holding that defendant has burden to show that actions occurred before “there was reasonable opportunity for the passion to cool”
How later courts described this case
- holding that defendant has burden to show that actions occurred before “there was reasonable opportunity for the passion to cool”
- finding evidence sufficient to reject sudden passion in part because appellant’s “gun was the only weapon displayed during the fight and no one else was seen carrying a weapon”
- finding that ordinary anger or fear alone does not raise an issue of sudden passion arising from adequate cause
- providing that “a defendant may not rely on a cause of his own making to support an argument for sudden passion”
Written by the judges who cited it.
The opinion
TERRY JENNINGS, Justice,
concurring.
I agree with the majority that the evidence is factually sufficient to support the jury’s implicit rejection of the contention of appellant, Jose Antonio Moncivais, that he caused the death of the complainant under the immediate influence of sudden passion. See Tex. Penal Code Ann. § 19.02 (d) (Vernon 2011). However, I write separately because appellant’s legal-sufficiency challenge is not appropriate on the issue of sudden passion, upon which appellant had the burden of proof and the State had the *410 burden of persuasion, and not of production, to refute. Cleveland v. State, 177 S.W.3d 374, 392 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd) (Jennings, J., concurring).
In Cleveland , this Court, in an en banc opinion, held that an appellate court is to employ the same standard of review “applied in civil cases” in conducting a legal-sufficiency review of a fact finder’s rejection of an accused’s defensive theory. 177 S.W.3d at 387 . However, in a civil case, when a party attacks the legal sufficiency of the evidence in support of an adverse finding on an issue upon which the party had the burden of proof, the party “must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue.” Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001) (emphasis added). In reviewing a “matter of law” challenge, the reviewing court must first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Id. If there is no evidence that supports the finding, the reviewing court must then examine the entire record to determine if the contrary proposition is “established as a matter of law.” Id. A point of error should be sustained only if the contrary proposition is conclusively established. Id. Such a “matter of law” challenge is not applicable in criminal cases where the State has the burden of 'persuasion, not a burden of production, in discrediting the defensive theories of an accused. Saxton v. State, 804 S.W.2d 910, 912-13 (Tex.Crim.App.1991).
In Saxton , the Texas Court of Criminal Appeals reversed a court of appeals’ holding that “the State failed to produce evidence to refute [the defendant’s] claim of self-defense and that all of the evidence is uncontradicted and is consistent with self-defense.” Id. at 912 (citation omitted). The court specifically noted that the appellate court’s “implicit holding that [the defendant] established ‘as a matter of law’ that he acted in self-defense is incorrect.” Id. at 912 n. 4. The court disavowed its previous use of the “as a matter of law” language in the context of the issue of self-defense, “[g]iven that the question of whether the accused acted in self-defense is a fact issue for the trier of fact’s determination and that ‘beyond a reasonable doubt’ is the required level of proof.” Id. at 912 n. 3. In holding that the court of appeals utilized the wrong standard of review, the court emphasized:
[T]he State has the burden of persuasion in disproving the evidence of self-defense. That is not a burden of production, i.e., one which requires the State to affirmatively produce evidence refuting the self-defense claim, but rather a burden requiring the State to prove its case beyond a reasonable doubt....
[M]ore importantly, case law instructs us that the issue of self-defense is an issue of fact to be determined by the jury. Defensive evidence which is merely consistent with the physical evidence at the scene of the alleged offense will not render the State’s evidence insufficient since the credibility determination of such evidence is solely within the jury’s province and the jury is free to accept or reject the defensive evidence. A jury verdict of guilty is an implicit finding rejecting the defendant’s self-defense theory.
Id. at 913-14 (citations omitted).
Accordingly, in reviewing the legal sufficiency of the evidence in support of a fact finder’s rejection of a defensive issue, “we look not to whether the State presented evidence which refuted appellant’s [defensive evidence], but rather we determine whether after viewing all the evidence in the light most favorable to the prosecution, *411 any rational trier of fact would have found the essential elements of [the offense] beyond a reasonable doubt and also would have found against appellant on the [defensive] issue beyond a reasonable doubt.” Id. at 914 (citations omitted). 1
The issue of sudden passion, like the issue of self-defense, is a fact issue to be determined by the fact finder, and the fact finder is free to accept or reject defensive evidence on the issue. Such a defensive theory, by its very nature, cannot be conclusively established “as a matter of law” in a criminal case. Thus, this Court’s en banc court’s holding to the contrary, i.e., that we employ the legal sufficiency standard of review “applied in civil cases” to review an accused’s challenge to the fact finder’s rejection of a defensive issue in a criminal case, is in error. Accordingly, this Court should overrule Cleveland .
Justice JENNINGS, concurring.
. In contrast, when a defendant challenges the factual sufficiency of the rejection of a defense, we review all of the evidence in a neutral light and ask whether the- State’s evidence, taken alone, is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App.2003).