No. 04-06-00823-CR
Delivered and Filed: October 31, 2007. DO NOT PUBLISH.
Appeal from the 290th Judicial District Court, Bexar County, Texas, Trial Court No. 2005-CR-8922, Honorable Sharon MacRae, Judge Presiding. AFFIRMED.
Sitting: CATHERINE STONE, Justice, KAREN ANGELINI, Justice, REBECCA SIMMONS, Justice.
KAREN ANGELINI, Justice.
Carlos Inocencio pled guilty to the offense of murder. At the punishment hearing before the trial court, Inocencio raised the issue of sudden passion. The trial court, however, found that Inocencio had not acted with sudden passion and sentenced him to life imprisonment. Inocencio appeals, contending the evidence was factually insufficient to support the trial court's finding against sudden passion. We disagree and affirm the trial court's judgment.
Standard of Review
We may conduct a factual sufficiency review of a factfinder's negative finding on the sudden passion issue in the punishment phase of the trial. Cleveland v. State, 177 S.W.3d 374, 390 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd), cert. denied, 547 U.S. 1073 (2006); Hernandez v. State, 127 S.W.3d 206, 211-12 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd); Amador v. State, No. 05-01-01714-CR, 2003 WL 21204971, at *3 (Tex.App.-Dallas 2003, no pet.); Hutchins v. State, No. 03-01-00670-CR, 2002 WL 31769017, at *4 (Tex.App.-Austin 2002, pet. ref'd). Because a defendant has the burden of proof on the issue of sudden passion by a preponderance of the evidence, see Tex. Penal Code Ann. § 19.02(d) (Vernon 2003), in conducting a factual sufficiency review, we consider all of the evidence relevant to the issue and evaluate whether the judgment is so against the great weight and preponderance of the evidence so as to be manifestly unjust. Hernandez, 127 S.W.3d at 212; see also Gallo v. State, No. AP-74900, 2007 WL 2781276, at *10 (Tex.Crim.App. Sep. 26, 2007) (applying this standard when conducting factual-sufficiency review of jury's finding that defendant was not mentally retarded and explaining that defendant had burden of proof on the issue by preponderance of evidence); Meraz v. State, 785 S.W.2d 146, 155 (Tex.Crim.App. 1990) (applying this standard when conducting a factual-sufficiency review of affirmative defense of insanity). Sudden Passion
During the punishment phase of trial, a defendant may argue that he caused the death while under the immediate influence of sudden passion arising from an adequate cause. McKinney v. State, 179 S.W.3d 565, 569 (Tex.Crim.App. 2005); see Tex. Penal Code Ann. § 19.02(d) (Vernon 2003). "Sudden passion" is "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. Penal Code Ann. § 19.02(a)(2) (Vernon 2003). "Adequate cause" is "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." Id. § 19.02(a)(1). Sudden passion is a mitigating factor that, if found by the factfinder to have been proven by a preponderance of the evidence, reduces the offense from a first-degree felony to a second-degree felony. See id. § 19.02(c)-(d). The Evidence
It is undisputed that Inocencio killed his girlfriend, Janine Crane. Inocencio asserts, however, that he did so under immediate influence of sudden passion arising from an adequate cause. According to police officer testimony, on September 14, 2005, officers were dispatched to an apparent DOA at an apartment. In the bedroom of the apartment they found a woman's body lying on the bed, with blood on her face and bruises on her arms and face. The officers also found Inocencio in the apartment, and they transported him to the police station where he gave a videotaped interview. In the interview, Inocencio admitted to killing Crane. He later pled guilty to murder and elected to have the trial court determine his punishment. During the punishment hearing, the State presented the testimony of Carla Lopez, one of Inocencio's former girlfriends. According to Lopez, she began a five-year relationship with Inocencio when she was fifteen years old and he was twenty years old. Lopez recounted numerous occasions during which Inocencio accused her of infidelity, hurt her physically, and then apologized and reconciled with her. On these occasions, Inocencio was usually drinking heavily and smoking marijuana. According to Lopez, the first such occasion happened during the first summer she and Inocencio were dating. They were in a swimming pool when Inocencio falsely accused Lopez of flirting with another man. Inocencio pushed Lopez against the edge of the pool, hurting her back. He apologized, but then frightened her by putting his hand on her head when she was under the water. Again, he apologized and told her he was just kidding. This incident was followed by a few others during which Inocencio falsely accused her of wanting other men. On these occasions, Inocencio would pin Lopez down, push her against a wall, and forcefully question her. Lopez also recounted a particular incident that happened while she and Inocencio were staying in a hotel room with some friends. According to Lopez, Inocencio became jealous because he discovered a boy at Lopez's school liked her. Inocencio beat her for the first time, tearing up the hotel room in the process. When Lopez was seventeen years old, she and Inocencio moved in together. About two weeks later, Inocencio falsely accused Lopez of flirting with their neighbor. Lopez grabbed a knife from the kitchen and ran out of the apartment. She later returned, however, and their relationship continued as before, with Inocencio falsely accusing her of flirting with other men and then physically abusing her. Eventually, according to Lopez, Inocencio obtained a shotgun. One night, Lopez went to bed, but Inocencio woke her up and forced her to drink tequila with him. They began to fight, as they had in the past, over Inocencio's suspicions that Lopez had been unfaithful. According to Lopez, he worked himself into an irate frenzy and was throwing her around the bedroom. At one point, Inocencio grabbed the gun and threatened to kill her with it. He also sexually assaulted her that night. As the argument continued, Lopez screamed for help, and the police eventually came to the door. Inocencio was arrested and charged; he was later placed on deferred adjudication. He and Lopez stayed together for another year. Although Inocencio attended anger management classes, he told Lopez the classes were a joke and not to be taken seriously. Lopez finally left Inocencio because of an incident that occurred the night of a friend's wedding. At the wedding reception, Inocencio loudly accused Lopez of infidelity and began fighting with another man. Eventually, Lopez and Inocencio left the reception and went home. Inocencio was so drunk Lopez thought he would pass out and sleep until morning. Instead, he woke up and became angry and accusing. Although Inocencio had not yet hit her on that occasion, Lopez called 911 and asked for help. The police officer who answered her call offered to take her to a woman's shelter. Lopez packed her things and left. Lopez also testified that when Inocencio was not drinking he was a decent person and that after very violent episodes, he would try not to drink. But, according to Lopez, during their relationship, his drinking just got worse. In addition to testimony from Lopez, the State presented testimony from Carla Roller, another of Inocencio's former girlfriends. Roller and Inocencio dated for a little over two years. About six months into their relationship, Inocencio became jealous and pushed her because a man had gone to Roller's house when Inocencio was not there. Nevertheless, a month or two later, Roller moved in with Inocencio. According to Roller, Inocencio continued to be jealous and to accuse her of wanting to be with other men. On one occasion, after accusing Roller of planning to sleep with a friend, Inocencio pushed her, got on top of her, and punched her in the face. He tried to break her neck and told her he was going to kill her. The police were called on that occasion. On another occasion, Inocencio and another man began fighting in the apartment. Roller left the apartment and called the police. Inocencio was arrested on a possession charge. Roller testified that the biggest problem in her relationship with Inocencio was his jealousy and his propensity for imagining things that were not true yet believing them. Roller testified that Inocencio drank heavily. However, according to Roller, when he was not drinking, he was not as jealous or as aggressive. Also at the punishment hearing, the State presented testimony from Inocencio's brother, George Inocencio. According to George, when Inocencio was young, he began hanging out with some bad people who introduced him to marijuana and drinking. As he got deeper into drugs and alcohol, Inocencio could not keep a job. Inocencio eventually began sharing an apartment with Carla Lopez. Although George bailed Inocencio out of jail several times because of assault charges, Inocencio never told George he had hit anybody. George knew both Carla Lopez and Carla Roller, and he never saw any signs of physical abuse on them. According to George, Inocencio lived with him for a while, but he asked Inocencio to leave because of his alcohol problem. George eventually became aware that Inocencio was living with a new girlfriend, Janine Crane. On September 14, 2005, George got a phone call from his sister who told him what had happened with Inocencio and Crane. George then talked to Inocencio who told him "that he had killed her and that he had lost it." George called the police and then went to Inocencio's apartment. Inocencio told him "that he had found out that Janine was seeing another man and he had lost it, and that's why he did it." Inocencio was still very angry about it. He also expressed remorse. He "just kept saying that he lost it, he lost it." When the police came, they arrested Inocencio. George testified that at some point in the past Inocencio received psychiatric treatment after attempting suicide. According to George, Inocencio was nice and normal when he was not drinking, but with alcohol, he became somebody else. George had never known Inocencio to have violent episodes, and the incident of September 14th came as a total surprise to him and his whole family. Neither he nor his family thought Inocencio was capable of doing something like that. George admitted, however, that in his statement to the police he said that he had asked Inocencio to leave his apartment because of his violent nature. He also admitted that he may have told the police that Inocencio had beaten up almost every girlfriend he has lived with. However, at trial, George testified that this former statement to the police was not true. According to George, he was so traumatized at seeing Crane's body on the night in question that "everything was mixed up in [his] brain." George testified that if he had known Inocencio was beating up his girlfriends, he would have done something about it. Crane's nine-year-old son, Logan, testified that on one occasion he was going to the store with Inocencio when Inocencio pushed him down in the parking lot, pulled his arm down, and pinned him down. According to Logan, on another occasion, he saw Inocencio threaten Logan's dad with a baseball bat. The Bexar County Medical Examiner, Dr. John Stash, testified regarding the autopsy he performed on Janine Crane. Externally, there were a large number of contusions, lacerations, and abrasions throughout the whole body. Internally, there was hemorrhaging in the brain, blood in both chest cavities, fractured ribs, and lacerations of the lung and liver and adrenal gland. According to Dr. Stash, the cause of death was multiple blunt force injuries. The State also presented testimony from Crane's sister, Jolinda Hort. Hort testified that in August 2005 Crane called her parents. After that call, her parents called Hort and told her that Crane had been beaten. Hort then called the San Antonio Police Department and asked them to check on Crane. After Crane called her parents a second time, Hort again called the police. Crane then called Hort and told her that Inocencio would not let her answer the door that day and that he had taken her out of the house and would not let her stay home by herself after that. This incident occurred about two weeks before Crane's death. Inocencio testified that he started drinking beer when he was fifteen years old. He started drinking heavily in his senior year of high school. Inocencio confirmed that both Lopez's and Roller's descriptions of his relationships with them are accurate; however, he attributed the problems in these relationships to alcohol addiction. Although he tried on occasion to get help, he was unsuccessful. When he was about sixteen or seventeen, he tried to kill himself by throwing himself in front of a bus. Inocencio met Crane about eight or nine months before her death. He was living on the streets, and she allowed him move in with her. According to Inocencio, his relationship with Crane was different than his relationships with Lopez and Roller; he and Crane got along very well. According to Inocencio, on the day of Crane's death, he had been drinking heavily. Crane confessed to him that she had been having unprotected sex with several of the neighbors who were friends of his. He felt "hurt" and "betrayed"; he "went into a rage and lost total control of [him]self." He became "very angry." So, he punched Crane and kicked her until she was dead. Although Inocencio initially described himself as a person with an ordinary temper, he does not think Lopez and Roller described him as a man with ordinary temper. Thus, he agreed that he is not a man with an ordinary temper. And, although he told the police he had assaulted Crane a couple of days before he killed her, at the punishment hearing, he testified that his former statement was not true. According to Inocencio, before the night Crane died, he had never assaulted her; instead, Inocencio testified that Crane had been assaulted by one of her ex-boyfriends. Further, when asked whether his response to Crane telling him she was sleeping with other men was reasonable, he replied, "No, it is not." Inocencio nevertheless explained his actions by testifying that he was intoxicated and in a blackout. Thus, according to Inocencio, he did not know what he was doing. Discussion
In asserting the evidence was factually insufficient, Inocencio points to the testimony of his brother, George, that Inocencio told him that when he discovered Crane was unfaithful, he "lost it." Further, he points to his own testimony in which he stated that when Crane told him about having unprotected sex with other men, he went into a rage and lost total control over himself. Additionally, Inocencio focuses on his videotaped interview with the police in which he displays shock and even gets physically ill when he recounts the events. He also emphasizes that during the interview he reiterates that he "lost it." Inocencio also points out that he and Crane got along well with each other, but that he lost control when he discovered Crane was cheating on him. Inocencio argues Crane's admission of an affair was the provocation that led to the altercation that resulted in her death. And, according to Inocencio, the statements that "he lost it" and that he became "enraged" are evidence to support sudden passion: that is, being confronted with Crane's infidelity is a circumstance that would commonly produce a degree of anger, rage, or resentment and is indicative of "adequate cause" as defined in the penal code. We disagree with Inocencio's contentions. When we consider all the evidence in a neutral light, the evidence is not so against the great weight and preponderance of the evidence so as to be manifestly unjust. Although Inocencio testified that Crane told him she was having unprotected sex with other men, the trial court could have disbelieved this testimony, especially in light of the pattern of conduct established by the State with regard to Inocencio's relationships with his former girlfriends. According to two of his former girlfriends, their relationships with Inocencio were dominated by his false accusations of infidelity, followed by physical abuse. And, although at the punishment hearing Inocencio denied ever abusing Crane before the night of her death, he did tell the police that he had assaulted Crane a couple of days before her death. Further, even if the trial court believed that Crane had admitted to having unprotected sex with other men, such a statement does not amount to "adequate cause." 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 reflection." Tex. Penal Code Ann. § 19.02(a)(1) (Vernon 2003). Inocencio himself testified that, considering his behavior during his past relationships with Lopez and Roller, he was not a man with an ordinary temper. Moreover, when asked whether his response to Crane telling him she was having unprotected sex with other men was reasonable, he replied, "No, it is not." Thus, reviewing all the evidence neutrally, it is apparent Inocencio not only had a violent temper, but he also reacted unreasonably to Crane's confession about having unprotected sex with other men. Additionally, even if Crane provoked Inocencio with her confession, provocation alone is insufficient to show sudden passion. See McKinney, 279 S.W.3d at 571 (explaining that although provocation is necessary, it is "not alone sufficient because . . . there are additional factors that are required to show that the defendant was under the immediate influence of sudden passion"). Finally, Inocencio relies heavily on his consistent protestations that he "lost it" and that he became "enraged." However, this testimony from Inocencio does not amount to sudden passion arising out of adequate cause. See Bridges v. State, No. 01-94-01239-CR, 1996 WL 396923, at *4-*5 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd) (holding appellant did not act under immediate influence of sudden passion where his girlfriend asked him to leave, stated she wanted to end their relationship, cut him with a knife, whereupon appellant was terrified, "mentally lost it," and stabbed girlfriend with the knife until she was dead); Gaston v. State, 930 S.W.2d 222, 226 (Tex.App.-Austin 1996, no pet.) (finding no sudden passion where appellant's wife nagged and taunted him, told him she was moving out and promised a property squabble, after which he "went blank or into a trance, stopped thinking, felt hurt and angry, and lost control of himself" and then shot and killed his wife). We conclude that the evidence is factually sufficient to support the trial court's finding that Inocencio did not cause Crane's death while under the immediate influence of sudden passion arising from an adequate cause. Conclusion
We affirm the trial court's judgment.