Reyes, Raymond v. State

Affirmed and Memorandum Opinion filed October 27, 2005 Affirmed and Memorandum Opinion filed October 27, 2005. In The Fourteenth Court of Appeals ____________ NO. 14-04-00805-CR ____________ RAYMOND REYES, Appellant V. THE STATE OF TEXAS, Appellee ________________________________________________________________ On Appeal from the 339th District Court Harris County, Texas Trial Court Cause No. 948,140 ________________________________________________________________ M E M O R A N D U M   O P I N I O N A jury convicted appellant, Raymond Reyes, for the murder of Gabriel Guapo and assessed punishment at twenty-two years confinement in the Texas Department of Criminal Justice, Institutional Division. In a single issue, appellant contends the jury=s failure to find he acted under the influence of sudden passion was against the great weight and preponderance of the evidence so as to be manifestly unjust. We affirm. FACTUAL AND PROCEDURAL BACKGROUND On May 5, 2003, appellant fatally stabbed Guapo at a picnic area near the Lakeview Apartments in Harris County, Texas. Appellant admitted the stabbing to his friends, Santos Florez and Brandon Estrada; to his mother, Rosalie Reyes; to the arresting officer, Detective Ray Hunter; and in open court during the punishment phase of his trial. At trial, appellant claimed he killed Guapo because Guapo bragged about killing appellant=s friend, Edwin Torres, who was murdered the day before on May 4, 2003.[1] The essential facts of this case are undisputed. On May 5, 2003, appellant and Ismael Ruiz, appellant=s cousin, ran into Guapo at the apartment complex where Ruiz resided. Guapo asked appellant and Ruiz if they wanted to go somewhere and smoke marijuana. Appellant, Ruiz, and Guapo went inside Ruiz=s apartment to roll a marijuana cigarette. While inside Ruiz=s apartment, appellant privately told Ruiz he was going to kill Guapo, and Ruiz agreed to help. When the three men left Ruiz=s apartment, appellant was armed with a knife. Appellant, Ruiz, and Guapo drove in Ruiz=s car to the Lakeview Apartments and walked to a nearby picnic area to smoke marijuana. While Guapo was sitting at the picnic table, appellant walked behind Guapo and repeatedly stabbed him and cut his throat, inflicting forty-one knife wounds. Guapo was unarmed. Ruiz brought a pair of latex gloves and wore them while removing money from Guapo=s pants pockets after the killing. After stabbing Guapo, appellant and Ruiz threw the knife into a bayou and burned appellant=s clothes. After hearing all of the evidence, the jury found appellant guilty of murder, a first degree felony. See Tex. Pen. Code Ann. ' 19.02(c) (Vernon 2003). During the punishment phase of the trial, appellant raised the issue of whether he caused the death of Guapo under the immediate influence of sudden passion arising from an adequate cause. The jury reached a negative finding on the special issue of sudden passion. DISCUSSION I. Standard of Review In Meraz v. State, the Texas Court of Criminal Appeals established the standard of review to be applied when a defendant claims the jury=s negative finding on an affirmative defense, or other issue where the defendant has the burden of proof, was not supported by the evidence. 785 S.W.2d 146, 154B55 (Tex. Crim. App. 1990). Subsequent cases have also confirmed that standard. See Zuniga v. State, 144 S.W.3d 477, 482 (Tex. Crim. App. 2004);[2] Clewis v. State, 922 S.W.2d 126, 132 (Tex. Crim. App. 1996). [W]hen the courts of appeals are called upon to exercise their fact jurisdiction, that is, examine whether the appellant proved his affirmative defense or other fact issue where the law has designated that the defendant has the burden of proof by a preponderance of evidence, the correct standard of review is whether after considering all the evidence relevant to the issue at hand, the judgment is so against the great weight and preponderance of the evidence so as to be manifestly unjust. Meraz, 785 S.W.2d at 154B55. Accordingly, this court applied the Meraz standard in Harrell v. State as the standard of review for factual sufficiency of the jury=s rejection of the punishment issue raised by the defendant as to whether he voluntarily released the victim in a safe place after a kidnapping conviction. 65 S.W.3d 768, 772 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d); see also Cleveland v. State, No. 01-03-01040-CR, 2005 WL 826943, at *13 (Tex. App.CHouston [1st Dist.] April 7, 2005, pet. ref=d) (applying the Meraz standard, as cited in Zuniga, when the appellate court conducts a factual sufficiency review of a jury=s negative answer to the sudden passion mitigation issue during the punishment phase). The existence of sudden passion is a mitigating factor relevant to punishment, and the burden of proving sudden passion by a preponderance of the evidence during the punishment phase rests on the defendant. Tex. Pen. Code Ann. ' 19.02(d) (Vernon 2003); Rainey v. State, 949 S.W.2d 537, 541 (Tex. App.CAustin 1997, pet. ref=d). Therefore, we will review appellant=s point of error by considering all the evidence and determining whether the jury=s rejection of his sudden passion punishment mitigation issue is so against the great weight and preponderance of the evidence so as to be manifestly unjust. Zuniga, 144 S.W.3d at 482; Meraz, 785 S.W.2d at 155; Harrell, 65 S.W.3d at 772. II. Analysis Appellant contends the jury=s failure to find he acted under the immediate influence of sudden passion arising from an adequate cause is against the great weight and preponderance of the evidence so as to be manifestly unjust. Appellant argues Guapo=s repeated boasts about the death of Torres caused such anger in appellant that he murdered Guapo. In support of his argument, appellant points to his testimony that Guapo bragged about the murder of Torres shortly before appellant killed Guapo, and Guapo=s bragging caused him to become more angry than he had ever been in his life. Sudden passion means Apassion 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 means Acause 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. ' 19.02(a)(1). Murder committed under the immediate influence of sudden passion is a felony of the second degree. Id. ' 19.02(d). It is an essential element of sudden passion that the provocation arise at the time of the offense. See id. ' 19.02(a)(2); Nance v. State, 807 S.W.2d 855, 861 (Tex. App.CCorpus Christi 1991, pet. ref=d). Appellant testified he told Ruiz about his plan to kill Guapo before getting into a car with Guapo and driving to the Lakeview Apartments, although he later contradicted this testimony. See Nance, 807 S.W.2d at 861B63 (holding evidence of premeditation is sufficient to support a finding of no sudden passion). Appellant also testified he and Guapo were not arguing when he started stabbing Guapo. Further, appellant testified that after he started stabbing Guapo, he saw a police officer and became scared; yet after determining the officer did not see them, he continued to stab Guapo, indicative of cool reflection. From this evidence, the jury could have reasonably concluded Guapo=s murder was premeditated and appellant=s anger did not arise at the time of the offense, but, rather, was the result of a former provocation. See Tex. Pen. Code Ann. ' 19.02(a)(2); Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000) (holding an appellate court must defer to the jury=s determination of credibility of witnesses at trial unless the record clearly reveals a different result is appropriate); Saenz v. State, 879 S.W.2d 301, 305 (Tex. App.CCorpus Christi 1994, no pet.) (rejecting sudden passion argument when the evidence reflected appellant acted in a calm and deliberate manner without immediate provocation). Moreover, based on evidence that time had elapsed between appellant=s decision to kill and the actual murder, the jury could have reasonably concluded appellant had time to reflect upon his anticipated actions and actually did reflect upon them before undertaking them. See Daniels v. State, 645 S.W.2d 459, 460 (Tex. Crim. App. 1983). Based on the foregoing, we conclude the jury=s negative finding on the special issue of sudden passion is not so against the great weight and preponderance of the evidence so as to be manifestly unjust. Accordingly, we overrule appellant=s sole issue. CONCLUSION We affirm the judgment of the trial court. /s/ John S. Anderson Justice Judgment rendered and Memorandum Opinion filed October 27, 2005. Panel consists of Chief Justice Hedges and Justices Yates and Anderson. (Yates, J., concurs in result only.) Do Not Publish C Tex. R. App. P. 47.2(b). [1] During the punishment phase of the trial, appellant testified he visited Liliana Hernandez=s apartment on May 4, 2003. Torres, Hernandez, Guapo, and Chris Garcia were in the apartment. Appellant testified that while he was undressed, Hernandez took appellant=s pistol and later refused to give it back. Hernandez told appellant she and Guapo were planning to murder Torres and take his money. Appellant warned Torres and tried to convince Torres to leave the apartment, but Torres refused to leave. Appellant left Hernandez=s apartment, walked to a nearby field, and heard the sound of gunshots coming from Hernandez=s apartment. Later that same day, appellant spoke to Guapo, who bragged and joked about shooting Torres in the head earlier in the day. [2] The Zuniga court synthesized the standard of review used by appellate courts when reviewing the factual sufficiency of the evidence from the guilt/innocence phase. See Zuniga v. State, 144 S.W.3d 477, 482B85 (Tex. Crim. App. 2004). The court=s primary goal was to link the burden of proof at trial to the standard of review and avoid language suggestive of a preponderance-of-the-evidence burden of proof when in fact the burden of proof during the guilt/innocence phase is beyond a reasonable doubt for the state. Id. at 484. Without distinguishing between phases of the trial, the court also confirmed the against the great weight and preponderance-of-the-evidence standard of review as proper for review of jury rejection of issues raised by the accused upon which the accused bears the burden of proof by a preponderance of the evidence. Id. at 482 (citing Meraz v. State, 785 S.W.2d 146, 154B55 (Tex. Crim. App. 1990)).