Opinion
No. 05-03-01164-CR
Opinion issued February 16, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, No. 5, Dallas County, Texas, Trial Court Cause No. F99-55464-JL. Affirmed.
Before Justices WHITTINGTON, BRIDGES, and FRANCIS.
Larnarl Donnell Anderson appeals his murder conviction. Appellant was initially sentenced to thirty years' confinement. Appellant appealed, and the Thirteenth Court of Appeals reversed his conviction on the basis that the trial court erred in failing to charge the jury on sudden passion and remanded for a new punishment hearing. At the conclusion of the rehearing on punishment, the jury found appellant did not act under the influence of sudden passion and sentenced him to seventy years' confinement. In two points of error, appellant argues the evidence is legally and factually insufficient to support the jury's finding that appellant did not act under the immediate influence of sudden passion arising from an adequate cause. We affirm the trial court's judgment. On December 4, 1999, appellant drove up to a tire shop where the decedent, Ziad Hindi, worked. According to appellant's statement, he and two men were in one car, and another man and his girlfriend pulled up in a second car. When asked why they were there, appellant responded, "We ain't here for nothing." Appellant waited for thirty or forty minutes, during which time he saw other cars coming and going. Appellant asked what the problem was and was told to wait. After another forty-five minutes, appellant was told he was next. Appellant asked if the man he spoke to could be the one to work on the car because decedent was standing nearby at the time. Appellant did not want decedent to work on the car because "he is the one I always have conflicts with." "Words were then passed between" appellant and decedent. Decedent told appellant he could just leave, but appellant replied that he did not have to leave because he was dealing with the "other guy." More "words were passed." Appellant said, "You can't tell me what to do" and walked back toward where he was parked. Decedent grabbed appellant by the throat and started choking him. Appellant was forced back onto the hood of a car, and Decedent let him go. According to appellant, "That's when I started shooting." Appellant fled the scene and threw his automatic handgun in a dumpster. Tony Roberson, a witness to the shooting, testified a Hispanic employee at the tire shop asked appellant and his companions what they wanted. Appellant responded, "Mother fucker, come see what we want." Decedent walked down to appellant and returned, telling another employee to "do that car down there" when he finished with the car he was working on because "he don't want me to work on his car." Shortly thereafter, appellant approached Roberson and said, "I want the same one working on your car to do mine when he get through. Because I already had it out with this mother fucker," which Roberson took to mean decedent. Decedent told appellant, "I've already told him to help you when he get through. You don't have to keep cursing." Appellant replied, "Fuck you." Decedent said, "If you don't stop cursing, you're going to have to leave." Appellant continued cursing, and decedent got up from where he was working, approached appellant, and grabbed him by the throat for about fifteen seconds and then put appellant in a "bear hug" from which he could not escape. The bear hug lasted three to four minutes. Appellant said, "Mother fucker, let me go," and decedent told appellant to calm down. Decedent told appellant he was going to let him go but said appellant then had to leave because he was not getting any service. Roberson did not hear decedent make any verbal threats toward appellant or insult appellant. Decedent let appellant go, shoving him a little distance away. Appellant pulled a gun out of his pocket and fired twice. Decedent was "gagging" and had not yet fallen to the ground. Appellant shot decedent again and started running across the street. Appellant testified that, while they were waiting at the tire shop, he and his companions were smoking marijuana dipped in embalming fluid. At one point, decedent told appellant not to curse. Appellant cursed again, and decedent grabbed appellant by his neck, choking him for about fifteen seconds. Appellant was "scared" and could not breathe. Appellant "got [decedent's] hand off me," and decedent grabbed him from behind. Appellant testified decedent told him, "Don't curse no more. I'm going to cut your ass right here, right now." The bear hug lasted approximately fifteen seconds, and decedent then pushed appellant away. Appellant pulled out his gun and "just fired." Appellant shot decedent "three or four times" without stopping or hesitating. Appellant was "just scared" for his life and did not know if decedent was "going to try to cut me for real or not." Appellant testified he "just reacted out of fear." The jury found appellant did not act under the immediate influence of sudden passion arising from an adequate cause and sentenced him to seventy years' confinement. This appeal followed. In two points of error, appellant argues the evidence is legally and factually insufficient to support the jury's finding that he did not act under the immediate influence of sudden passion arising from an adequate cause when he shot decedent. When we review the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). The inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner, 805 S.W.2d at 427. In reviewing the factual sufficiency of the evidence, we are to view all of the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also insufficient when contrary evidence is so strong that the beyond-a-reasonable doubt standard could not have been met. Id. 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). The jury, as trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). As such, the jury may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). A jury is also permitted to make reasonable inferences from the evidence. See Stahle v. State, 970 S.W.2d 682, 686-87 (Tex.App.-Dallas 1998, pet. ref'd). 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, the record shows decedent grabbed appellant by the throat for approximately fifteen seconds and put him in a bear hug for a period of time before letting him go. Appellant testified he was scared for his life and did not know if decedent was going to "try to cut [him] for real or not." Roberson, who witnessed the struggle, testified he did not hear decedent make any verbal threats toward appellant or insult appellant. Appellant did not testify decedent possessed or exhibited a knife or any other weapon. Although appellant testified he did not pause between shots, Roberson testified appellant shot decedent twice and then stopped and looked around before shooting decedent again as decedent stood there gagging. The jury was free to disbelieve the evidence that appellant acted under the immediate influence of sudden passion arising from an adequate cause and believe the testimony that decedent did not threaten appellant other than by grabbing him and letting him go. The jury was free to believe appellant shot the unarmed decedent twice, causing him to gag and slowly drift toward the ground, before shooting him again. See Sharp, 707 S.W.2d at 614; McCray, 861 S.W.2d at 407. Under these circumstances, we conclude the evidence is legally and factually sufficient to support the jury's finding that appellant did not act under the immediate influence of sudden passion arising from an adequate cause when he shot decedent. See Jackson, 443 U.S. at 319; Zuniga, 144 S.W.3d at 484-85. We overrule appellant's first and second points of error. We affirm the trial court's judgment.