AFFIRM; Opinion issued December 17, 2012.




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                                       No. 05-11-01381-CR


                               JULIO TREVINO, JR., Appellant

                                                   V.

                                  STATE OF TEXAS, Appellee


                       On Appeal from the 195
                                          th
                                              Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. F10-24829-N


                              MEMORANDUM OPINION
                            Before Justices Bridges. Francis, and Lang
                                   Opinion By Justice Bridges

       Appellant Julio Trevino, Jr. appeals his murder conviction and accompanying sentence of

62 years’ imprisonment and a $10,000 fine. In three issues, appellant challenges: (1) the legal

sufficiency of the jury’s finding appellant failed to prove he caused the death of Pearl Hernandez

while he was under the influence of sudden passion arising from adequate cause; (2) the factual

sufficiency of the jury’s negative finding; and (3) the trial court’s decision to overrule appellant’s

objection to the extraneous offense evidence in the punishment phase of trial. We affirm.
                                             Background

        Appellant pled guilty to the offense of murder as charged in the indictment, The case then

proceeded to a trial by urv on punishment. I)uring the punishment phase. the jury heard appellant

testify he killed his wife. Pearl 1-Jernande,. lie stated, on the date of the incident, he worked all day

and came home around 7:00 or 8:00 p.m. Pearl was not home when he arrived, so he called her and

she indicated she was shopping in Allen. By midnight. she still was not home and, after calling her

se\ cml times. she told him she was coming home. When she arrived alter 2:00 a.m., they got into

an argument.

        Appellant testified Pearl told him it was none of his business where she had been, and he

could tell she had been drinking. The argument escalated, and she told him she wanted to leave. He

said when he turned on ihe light. she told him to turn it oil. He saw hiekeys on her neck and thought

she had been with someone else. He said she kept telling him to leave the room, that she didn’t want

him there and kept hitting the wall with her hands. I-ic said he was mad and frustrated and, because

he wanted to know what was wrong. he confronted her. He said she tried to scratch him in the lace

and kept telling him he was going to jail. I-Ic did not recall strangling her. hut knew that lie did.

        Appellant stated he did not call the police, because he did not want his children to know what

he had done. 1-Ic put her body in the car and drove her to the church, leaving her body inside the car

at the church parking lot. He said he never planned to kill her.

        He testified he lied when he called 911 to report Pearl missing, but knew he would ultimately

have to pay the price for what he did. When he was interviewed by the police, he would go blank

at the point of strangulation.

        Appellant did recall that, during the struggle. Pearl wanted him to hit her with an aerosol can.

He stated he did not know he had hit her that hard. He also indicated Pearl came at him with a knife,




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but he later threw the knife down the road when he took her body to the church. He did not want

anyone to know his wife tried to attack him with a knife. He testified he knew nothing about his

wife’s lover, Stephen.

         On cross-examination, appellant stated Pearl told him, about three months prior to the

murder, that she was going to leave him. He also testified to his desire to place a tracking device on

her car. When Pearl came at him with a knife, appellant said he was swinging with the aerosol can.

The can came out of his hand and, when he grabbed her hair to throw her away from him, his hand

was lodged in her hair. He said when he pulled, he pulled too hard and she stopped moving. He

thought her neck was broken. He did not recall strangling her.

        Irene Garcia, the 19-year-old daughter of appellant, testified Pearl told her she was going to

leave appellant, but Pearl wanted to wait a year to leave him. Garcia said Pearl told her she did not

love appellant anymore. Garcia further testified appellant tried to cover things up to protect her and

her siblings.

        Naomi Holz. one of Pearl’s co-workers, testified she worried about her friend, because she

knew appellant had once hit Pearl. Holz knew Pearl had filed a restraining order against appellant

in 2010. Pearl told Holz she was going to leave appellant Holz also said she learned Stephen was

Pearl’s lover about a week to two weeks prior to Pearl’s death.

        Elma Garcia testified she dated appellant in high school and had their daughter, Irene. She

stated appellant had been arrested and charged with assaulting her in April 1993. Elma testified she

was riding in her car with her boyfriend in November 1995, when appellant drove up and started

cursing them. She told her boyfriend to keep driving because she was scared something would

happen between the two men.

       David Landis, a detective with the Garland Police Department, interviewed appellant



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Appellant told Landis he received the scratches on his face by cutting down a tree and being

scratched by some limbs. Appellant eventually changed his story and, when he was told his wife’s

body had been found and they thought appellant had killed her, he did not deny it, Appellant told

Landis his wife had recently been staying out all night, which made him angry. He said appellant

eventually stated it was “all on me; I did it”

       Appellant admitted he took tier body, put her in the back seat of the Tahoe, along with her

shoes and purse, drove the Tahoe to the church parking lot, locked the doors and walked back home.

Appellant told Landis he cleaned up the blood in the house with some towels and threw them away

in a city dumpster. Appellant indicated he was sorry about what lie had done.

        Landis stated, in her diary,’ Pearl wrote about her personal feelings and the issues in her

marriage. Her diary included references to the affair and to telling her husband she wanted him to

leave. Eight days before her death, Pearl wrote she had pressed charges against appellant and, when

she told him about calling the police, appellant threatened her.

        Dr. Jill Urban, a medical examiner at the Southwestern Institute of Forensic Sciences, stated

she performed the autopsy of Pearl Hernandez. Urban testified there were scrapes on the neck and

the undersurface of Pearl’s chin, which was consistent with strangulation. There was bruising on

the inside of the lip, which was consistent with a victim struggling against a hand. There was also

extensive hemorrhaging of the muscles inside her neck. She had a laceration on the forehead and

one on the scalp towards the back. Urban testified bruising on Pearl’s arms could have been

defensive wounds.

        The jury found appellant was not under the immediate influence of sudden passion arising




   ‘The diary was admitted as States Exhibit 67.




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from an adequate cause when he caused the death of Pearl Hernandez. Appellant was found guilty

of murder as charged in the indictment and sentenced to 62 years’ imprisonment and a $10,000 fine.

                                                    Analysis

            In his first and second issues,
                                    2 appellant challenges the sufficiency of the jury’s finding

appellant failed to prove he caused the death of Pearl Hernandez, while he was under the influence

of sudden passion arising from an adequate cause.

            During the punishment phase of a murder trial, a defendant may argue he caused the death

while under the immediate influence of sudden passion arising from an adequate cause. See

McKinnev v. State, 179 S.W.3d 565, 569 (Tex, Crim. App. 2005). “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) (West 2011). “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.” hi. at § 19.02(a)(1). Sudden

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

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

second degree felony. Id. at § 19.02(c), (d); see McKinnev, 179 S.W.3d at 569.

            When an appellant seeks review of a jury’s failure to make a finding on which he had the

burden of proof, such as on an affirmative defense, he invokes our factual review jurisdiction. See

Naasz v. State, 974 S .W.2d 418, 421 (Tex. App.—Dallas 1998, pet. ref’ d) (citing Meraz v. State, 785

S.W.2d 146, 154-55 (Tex. Crim. App. 1990)). Where the issue is one the defendant has the burden


    2
      Appellant challenges the legal and factual sufficiency of the evidence separately. Following our decision in
JohflSOflv. State. No. 05-09-00133-CR. 2010 WL 5142392, at *67 (Tex. App.—Dallas Dec. 20. 2010, pet. ref’d)
(not designated for publication), we discuss these issues together.




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to prove by a preponderance of the evidence, Mcra remains (lie proper ‘aandard of review. See

io1mon i’Sicue. No. ( )5—09—(X) 1 33CR. 2() 10 WI. 5 I 423,)2 at 67 (Tex .\ p.-Dallas December .O.

2() JO. pet. ref’d) ( not designated tor publication>. Thiis, the correct standard of review is whether,

after consaderini all the evidence relevant to the issue, the judgment is so against the great weight

and preponderance ol the evidence as to be manifestly unjust. See Mc’rw. 785 S.W.2d at 155; Lewis

v. State, No. 05 1 0D08 I 0CR, 201 1 WL 2860009 (Tex. App.—Dallas. J lily 20, 2011, no pet.) (not

designated for publication); Naasz, 974 S.W.2d at 421.

       Although appellant testified he knew nothing about his wife’s lover, he admitted Pearl told

him, about three months   prior to   the murder, that she was going to leave him. He told Landis his wife

had recently been staying out all night. which made him angry. Appellant also stated his desire to

place a tracking device on his wife’s car. He further testified, on the night of the murder, he saw

hickeys on Pearl’s neck and thought she had been with someone else. He also said he was mad and

frustrated and, because he wanted to know what was wrong, lie confronted her. En addition, Pearl’s

(liary included references to the affair and reflected she had told appellant she was planning on

leaving him. Appellant’s daughter knew Pearl intended to leave appellant, because Pearl did not

love him anymore. Holz testified Pearl told her she was planning on leaving appellant, and she

learned Stephen was Pearl’s lover about a week to two weeks prior to Pearl’s death.

       The evidence also shows, eight days before her death, Pearl wrote she had pressed charges

against appellant and, when she told him about calling the police, appellant threatened her. Holz also

testified she knew appellant had hit Pearl in the past and that Pearl had filed a restraining order

against appellant in 2010.

       The jury determines the credibility of the witnesses and the weight of the evidence. See Cain

v.State,958 S.W.2d 404, 408-09 (Tex. Criin. App. 1997). Based on our review of the evidence, we




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conclude the jury’s failure to find appellant acted under sudden passion was not so against the great

weight and preponderance ot the evidence as to he manifestly unjust. See Meraz, 785 S.W.2d at 155:

Naasz, 974 S.W2d at 421. We overrule appellant’s first and second issues. See Johnson, 2010 WL

5142392 at (•7

       In his third issue, appellant challenges the trial court’s decision to overrule appellant’s

objection to the extraneous offense evidence in the punishment phase of trial, Specifically, appellant

argues the trial court abused its discretion in allowing the jury to consider the testimony of

Christopher Oliva and Elma Garcia. With regard to Elma’s testimony, appellant complains her

testimony was unreliable during the sub rosa hearing “due to remoteness in that lElma Garciaj

admitted she could not remember any relevant details of the event.” Appellant complains of Oliva’s

testimony, because he “testified to conduct that was assaultive in nature of his own doing.”

       During the sub rosa hearing, both Elma and Oliva testified to a November 13, 1995 incident,

in which they encountered appellant at a laundromat, During that encounter, both witnesses alleged

appellant pulled up next to their car and started yelling at them. Both testified Elma warned Oliva

not to “go over and have words with [appellanti.” Oliva testified Elma was afraid appellant had a

gun. Following the encounter, Oliva testified he dropped Elma at home and “went after” appellant.

At that point, the trial judge stopped Oliva’s testimony, so the State could further visit with Oliva

about the incident. When the hearing reconvened, the trial judge determined Oliva’s testimony was

relevant. Following Oliva’s testimony, Elma also testified during the sub rosa hearing as to

appellant’s 1993 conviction, resulting from his assault on her.

       Appellant objected the evidence was too remote and more prejudicial than probative. The

trial court overruled the objections and determined evidence of both the 1993 conviction and the

1995 incident was relevant. In addition, the trial court noted the fact that Elma could not remember




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the details of the 1993 conviction went to her credibility, rather than relevance of the conviction

itself,

          A trial court’s decision to admit or exclude extraneous offense evidence during punishment

is reviewed under an abuse of discretion standard. See Mitchell v. State, 931 S,W.2d 950, 953 (Tex,

Crim, App. 1996) (citing Saenz v.State, 843 S.W.2d 24,26 (Tex, Crim. App. 1992)). The legislature

has determined that, during the punishment phase, evidence of extraneous crimes or bad acts are

admissible subject to certain conditions being met. See TEX. CODE CRIM, PROC. ANN, Art. 37.07 §

3(a)(l) (West 2012). In particular:

          I Ejvidence may be offered by the [Sitate and the defendant as to any matter the court
          deems relevant to sentencing, including but not limited to the prior criminal record
          of the defndant. his general reputation, his character, an opinion regarding his
          character, the circumstances of the offense for which he is being tried, and,
          notwithstanding Rules 404 and 405, Texas Rules of Evidence, any orherevidence of
          an extraneous crime or had act that is shown beyond a reasonable doubt by evidence
          to have been committed by the defendant or for which he could be held criminally
          responsible, regardless of whether he has previously been charged with or finally
          convicted of the crime or act.

See id. (Emphasis added). Based on the foregoing, we conclude the trial court did not abuse its

discretion in overruling appellant’s objection to the extraneous offense evidence in the punishment

phase of trial. See id.; Mitchell, 931 S.W.2d at 953. We overrule appellant’s third issue.

          Having overruled all of appellant’s issues, we affirm the judgment of the trial court.




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                                                        DAVID L. BR1DGE
                                                        JUSTICE
Do Not Publish
TEX. R. APP. P.47

11 1381F.U05




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                                       JUDGMENT
JULIO TREVINO, JR.. Appellant                      Appeal from the 195” Judicial District Court
                                                   of Dallas County. Texas. Tr,Ct.No. FlO
No, 05-1 1-0138LCR           V.                    24829-N).
                                                   Opinion delivered by Justice Bridges,
THE STATE OF TEXAS, Appellee                       Justices Francis and Lang.



       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMEI).




JudLTment entered December17. 201 2.



                                                               /

                                                   DAVID L. BRIDGES
                                                   JUSTICE
