

Affirmed as Modified
and Opinion filed April 12, 2011.
In
The
Fourteenth
Court of Appeals

NO. 14-10-00044-CR

Donald Francis
Bernard, Appellant 
v.
The State of
Texas, Appellee 

On Appeal from
the 230th District Court
Harris County, Texas
Trial Court
Cause No. 1209210

 
OPINION 
Appellant Donald Francis Bernard appeals the trial
court’s judgment and sentence of forty years for murdering his wife.  In his
only issue, appellant challenges the factual sufficiency of the evidence to
support the jury’s finding that appellant did not prove that he caused his
wife’s death under the immediate influence of sudden passion arising from an adequate
cause.  We conclude that the evidence is factually sufficient.  As requested by
the State, we modify the trial court’s judgment to reflect that appellant
pleaded “guilty” to the charged offense, and we affirm the judgment as modified.
Factual and Procedural
Background
Officers were dispatched to the home appellant shared
with his wife of fifteen years, Lucinda Bernard.  At the scene, officers
discovered Lucinda, who was covered in blood and was lying on the floor of a bathroom. 
Attempts to resuscitate her failed.  
Officers learned from Yvette Barker, a cousin of Lucinda’s,
that the couple had been having marital troubles.  According to Barker, who was
in the home at the time of the incident, she saw appellant in the kitchen and heard
appellant calmly asking to speak with Lucinda, who responded that she was in
the back bathroom.  Within five to ten seconds Barker heard a “thump” and Lucinda’s
screams for help.  Barker rushed to the master bedroom and found appellant on
top of Lucinda, repeatedly stabbing her with a knife.  Barker struggled with
appellant, as Lucinda crawled to a bathroom.  Barker then fled the home to
notify authorities.  As she reached the front door, Barker heard appellant kick
in the door to the bathroom and Lucinda’s screams. Officers also learned that appellant’s
minor step-daughter saw Barker struggle with appellant.  The step-daughter also
fled the home.
Officers arrested appellant a few days later.  Appellant
was charged with the felony offense of murder, to which he entered a “guilty”
plea.  The trial court instructed the jury to find appellant guilty as charged.
Appellant testified during the punishment phase.  He stated
that he and Lucinda had been having marital difficulties.  Appellant attributed
their problems to an extra-marital affair that he claimed Lucinda had with a
man named “Smokey.”  Appellant also stated that he believed Barker was a bad
influence on his wife, and that Barker was not welcome in his home.  Appellant
testified as to what transpired on the day that he murdered his wife.  His
testimony differed in various respects from the testimony of Barker and
appellant’s step-daughter, both of whom were in the house when appellant began
stabbing his wife.  
The punishment-phase jury charge contained a special
issue asking whether appellant proved by a preponderance of the evidence that
he caused his wife’s death under the immediate influence of sudden passion
arising from an adequate cause.  The jury found that appellant had not proved it. 
If the jury instead had found that appellant had proved it, then the offense
would have been a second-degree felony.  See Tex. Penal Code Ann. § 19.02(d) (West 2010).  Because the
jury did not, the offense was a first-degree felony.  See id. §
19.02(c).  The jury assessed appellant’s punishment at forty years’ confinement
using the range of punishment applicable to a first-degree felony.
Analysis
Is the evidence factually sufficient to support the jury’s
sudden-passion finding?
In a single issue, appellant challenges the factual
sufficiency of the evidence to support the jury’s negative finding on the
special issue regarding sudden passion.  
A majority of the judges of the Court of Criminal
Appeals have determined that “the Jackson v. Virginia legal-sufficiency
standard is the only standard that a reviewing court should apply in
determining whether the evidence is sufficient to support each element of a
criminal offense that the State is required to prove beyond a reasonable doubt.” 
Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality
op.) (Hervey, J., joined by Keller, P.J., Keasler, and Cochran, J.J.); id.
at 913–15 (Cochran, J., concurring, joined by Womack, J.) (same conclusion as
plurality).  These five judges did not conclude that the Jackson v. Virginia
legal-sufficiency standard is the only standard that a reviewing court
should apply in determining whether the evidence is sufficient to support a
jury finding on an issue that the defendant must prove by a preponderance of
the evidence.  See id. at 895.; id. at 924–26 (Cochran, J.,
concurring).  
In Meraz v. State, the Court of Criminal
Appeals concluded that, when courts of appeals are called upon to review the
factual sufficiency of the evidence on an issue that the defendant must prove
by a preponderance of the evidence, the correct standard of review is whether,
after considering all the evidence relevant to the issue at hand, the finding
is so against the great weight and preponderance of the evidence so as to be
manifestly unjust.  See 785 S.W.2d 146, 155 (Tex. Crim. App. 1990).  The
Court of Criminal Appeals and this court have applied this standard in
reviewing the factual sufficiency of findings during the punishment phase on
issues that the defendant must prove by a preponderance of the evidence.  See
Neal v. State, 256 S.W.3d 264, 273 (Tex. Crim. App. 2008) (applying Meraz
standard of review in reviewing factual sufficiency of jury’s punishment-phase
finding that defendant did not prove by preponderance of the evidence that he
is mentally retarded);  Woods v. State, 301 S.W.3d 327, 331 (Tex.
App.—Houston [14th Dist.] 2009, no pet.) (applying Meraz standard of
review in reviewing factual sufficiency of jury’s punishment-phase finding that
defendant did not prove by preponderance of the evidence that he voluntarily
released the kidnapping victim in a safe place); Harrell v. State, 65
S.W.3d 768, 772 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (same as Woods). 
The five judges in Brooks did not overrule or disapprove of this part of
Meraz; in fact, the two concurring judges expressly stated that this
part of Meraz was correctly decided.  See Brooks, 323 S.W.3d at
895; id. at 924 & n.67 (Cochran, J., concurring); Ervin v. State, 
331 S.W.3d 49, 53, n.2 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d).  Therefore,
we will review the evidence under the Meraz standard of review.   
At the punishment phase of a murder trial, a
defendant may raise the issue of whether he caused the death under the
immediate influence of sudden passion arising from an adequate cause.  See Tex. Penal Code Ann. § 19.02(d).  “Sudden
passion” is defined as “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.”  Id. § 19.02(a)(2).  “Adequate cause” is defined as
“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).  
Appellant testified as follows:
·       
Starting in January 2009, Lucinda began spending more time with
her cousin, Barker.  Appellant did not think that this was a good time for Lucinda
to be spending more time with Barker; he did not think it was “right.”  Even
though he told Lucinda this, Lucinda continued to spend time with Barker.
·       
In February 2009, appellant began to suspect that Lucinda was
having an extramarital affair with a man named “Smokey.”  Lucinda denied the
affair but appellant was not convinced.  
·       
In late February 2009, appellant observed Lucinda and a man he
thought was “Smokey” enter a hotel room and spend thirty minutes together. 
Appellant knocked on the door but nobody answered.  He called Lucinda’s cell
phone but she did not answer.  Appellant was hurt, angry, and had a horrible
feeling in his stomach.  
·       
Lucinda later called appellant on his cell phone, and they
talked. Appellant did not confront the man when he left the hotel room and gave
appellant “a nasty stare.”  Lucinda’s cousins drove up in a truck.  Lucinda
left the room and jumped into the truck.  Appellant approached the truck, and Lucinda
rolled down her window.  Appellant asked her to return a $5,000 check that he
had recently given her, and Lucinda returned the check to appellant.  Appellant
took the check and returned home.
·       
During this encounter at the hotel in February 2009, there was no
kind of altercation, cursing, bad words, or anything like that between
appellant and Lucinda.
·       
On the day of the murder (March 27, 2009), appellant returned
home from work at approximately 3:00 p.m., bringing a new pair of “shaving
clippers.”  Appellant and Lucinda were planning to go to a party that night.
·       
Appellant found Lucinda with Barker, which made him feel hurt and
that he was not being respected.  While appellant was shaving in his bedroom, Lucinda
entered and said Barker would be leaving in a while.  Lucinda then left the
room.
·       
Appellant decided that the shaver needed to be adjusted, so he
went down to the kitchen to look for a screwdriver.  He did not see a
screwdriver so he grabbed a knife and returned to the bedroom.  Appellant did
not make adjustments to the shaver; instead, he sat down on the bed to watch
television.  
·       
Lucinda entered the room and asked appellant why he had a knife. 
Appellant said, “What are you talking about?” Lucinda stated that appellant’s step-daughter
had said that appellant had a knife.  Appellant started thinking that Lucinda
was having his step-daughter watch appellant. Appellant then asked, “You have
my daughter watching me?”  Lucinda replied, “Don’t worry about my daughter,”
and then said, “By the way tonight’s cancelled.”  Appellant then said,
“Lucinda, leave me alone,” and he heard somebody laugh outside of his bedroom.
Then Lucinda “kind of laughed,” and appellant jumped off the bed and “swung the
knife at her.”  Appellant does not recall the details of what happened after
that. Lucinda ran into the bathroom.  Appellant was trying to open the bathroom
door when he turned around and saw Barker.  Appellant could not say exactly
what happened next.  
·       
Appellant remembered stabbing Lucinda three or four times and was
shocked to find out that he had actually stabbed her thirteen times.  After
stabbing Lucinda, appellant cut both of his wrists with the knife he had used
to stab his wife.  Appellant fled to a wooded area near his home, and cut his
wrists again with a piece of broken glass.  Appellant also cut his neck with
the broken glass and “passed out.”
 
            Barker’s testimony
regarding events was significantly different from appellant’s testimony.  Barker
testified that she was sitting on the stairs in the house examining her new
cell phone when she saw appellant go into the kitchen.  According to Barker,
after speaking briefly to her, appellant passed her and said, “Lucinda, can I
talk to you for a minute,” to which Lucinda replied, “Yes, I’m in the back
bathroom.”  Five to ten seconds later, Barker heard a thump and then heard Lucinda
screaming Barker’s name and asking for help.  Barker went to the master bedroom
and found appellant on top of Lucinda in the bedroom doorway stabbing her.  After
Barker struggled with appellant, Lucinda was able to crawl into a nearby
bathroom.  Barker faced appellant with a knife in his hand and begged for her
life, and appellant stared at Barker with a blank look.  Barker ran away and as
she reached the front door she heard the sound of the bathroom door being
kicked in and Lucinda yelling Barker’s name.  Barker ran out the front door of
the house to a neighbor’s house.  
                Dr.
Jerome Brown, a clinical psychologist who evaluated appellant after the murder,
testified that one test indicated that appellant is in the “high average” range
for intelligence.  Based on another test, Dr. Brown found that appellant was
very depressed and showed signs of trauma and turmoil.  Dr. Brown also found
that appellant is “a typically pretty controlling individual,” that he prefers
accommodation rather than conflict, that he is able to conform his behavior to
the requirements of the social situation in most cases, and that he is not a
person who is easily annoyed or impulsive.  Dr. Brown stated that appellant is
not someone who has problems with anger and that he is easy-going and
mild-mannered.  According to Dr. Brown, appellant’s murdering his wife was
“totally out of character for him.”
            Appellant’s
testimony regarding the events on the day of the murder conflicted in part with
the testimony of Barker and of appellant’s step-daughter.  The jury is the sole
judge of the weight and credibility of the witnesses’ testimony.  See
Hernandez v. State, 127 S.W.3d 206, 212 (Tex. App.—Houston [1st Dist.]
2003, pet. ref’d).  Even under appellant’s testimony, Lucinda did not verbally
or physically threaten appellant, and appellant was apparently upset because (1)
Lucinda asked appellant why he had a knife; (2) appellant thought Lucinda was
having his step-daughter watch him; (3) Lucinda told appellant not to worry
about her daughter; (4) Lucinda decided not to go to a party as they had
planned; and (5) Lucinda “kind of laughed.”  To constitute “sudden passion,” the
passion must be directly caused by and arise out of provocation by the person
killed or another acting with that person, and the passion must arise at the
time of the murder.  See Tex.
Penal Code Ann. § 19.02(a)(2).  The sudden passion must arise from a
cause that commonly would produce a degree of anger, rage, resentment, or
terror in a person of ordinary temper, sufficient to render the mind incapable
of cool reflection.  See id. § 19.02(a)(1).  The jury found that
appellant did not prove by a preponderance of the evidence that he caused
Lucinda’s death under the immediate influence of sudden passion arising from an
adequate cause.  After considering all the evidence relevant to this issue, we
conclude that the jury’s finding is not so against the great weight and
preponderance of the evidence so as to be manifestly unjust.  See Hernandez,
127 S.W.3d at 213–14; Trevino v. State, 157 S.W.3d 818, 822 (Tex.
App.—Fort Worth 2005, no pet.); Dudley v. State, 992 S.W.2d 565, 568–69
(Tex. App.—Texarkana 1999, no pet.).  Accordingly, we overrule appellant’s sole
issue on appeal.
Should
the trial court’s judgment be modified?
The record reflects that appellant pleaded “guilty” to
the charged offense; however, the State notes that the trial court’s judgment
erroneously reflects that appellant pleaded “not guilty.”  In his appellate
brief, appellant asserts that he pleaded “guilty” to the charged offense.  The
State requests that this court modify the trial court’s judgment to show that
appellant pleaded “guilty” to the offense of murder.  Finding merit in the
State’s request, we modify the trial court’s judgment to reflect appellant’s “guilty”
plea to the offense of murder.  See Tex.
R. App. P. 43.2, 43.6; French v. State, 830 S.W.2d 607, 609 (Tex.
Crim. App. 1992); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex.
App.—Dallas 1991, pet. ref’d) (en banc).
The trial court’s
judgment is affirmed as modified.
                                                                                    
                                                                        /s/        Kem
Thompson Frost
                                                                                    Justice
 
 
 
Panel consists of Justices Anderson,
Frost, and Brown.
Publish — Tex. R. App. P. 47.2(b).

