                                                                           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.

                                      /s/ Robert N. Udashen
                                  ROBERT N. UDASHEN, P.C.




                                   22
