                         NUMBERS 13-13-00489-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG

REMUS LITOIU,                                                                 Appellant,

                                             v.

THE STATE OF TEXAS,                                                           Appellee.


                     On appeal from the 36th District Court
                        of San Patricio County, Texas.


                          MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Benavides and Perkes
               Memorandum Opinion by Justice Perkes
       Appellant, Remus Litoiu, appeals his conviction of murder, a first-degree felony.

A jury found appellant guilty and assessed punishment at seventy-five years in the Texas

Department of Criminal Justice, Institutional Division, and a $10,000.00 fine. See TEX.

PENAL CODE ANN. § 19.02(b)(1) (West, Westlaw through Chapter 46 2015 R.S.). By two

issues, appellant argues that the trial court erred by: (1) failing to submit a charge on the
lesser-included offense of aggravated assault to the jury during the guilt-innocence phase

of the trial; and (2) by refusing to submit an instruction on sudden passion to the jury

during the punishment phase of the trial. We affirm.

                                  I.     BACKGROUND

      On October 24, 2012, the Ingleside Police Department dispatched police officers

in response to a call that a woman had been assaulted. Upon arrival, the officers found

the body of Maria DeLeon, lying face down on the sidewalk adjacent to an apartment

complex. DeLeon had multiple stab wounds, was without a pulse, and was cold to the

touch. A short distance away, appellant opened his apartment door dressed only in his

underwear and covered in blood. The officers arrested appellant. During the search of

appellant’s apartment, the officers found a knife in the upstairs bedroom and a knife in

the downstairs bathroom. The officers took appellant to the police station, where he

waived his Miranda warnings and admitted that he stabbed DeLeon.

      Appellant testified in his defense during the trial. Appellant testified that he was

employed as an engineer at the Kiewit Offshore Services prior to DeLeon’s death. After

a promotion, appellant’s mental health started to deteriorate. In July 2012, he attempted

suicide. He was then transported to a hospital where he was diagnosed with depression

and prescribed medication which he took until September 2012. His mental condition

worsened, and in October 2012, family members called law enforcement out of concern

for his well-being. He was taken to a local hospital, prescribed valium (for sleep), and

returned home.




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      Appellant testified that later that month, he was in a bad mental state. After he

spoke with his family in Romania, he believed that DeLeon had somehow caused his

mother’s execution.    Appellant believed that DeLeon intended to steal his identity.

When he informed DeLeon that his mother was dead, DeLeon called EMS. Appellant

was taken to the hospital where he was diagnosed with severe depression and mental

illness. Again, he was given valium and sent home.

      Appellant lastly testified that around midnight on the night DeLeon was killed, he

stormed out of the apartment wearing only his underwear and drove to a local park.

Appellant explained that he believed his mother and other family members were waiting

for him. Appellant looked around the park but did not see any of his family so he started

walking down the road. The police stopped appellant and when they asked him where

he was coming from, he replied, “Hell”. He told the officers that he felt that living with

Ms. DeLeon was “hell”. EMS was called and treated appellant. Afterwards, DeLeon

took him home.     Later that night, appellant stabbed and killed DeLeon.         Appellant

testified that “in a moment of fury”, and believing that DeLeon was involved in the

imagined death of his mother, he grabbed two knives, ran upstairs, and stabbed her.

                             II. LESSER-INCLUDED OFFENSE

      By his first issue, appellant argues that the trial court erred by denying his request

to include the lesser-included offense of aggravated assault in the jury charge. Appellant

contends that he was entitled to the lesser-included offense charge of aggravated assault

because: (1) DeLeon only received a single fatal stab would; (2) appellant only intended

to “hurt” DeLeon; and (3) appellant did not pursue DeLeon as she fled the home.


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A.    Applicable Law

      The determination of whether the trial court should give a lesser-included offense

instruction requires a two-step analysis:    “(1) is the requested charge for a lesser-

included offense of the charged offense? [and] (2) is there trial evidence that supports

giving the instruction to the jury?” Rice v. State, 333 S.W.3d 140, 144 (Tex. Crim. App.

2011). We review the first step de novo. See id. In that regard, the Texas Code of

Criminal Procedure provides that an offense is a lesser-included if “it is established by

proof of the same or less than all the facts required to establish the commission of the

offense charged.” TEX. CODE CRIM. PROC. ANN. art. 37.09(3) (West, Westlaw through

Chapter 46 2015 R.S.). In applying the second step, we look to see if there is some

evidence in the record that would permit a rational jury to find that, if the defendant is

guilty, he is guilty only of the lesser-included offense. Rice, 333 S.W.3d at 145. In that

regard, “the appellate court must examine the entire record instead of plucking certain

evidence from the record and examining it in a vacuum.” Enriquez v. State, 21 S.W.3d

277, 278 (Tex. Crim. App. 2000) (en banc) (citing Ramos v. State, 865 S.W.2d 463, 465

(Tex. Crim. App. 1993) (en banc)); see Wesbrook v. State, 29 S.W.3d 103, 113–14 (Tex.

Crim. App. 2000) (en banc). “We consider all of the evidence admitted at trial, not just

the evidence presented by the defendant.” Goad v. State, 354 S.W.3d 443, 446 (Tex.

Crim. App. 2011) (citing Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993)

(en banc)).

      “A defendant is entitled to an instruction on a lesser-included offense if some

evidence from any source raises a fact issue on whether he is guilty of only the lesser,


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regardless of whether the evidence is weak, impeached, or contradicted.” Cavazos v.

State, 382 S.W.3d 377, 383 (Tex. Crim. App. 2012) (citing Bell v. State, 693 S.W.2d 434,

442 (Tex. Crim. App. 1985) (en banc)). The evidence must establish the lesser-included

offense as a valid, rational alternative to the charged offense. Id. at 385; Rice, 333

S.W.3d at 145.     “‘[R]egardless of the strength or weakness of the evidence, if the

evidence raises the issue that the defendant was guilty only of the lesser offense, then

the charge must be given.’” Cavazos, 382 S.W.3d at 384–85 (quoting Saunders v. State,

840 S.W.2d 390, 391 (Tex. Crim. App. 1992) (en banc)). “[W]e may not consider ‘the

credibility of the evidence and whether it conflicts with other evidence or is controverted.’”

Goad, 354 S.W.3d. at 446–47 (quoting Banda v. State, 890 S.W.2d 42, 60 (Tex. Crim.

App. 1994) (en banc)). Anything more than a scintilla of evidence is sufficient to entitle

a defendant to a lesser-included charge. Id. at 446.

       B.     Discussion

       The indictment alleged that appellant intentionally or knowingly caused the death

of De Leon by stabbing her with a knife. See TEX. PENAL CODE ANN. § 19.02(b)(1). A

person commits an aggravated assault if he intentionally, knowingly, or recklessly causes

bodily injury to another and uses or exhibits a deadly weapon during the commission of

the assault. See TEX. PENAL CODE ANN. § 22.02. The Court of Criminal Appeals has

previously recognized that aggravated assault is a lesser-included offense of murder.

See TEX. CODE CRIM. PROC. ANN. art. 37.09; Cardenas v. State, 30 S.W.3d 384, 392–93

(Tex. Crim. App. 2000) (en banc). The elements of aggravated assault are included

within the facts required to establish murder as charged in this case.


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       Accordingly, we turn to the second step in the analysis. Appellant must establish

that there was evidence that, if guilty of an offense, appellant was guilty of only the lesser-

included offense.    See Rice, 333 S.W.3d at 145. The evidence produced must be

sufficient to establish the lesser-included offense as a “valid, rational alternative” to the

charged offense. Id. (citing Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App.

1999)). When the evidence raising the lesser-included offense also casts doubt upon

the greater offense, it provides the fact finder with a rational alternative by voting for the

lesser-included offense. Forest, 989 S.W.2d at 367.

       In Harrell v State, the defendant was charged with murder. See Harrell v State,

659 S.W.2d 825, 827 (Tex. Crim. App. 1983) (en banc) (citing TEX. PENAL CODE ANN. §

19.01(a)(2), now TEX. PENAL CODE ANN. § 19.01(b)(2)). The defendant testified that he

only intended to shoot the victim in the arm, but that he did not intend to kill the victim.

Id. at 827. In short, his testimony showed an intent to cause serious bodily injury and

that the defendant committed an act clearly dangerous to human life and which caused

the death of the victim. Id. The Court of Criminal Appeals held that this testimony

showed the defendant to be guilty of murder, but that it did not constitute evidence that if

he was guilty, he was guilty only of aggravated assault. Harrell, 659 S.W.2d at 826–27.

       As in Harrell v State, appellant was charged with murder. Appellant admitted that

he intended to stab DeLeon, but further testified that he only meant to “hurt” her. The

evidence shows that appellant stabbed DeLeon multiple times. As such, the evidence

proves that he intentionally caused serious bodily injury to DeLeon, and the undisputed




                                              6
evidence showed that his acts caused her death. Stabbing an individual is an act clearly

dangerous to human life.

       We conclude the evidence shows appellant to be guilty of murder. See TEX.

PENAL CODE ANN. § 19.02(b)(2).      Appellant’s arguments that he only inflicted a single

fatal stab wound; that he only intended to “hurt” her; and that he did not pursue her as

she fled the apartment—is not sufficient to show that if he was guilty, he was guilty only

of aggravated assault. Therefore, appellant was not entitled to an instruction on the

lesser included offense of aggravated assault. See Harrell, 659 S.W.2d at 826–27;

Forest, 989 S.W.2d at 368. We overrule appellant’s first issue.

                            III.   SUDDEN PASSION CHARGE

       By his second issue, appellant argues that the trial court improperly denied his

request for a charge on sudden passion during the punishment phase of the trial. TEX.

PENAL CODE ANN. § 19.02(d).

       A. Applicable Law

       If a defendant is convicted of murder, he may argue during the punishment phase

that he caused the death while under the immediate influence of sudden passion arising

from an adequate cause. Trevino v. State, 100 S.W.3d 232, 237 (Tex. Crim. App. 2003)

(en banc). Adequate cause is provocation 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).        Sudden

passion is “passion directly caused by and arising out of provocation by the individual




                                            7
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.” Id. § 19.02 (a)(2).

       “Sudden passion is a mitigating circumstance that, if found by the jury to have been

proven by a preponderance of the evidence, reduces the offense from a first degree felony

to a second degree felony.” TEXAS PENAL CODE § 19.02(c) and (d). See McKinney v.

State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005).          “Thus, before a defendant is

allowed a jury instruction on sudden passion, he must prove that there was an adequate

provocation, that a passion or an emotion such as fear, terror, anger, rage, or resentment

existed, that the homicide occurred while the passion still existed and before there was

reasonable opportunity for the passion to cool; and that there was a causal connection

between the provocation, the passion, and the homicide.” Id. A jury should receive a

sudden passion charge if it is raised by the evidence, even if that evidence is weak,

impeached, contradicted, or unbelievable. Id.; Trevino, 100 S.W.3d at 238. However,

the evidence cannot be so weak, contested, or incredible that it could not support such a

finding by a rational jury. Id.

       B. Discussion

       Appellant contends that he presented adequate evidence to warrant a charge of

sudden passion. Specifically, appellant argues that his “impaired mental state caused

him to believe that [DeLeon] killed his mother, and when he convinced himself of this

circumstance, he was filled with rage and fury and attacked [DeLeon].” He further argues

that the “fact that [he] may have been delusional in his belief concerning the provocation

by Maria DeLeon should not diminish his legal right to the submission of the charge.”


                                             8
Appellant asserts that “the evidence can be ‘unbelievable’ to the finder of fact, provided it

is ‘believed’ by [him]”, and that that belief would allow for such a submission.

       While it may be true appellant suffered from delusions that may have contributed

to stabbing DeLeon, there is no evidence to show that he acted under the influence of

sudden passion. Appellant failed to show there was adequate provocation. The record

is silent regarding any act on DeLeon’s part to show that she sought to provoke, or did

provoke, appellant in any way either before or during the murder. There is no evidence

to show that DeLeon approached appellant with a gun, knife, or any other instrument,

much less that she sought to provoke him by verbal taunting, physical pushing or other

action that would produce a degree of anger, rage, resentment, or terror in appellant,

sufficient to render his mind incapable of cool reflection. Appellant’s beliefs alone are

not sufficient to rise to the level of adequate cause. A sudden passion instruction is

proper only when the sudden passion was directly caused by and arose out of the

provocation by the deceased at the time of the offense. See McKinney, 179 S.W.3d at

570 (evidence of provocation by decedent is required for a sudden passion charge).

       Appellant’s testimony further indicates that he had time to deliberate over his

actions. Although he believed that he saw his mother shot and somehow connected this

belief to DeLeon, he said that he later believed that his mother was still alive. Moreover,

appellant testified that on the night of DeLeon’s murder, he waited downstairs between

thirty minutes to an hour before retrieving the knives and going upstairs. Such evidence

does not show that he stabbed DeLeon during a “moment of fury”, much less that there

is a connection between appellant’s beliefs and his alleged “moment of fury” when he


                                             9
stabbed DeLeon. Rather, the evidence shows that he had time to consider how to deal

with DeLeon, and by retrieving the knives, he was preparing himself for the altercation

that he was anticipating. See Hobson v. State, 644 S.W.2d 473, 478 (Tex. Crim. App.

1983) (altercation was not an adequate cause to give rise to an immediate influence of

sudden passion—defendant was suffering from “emotional crises” because of

relationship between his daughter and the victim; after following the victim, he confronted

and killed him).

       We conclude there is simply no evidence to support such a charge. Therefore,

the trial court properly denied appellant’s request for a charge on sudden passion. See

id. Appellant’s second issue is overruled.

                                   IV.     CONCLUSION

       We affirm the judgment of the trial court.



                                                    GREGORY T. PERKES
                                                    Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
30th day of July, 2015.




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