
in self-defense because
prove that
acted
of
flicting testimony because resolution
swung
when his
feared for his life
wife
on evaluation of credibili
facts often turns
By
a
his own admis-
him with
knife.
at
v.
ty and
See Johnson
demeanor.
however,
sion,
stabbed his wife
appellant
1,
(Tex.Crim.App.2000).
381 testimony, allowing own to introduce evidence appellant’s From rational State jury could concluded that have therefore in viola- appellant’s the search residence deadly immediately force was necеs- constitutional appellant’s tion of federal sary appellant himself. defend right against unreasonable searches addition, Andrea and Jessica both testified seizures,1 because the State faded to Carolyn in appellant stabbed the back vol- consented to the search lying bleeding as she was face down and untarily, knowingly, intelligently. by jury the front door. A rational also reasonably
could also have
concluded
A
with the
search conducted
appellant’s
continuing
conduct
to stab
voluntary
suspect
is an ex
consent
lay
bleeding
his wife
the back as she
on ception
requirement
to the constitutional
floor
was inconsistent with his claim
pursuant
search be conducted
Finally,
jury
self-defense.
could have
upon finding
prob
to a warrant issued
reasonably
found
claims of self-
Robinette,
cause.
519
able
See Ohio v.
did
defense incredible because he
not claim
421,
40, 117
S.Ct.
136 L.Ed.2d
U.S.
until he
at trial.
self-defense
testified
Bustamonte,
(1996);
347
Schneckloth
218, 219,
2041, 2043-44,
412 U.S.
93 S.Ct.
reviewing all
After
of the evidence in the
(1973);
36 L.Ed.2d
Maxwell v.
light
most
favorable
the verdict for
sufficiency analysis,
(Tex.Crim.App.2002);
we conclude that a 73 S.W.3d
jury
reasonably
rational
could have
found
Carmouche
against
the issue of self-de-
The State must
beyond
fense
doubt. See
reasonable
prove by
preponderance
Jackson,
318-19,
at
443 U.S.
S.Ct.
voluntarily
freely
that the consent was
Upon viewing
2788-89.
all the
Maxwell,
We
given.
light
sufficiency analy-
a neutral
for factual
examine all of the
to deter
circumstances
sis, we further
conclude that the
was mine whether the State met this burden.
justified
appellant guilty of mur-
valid,
To be
must not be
Id.
consent
beyond
impli-
der
reasonable doubt
means, by
by explicit
coerced
or implicit
edly finding against him
his claim of
threat,
implied
covert
force.
Escamilla,
self-defense. See
143 S.W.3d Schneckloth,
We overrule third and fourth State, 955 points of error. abuse of discretion. Guzman v. At Suppress Motion to Evidence hearing, the suppression the trial court is error, trier and judge sole and exclusive of fact point appel his first by credibility lant contends that the court of the and them trial erred the witnesses Appellant 1. asserts federal constitution- al claim. Maxwell, at 281. officers are me
testimony. as. These authorized letters, reviewing papers, The and all ma- appropriate any standard to seize ruling they suppress property, trial court’s on a motion to terial and other which totally being to to given is bifurcated: defer almost desire. This consent is freely the court’s historical vol- peace trial determination of the above officers untarily faсts de the appli- and review novo court’s and with out threats [sic] Id.; Guzman, promises any given cation the law. and is kind with my S.W.2d at 89. full free consent. correctly Appellant asserts he was Appellant contends that he did to magistrate prior never taken before his voluntarily not to the search of consent consent, authority his no giving but cites because, gave house he the consent when requiring appear magis that he before a (1) given he not been Miranda2 warn voluntary. trate for the consent to be (2) ings; he had not told that he had been Rosalez 722 n. 20 (3) consent; not right to decline he had ref'd) (“[T]he (Tex.App.-Dallas (4) he magistrate; been taken before a to magis failure take accused before a pa was handcuffed the backseat of trate does in itself invalidate a consent not trol car. The record does not to search unless such failure some man assertions, appellant’s first two but shows to bringing ner caused or contributed that, instead when first Deputy Gideon search.”). to Because about consent approached appellant at his house on Deputy record read shows Gideon night stabbing, deputy read rights at scene he appellant his before rights.3 Additionally, his consent, appel shows that gave also appellant signed written consent form that informed, orally both and in writ lant was right him that had a to decline informed he his have ing, right constitutional consent,4 as follows: residence, his not re officers search his I, Cleveland, Paul been having Andre warnings ceiving magistrate those from my informed the below officers in does not render his consent search right constitutional have a search voluntary. premises my made of vehicle and/or Appellant’s concerning last assertion hereafter mentioned without a search voluntarily of his consent to search is my right warrant and of voluntariness search, hereby in the backseat consent to such a author- was handcuffed signed the consent patrol ize J. Gideon and other car before he J[.] Ortiz that, Depu- County form. when peace officers of the Harris The record shows ty request a com- Department, approached Sheriff’s conduct Ortiz consent, deputy read consent- plete [my] residence located his search Woodsboro, appellant, appel- Tex- to-search aloud to County, in Harris form Arizona, obtaining a consent to 384 U.S. der Miranda before Miranda v. *9 1602, 1627, (1966). search, none.”). points S.Ct. 16 L.Ed.2d appellant to otherwise, shown Even if the record had in- 4."Although police a failure to officer’s rights required not as a reading of Miranda that refuse consent is form accused he can precondition obtaining consent to search. consider,” absence "does not a factor to its Rayford See v. 125 S.W.3d automatically accused's consent render the ("Contrary appel- (Tex.Crim.App.2003) to involuntary.” Johnson claims, authority lant's of no that know informing rights requires suspect un- a of his prosecutor’s closing it argument lant indicated that he understood to signed it after were re appellant’s his handcuffs claim regarding self-defense The further moved. record demonstrates appellant a on “was comment exercis- guns that оfficers’ not drawn were ing his to remain silent under the right consented, that appellant when no complaint Appellant’s State Constitution.” to appellant. Ray threats were made I, article section appeal concerns (Tex. 528-29 ford 10 of the Texas Constitution. See (“Nor Crim.App.2003) is consent rendered I, § 10. Const, art. involuntary merely because the accused is Appellant complains following of the arrest, under at least when the officers’ closing attorney argument the State’s drawn.”). guns Appellant’s are con guilt-innocence trial: during phase involuntary merely sent not rendered was he was because under arrest handcuffs attorney: ... even [H]e State’s never patrol rear seat a car before uttered word about self-de- signing the consent form. yesterday fense until from that appellant’s conclude that We consent the first time we stand. That’s voluntary was under the circumstances story ever heard that ludicrous record, demonstrated which show ... Lots of chances to tell about that written consent form was read self-defense. it, appellant, aloud to who understood appellant rights was read his giving before consent, attorney:
his mom- appellant was advised in State’s He talked to his ma, sister, writing that he had a right constitutional he he talked his premises to have search made of Market, his he talked to Boston warrant, without a and that no threats or operator. talked to He a 911 promises appellant’s were made induce Hagerty. talked to He talked Additionally, appellant’s consent. demean- Not once did word Gideon. “fully was described as cooperative,” come of his “self-defense” out “normal,” like “seemed he what knew he to sit there got right mouth. He doing,” was and “functioning okay.” chair, in that one of every watch
Viewing the State’s witnesses come the circumstances aas whole and giving they deference to here and tell what had to the trial court’s fact, implied findings of historical say got we hold he then formulate by preponder- the State established any Unlike other his defense. ance of that appellant volun- witness, preview got tarily consented to the search of his resi- State’s case. dence, and, therefore, that the trial court Appellant’s objected trial to the counsel did not by overruling abuse its discretion argument by asserting “has objections appellant’s admitting stated right object being I to remain silent.
the evidence seized from his residence. improper argument part coun- point We overrule first objec- sel.” trial court The overruled the error. “continuing tion and allowed objection.”
Jury Argument Concerning Post-Arrest Silence I, Article section 10 of Texas Consti- error, protects post-arrest In his tution a defendant’s point ap second *10 pellant warnings portion contends that the silence even his Miranda before specific grounds v. further hold that the Heidelberg We
have been administered. 535, (Tex.Crim.App. complaint apparent not appellant’s of were S.W.3d Tex.R.App. 2004). contrast, Fifth P. In the Amendment the context. from See post- 33.1(a)(1)(A). protects preserved the Appellant of federal constitution has arrest made a appeal. silence issue this on after defen given. have warnings dant’s Miranda been of appellant’s point overrule second We Id. error. Procedure Appellate Rule of
33.1(a)(1)(A) for a provides, part, that Sufficiency of of Evidence Sudden a complaint presented appeal, to be on Passion Punishment Phase timely objection, or must request, motion of Trial court, made to trial which have been the 1, 1994, evidence that September Until the that the grounds ruling “states the acting a person killed while the defendant trial complaining party sought from the the influence sudden under immediate make the specificity court with sufficient to adequate cause arising from an passion complaint, unless trial court aware of the guilt- at by a defendant the was raised specific grounds apparent were from the trial; obtain a con innocence to phase Tex.R.App. 33.1(a)(1)(A). P. the context.” murder, had the bur the State viction legal Additionally, it is well-settled that passion issue den to sudden disprove can- complaint appeal of a raised basis Bradley, a doubt. beyond reasonable at basis vary from asserted 1993, Legislature at S.W.2d at 537. Heidelberg, trial. a passion issue from changed the sudden trial, objection at Heidelberg held that an is punishment issue to a guilt-innocence rights Heidelberg’s Fifth Amendment sue, stage punishment “At as follows: violated, pre- was were not sufficient trial, may raise of a the defendant complaint appeal rights that his serve caused the death issue as to whether he under Texas post-arrest silence the immediate influence sudden under were See id. Constitution violated. adequate from an cause. passion arising in the proves If the the issue concerning the defendant preserve To error of the evi by preponderance af protections affirmative greater post-arrest silence dence, felony the second under Texas offense forded to defendants 29, 1993, 73rd objection May must Act of Constitution, degree.” See defendant’s 1.01, R.S., § 1993 Tex. Gen. ch Leg., the Texas Con refer either specifically (codified by Heidel Laws the Sanchez case. Pen. stitution or See 19.02(d) (Vernon 2003)); see 537; § berg, 144 at Sanchez Ann. Code (Tex.Crim.App.1986). also Hernandez (Tex.App.-Houston [1st Dist.] complained only gener 211-12 Because ref'd) silent,” (holding that defendant bears ally “right at of his to remain trial phase trial concerning punishment any further burden without assertions passion prepon under ei issue of rights post-arrest his silence evidence). jury charge The or the San derance ther Texas Constitution trial phase appellant’s case, punishment trial ob hold that chez asking the special issue the trial contained jection not sufficient make was proved by preponder Heidel whether his complaint. court aware of killed wife Sanchez, his 537; evidence that 707 ance berg, 144 from ade arising 582; out of sudden Tsx.R. Evm Ann. 103(a)(1). S.W.2d at
385 nonsupport in quate jury’s punishment ver child a criminal support cause. The case; proof incompetency stand dict was: “We do not.” of trial. other of- passion, addition to sudden in our Code burden place fenses Penal fifth sixth of er- Appellant’s points on proof prove of the defendant to certain challenge ror and factual suffi- legal preponderance aby issues of the evidence. concerning the ciency of the evidence example, aggravated For the offense of jury’s finding on the affirmative negative similarly places burden of kidnapping sudden which passion, defense of proof on the defendant the punishment by a prove preponder- had the burden to trial; phase by of if the defendant proves ance of evidence. Tex. Pen.Code Ann. preponderance of the evidence that 19.02(d); §§ 20.04. law Well-established voluntarily kidnapping victim was released permits review of factual suf- appellate place, in a safe the defendant receives a ficiency jury’s of the evidence to punishment range. reduced Tex. Pen. negative finding on an issue for which the (Vernon 2003). 20.04(d) § The Code Ann. had of at trial. proof defendant the burden Penal proscribes Code also that certain State, 146, Meraz v. 154-55 defenses are affirmative defenses that the Hernandez, (Tex.Crim.App.1990); 127 guilt-inno- prove defendant must State, 211-12; Zuniga v. S.W.3d at by a phase preponderance cence of trial of 477, S.W.3d the evidence. See Ann. Pen.Code Concerning legal sufficiency challenges (Vernon 2003) § 2.04 of (stating law affir- to a on jury’s negative an issue defenses); mative see also Tex. Pen.Code of which the defendant the burden (Vernon 2003) (insanity § 8.01 is af- Ann. trial, however, proof Patterson v. defense); firmative Tex Pen.Code Ann. 22, 24 (Tex.App.-Hous- (duress (Vernon 2003) § 8.05 is affirmative dism’d, untimely ton pet. [1st Dist.] 25.05(d) defense); § Tex. Pen.Code Ann. filed), lack jurisdic- we concluded that (Vernon 2003) (inability provide child precluded challenges.5 tion review of these support is affirmative defense for criminal portion We now overrule that of Patterson nonsupport). Similarly, a defendant hold, set out reasoning based on the presumed competent to be to stand trial below, both may properly that we review proved incompetent unless aby prepon- types sufficiency challenges —those derance the evidence. See TexCode which we review the evidence as а matter (Vernon 46B.003(b) CRiM. PROC.Ann. art. law, legal sufficiency, and those Supp.2004-2005). neutrally, which review the evidence The issue in murder sufficiency. for factual places proof case thus the burden of on the Legal Sufficiency Reviews Sudden by prepon- defendant the issue Passion derance the same man- A. Jurisdiction following: voluntary ner as the release in case; lack aggravated kidnapping the affir- The State contends that we duress; jurisdiction insanity mative conduct defenses jury’s inability pay negative finding the affirmative defense of review of a improper. 5. Patterson relied was Patterson Naasz (Tex.App.-Dallas pet. (Tex.App.-Houston [1st Dist.] ref'd), analysis explana- dism’d, filed). without additional untimely concerning legal sufficiency why a tion *12 386 Patterson, Brady, 121 Trust v. 811 Victoria Bank & Co. issue. See 24; State, 931, (Tex.1991); v. v. at see also Naasz 974 S.W.2d 940 Sterner
S.W.3d 1998, 418, Co., 686, (Tex.App.-Dallas 421 690 767 S.W.2d Marathon Oil S.W.2d ref'd) (“When ap (Tex.1989)). a defendant seeks rational We discern no basis of failure to make a pellate jury’s review a conclu- on which to reconcile Patterson’s finding on which the defendant has the sion, jurisdiction lack to review that we proof, of such as on affirmative burden legal sufficiency of the challenges to defense, the invokes our defendant support negative a evidence to factfinder’s factual added). jurisdiction.”) (emphasis review finding criminal defen- on an issue a Naasz, on Naasz relied Meraz. 974 trial, V, at Article prove dant had to with Meraz, 421 (citing at 785 at S.W.2d S.W.2d 6(a)’s conferring with section this Court 154-55). Meraz, however, did not hold final, jurisdiction over factual conclusive jurisdiction have no appellate courts resolutions, jurisdiction which we have sufficiency on a legal to conduct reviews unquestionably exercised consistently of an issue that the jury’s negative finding sufficiency chal- legal and factual review prove. must Meraz addressed defendant cases in the State lenges in criminal which factual review sufficien governs what of the offense at prove had the elements jury’s negative finding of a on cy reviews trial, either in civil cases in which had the that the defendant burden issues negative party challenges factfinder’s Meraz, 154- See 785 S.W.2d at prove. challenging party that the on issue 327, 55; v. 145 S.W.3d 333- Howard con- had to at trial. therefore prove We (Tex.App.-Fort pet.). no 34 Worth 6(a) V, clude hold that Article Section with 6(a) of the vests this Court V, Constitution section Pursuant to article as jurisdiction to review the Constitution, Ap “Courts of the Texas legal sufficiency law for matter of jurisdiction ... appellate shall have peals sufficiency.6 factual See brought neutrally all of fact questions on conclusive Howard, Accordingly, on error.” 332. appeal them Clewis before (Tex. n. the en banc court overrules majority 129 & Const, portion opinion art. of the Patterson Crim.App.1996) (quoting 6(a)). V, jurisdic- thus we no permits § The Constitution which stated that have legal sufficiency factual legal sufficiency of both review review tion conduct evidence when the State has an issue that jury’s negative finding of the proof concerning elements Patter- prove. burden had to See the defendant (citing son, id. n. offense. See Tex 6).
Const, V, §§ art. 5 & B. of Review Standard cases, ju- appellate courts have In civil standard We must next determine what legal thе evidence for risdiction legal determining applies of review challenges sufficiency when an neg- concerning sufficiency of the evidence the evidence to legal sufficiency of issues that the defendant findings ative jury’s answer to an adverse preponderance had proof. he had the burden on which issue Howard, (citing evidence. at 333-34 (Tex.App.-Fort majority of Texas intermediate courts 6. A (additional citing refer- legal pet.) reviews on appeals conduct Worth no prove by omitted). must that the defendant issues ences evidence. See Howard preponderance answer on an issue negative and factual returns We review sufficiency of when the to prove.7 State the defendant *13 proof concerning has the burden of ele of an
ments
offense as follows. Review for
our reliance on
Consistent with
in
legal sufficiency assesses the evidence
civil law for
standard of review for
the
light
jury’s
most favorable to the
ver
reviews,
sufficiency
factual
we conclude
dict and is the minimum standard for com
in criminal
proper
that the
standard
cases
process
with
due
as
porting
federal
stated
sufficiency challenges
for
legal
review
318-19,
in
Virginia,
Jackson v.
443 U.S. at
finding
a
on an issue that
jury’s negative
Clewis,
The Sterner
sufficien-
passion.9
sudden
punishment
range for
cy,
the
employed
jury’s negative
to review
19.02(d).
§
Ann.
Pen.Code
that the
finding on an issue
criminal defen-
legal
other
fac-
addressing
As when
prove,
dant had to
differs from the Jack-
in
challenges
tual
criminal
sufficiency
legal
son Virginia
sufficiency
v.
standard.
cases,
legal-suffi-
in applying the Sterner
Virginia, 443
at
See Jackson v.
U.S.
318-
review,
must
ciency
also
standard
19,
аt
99 S.Ct.
2788-89. Jackson address-
defer to
factfinder’s determination
the
es a
review of the
process
due
evidence
and the
credibility
the
of the witnesses
light
jury’s
most favorable
ver-
Muniz,
give
See
851
weight
evidence.
concerning
elements of
offense
dict
(stating
conducting
at
that
S.W.2d
246
a
prove beyond
that
had to
rea-
the State
of evidence under
legal sufficiency review
id. The
stan-
doubt. See
Sterner
sonable
standard,
review, however,
do
sufficiency
appellate
courts
legal
Jackson
dard for
Jackson, 443
(applying
U.S.
apply
v.
sive determiner of facts. physical which conclusively could Assuming, hypothetical case, resolve the issue of sudden *15 applying the prong first of the Sterner that, cases, acknowledge most sudden legal-sufficiency standard showed that no passion exclusively by is resolved the evidence the record supported jury’s the jury’s assessment of whether the witness negative finding on passion the sudden is credible. The Sterner matter-of-law de- issue, we would required then be to exam- termination is thus left for those in- rare ine the record under the second prong of stances in passion which the sudden issue Sterner, the Sterner test. See 767 S.W.2d can be determined from evidence that is at 690. Applying the second prong, we subject credibility to a determination would search the entire record to deter- by as, for example, stipulation of mine established, whether the defendant by evidence parties. Although this is law, as a matter of that he caused the very high death standard a defendant out of would passion arising out of meet, adequate id.; rarely it provides case. nevertheless See Tex. Pen.Code 19.02(d). § mechanism that appellate If the enables courts to search of the rec- Ann. ord constitutionally juris- revealed exercise their passion evidence of sudden vested subject that was provide to a diction and relief to credibility assess- a defendant factfinder, ment conclusively which the who can jury was establish that disbelieve, therefore jury disregarded entitled to we would evidence that was not consider that subject evidence in our to a credibility matter- assessment and Muniz, of-law assessment. See conclusively 851 which established the defen- 246; Johnson, S.W.2d at 8.10 dant’s punishment-mitigation issue.11 10. We undisputed note that even App.1991) misplaced and uncon- is for two reasons. subject First, tradicted evidence credibility is to a holding pertained in Saxton to a analysis by jury, may reasonably which legal sufficiency review on the issue of self- reject e.g. disbelieve and it. See Dashield v. defense, on which the State has the burden of (Tex.App.-Houston 110 S.W.3d doubt, proof beyond a reasonable in contrast ref'd) (holding [1st Dist.] that fact- passion, to the issue of sudden which the may expert finder disbelieve uncontradicted prove by preponderance defendant must of testimony). pre- The same is true under the Second, holding the evidence. Saxton’s is ferred standard in civil cases. See W. Wen- concurring opinion’s inconsistent with the Hall, Texas, dell Standards Reviewin 34 St. of analysis here. Saxton holds as follows: "In (2002). LJ. 165-66 Mary's issue, resolving sufficiency of рresented we look not to whether the State concurring opinion's 11. The reliance on Sax appellant’s evidence which refuted self-de- (Tex.Crim. ton v. sion, sufficiency inquiry ends. Analysis our Appellant’s Sudden of
C. Howard, 690; Sterner, Sufficiency Legal Passion Facts for that the hold at 333-34. We matter-of- Applying Sterner jury’s negative concerning the standard, the record we first examine law legally suffi- passion on sudden jury’s solely supports for evidence that cient as a matter of law. issue of sudden negative finding on the point fifth of We overrule all evidence con passion, ignoring while error. passion trary finding. to that “Sudden Sufficiency Review of Sudden Factual by and aris passion directly caused means Passion individual provocation ing out acting person with the killed or another may prop appellate An court killed arises at the time passion which sufficiency a factual review erly conduct solely the result the offense and is not finding on the sudden jury’s negative provocation.” former Ann. Tex. Pen.Code stage punishment issue passion 2003). 19.02(a)(2) (Vernon Adequate § Hernandez, at 211-12 trial. commonly that would cause means cause may conduct court (holding appellate rage, resent degree anger, produce jury’s negative factual ment, ordinary person in a or terror special of sudden answer issue in the mind sufficient to render temper, burden to that defendant had issue cool reflection. capable of Pen.Code punish of evidence by preponderance *16 (Vernon 2003). 19.02(a)(1) §
Ann.
trial);
Zuniga,
of
see
phase
ment
defen
(stating that criminal
or
at 482
being upset, angry
Appellant denied
insufficiency chal
may assert factual
calm and did dant
Appellant appeared
irate.
ele
jury’s failure to find
scream,
help
lenge to attack
anything to
cry,
not
or do
defense,
on
or issue
of affirmative
no immediate ments
Carolyn. The record shows
proof).
of
had burden
cause which defendant
arising
adequate
out of an
influence
an affir
has asserted
lay When the defendant
his wife as she
when
stabbed
proof
the burden
floor,
mative defense or has
interrupting
bleeding on the
after
issue,
considers all
reviewing court
he
on an
the sofa where
stabbing
to scrub
whether the
and determines
all evi-
Ignoring
had stabbed her earlier.
weight
great
judgment
against
is “so
negative find-
contrary
jury’s
to the
dence
so as to
issue,
of the evidence
preponderance
con-
sudden-passion
on the
ing
factual
unjust.” Id.
our
manifestly
in the record
be
that some evidence
clude
evidence, we re
sufficiency review of
not kill his wife
that
did
shows
neutrally, but we
all of the evidence
arising from an ade- view
passion
out of sudden
factfinder’s role as
intrude on the
conclu- do not
Having
that
quate cause.
reached
stating
analysis by
facts
cy-of-the evidence
we determine
testimony, but rather
fense
claim of
with Saxton's
that were inconsistent
viewing
evidence in the
all the
whether after
Thus, although the concur-
any
Id.
prosecution
self-defense.
light
to the
most favorable
correctly
Saxton states
ring opinion
notes that
have found
trier
would
rational
of fact
that,
persua-
State has the burden
beyond
when the
a rea-
of murder
essential elements
trial,
proof,
the burden of
rather than
found
sion
also have
doubt and would
sonable
any evidence to
produce
State need not
issue be-
against appellant
the self-defense
on
self-defense, Sax-
claim of
a defendant’s
court of
rebut
doubt.... The
yond a reasonable
here,
held,
that a
suffi-
we hold
ton
as
of review
appeals'
to use this standard
failure
be
added).
must still
ciency
of the evidence
(emphasis
id. at 914
was error.” See
appeal.
id.
on
conducted
conducted a sufficien-
court then
The Saxton
taunting,
promising
credibility
nagging,
to wife’s
judge
weight
the sole
evidence was
testimony.
property dispute,
given
any
witness’s
See divorce
Johnson,
pas-
cause to
sudden
adequate
Appellant arguments asserts two factually to es- the evidence is insufficient contend that the evi Appellant does not contends passion. tablish sudden He first because he factually insufficient dence killed his that the State conceded But, if “panicked.” even evidence felt by stating passion wife out of sudden as here, passion сonstitute sudden panic could closing argument guilt- in its follows appellant’s feeling we note further “Well, phase innocence of trial: let’s look with other evidence panicked conflicts to kill. at what evidence there is of intent calm, angry and not upset, he was front, back, in the stab wounds conflicts was thus Reconciling these irate. side, head, on the face. That’s jury to resolve credibili best left to the kill; that’s overkill. That’s not intent testimony. the witnesses’ ty assessments of If I hatred and that’s—that’s: can’t have Compare Miller you, nobody Contrary appellant’s can.” (Tex.App.-Houston [1st Dist.] assertion, closing argument and the State’s 'd) panic insuf (holding ref theory simply at trial demonstrated “ha- issue, passion ficient to raise sudden “overkill,” categori- tred” and which do not jury required) with thus no instruction cally passion arising constitute out of an 888, 895 Brunson v. adequate cause. See Pen.Code Ann. pet.) (holding no (Tex.App.-Austin 19.02(a)(1) § (defining adequate cause as evidence to panic evidence of sufficient resentment, terror, in a anger, rage, or requiring raise issue of sudden person ordinary temper “sufficient issue). instruction incapable render the mind cool reflec- Hernandez, tion.”); S.W.3d at defense Evidence that rebuts (holding ordinary anger causes passion arising from ade- *17 making legally defendant’s own are not testimony quate cause includes that de- causes). adequate upset, scribed his demeanor as irate, calm, in addition to angry, not but sufficiency In his second factual chal- that continued to stab evidence lenge, appellant asserts that he met the floor, lay bleeding on the his wife as she statutory passion definition of sudden stopped after he to scrub her blood even through “strange” evidence that he felt her from the sofa stabbed where “upset.” disagree. Feeling and We earlier. “strange” “upset” does not constitute passion arising adequate sudden out of in a viewing After all of the evidence cause. See Pen.Code Ann. hold that light, neutral 19.02(a)(1) § (defining adequate cause as jury’s failure to find that supporting the resentment, terror, in a anger, rage, is not so appellant acted ordinary temper person “sufficient weight preponder- against great incapable
render the mind of cool reflec- that the verdict is ance of the evidence tion.”); Gaston S.W.2d manifestly unjust. clearly wrong (hold- pet.) no (Tex.App.-Austin Zuniga, 144 at 481. ing although defendant “went blank point sixth trance, hurt overrule stopped thinking, or into a felt We angry, and lost control of himself’ due error. party has the burden Conclusion an issue on which party “must demonstrate on proof, of the trial judgment affirm the We establishes, as a that the evidence appeal court. law, all facts in matter vital Francis, 46 Dow Co. v. the issue.” Chem. En consists of Chief Justice Banc court (Tex.2001) (emphasis add TAFT, NUCHIA, and Justices RADACK ed). of law” chal reviewing In “matter KEYES, ALCALA, JENNINGS, reviewing court must first exam lenge, the HIGLEY, HANKS, BLAND. supports evidence that ine the record for JENNINGS, joined concurring, Justice all finding, ignoring while by Justice KEYES. Id. If there is no evidence contrary. reviewing supports finding, JENNINGS, Justice, TERRY then examine the entire record court must concurring. contrary proposition if the to determine errs in hold Because the en banc court lаw.” Id. A as a matter of “established appellate employ that an court is to ing if only be sustained point of error should in civil “applied standard of review same conclusively es contrary proposition is conducting cases” in chal Id. a “matter of law” tablished. Such rejection of a fact finder’s applicable criminal cases lenge is not theory, and overrul accused’s defensive persua the burden of where the State has (Tex. ing Patterson v. sion, production, dis not a burden dism’d), App.-Houston [1st Dist.] theories of an ac proving the defensive judgment in the of the en I concur cused. Saxton banc court. 912-13 prop- court holds that “the The en banc Saxton, Ap- In the Court Criminal for review of in criminal cases er standard appeals’ court of hold- peals reversed the challenges jury’s neg- to a legal-sufficiency produce evi- ing that “the failed to State an issue that the defen- ative claim of defendant’s] dence to refute [the prove is the same standard dant had to all of the evidence is self-defense and that оverruling Pat- in civil cases.” applied and is consistent with self- uncontradicted terson, majority emphasizes: (citation omitted). at 912 defense.” Id. no rational basis on which to We discern appel- specifically The court noted conclusion, that we reconcile Patterson’s “implicit holding [the court’s de- late *18 challenges to jurisdiction lack to review ‘as a matter of law’ established fendant] evidence to legal sufficiency of the in incorrect.” acted self-defense is negative finding support a factfinder’s its n. 4. The court disavowed Id. at 912 that a criminal defendant on an issue of law” of the “as a matter previous use trial. prove had to of self- in context of the issue language in However, of review utilized the standard defense, question “[g]iven legal sufficien- civil cases to determine in self-defense accused acted whether the regard negative in to a cy of the evidence of fact’s deter- fact issue for the trier is a party on which a has finding on an issue ‘beyond a reasonable mination and that in the proof inapplicable is the burden of Id. required proof.” level of is the doubt’ criminal law context. holding that the court n. at 912 3. wrong standard of re- utilized the case, appeals attacks the party In a civil when view, emphasized: the court finding on sufficiency of an adverse legal finder, and the has the fact persua- [T]he State the burden be determined reject disproving accept in or defen- sion the evidence of self- fact finder is free to That Such a defen- pro- defense. is not a burden of sive evidence on the issue. duction, i.e., nature, theory, by very cannot be requires one which sive its conclusively a matter of affirmatively produce State to evidence established “as claim, in refuting the rath- law” a criminal case. The en banc self-defense but i.e., holding contrary, er a court’s to the that we requiring burden the State to beyond employ legal sufficiency its standard case reasonable doubt.... in importantly, “applied case instructs civil cases” to review [M]ore law fact re- challenge us that the issue of self-defense is an accused’s finder’s jection fact to of a defensive issue a criminal issue of be determined case, jury. Defensive evidence which is mere- error.
ly physical consistent with the evidence alleged
at the scene of the offense will insuffi- render the State’s evidence credibility
cient since the determination solely
of such evidence is within the
jury’s province and the is free to reject
accept the defensive evidence.
A jury guilty implicit verdict of is an
finding rejecting the defendant’s self- theory. defense Sherry DUNN, Appellant, M. (alterations (cita- original) Id. at 918-14 omitted). tions Accordingly, it is now well-settled law Hershey DUNN, Appellee. that in reviewing No. 01-03-00988-CV. regard evidence fact finder’s issue, rejection of a defensive “we look Texas, Appeals Court of presented whether the State Dist.). (1st Houston
which refuted evi- [defensive dence], rather but we determine whether April viewing light after all the evidence in the any most favorable to ra- prosecution,
tional trier of fact would have found the beyond
essential elements of [the offense]
a reasonable doubt and also have would against appellant
found on the [defensive] beyond a Id. at
issue reasonable doubt.” (citations omitted).1 *19 passion,
The issue of like self-defense, is an issue of fact to
issue contrast, proof guilt, al- challenges whether the when a defendant alone, against rejection though adequate if taken the factual defense, weight preponderance of the evi- great all of the evidence light and ask whether the State’s evi- dence. Zuliani neutral alone, dence, weak taken is too