Andre Cleveland v. State

Opinion issued April 7, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-03-01040-CR

ANDRE CLEVELAND, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 960271

EN BANC OPINION Appellant, Andre Cleveland, pleaded not guilty to the charge of murdering his

wife. A jury found appellant guilty of murder, found against appellant on the special

issue of sudden passion, and assessed punishment at confinement for life in prison.

Appellant brings four points of error concerning the guilt-innocence phase of his trial.

In his first two points of error, appellant contends that the trial court erred by denying

his motion to suppress evidence of the search of his residence and by overruling his

objection to closing argument by the State that allegedly commented on appellant’s

post-arrest silence. In his third and fourth points of error, appellant contends that the

State failed to disprove beyond a reasonable doubt that he killed his wife while acting

in self-defense, and that the evidence is therefore legally and factually insufficient to

sustain his murder conviction. Concerning the punishment stage of his trial,

appellant’s fifth and sixth points of error assert that, although he had the burden to

prove by a preponderance of the evidence that he killed his wife out of sudden

passion arising out of an adequate cause, the evidence is legally and factually

insufficient to sustain the jury’s negative answer to the sudden passion special issue.

We affirm. Background

Carolyn Cleveland and appellant, her husband, had been together for

approximately 15 years. They lived in Spring, Harris County, Texas, with their 15-year-old daughter Andrea, Carolyn’s 20-year-old daughter, Jessica, and Jessica’s

infant baby. Two firearms, a handgun and a shotgun, were kept in the house. On the

afternoon of March 6, 2003, Carolyn gave the handgun and the shells for the shotgun

to Jessica to hide because Carolyn planned to serve appellant with divorce papers that

evening.

When appellant arrived at the house at about 6:00 p.m., Carolyn went

downstairs to give appellant the divorce papers. Andrea, Jessica and Jessica’s baby

were in the upstairs portion of the house. Appellant and Carolyn had been discussing

matters for about an hour and a half when Jessica’s baby became hungry. Jessica

walked downstairs, holding her five-month-old baby, to get the child’s formula from

the refrigerator. As Jessica approached the kitchen, Jessica saw her mother seated on

a sofa. Appellant was on his knees in front of her. Jessica heard appellant tell

Carolyn that he wanted a divorce, but that “he would kill her before he would let her

get a divorce and take the house.” When appellant saw Jessica, he cursed at her,

accused her of causing problems in the marriage, and told her to go back upstairs.

Jessica got the baby’s formula and began to return to her room.

As Jessica reached the top of the stairs, she heard her mother “squeal” loudly.

Jessica put her baby in a room upstairs and ran downstairs to help her mother,

accompanied by Andrea, who had also heard the scream. Andrea and Jessica saw

appellant pin Carolyn down with one of his knees as he used one arm to beat her and

the other arm to stab her. Andrea and Jessica tried to help Carolyn, but appellant

“wrestled” them. Although Jessica managed to escape into the kitchen and get a

knife, appellant took the knife from her and used it to stab her in the chest. When

Carolyn collapsed, bleeding, on the floor by the front door, Jessica went upstairs to

call 911.

Appellant scrubbed the sofa with a towel where Carolyn had been seated, but

then returned to stabbing Carolyn as she remained face down on the floor. Andrea

tried to help Carolyn by striking appellant with a cooking pan, but she had to back

away from him when he swung at her. After Jessica called 911, she and Andrea

attempted CPR on Carolyn. Appellant did not assist, scream, cry, or do anything to

help Carolyn. He did, however, treat his own injury by wrapping a cloth around the

small cut on his hand.

At 8:39 p.m., a Harris County deputy constable approached appellant’s house

in response to a stabbing-in-progress call. Appellant walked out of the house towards

the deputy and very calmly said, “I stabbed her because she always—,” but did not

complete his sentence. The deputy handcuffed appellant and took him into custody.

When the deputy heard Andrea and Jessica screaming hysterically for help, he entered

the house. He brought appellant with him, in handcuffs, because no other officers

were present to assist. As Andrea and Jessica continued to attempt CPR on their

mother, appellant appeared “very, very calm” as he observed his wife on the floor.

After emergency personnel arrived at the house and pronounced Carolyn dead,

the deputy returned the handcuffed appellant to the patrol car. Harris County

Sheriff’s Deputy J.D. Gideon arrived at the scene and read appellant his rights.

Appellant waived his rights and agreed to speak to the officers.

J. Ortiz, a deputy assigned as a crime-scene technician and latent fingerprint

examiner in the identification division of the Harris County Sheriff’s Department,

obtained appellant’s consent to search the house. Deputy Ortiz entered the house,

photographed and videotaped it, and collected evidence that included six knives. The

autopsy showed that Carolyn received 22 stab wounds and died as a result of

multiple, sharp-force injuries.

Appellant gave an oral statement to Deputy Gideon while in custody at the

police station. In that conversation, appellant told Deputy Gideon that his wife

informed him that she had filed for divorce, that she would take the house and the

money, that he “lost it,” walked to the kitchen, went back to the couch, and stabbed

her.

At trial, appellant testified that he did not want to divorce Carolyn and still

loved her, but he acknowledged that he had previously filed for divorce and that they

had discussed divorce months earlier. Appellant claimed that, when he knelt down

before Carolyn in an attempt to persuade her to attend marriage counseling with him,

she pulled a four-inch knife that was slightly larger than a steak knife from the side

of the sofa, which caused him to fear for his life. According to appellant, Carolyn

swung the knife at him once, but she did not cut him, and he quickly disarmed her.

Appellant stated that, at that point, “I panicked and I started stabbing her.” Appellant

described his mental state at the time of the stabbing as “in another world,”

“panicking,” and in “fear of [his] life,” but he denied being upset. Appellant

acknowledged that nothing prevented him from simply leaving the house after he

took the knife from Carolyn and that Jessica, who cut him with a knife, inflicted the

only wound that he received that night. Appellant denied stabbing Jessica and denied

making any statement about stabbing his wife to the deputy constable who first

arrived at the house. Appellant acknowledged that, before peace officers responded

to the stabbing at his house, he spoke on the telephone to family members, his

employer, and to the 911 operator, whom he told that he had stabbed his wife, but

without mentioning self-defense.

Sufficiency of the Evidence to Establish Murder by Disproving Self-Defense

Because appellant raised the issue of self-defense, to convict him for murder,

the State had to prove the elements of the offense beyond a reasonable doubt, and the

State had to persuade the jury that appellant did not kill his wife in self-defense.

Zuliani v. State , 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). In his third and fourth

points of error, appellant contends that the evidence is legally and factually

insufficient to support his conviction for murder because the State did not rebut his

assertion of self-defense beyond a reasonable doubt.

In assessing legal sufficiency, we determine whether, based on all of the record

evidence, viewed in the light most favorable to the verdict, a rational jury could have

found the accused guilty of all essential elements of the offense beyond a reasonable

doubt. Jackson v. Virginia , 443 U.S. 307, 318-19 , 99 S. Ct. 2781, 2788-89 (1979);

Swearingen v. State , 101 S.W.3d 89, 95 (Tex. Crim. App. 2003). In conducting our

review of the legal sufficiency of the evidence, we do not reevaluate the weight and

credibility of the evidence, but ensure only that the jury reached a rational decision.

Muniz v. State , 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).

In a factual sufficiency review, we view all the evidence in a neutral light and

will set the verdict aside only if the evidence is so weak that the verdict is clearly

wrong and manifestly unjust or the contrary evidence is so strong that the standard

of proof beyond a reasonable doubt could not have been met. Escamilla v. State , 143

S.W.3d 814, 817 (Tex. Crim. App. 2004). In conducting a factual sufficiency review,

we must discuss the evidence that appellant contends most undermines the jury’s

verdict. See Sims v. State , 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). Unless the

available record clearly reveals that a different result is appropriate, we must defer to

the jury’s determination concerning what weight to give conflicting testimony

because resolution of facts often turns on evaluation of credibility and demeanor. See

Johnson v. State , 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).

A person commits the offense of murder if he intentionally or knowingly

causes the death of an individual, or intends to cause serious bodily injury and

commits an act clearly dangerous to human life that causes the death of an individual.

Tex. Pen. Code Ann. §§ 19.02(b)(1), 19.02(b)(2) (Vernon 2003). However, a person

is generally justified in using deadly force against another if he reasonably believed

that deadly force was necessary to protect himself against the other’s use or attempted

use of unlawful force, and a reasonable person in the actor’s situation would not have

retreated. Tex. Pen. Code Ann. §§9.31(a), 9.32(a) (Vernon 2003). A defendant has

the burden of producing some evidence to support a claim of self-defense. Zuliani ,

97 S.W.3d at 594 . Once the defendant produces that evidence, the State then bears

the burden of persuasion to disprove the raised defense. Id. The burden of

persuasion does not require the State to produce evidence; it requires only that the

State prove its case beyond a reasonable doubt. Id . A determination of guilt by the

factfinder implies a finding against the defensive theory. Id . The issue of self-defense is a fact issue to be determined by the jury, which is free to accept or reject

the defensive issue. Saxton v. State , 804 S.W.2d 910, 913-14 (Tex. Crim. App.

1991). As the sole judge of the weight and credibility accorded any witness’s

testimony , the jury is free to believe or disbelieve the testimony of all witnesses, and

to accept or reject any or all of the evidence produced by the respective parties. See

Upton v. State , 853 S.W.2d 548, 552 (Tex. Crim. App. 1993).

Appellant contends that the evidence is legally and factually insufficient to

disprove that he acted in self-defense because he feared for his life when his wife

swung at him with a knife. By his own admission, however, appellant stabbed his

wife after disarming her, while she was unarmed and seated on a sofa, even though

he could have easily left the house instead. Appellant acknowledged that his wife

never harmed him physically in any way. From appellant’s own testimony, a rational

jury could have therefore concluded that deadly force was not immediately necessary

for appellant to defend himself. In addition, Andrea and Jessica both testified that

appellant stabbed Carolyn in the back as she was lying face down and bleeding by the

front door. A rational jury also could also have reasonably concluded that appellant’s

conduct in continuing to stab his wife in the back as she lay bleeding on the floor was

inconsistent with his claim of self-defense. Finally, the jury could have reasonably

found appellant’s claims of self-defense incredible because he did not claim self-defense until he testified at trial.

After reviewing all of the evidence in the light most favorable to the verdict for

legal sufficiency analysis, we conclude that a rational jury could have reasonably

found against appellant on the issue of self-defense beyond a reasonable doubt. See

Jackson, 443 U.S. at 318-19 , 99 S. Ct. at 2788 -89 . Upon viewing all the evidence in

a neutral light for factual sufficiency analysis, we further conclude that the jury was

justified in finding appellant guilty of murder beyond a reasonable doubt by impliedly

finding against him on his claim of self-defense. See Escamilla , 143 S.W.3d at 817 .

The evidence supporting the verdict is not so weak that the jury’s finding appellant

guilty of murder beyond a reasonable doubt is clearly wrong and manifestly unjust;

nor is appellant’s contrary evidence so strong that the State’s burden to disprove self-defense beyond a reasonable doubt could not have been met . See id.

We overrule appellant’s third and fourth points of error.

Motion to Suppress Evidence

In his first point of error, appellant contends that the trial court erred by

allowing the State to introduce evidence of the search of appellant’s residence in

violation of appellant’s federal constitutional right against unreasonable searches and

seizures,

because the State failed to prove that appellant consented to the search

voluntarily, knowingly, and intelligently.

A search conducted with the voluntary consent of the suspect is an exception

to the constitutional requirement that a search be conducted only pursuant to a

warrant issued upon a finding of probable cause. See Ohio v. Robinette , 519 U.S. 33,

40 , 117 S. Ct. 417, 421 (1996); Schneckloth v. Bustamonte , 412 U.S. 218, 219 , 93 S.

Ct. 2041, 2043-44 (1973); Maxwell v. State , 73 S.W.3d 278, 281 ( Tex. Crim. App.

2002); Carmouche v. State , 10 S.W.3d 323, 331 (Tex. Crim. App. 2000) . The State

must prove by a preponderance of the evidence that the consent was freely and

voluntarily given. Maxwell , 73 S.W.3d at 281 . We examine all of the circumstances

to determine whether the State met this burden. Id. To be valid, consent must not be

coerced by explicit or implicit means, by implied threat, or by covert force.

Schneckloth, 412 U.S. at 228 , 93 S. Ct. at 2048 ; Carmouche, 10 S.W.3d at 331 .

Among the factors that determine voluntariness are whether the consenting person is

in custody, whether he was arrested at gunpoint, and whether the person was

informed that he did not have to consent. Carmouche, 10 S.W.3d at 331 .

We review the trial court’s ruling on a motion to suppress evidence for abuse

of discretion. Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). At a

suppression hearing, the trial court is the sole and exclusive trier of fact and judge of

the credibility of the witnesses and their testimony. Maxwell, 73 S.W.3d at 281 . The

appropriate standard for reviewing a trial court’s ruling on a motion to suppress is

bifurcated: we defer almost totally to the trial court’s determination of historical facts

and review de novo the court’s application of the law. Id .; Guzman , 955 S.W.2d at

89 .

Appellant contends that he did not consent voluntarily to the search of his

house because, when he gave the consent (1) he had not been given Miranda

warnings; (2) he had not been told that he had the right to decline consent; (3) he had

not been taken before a magistrate; and (4) he was handcuffed in the backseat of the

patrol car. The record does not support appellant’s first two assertions, but shows

instead that, when Deputy Gideon first approached appellant at his house on the night

of the stabbing, the deputy read appellant his rights.

Additionally, the written

consent form that appellant signed informed him that he had a right to decline

consent,

as follows:

I, Andre Paul Cleveland, having been informed by the

below officers of my constitutional right not to have a

search made of my premises and/or vehicle hereafter

mentioned without a search warrant and of my right to

voluntarily consent to such a search, hereby authorize J.

Ortiz and J[.] Gideon and other peace officers of the Harris

County Sheriff’s Department, to conduct a complete search

of [my] residence located at 2415 Woodsboro, in Harris

County, Texas. These officers are authorized by me to

seize any and all letters, papers, material and other

property, which they desire. This consent is being given to

the above peace officers freely and voluntarily and with out

[sic] threats or promises of any kind and is given with my

full and free consent.

Appellant correctly asserts that he was never taken before a magistrate prior to

giving his consent, but cites no authority requiring that he appear before a magistrate

for the consent to be voluntary. See Rosalez v. State , 875 S.W.2d 705 , 722 n. 20

(Tex. App.—Dallas 1993, pet. ref’d) (“[T]he failure to take an accused before a

magistrate does not in itself invalidate a consent to search unless such failure in some

manner caused or contributed to bringing about the consent to search.”). Because the

record shows that Deputy Gideon read appellant his rights at the scene before he gave

consent, and also shows that appellant was informed, both orally and in writing, of

his constitutional right not to have officers search his residence, his not receiving

those warnings from a magistrate does not render his consent to search involuntary.

Appellant’s last assertion concerning the voluntariness of his consent to search

is that he was handcuffed in the backseat of the patrol car before he signed the

consent form. The record shows that, when Deputy Ortiz approached appellant to

request his consent, the deputy read the consent-to-search form aloud to appellant,

appellant indicated that he understood it and signed it after his handcuffs were

removed. T he record further demonstrates that the officers’ guns were not drawn

when appellant consented, and that no threats were made to appellant. See Rayford

v. State , 125 S.W.3d 521, 528-29 (Tex. Crim. App. 2003) (“Nor is consent rendered

involuntary merely because the accused is under arrest, at least when the officers’

guns are not drawn.”). Appellant’s consent was not rendered involuntary merely

because he was under arrest in handcuffs in the rear seat of a patrol car before signing

the consent form.

We conclude that appellant’s consent was voluntary under the circumstances

demonstrated by the record, which show that the written consent form was read aloud

to appellant, who understood it, that appellant was read his rights before giving his

consent, that appellant was advised in writing that he had a constitutional right not

to have a search made of his premises without a warrant, and that no threats or

promises were made to induce appellant’s consent. Additionally, appellant’s

demeanor was described as “fully cooperative,” “normal,” “seemed like he knew what

he was doing,” and “functioning okay.”

Viewing the circumstances as a whole and giving deference to the trial court’s

implied findings of historical fact, we hold that the State established by a

preponderance of the evidence that appellant voluntarily consented to the search of

his residence, and, therefore, that the trial court did not abuse its discretion by

overruling appellant’s stated objections to admitting the evidence seized from his

residence.

We overrule appellant’s first point of error.

Jury Argument Concerning Post-Arrest Silence

In his second point of error, appellant contends that the portion of the

prosecutor’s closing argument to the jury regarding appellant’s self-defense claim

“was a comment on the appellant exercising his right to remain silent under the State

Constitution.” Appellant’s complaint on appeal concerns only article I, section 10 of

the Texas Constitution. See Tex . Const . art. I, § 10 .

Appellant complains of the following closing argument by the State’s attorney

during the guilt-innocence phase of trial:

State’s attorney: . . . [H]e never even uttered a word about self-defense until yesterday from that stand. That’s the

first time we ever heard that ludicrous story. . . Lots

of chances to tell about self-defense.

. . .

State’s attorney:He talked to his momma, he talked to his sister, he

talked to Boston Market, he talked to a 911 operator.

He talked to Hagerty. He talked to Gideon. Not

once did the word “self-defense” come out of his

mouth. He got to sit right there in that chair, watch

every one of the State’s witnesses come in here and

tell what they had to say and then he got to

formulate his defense. Unlike any other witness, he

got a preview of the State’s case.

Appellant’s trial counsel objected to the argument by asserting that appellant “has a

right to remain silent . I object to being improper argument on the part of counsel.”

The trial court overruled the objection and allowed appellant a “continuing

objection.”

Article I, section 10 of the Texas Constitution protects a defendant’s post-arrest

silence even before his Miranda warnings have been administered. Heidelberg v.

State , 144 S.W.3d 535, 537 (Tex. Crim. App. 2004). In contrast, the Fifth

Amendment of the federal constitution protects post-arrest silence made only after

a defendant’s Miranda warnings have been given. Id.

Rule of Appellate Procedure 33.1(a)(1)(A) provides, in part, that for a

complaint to be presented on appeal, a timely request, objection, or motion must have

been made to the trial court, which “states the grounds for the ruling that the

complaining party sought from the trial court with sufficient specificity to make the

trial court aware of the complaint, unless the specific grounds were apparent from the

context.” Tex. R. App. P. 33.1(a)(1)(A). Additionally, it is well-settled that the legal

basis of a complaint raised on appeal cannot vary from the legal basis asserted at trial.

Heidelberg , 144 S.W.3d at 537 . Heidelberg held that an objection at trial, that

Heidelberg’s Fifth Amendment rights were violated, was not sufficient to preserve

a complaint on appeal that his rights to post-arrest silence under the Texas

Constitution were violated . See id.

To preserve error concerning the greater post-arrest silence protections

afforded to defendants under the Texas Constitution, a defendant’s objection must

refer specifically to either the Texas Constitution or the Sanchez case. See

Heidelberg , 144 S.W.3d at 537 ; Sanchez v. State , 707 S.W.2d 575, 582 (Tex. Crim.

App. 1986). Because appellant complained only generally at trial of his “ right to

remain silent,” without any further assertions concerning his rights to post-arrest

silence under either the Texas Constitution or the Sanchez case, we hold that

appellant’s trial objection was not sufficient to make the trial court aware of his

complaint. See Heidelberg , 144 S.W.3d at 537 ; Sanchez , 707 S.W.2d 582 ; Tex. R.

Evid. Ann. 103(a)(1). We further hold that the specific grounds of appellant’s

complaint were not apparent from the context. See Tex. R. App. P. 33.1(a)(1)(A).

Appellant has not preserved this issue on appeal.

We overrule appellant’s second point of error.

Sufficiency of Evidence of Sudden Passion in Punishment Phase of Trial

Until September 1, 1994, evidence that the defendant killed a person while

acting under the immediate influence of sudden passion arising from an adequate

cause was raised by a defendant at the guilt-innocence phase of trial; to obtain a

conviction for murder, the State had the burden to disprove the sudden passion issue

beyond a reasonable doubt. Bradley , 688 S.W.2d at 851. In 1993, the Legislature

changed the sudden passion issue from a guilt-innocence issue to a punishment issue,

as follows: “At the punishment stage of a trial, the defendant may raise the issue as

to whether he caused the death under the immediate influence of sudden passion

arising from an adequate cause . If the defendant proves the issue in the affirmative

by a preponderance of the evidence, the offense is a felony of the second degree.”

See Act of May 29, 1993, 73rd Leg., R.S., ch 900, § 1.01, 1993 Tex. Gen. Laws 3586 ,

3614 ( codified by Tex . Pen. Code Ann . § 19.02(d) (Vernon 2003)); see also

Hernandez v. State , 127 S.W.3d 206, 211-12 (Tex. App.—Houston [1st Dist.] 2003,

pet. ref’d) (holding that defendant bears burden at punishment phase of trial to prove

issue of sudden passion by preponderance of evidence ). The jury charge at the

punishment phase of appellant’s trial contained a special issue asking the jury

whether appellant proved by a preponderance of the evidence that he killed his wife

out of sudden passion arising from an adequate cause. The jury’s punishment verdict

was: “We do not.”

In addition to sudden passion, other offenses in our Penal Code place the

burden of proof on the defendant to prove certain issues by a preponderance of the

evidence. For example, the offense of aggravated kidnapping similarly places the

burden of proof on the defendant in the punishment phase of trial; if the defendant

proves by a preponderance of the evidence that the kidnapping victim was voluntarily

released in a safe place, the defendant receives a reduced punishment range. See Tex .

Pen. Code Ann . § 20.04 (d) (Vernon 2003). The Penal Code also proscribes that

certain defenses are affirmative defenses that the defendant must prove in the guilt-innocence phase of trial by a preponderance of the evidence. See Tex . Pen. Code

Ann . § 2.04 (Vernon 2003) (stating law of affirmative defenses); see also Tex . Pen.

Code Ann . § 8.01 (Vernon 2003) (insanity is affirmative defense); Tex . Pen. Code

Ann . § 8.05 (Vernon 2003) (duress is affirmative defense); Tex . Pen. Code Ann . §

25.05 (d) (Vernon 2003) (inability to provide child support is affirmative defense for

criminal nonsupport). Similarly, a defendant is presumed to be competent to stand

trial unless proved incompetent by a preponderance of the evidence. See Tex. Code

Crim. Proc. Ann. art. 46B.003(b) (Vernon Supp. 2004-2005).

The issue of sudden passion in a murder case thus places the burden of proof

on the defendant to prove the issue by a preponderance of the evidence in the same

manner as the following: voluntary release in an aggravated kidnapping case; the

affirmative defenses of insanity and duress; the affirmative defense of inability to pay

child support in a criminal nonsupport case; and proof of incompetency to stand trial.

Appellant’s fifth and sixth points of error challenge the legal and factual

sufficiency of the evidence concerning the jury’s negative finding on the affirmative

defense of sudden passion, which appellant had the burden to prove by a

preponderance of the evidence. Tex . Pen. Code Ann . § § 19.02(d); 20.04. Well-established law permits appellate review of the factual sufficiency of the evidence to

support a jury’s negative finding on an issue for which the defendant had the burden

of proof at trial. Meraz v. State , 785 S.W.2d 146, 154-55 (Tex. Crim. App. 1990);

Hernandez , 127 S.W.3d at 211-12 ; Zuniga v State, 144 S.W.3d 477, 482 (Tex. Crim.

App. 2004).

Concerning legal sufficiency challenges to a jury’s negative finding on an issue

for which the defendant had the burden of proof at trial, however, in Patterson v.

State , 121 S.W.3d 22, 24 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d, untimely

filed ), we concluded that lack of jurisdiction precluded review of these challenges.

W e now overrule that portion of Patterson and hold, based on the reasoning set out

below, that we may properly review both types of sufficiency challenges—those by

which we review the evidence as a matter of law, for legal sufficiency, and those by

which we review the evidence neutrally, for factual sufficiency.

Legal Sufficiency Reviews of Sudden Passion

A. Jurisdiction

The State contends that we lack jurisdiction to conduct a legal sufficiency

review of a jury’s negative finding on the sudden passion issue. See Patterson, 121

S.W.3d at 24 ; see also Naasz v. State , 974 S.W.2d 418, 421 (Tex. App.—Dallas 1998,

pet. ref’d) ( “When a defendant seeks appellate review of a jury’s failure to make a

finding on which the defendant has the burden of proof, such as on an affirmative

defense, the defendant invokes our factual review jurisdiction.”) (emphasis added) .

Naasz relied on Meraz. Naasz , 974 S.W.2d at 421 (citing Meraz , 785 S.W.2d at 154-55 ). Meraz , however, did not hold that appellate courts have no jurisdiction to

conduct legal sufficiency reviews on a jury’s negative finding of an issue that the

defendant must prove. Meraz addressed only what review governs factual sufficiency

reviews of a jury’s negative finding on issues that the defendant had the burden to

prove. See Meraz, 785 S.W.2d at 154-55 ; Howard v State , 145 S.W.3d 327, 333-34

(Tex. App.—Fort Worth 2004, no pet.).

Pursuant to article V, section 6(a) of the Texas Constitution, “Courts of

Appeals shall have appellate jurisdiction . . . conclusive on all questions of fact

brought before them on appeal or error.” Clewis v. State , 922 S.W.2d 126 , 129 & n.4

(Tex. Crim. App. 1996 ) (quoting Tex. Const . art. V, § 6(a)) . The Constitution thus

permits review of both legal and factual sufficiency of the evidence when the State

has the burden of proof concerning elements of the offense . See id. at 131, n. 4

(citing Tex Const . art. V, §§ 5 & 6) .

In civil cases, appellate courts have jurisdiction to review the evidence for legal

sufficiency when an appellant challenges the legal sufficiency of the evidence to

support the jury’s adverse answer to an issue on which he had the burden of proof.

See Howard , 145 S.W.3d at 333 -34 (citing Victoria Bank & Trust Co. v. Brady , 811

S.W.2d 931, 940 (Tex. 1991); Sterner v. Marathon Oil Co. , 767 S.W.2d 686, 690

(Tex. 1989)) . We discern no rational basis on which to reconcile Patterson ’s

conclusion, that we lack jurisdiction to review challenges to the legal sufficiency of

the evidence to support a factfinder’s negative finding on an issue that a criminal

defendant had to prove at trial, with Article V, section 6(a)’s conferring this Court

with final, conclusive jurisdiction over factual resolutions, which jurisdiction we have

consistently and unquestionably exercised to review legal and factual sufficiency

challenges in criminal cases in which the State had to prove the elements of the

offense at trial, and in civil cases in which either party challenges the factfinder’s

negative finding on issue that the challenging party had to prove at trial. We

therefore conclude and hold that Article V, Section 6(a) of the Constitution vests this

Court with jurisdiction to review the evidence as a matter of law for legal sufficiency

and neutrally for factual sufficiency.

See Howard, 145 S.W.3d at 332 . Accordingly,

a majority of the en banc court overrules the portion of the Patterson opinion in

which we stated that we have no jurisdiction to conduct a legal sufficiency review of

the jury’s negative finding on an issue that the defendant had to prove. See Patterson ,

121 S.W.3d at 24 .

B. Standard of Review

We must next determine what standard of review applies for determining the

legal sufficiency of the evidence concerning negative findings on issues that the

defendant had to prove by a preponderance of the evidence.

We review legal and factual sufficiency of the evidence when the State has the

burden of proof concerning elements of an offense as follows. Review for legal

sufficiency assesses the evidence in the light most favorable to the jury’s verdict and

is the minimum standard for comporting with federal due process as stated in

Jackson v. Virginia , 443 U.S. at 318-19 , 99 S. Ct. at 2788 -89 . See Clewis, 922

S.W.2d at 128-29 . Review for factual sufficiency assesses the evidence neutrally.

See Clewis, 922 S.W.2d at 131-33. The remedies an appellant seeks and receives

from the reviews also differ. If the evidence is legally insufficient to establish the

elements of the offense, the appellant is acquitted and may not be retried for the

offense; if the evidence is factually insufficient to establish the elements of the

offense, the appellant may be retried for the offense . Id . at 131.

As stated in Meraz , in criminal cases in which a defendant challenges the

factual sufficiency of the evidence to support a jury’s negative finding on an issue

that the defendant had to prove, the standard is the same used in civil cases,

specifically, whether the verdict is so against the great weight and preponderance of

the evidence as to be manifestly unjust. Meraz, 785 S.W.2d at 154-55 ; Howard , 145

S.W.3d at 330 -33 . Although the Meraz court concluded that the proper standard for

review of factual sufficiency challenges to a negative finding on an issue that the

defendant had to prove is not the legal sufficiency standard used in Jackson v.

Virginia , 443 U.S. at 318-19 , 99 S. Ct. at 2788 -89 , Meraz is silent concerning what

standard of review applies to evaluate the legal sufficiency of the evidence when a

jury returns a negative answer on an issue that the defendant had to prove.

Consistent with our reliance on civil law for the standard of review for factual

sufficiency reviews, we conclude that the proper standard in criminal cases for review

of legal sufficiency challenges to a jury’s negative finding on an issue that the

defendant had to prove is the same standard applied in civil cases . See Howard , 145

S.W.3d at 333 (citing Sterner v. Marathon Oil Co. , 767 S.W.2d 686, 690 (Tex.

1989)) ; Meraz, 785 S.W.2d at 154-55 ; Zuniga, 144 S.W.3d at 482 . Under that

standard, a criminal defendant who attacks the legal sufficiency of the evidence to

support a negative finding on an issue that he had to prove must overcome two

hurdles . Howard , 145 S.W.3d at 333 -34 (citing Victoria Bank & Trust Co. v. Brady ,

811 S.W.2d 931, 940 (Tex. 1991)). First, the court of appeals must examine the

record for evidence that supports the finding while ignoring all evidence to the

contrary. Id. at 334. Second, if no evidence supports the negative finding, the

appellate court examines the entire record to determine whether it establishes the

contrary proposition as a matter of law. Id. (citing Sterner , 767 S.W.2d at 690 ) .

We hold that the Sterner standard is the proper standard by which to review a

criminal defendant’s legal sufficiency challenge to the trier of fact’s negative finding

of an issue that the defendant had to prove by a preponderance of the evidence. See

id . Our holding today places us in line with a majority of Texas courts that apply the

civil standard from Sterner to these challenges . See Howard , 145 S.W.3d at 332 ;

Nolan v. State, 102 S.W.3d 231, 237-38 (Tex. App.—Houston [14th Dist.] 2003, pet.

ref’d) (applying civil standard to legal sufficiency challenge to jury’s rejecting

affirmative defense) ; Centell v. State , Nos. 07-98-0344-CR & 07-98-0345CR, 2000

WL 96246 , at *4 (Tex. App.—Amarillo Jan. 28, 2000, pet. ref’d) (not designated for

publication) (same) ; Brena v. State , No. 07-97-0429-CR, 1999 WL 606681 , at *2

(Tex. App.—Amarillo Aug. 11, 1999, pet. ref’d) (not designated for publication)

(same); Moranza v. State , 913 S.W.2d 718, 723 (Tex. App.—Waco 1995, pet. ref’d)

(same); Cover v. State , 913 S.W.2d 611, 619 (Tex. App.—Tyler 1995, pet. ref’d)

(same) .

The Sterner standard for legal sufficiency, employed to review the jury’s

negative finding on an issue that the criminal defendant had to prove, differs from the

Jackson v. Virginia legal sufficiency standard. See Jackson v. Virginia , 443 U.S. at

318-19 , 99 S. Ct. at 2788-89 . Jackson addresses a due process review of the evidence

in the light most favorable to the jury’s verdict concerning the elements of the offense

that the State had to prove beyond a reasonable doubt. See id. The Sterner standard

for legal sufficiency review, however, applies only when reviewing the evidence to

support the factfinder’s having rejected an issue that the defendant had to prove by

a preponderance of the evidence.

Sterner , 767 S.W.2d at 690 . Additionally,

although a finding of legal insufficiency of the evidence under the Jackson v. Virginia

standard would require ac quittal of the defendant, see 443 U.S. at 318-19 , 99 S. Ct.

at 2788-89 , a holding of legal insufficiency of the evidence to support the jury’s

negative finding on the issue of sudden passion would compel the conclusion that the

defendant established sudden passion as a matter of law and therefore compel a

remand for sentencing on the second-degree punishment range for sudden passion.

Tex . Pen. Code Ann . § 19.02(d) .

As when addressing other legal and factual sufficiency challenges in criminal

cases, in applying the Sterner legal-sufficiency standard of review, we must also defer

to the factfinder’s determination of the credibility of the witnesses and the weight to

give evidence . See Muniz, 851 S.W.2d at 246 (stating that in conducting legal

sufficiency review of evidence under the Jackson standard, appellate courts do not

reevaluate weight and credibility of evidence, but ensure only that jury reached

rational decision); Johnson, 23 S.W.3d at 8 (stating that appellate court conducting

factual sufficiency review must defer to jury’s determination concerning what weight

to give conflicting testimony because resolution often turns on evaluation of

credibility and demeanor). Applying the two-part Sterner standard for legal

sufficiency in criminal cases thus gives full play to the factfinder’s role as the

exclusive determiner of facts .

Assuming, in a hypothetical case, that applying the first prong of the Sterner

legal-sufficiency standard showed that no evidence in the record supported the jury’s

negative finding on the sudden passion issue, we would then be required to examine

the record under the second prong of the Sterner test. See Sterner , 767 S.W.2d at

690 . Applying the second prong, we would search the entire record to determine

whether the defendant established, as a matter of law, that he caused the death out of

sudden passion arising out of adequate case. See id. ; Tex. Pen. Code Ann. §

19.02(d) . If the search of the record revealed evidence of sudden passion that was

subject to a credibility assessment by the factfinder, which the jury was therefore

entitled to disbelieve, we would not consider that evidence in our matter-of-law

assessment. See Muniz, 851 S.W.2d at 246 ; Johnson, 23 S.W.3d at 8 .

If, however,

the search of the record revealed evidence of sudden passion that was not subject to

a credibility assessment by the jury, for example, a stipulation of evidence by the

State and the defendant stating that the defendant caused the death of the deceased

out of sudden passion arising out of an adequate cause, then the evidence would show

as a matter of law that the defendant proved the issue of sudden passion.

We can envision no circumstances in which physical evidence could

conclusively resolve the issue of sudden passion and acknowledge that, in most cases,

sudden passion is resolved exclusively by the jury’s assessment of whether the

witness is credible. The Sterner matter-of-law determination is thus left for those rare

instances in which the sudden passion issue can be determined from evidence that is

not subject to a credibility determination by the jury as, for example, a stipulation of

evidence by the parties. Although this is a very high standard that a defendant would

rarely meet, it nevertheless provides a mechanism that enables appellate courts to

exercise their constitutionally vested jurisdiction and provide relief to a defendant

who can conclusively establish that the jury disregarded evidence that was not subject

to a credibility assessment and which conclusively established the defendant’s

punishment-mitigation issue .

C. Analysis of Appellant’s Sudden Passion Facts for Legal Sufficiency

Applying the Sterner matter-of-law standard, we first examine the record solely

for evidence that supports the jury’s negative finding on the issue of sudden passion,

while ignoring all evidence contrary to that finding. “ 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.” Tex . Pen. Code Ann . § 19.02(a)(2)

(Vernon 2003). 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. Tex . Pen. Code Ann . § 19.02(a)(1)

(Vernon 2003).

Appellant denied being upset, angry or irate. Appellant appeared calm and did

not scream, cry, or do anything to help Carolyn . The record shows no immediate

influence arising out of an adequate cause when appellant stabbed his wife as she lay

bleeding on the floor, after interrupting the stabbing to scrub the sofa where he had

stabbed her earlier. Ignoring all evidence contrary to the jury’s negative finding on

the sudden-passion issue, we conclude that some evidence in the record shows that

appellant did not kill his wife out of sudden passion arising from an adequate cause.

Having reached that conclusion, our legal sufficiency inquiry ends. See Sterner , 767

S.W.2d at 690 ; Howard , 145 S.W.3d at 333-34 . We hold that the evidence

concerning the jury’s negative finding on sudden passion is legally sufficient as a

matter of law.

We overrule appellant’s fifth point of error.

Factual Sufficiency Review of Sudden Passion

An appellate court may properly conduct a factual sufficiency review of the

jury’s negative finding on the sudden passion issue in the punishment stage of trial.

Hernandez , 127 S.W.3d at 211-12 (holding that appellate court may conduct factual

sufficiency review of jury’s negative answer to issue of sudden passion special issue

that defendant had burden to prove by preponderance of evidence in punishment

phase of trial); see Zuniga, 144 S.W.3d at 482 (stating that criminal defendant may

assert factual insufficiency challenge to attack jury’s failure to find elements of

affirmative defense, or issue on which defendant had burden of proof). When the

defendant has asserted an affirmative defense or has the burden of proof on an issue,

a reviewing court considers all the evidence and determines whether the judgment is

“so against the great weight and preponderance of the evidence so as to be manifestly

unjust.” Id . In our factual sufficiency review of the evidence, we review all of the

evidence neutrally, but we do not intrude on the factfinder’s role as the sole judge of

the weight and credibility given to any witness’s testimony. See Johnson, 23 S.W.3d

at 7-8 .

Appellant asserts two arguments that the evidence is factually insufficient to

establish sudden passion. He first contends that the State conceded that he killed his

wife out of sudden passion by stating as follows in its closing argument in the guilt-innocence phase of trial: “Well, let’s look at what evidence there is of intent to kill.

22 stab wounds in the front, in the back, on the side, in the head, on the face. That’s

not intent to kill; that’s overkill. That’s hatred and that’s - - that’s: If I can’t have

you, nobody can.” Contrary to appellant’s assertion, the State’s closing argument and

theory at trial simply demonstrated “hatred” and “overkill,” which do not

categorically constitute passion arising out of an adequate cause. See Tex . Pen.

Code Ann . § 19.02(a)(1) (defining adequate cause as anger, rage, resentment, or

terror, in a person of ordinary temper “sufficient to render the mind incapable of cool

reflection.”) ; Hernandez , 127 S.W.3d at 211 (holding that o rdinary anger or causes

of defendant’s own making are not legally adequate causes) .

In his second factual sufficiency challenge, appellant asserts that he met the

statutory definition of sudden passion through evidence that he felt “strange” and

“upset.” We disagree. Feeling “strange” and “upset” does not constitute sudden

passion arising out of adequate cause. See Tex . Pen. Code Ann . § 19.02(a)(1)

(defining adequate cause as anger, rage, resentment, or terror, in a person of ordinary

temper “sufficient to render the mind incapable of cool reflection.”); Gaston v. State ,

930 S.W.2d 222, 226 (Tex. App.—Austin 1996, no pet.) (holding that although

defendant “went blank or into a trance, stopped thinking, felt hurt and angry, and lost

control of himself” due to wife’s nagging, taunting, and promising divorce and

property dispute, evidence was not adequate cause to support sudden passion jury

instruction).

Appellant does not contend that the evidence is factually insufficient because

he felt “panicked.” But, even if evidence of panic could constitute sudden passion

here, we note further that appellant’s feeling panicked conflicts with other evidence

that he was calm, not upset, not angry and not irate. Reconciling these conflicts was

thus best left to the jury to resolve by credibility assessments of the witnesses’

testimony. Compare Miller v. State , 753 S.W.2d 473, 476 (Tex. App.—Houston [1st

Dist.] 1988, pet. ref’d) (holding evidence of panic insufficient to raise sudden passion

issue, and thus no jury instruction required) with Brunson v. State , 864 S.W.2d 888,

895 (Tex. App.—Austin 1989, no pet.) (holding evidence of panic sufficient evidence

to raise issue of sudden passion requiring jury instruction on issue).

Evidence that rebuts appellant’s defense of sudden passion arising from an

adequate cause includes testimony that described his demeanor as not upset, not

angry, not irate, but calm, in addition to evidence that appellant continued to stab his

wife as she lay bleeding on the floor, even after he stopped to scrub her blood from

the sofa where he had stabbed her earlier.

After viewing all of the evidence in a neutral light, we hold that the evidence

supporting the jury’s failure to find that appellant acted in sudden passion is not so

against the great weight and preponderance of the evidence that the verdict is clearly

wrong and manifestly unjust. See Zuniga, 144 S.W.3d at 481 .

We overrule appellant’s sixth point of error. Conclusion

We affirm the judgment of the trial court.

Elsa Alcala

Justice

En Banc court consists of Chief Justice Radack and Justices Taft, Nuchia, Jennings,

Keyes, Alcala, Hanks, Higley, and Bland.

Justice Jennings, concurring, joined by Justice Keyes.

Publish. Tex. R. App. P. 47.2( b).