PD-1076-14 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 2/25/2015 2:47:34 PM February 25, 2015 Accepted 2/25/2015 2:55:48 PM ABEL ACOSTA PD-1076-14 CLERK
IN THE TEXAS COURT OF CRIMINAL APPEALS _________________________________________________
RICARDO BELTRAN PETITIONER-APPELLANT
vs.
THE STATE OF TEXAS RESPONDENT-APPELLEE _________________________________________________
ON DISCRETIONARY REVIEW FROM THE FIFTH COURT OF APPEALS CAUSE NO. 05-12-01647-CR
APPEAL FROM THE 194TH JUDICIAL DISTRICT COURT OF DALLAS COUNTY, TEXAS, CAUSE NO. F-1056077-M _________________________________________________
PETITIONER’S BRIEF ON THE MERITS _________________________________________________
ROBERT N. UDASHEN, P.C. SORRELS, UDASHEN & ANTON State Bar No. 20369600 2311 Cedar Springs, Suite 250 rnu@sualaw.com Dallas, Texas 75201 214-468-8100 (office) BRETT ORDIWAY 214-468-8104 (fax) State Bar No. 24079086 bordiway@sualaw.com Counsel for Appellant Identity of Parties and Counsel
For Appellant Ricardo Beltran:
JOHN M. HELMS Trial and direct appeal counsel HELMS, ROBERTS & DIAZ LLP 6060 N. Central Expressway, Suite 560 Dallas, Texas 75206
ROBERT N. UDASHEN BRETT ORDIWAY Petition for discretionary review counsel SORRELS, UDASHEN & ANTON 2311 Cedar Springs Suite 250 Dallas, Texas 75201
For Appellee the State of Texas:
STEPHANIE FARGO GLEN FITZMARTIN Trial counsel of record DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE 133 N. Riverfront Blvd., LB 19 Dallas, Texas 75207
BRAD CLEMENTS Appellate counsel DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE
Trial judge:
THE HONORABLE ERNEST WHITE THE 194TH JUDICIAL DISTRICT COURT OF DALLAS COUNTY
2 Table of Contents
Identity of Parties and Counsel ................................................................. 2
Index of Authorities .................................................................................... 4
Statement of the Case and Procedural History ........................................ 6
Issue Presented........................................................................................... 8
Statement of Facts...................................................................................... 9
Summary of the Argument ...................................................................... 11
Argument .................................................................................................. 12
For purposes of determining whether an appellant was entitled to a jury instruction on sudden passion, some evidence that he acted in self-defense does not negate all evidence that he acted in sudden passion. .................................................................................................. 12
I. The court of appeals’s fatally flawed holding ............................. 12
II. Evidence that Beltran acted in self-defense doesn’t negate evidence he acted in sudden passion ................................................ 16
III. Conclusion ................................................................................... 20
Prayer ........................................................................................................ 20
Certificate of Service ................................................................................ 22
Certificate of Compliance ......................................................................... 22
3 Index of Authorities
Cases
Beltran v. State, 05-12-01647-CR, 2014 WL 3587367 (Tex. App.—Dallas 2014) .............................................................................................. passim Brunson v. State, 764 S.W.2d 888, 895 (Tex. App.—Austin 1989, pet. ref’d) ................................................................................................. 14, 18 Chavez v. State, 6 S.W.3d 56, 65 (Tex. App.—San Antonio 1999, pet. ref’d) ....................................................................................................... 18 Daniels v. State, 645 S.W.2d 459, 460 (Tex. Crim. App. 1983) .............. 19 Golden v. State, 851 S.W.2d 291, 295 (Tex. Crim. App. 1993) ............... 14 Hayes v. State, 728 S.W.2d 804, 807 (Tex. Crim. App. 1987) ................. 14 Hobson v. State, 644 S.W.2d 473, 478 n. 10 (Tex. Crim. App. 1983) ..... 13 Jones v. State, 687 S.W.2d 425, 430 (Tex. App.—Dallas 1985, pet. ref’d) ......................................................................................................... 15, 17 McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005) .......... 13 Merchant v. State, 810 S.W.2d 305, 309–10 (Tex. App.—Dallas 1991, pet. ref’d) ................................................................................................ 15 Milliff v. State, No. 14-13-00052-CR, 2014 WL 1713897, at *7 (Tex. App.—Houston [14th Dist.] 2014, no pet.)........................................... 19 Moore v. State, 969 S.W.2d 4, 15 (Tex. Crim. App. 1998) (Keller, J., concurring and dissenting) ................................................. 14, 15, 17, 18 Pierce v. State, No. 08-12-00150-CR, 2014 WL 1633028, at *5 (Tex. App.—El Paso 2014, pet. ref’d) ............................................................. 19 Rayme v. State, 178 S.W.3d 21, 28 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) ................................................................................................ 13 Thompson v. State, 02-12-00351-CR, 2013 WL 5303631 (Tex. App.— Fort Worth 2013, pet. ref’d) .................................................................. 18 Villarreal v. State, ---S.W.3d ---, No. PD-0332-13, 2015 WL 458146, *11 (Tex. Crim. App. Feb. 4, 2015) ............................................................. 18 Wooten v. State, 378 S.W.3d 652, 657 (Tex. App.-Houston [14th Dist.] 2012, pet. granted) ................................................................................ 17 Wooten v. State, 400 S.W.3d 601, 608–09 (Tex. Crim. App. 2013) ......... 18
Statutes
4 TEX. PEN. CODE § 9.31(a) .......................................................................... 15 TEX. PEN. CODE § 19.02 .............................................................................. 6 TEX. PEN. CODE § 19.02(a)(2) ................................................................ 6, 12 TEX. PEN. CODE § 19.02(d) ........................................................................ 12 TEX. PEN. CODE § 19.03(a)(2) ...................................................................... 6
5 Statement of the Case and Procedural History
It is undisputed that Beltran and Victor Ramos killed the com-
plainant. The only question in this case is whether Beltran murdered
the complainant in the course of a robbery, as the State alleged, or
whether, as Beltran maintained, he killed the complainant under the
immediate influence of sudden passion, or killed him in self-defense.
Beltran v. State, 05-12-01647-CR, 2014 WL 3587367 (Tex. App.—Dallas
2014).
Beltran was charged with the former—capital murder. (CR: 13);
see TEX. PEN. CODE § 19.03(a)(2). He pleaded not guilty, and the jury in-
deed rejected the State’s contention that Beltran murdered the com-
plainant in the course of robbing him. (CR: 59). Instead, consistent with
Beltran’s contention that he acted under the immediate influence of
sudden passion, the jury found him guilty of the lesser-included offense
of murder. See TEX. PEN. CODE § 19.02. When it came time to assess to
Beltran’s punishment, though, the court refused to submit to the jury
an instruction on sudden passion. (CR: 54-59); see TEX. PEN. CODE §
19.02(a)(2). Left with no guidance, the jury then sentenced Beltran to 70
years’ imprisonment. (CR: 59).
6 Beltran appealed to the Fifth Court of Appeals at Dallas, arguing
only that the trial court erred in refusing to submit such an instruction.
Beltran, 2014 WL 3587367. The Court overruled his complaint and af-
firmed his conviction on July 22, 2014. Id. No motion for rehearing was
filed.
7 Issue Presented
Whether, for purposes of determining whether an appellant was entitled to a jury instruction on sudden passion, some evidence that he acted in self-defense negates all evidence that he acted in sudden passion.
8 Statement of Facts
The sole witness to testify as to the circumstances surrounding
the complainant’s death was Beltran. He testified that, after a night of
heavy drug use, he and Victor Ramos went to the complainant’s apart-
ment searching for more. (RR7: 78-82, 91-92). Once there, they snorted
“cheese,” which, at trial, Beltran explained was heroin mixed with Ty-
lenol PM. (RR7: 66, 93-94). After doing so, the complainant made a
“gayish” comment, stroked Beltran’s face, and said “Pretty little thing.”
(RR7: 95). Beltran was uncomfortable and, in Spanish, told Ramos he
wished to leave, but Ramos assured Beltran that the complainant was
heterosexual (RR7: 95).
He was not. After Beltran and Ramos then ingested more
“cheese,” and then Xanax, Beltran passed out. (RR7: 98-102). He awoke
when he discovered the complainant—who Beltran initially believed to
be naked, but was in fact clad in women’s lingerie—licking his anus.
(RR4: 200-201; RR5: 164; RR7: 102-103).
Beltran screamed and “panicked,” in response to which the com-
plainant “jumped on top of [him].” (RR7: 104). The complainant was a
large man, standing six feet tall and weighing approximately two hun-
9 dred eighty pounds, in contrast to Beltran’s 160-pound stature. (RR4:
85). Beltran remained “panicking” as the complainant then attempted
to smother his breathing with a pillow. (RR7: 105-106). “[S]udden[ly],”
then, Ramos appeared and hit the complainant. (RR7: 106). The com-
plainant turned his attention to Ramos, at which point Beltran grabbed
him. (RR7: 107). As Beltran attempted to restrain the complainant,
Ramos stabbed him to death. (RR7: 107-109). Thereafter, Beltran con-
tinue to be “panicking,” “totally shocked,” “freak[ed] out,” and “scared.”
(RR7: 111-112).
10 Summary of the Argument
Beltran “panicked” when he was awoken by the complainant lick-
ing his anus. He remained “panicking” as the complainant then at-
tempted to smother his breathing with a pillow. And, upon assisting in
the complainant’s killing immediately thereafter, Beltran continued to
“panic,” and be “totally shocked,” “freak[ed] out,” and “scared.”
In determining whether the trial court erred in denying Beltran’s
request for a sudden passion instruction, though, the Dallas Court of
Appeals ignored this evidence in an effort to point to other evidence that
he did not act out of sudden passion. That, itself, is directly contrary to
this Court’s precedent and demands reversal. Even more demanding,
though, is that, ironically, that evidence which the blinders-donning
Court focused on—that Beltran acted in self-defense—also necessitated
reversal. Indeed, self-defense and sudden passion are intricately inter-
twined, and except in rare instances, facts that give rise to a self-
defense issue also give rise to a sudden-passion issue.
11 Argument
For purposes of determining whether an appel- lant was entitled to a jury instruction on sudden passion, some evidence that he acted in self- defense does not negate all evidence that he acted in sudden passion.
w w w
I. The court of appeals’s fatally flawed holding
On appeal to the Dallas Court of Appeals, Beltran pleaded that, in
light of all the evidence, the trial court erred in denying his request for
a punishment jury instruction on sudden passion.1 Beltran v. State, 05-
12-01647-CR, 2014 WL 3587367, *1 (Tex. App.—Dallas 2014). To justify
such an instruction, the record must only minimally support an infer-
ence that:
1) the defendant in fact acted under the immediate influence of a passion such as terror, anger, rage, or resentment;
1 A murder committed under the “immediate influence of sudden passion arising from an adequate cause” is a second-degree felony carrying a maximum punishment of twenty years’ imprisonment. TEX. PEN. CODE § 19.02(d). Sudden passion is “pas- sion directly caused by and arising out of provocation by the individual killed” which arises at the time of the murder. Id. at 19.02(a)(2). Adequate cause is a “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 reflec- tion.” Id. at 19.02(a)(1). The defendant has the burden of production and persuasion with respect to the issue of sudden passion. Id. at 19.02(d). 12 2) his sudden passion was in fact induced by some provocation by the deceased or another acting with him, which provoca- tion would commonly produce such a passion in a person of ordinary temper;
3) he committed the murder before regaining his capacity for cool reflection; and
4) a causal connection existed “between the provocation, pas- sion, and homicide.”
McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005). “In oth-
er words, sudden passion is ‘an excited and agitated mind at the time of
the killing caused by an act of the deceased.’” Rayme v. State, 178
S.W.3d 21, 28 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (quoting
Hobson v. State, 644 S.W.2d 473, 478 n. 10 (Tex. Crim. App. 1983)). It
does not matter that the evidence supporting the submission of a sud-
den passion instruction is weak, impeached, contradicted, or unbelieva-
ble. Id.; Trevino, 100 S.W.3d at 238-39. If the evidence raises the issue
from any source, during either phase of trial, then the defendant has
satisfied his burden of production and, if the defendant requests the in-
struction, the trial court must submit the issue in the jury charge.
McKinney, 179 S.W.3d at 569; Trevino, 100 S.W.3d at 238–39. And here,
Beltran’s repeated testimony that he acted while panicked certainly sat-
13 isfies that minimal standard. 2 See, e.g., Brunson v. State, 764 S.W.2d
888, 895 (Tex. App.—Austin 1989, pet. ref’d) (quoting multiple diction-
ary definitions of “panic” and then holding “the conclusion is inescapa-
ble that when appellant testified, ‘I panicked,’ he was testifying in
shorthand form, ‘I experienced a sudden terror of such degree that it
overwhelmed my mind.’”); Trevino, 100 S.W.3d at 239 (considering ap-
pellant’s demeanor after murder as supportive evidence to justify sud-
den-passion instruction, and holding that some evidence of sudden pas-
sion consisted of the defendant “freaking out,” “scared and panicked,”
“crying and shaking,” “pacing,” “consistently upset and crying,” “sound-
ed distressed,” and “looked past” the investigator); Moore v. State, 969
S.W.2d 4, 15 (Tex. Crim. App. 1998) (Keller, J., concurring and dissent-
ing) (“sudden passion can also be inferred from the conduct and appear-
ance of the defendant. Some examples could be: running, striking inan-
imate objects without any apparent rational purpose, shouting, scream-
2 It is immaterial that the evidence came solely from Beltran. See, e.g., Golden v. State, 851 S.W.2d 291, 295 (Tex. Crim. App. 1993) (“It is well-settled that a defend- ant’s testimony alone is sufficient to raise a defensive issue requiring an instruction in the jury charge.”); Hayes v. State, 728 S.W.2d 804, 807 (Tex. Crim. App. 1987). Moreover, one of the State’s expert witnesses confirmed that, consistent with Bel- tran’s testimony, the complainant’s DNA was found on the inside of Beltran’s un- derwear. (RR7: 55-57). 14 ing, crying, and facial expressions.”); see also Jones v. State, 687 S.W.2d
425, 430 (Tex. App.—Dallas 1985, pet. ref’d) (Stephens, J., dissenting)
(“Magic words, such as ‘sudden passion’ are unnecessary, so long as the
circumstances give rise to the inference that the defendant acted under
‘sudden passion.’”). Indeed, the court of appeals repeatedly acknowl-
edged Beltran panicked. Beltran, 2014 WL 3587367 at *1-3 (“Beltran
screamed in panic and moved”; “‘Panicking’ and ‘shocked,’ Beltran
asked Ramos if they should call the police”; “[Beltran] said his reaction
to finding McKnight assaulting him was to move and scream in panic.”).
Yet, the court of appeals held that the evidence did not even “min-
imally support” an inference that Ramos acted out of sudden passion
because the evidence also showed “Beltran was consciously aware of the
danger [the complainant] posed” and tried “to protect Ramos and him-
self” and “to get control of the situation.” Id. at *3 (citing Moore, 969
S.W.2d at 15 (Keller, J., concurring and dissenting) (quoting Merchant
v. State, 810 S.W.2d 305, 309–10 (Tex. App.—Dallas 1991, pet. ref’d));
Jones, 687 S.W.2d at 428). In other words: that Beltran acted in self-
defense. See TEX. PEN. CODE § 9.31(a) (“a person is justified in using
force against another when and to the degree the actor reasonably be-
15 lieves the force is immediately necessary to protect the actor against the
other’s use or attempted use of unlawful force.”).
II. Evidence that Beltran acted in self-defense doesn’t negate evidence he acted in sudden passion
This was plainly incorrect. First, even if sudden passion and self-
defense were mutually exclusive concepts, this Court in its seminal
opinion on the issue of sudden-passion jury instructions forbid that ex-
act parsing analysis:
The problem with the State’s argument is that it addresses solely the evidence against sudden passion. While the evi- dence the State mentions was presented at trial, an appel- late court’s duty is to look at the evidence supporting that charge, not on the evidence refuting it.
Trevino, 100 S.W.3d at 238-39. Thus, even if the concepts were wholly
distinct, that evidence of both was present in no way precludes an in-
struction as to sudden passion.
And, sure enough, those cases to which the Dallas Court of Ap-
peals cited as support for its contrary holding contained no additional
evidence to that which indicated the defendant did not act out of sudden
passion. Actually, the Moore opinion isn’t supportive at all—its a hybrid
concurrence/dissent, pointed to only for the undisputed proposition that
“[e]vidence of adequate cause does not automatically raise the issue of
16 sudden passion.” Moore, 969 S.W.2d at 15 (Keller, J., concurring and
dissenting). Moreover, as noted above, in that opinion Judge Keller
pointed to screaming and crying—as Beltran did—as evidence of sudden
passion. Id. And Jones rejected a claim of sudden passion because it
found the defendant initiated the provocation that lead to the killing by
burglarizing the victim’s home. Jones, 687 S.W.2d at 427-28. Only al-
ternatively did it address whether the defendant acted out of sudden
passion, and even then it held simply that evidence he was worried the
victim was reaching for a knife did not itself constitute evidence of sud-
den passion. There was no evidence in that case that he panicked. Id. at
429.
More significant, though, is that self-defense and sudden passion
are not mutually exclusive concepts; that Beltran’s acted to prevent the
complainant from harming him does not weigh against sudden passion.
Indeed, “[s]elf-defense and sudden passion are intricately intertwined,
and except in rare instances, facts that give rise to a self-defense issue
also give rise to a sudden-passion issue.” Wooten v. State, 378 S.W.3d
652, 657 (Tex. App.-Houston [14th Dist.] 2012, pet. granted) (citing
Chavez v. State, 6 S.W.3d 56, 65 (Tex. App.—San Antonio 1999, pet.
17 ref’d), rev’d on other grounds 400 S.W .3d 601, 606–07 (Tex. Crim. App.
2013); see also Brunson, 764 S.W.2d at 894-95 (“It is difficult for this
Court to imagine a situation in which the evidence would be sufficient
to raise the issue of the use of deadly force in self-defense, and yet
would not be sufficient to satisfy the adequate cause prong of the volun-
tary manslaughter test.”); Thompson v. State, 02-12-00351-CR, 2013
WL 5303631 (Tex. App.—Fort Worth 2013, pet. ref’d) (an unprovoked,
violent attack with a box cutter is sufficient provocation to induce the
requisite emotional state in a person of ordinary temperament to justify
a sudden-passion instruction); Moore, 969 S.W.2d at 11 (holding evi-
dence that murder occurred during violent fight, including victim’s at-
tempt to run appellant over with a car, sufficient to raise sudden pas-
sion). This Court has repeatedly and recently recognized as much, not-
ing that a jury’s treatment of one is informative as to the other. Villar-
real v. State, ---S.W.3d ---, No. PD-0332-13, 2015 WL 458146, *11 (Tex.
Crim. App. Feb. 4, 2015) (citing Wooten v. State, 400 S.W.3d 601, 608–
09 (Tex. Crim. App. 2013)). Only when capable of cool reflection do facts
that give rise to a self-defense instruction not also give rise to a sudden-
passion instruction, and again, in this case, Beltran repeatedly testified
18 he was panicked during the entirety of the rapid sequence. Cf. Daniels
v. State, 645 S.W.2d 459, 460 (Tex. Crim. App. 1983) (no evidence of
sudden passion in self-defense case where defendant testified that he
was “in full control” and “knew [he] had to do what [he] did.”); Pierce v.
State, No. 08-12-00150-CR, 2014 WL 1633028, at *5 (Tex. App.—El
Paso 2014, pet. ref’d) (“There is no evidence, however, that her fear rose
to the level of terror such that it rendered her mind incapable of cool re-
flection at the time she shot Mr. Pierce. To the contrary, Appellant stat-
ed that she did not want to shoot him, but she knew if she did not do it,
he would kill her. Appellant also had time to retrieve her gun from her
purse, go into the bathroom, and wait for Mr. Pierce to walk toward the
bathroom.”); Milliff v. State, No. 14-13-00052-CR, 2014 WL 1713897, at
*7 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (appellant not enti-
tled to sudden passion instruction where he “declared his intention was
to kill [the complainant] because he pulled a gun on him: ‘someone pulls
a gun on you, you're going to kill [him].’ Appellant's own appraisal of his
situation reveals that he had reflected on it, knew what he had to do,
and did it.”). Far from precluding Beltran’s entitlement to a sudden
passion instruction, then, that he recognized the danger the complain-
19 ant posed and tried to suppress it supports his right to the instruction.
And, in fact, the recognition of the danger posed by the complainant led
directly to Beltran’s agitated state of mind and caused him to be inca-
pable of reflection.
III. Conclusion
There was ample evidence in this case that Beltran acted out of
sudden passion. Certainly, there was not “no evidence.” Beltran, 2014
WL 3587367 at *3. Because the evidence also indicated Beltran acted in
self-defense, though, the court of appeals held there was “no evidence”
Beltran acted “under the immediate influence of sudden passion,” and
he was therefore not entitled to a jury instruction on the issue. This was
incorrect, for multiple reasons.
Prayer
Accordingly, Beltran respectfully requests this Court to reverse
the judgment of the Dallas Court of Appeals and remand this case to
that court for an analysis of whether Beltran was harmed by the trial
court’s error.
Respectfully submitted,
20 /s/ Robert N. Udashen ROBERT N. UDASHEN, P.C. Bar Card No. 01274700 rnu@sualaw.com
/s/ Brett Ordiway BRETT ORDIWAY Bar Card No. 24079086 bordiway@sualaw.com
SORRELS, UDASHEN & ANTON 2311 Cedar Springs Road Suite 250 Dallas, Texas 75201 (214)-468-8100 (office) (214)-468-8104 (fax)
Attorneys for Appellant
21 Certificate of Service
I, the undersigned, hereby certify that a true and correct copy of the foregoing Appellant’s Petition for Discretionary Review was elec- tronically served to the Dallas County District Attorney’s Office and the State Prosecuting Attorney on February 25, 2015.
/s/ Robert N. Udashen ROBERT N. UDASHEN, P.C.
Certificate of Compliance
Pursuant to TEX. R. APP. P. 9.4(i)(3), undersigned counsel certifies that this brief complies with:
1. the type-volume limitation of TEX. R. APP. P. 9.4(i)(2)(B) because this petition contains 2,541 words, excluding the parts of the brief exempted by TEX. R. APP. P. 9.4(i)(1).
2. the typeface requirements of TEX. R. APP. P. 9.4(e) and the type style requirements of TEX. R. APP. P. 9.4(e) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2011 in 14-point Century Schoolbook.