Opinion
No. 05-03-00779-CR
Opinion issued July 27, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F02-54879-PK. Affirmed.
Before Justices MOSELEY, BRIDGES, and LANG-MIERS.
OPINION
Alexander Ortiz appeals his murder conviction. A jury convicted appellant and sentenced him to life confinement. In three issues, appellant argues the jury's failure to find he acted under the influence of sudden passion was against the great weight and preponderance of the evidence, and his constitutional rights were violated by the jury's sentence that is grossly disproportionate to the crime. We affirm the trial court's judgment. At approximately 4:00 a.m. on September 14, 2002, appellant called his estranged girlfriend, Raquel Barrientos. Barrientos told appellant "now is not the time" and said she was with someone. Appellant drove to Barrientos' apartment "to go see what was up." When he arrived, he looked over the fence and saw Barrientos' car and a car he recognized as Tia Knight's. Appellant and Barrientos had met Knight previously in an attempt to find another woman so they "could go to the house and have a threesome." Appellant believed Knight and Barrientos were having a sexual relationship. Because appellant "wanted to catch her in the act," he kicked in the bedroom window and went inside. Appellant found Barrientos and Knight in bed together. Both women were clothed. At that point, appellant "lost it" and grabbed Barrientos and started hitting her. Knight fled the apartment. Appellant testified he could not remember all of what he did to Barrientos because "it happened so fast." However, appellant testified he was not denying he was the one who cut and stabbed Barrientos and killed her. Janice Townsend-Parchman, a forensic pathologist with the Dallas county medical examiner, performed an autopsy on Barrientos and found eleven stab wounds and "at least 100 incised wounds" on the body. A jury convicted appellant and sentenced him to life confinement. This appeal followed. In his first issue, appellant argues the jury's failure to find he acted under the influence of sudden passion was against the great weight and preponderance of the evidence. A factual sufficiency review is applicable to this issue. Naasz v. State, 974 S.W.2d 418, 420-23 (Tex. App.-Dallas 1998, pet. ref'd). When a defendant challenges the factual sufficiency of the rejection of a defense, the reviewing court reviews all of the evidence in a neutral light and asks 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). At the punishment stage of trial, the defendant may raise the issue of whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. Tex. Pen. Code Ann. § 19.02(d) (Vernon 2003). "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). Here, appellant testified he called Barrientos at approximately 4:00 a.m. and learned she was with someone else. Appellant drove to her apartment and found Knight's car parked outside, indicating Knight and Barrientos were together. Appellant had previously encouraged a relationship between Knight and Barrientos, but appellant was angry he wasn't included because "It was supposed to [sic] been all three of us. It wasn't supposed to [sic] been just them two." Appellant then kicked in the bedroom window and went inside. Although the women were in bed, they were both clothed. Nevertheless, appellant "lost it" and grabbed Barrientos and started hitting her before stabbing her and cutting her at least 100 times. Knight fled the apartment. Based on these facts, we cannot conclude the jury's failure to find appellant acted under the influence of sudden passion was against the great weight and preponderance of the evidence. See Tex. Pen. Code Ann. § 19.02 (Vernon 2003); Zuliani, 97 S.W.3d at 595. We overrule appellant's first issue. In his second and third issues, appellant argues the jury unconstitutionally imposed a sentence that is grossly disproportionate to the crime. In determining whether a sentence is disproportionate to a crime, we apply a three part analysis: (1) look to the gravity of the offense and the harshness of the penalty; (2) compare the sentences imposed on other criminals in the same jurisdiction; and (3) compare the sentences imposed for commission of the same crime in other jurisdictions. Lackey v. State, 881 S.W.2d 418, 420 (Tex. App.-Dallas 1994, pet. ref'd) (quoting Solem v. Helm, 463 U.S. 277, 290-92 (1983)). Here, appellant was convicted of murder, a first-degree felony. Tex. Pen. Code Ann. § 19.02(c) (Vernon 2003). The range of punishment for that offense is imprisonment for life or for any term of not more than 99 years or less than five years with an optional $10,000 fine. Tex. Pen. Code Ann. § 12.32(a) (Vernon 2003). The jury sentenced appellant to life confinement and did not impose a fine. Appellant testified he was not denying he was the one who cut and stabbed Barrientos and killed her. The record shows appellant inflicted eleven stab wounds on Barrientos and at least 100 incised wounds with a knife, a potato peeler, and scissors. Under the facts and circumstances of this case, we cannot conclude the imposition of a life sentence was grossly disproportionate to appellant's crime. See Lackey, 881 S.W.2d at 420. We overrule appellant's second and third issues. We affirm the trial court's judgment.