Alfred, Patrick Oneal v. State

Affirmed and Opinion filed February 15, 2005 Affirmed and Opinion filed February 15, 2005. In The Fourteenth Court of Appeals ____________ NO. 14-04-00088-CR ____________ PATRICK O’NEAL ALFRED, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 178th District Court Harris County, Texas Trial Court Cause No. 807,013 O P I N I O N This is an appeal from a retrial on punishment only. In the first trial, a jury convicted appellant, Patrick Alfred, of murder and assessed punishment at twenty years’ imprisonment. In the second trial, on punishment only, the jury assessed punishment at sixty years’ imprisonment. On appeal, appellant contends that the evidence is factually insufficient to support the jury’s finding that he did not act under the influence of sudden passion. We affirm. Background The parties agree regarding most of the pertinent facts. On the morning of September 5, 1996, Joseph Anderson apparently became upset because he had heard that appellant had been talking about him. Anderson went to another person’s apartment to confront appellant. An argument ensued, Anderson hit appellant, and the two fought briefly. Glenda Davis, Anderson’s girlfriend, later went to the apartment and apologized to the tenant. Upon hearing the apology, appellant told Davis that she “had just gotten [Anderson] killed.” Davis testified that Anderson later told her in a telephone conversation that appellant had come to Anderson’s place of employment, pointed a gun at him, and threatened to kill him. That afternoon, Anderson was standing outside his apartment complex when an eighteen-wheel truck, driven by appellant, headed towards him, slid to a stop, and hit him without doing any serious harm. Anderson went to his vehicle, then ran to appellant’s truck, climbed up the side of the cab, and opened the door. Appellant then shot Anderson in the chest. Anderson died shortly thereafter from the wound. Appellant testified that Anderson had a gun and that he shot him in self-defense. An eyewitness testified that he did not see Anderson with a gun. Discussion In his sole issue, appellant contends that the evidence is factually insufficient to support the jury’s finding that he did not act under the influence of sudden passion.[1] Appellant was convicted of murder, which is usually a felony of the first degree. See Tex. Pen. Code Ann. § 19.02(c) (Vernon 2003). However, if during the punishment phase a defendant raises the issue of whether he committed the offense under the immediate influence of “sudden passion” arising from an “adequate cause,” and proves it by a preponderance of the evidence, then the offense is a felony of the second degree. Id. § 19.02(d). “‘Sudden passion’ means 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.” Id. § 19.02(a)(2). “‘Adequate cause’ means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.” Id. § 19.02(a)(1). The jury was charged regarding sudden passion but returned a negative finding on the issue. In reviewing this finding for factual sufficiency, we shall reverse only if the resulting judgment is so against the great weight and preponderance of the evidence as to be manifestly unjust. See Zuliani v. State, 97 S.W.3d 589, 593 (Tex. Crim. App. 2003); Naasz v. State, 974 S.W.2d 418, 421 (Tex. App.—Dallas 1998, pet. ref’d). Appellant argues that when Anderson reached into his vehicle then ran to the driver’s side of appellant’s truck, climbed up, and opened the door, anyone in appellant’s position at that point would have felt himself under attack and in mortal danger. However, Anderson’s conduct must be viewed in context. There was evidence that appellant had indicated earlier in the day that he was going to kill Anderson, that appellant showed up at Anderson’s place of employment and threatened him with a gun, and that appellant drove his truck at Anderson at a high rate of speed and hit him immediately before Anderson’s allegedly provocative conduct. Sudden passion is not established when the confrontation resulting in such passion was provoked by the accused. See Naasz, 974 S.W.2d at 425; see also Gonzales v. State, 942 S.W.2d 80, 84 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (discussing issue in context of voluntary manslaughter); Willis v. State, 936 S.W.2d 302, 309 (Tex. App.—Tyler 1996, pet. ref’d) (same).[2] The jury could have reasonably concluded that appellant, and not Anderson, provoked the confrontation when he hit Anderson with his truck, particularly in light of events earlier in the day. The jury could also have reasonably believed that appellant came to the apartment complex with the intention of killing Anderson, and thus, the murder was not committed under the immediate influence of passion caused by Anderson’s behavior. There was evidence that appellant indicated he was going to kill Anderson, threatened Anderson with a gun, and hit Anderson with his truck. The jury could have reasonably concluded from this evidence that appellant did not shoot Anderson under the immediate influence of passion caused by Anderson’s behavior as required for application of section 19.02(d).[3] Because appellant has not shown that the jury’s finding regarding sudden passion was against the great weight and preponderance of the evidence, we find that the evidence was factually sufficient to support the judgment. See Zuliani, 97 S.W.3d at 593; Naasz, 974 S.W.2d at 421. Appellant’s sole issue is overruled. The trial court’s judgment is affirmed. /s/ Adele Hedges Chief Justice Judgment rendered and Opinion filed February15, 2005. Panel consists of Chief Justice Hedges and Justices Fowler and Frost. Do Not Publish — Tex. R. App. P. 47.2(b). [1] The State points out that we previously declined to perform a factual sufficiency review on a jury’s determination regarding sudden passion in Forbes v. State, No. 14-98-01453-CR, 2000 WL 19156 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). We so declined in that case because the Court of Criminal Appeals had not yet extended factual sufficiency review under Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), to punishment issues raised by a defendant. Forbes, 2000 WL at * 2 (citing McGinn v. State, 961 S.W.2d 161, 169 (Tex. Crim. App. 1998)). Subsequently, the Court of Criminal Appeals extended factual sufficiency reviews to cover punishment issues that involve determinations of historic fact, as opposed to determinations of future proclivities. See, e.g., Wardrip v. State, 56 S.W.3d 588 (Tex. Crim. App. 2001). Because a determination of sudden passion involves only a question of historic fact, we will perform a factual sufficiency review in the present case. [2] As the court in Naasz correctly points out: Before September 1, 1994, “sudden passion arising from an adequate cause” was an element of the offense of voluntary manslaughter. See Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883, 913, amended by Act of May 28, 1973, 63d Leg., R.S., ch. 426, art. 2, § 1, 1973 Tex. Gen. Laws 1123, 1124, repealed by Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3614. As of September 1, 1994, however, voluntary manslaughter was eliminated as a separate offense under the penal code. See Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3614. Instead, evidence that a defendant acted under the influence of sudden passion is now an issue mitigating punishment for murder. See Tex. Pen. Code Ann. § 19.02(d) [(2003)]. This change in the law was accompanied by a change in the burden of proof. Lack of sudden passion is no longer an element of the State’s case for murder. Therefore, the State is not required to negate the existence of sudden passion. Rather, the defendant is now required to prove this element by a preponderance of the evidence. See id. Naasz, 974 S.W.2d at 420; see also Trevino v. State, 100 S.W.3d 232, 236-37 (Tex. Crim. App. 2003) (discussing history of “sudden passion” and the Penal Code). [3] The initial confrontation from that morning was clearly too distant in time to support a finding of sudden passion regarding the later events. See Hobson v. State, 644 S.W.2d 473, 478 (Tex. Crim. App. 1983). Appellant does not argue otherwise.