Opinion issued January 31, 2013




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                             NO. 01-11-01052-CR
                          ———————————
                         JERRY BELTON, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



                   On Appeal from the 228th District Court
                           Harris County, Texas
                       Trial Court Case No. 1257810



                         MEMORANDUM OPINION

      Appellant Jerry Belton pleaded guilty without an agreed sentencing

recommendation to the charge that he murdered his wife. See TEX. PENAL CODE

ANN. § 19.02 (West 2011). He also pleaded true to an enhancement allegation that
he had been convicted previously of the second-degree felony offense of attempted

murder. The trial court ordered that a presentence investigation report be prepared.

After considering the PSI report, the trial court sentenced him to life in prison.

      In his sole issue on appeal, Belton argues that he was under the immediate

influence of a sudden passion when he murdered his wife, and therefore the court

should have sentenced him within the statutory range for a second-degree felony

rather than a first-degree felony. See id. § 19.02(d). We affirm.

                                    Background

      According to Belton, who is deaf and mute, he traveled from his home in

Louisiana over the Easter weekend in 2010 to visit with his estranged wife,

Chandra, and his teenaged daughter, J.B. Belton said he had been separated from

Chandra because of her prior infidelity, but she had asked him to visit to determine

if reconciliation was possible. His family in Louisiana advised him not to make

the trip and warned him that the “relationship was too upsetting and volatile.” He

later told police investigators that he brought a gun with him to Houston “for

protection” against Chandra’s “new boyfriend.”

      Belton arrived at his wife’s home on Friday night, and that evening he “was

having a good time.” There was “a big dinner” and he began to believe that the

family “could put our live[s] back together.” The next day, however, he became

disturbed when Chandra took J.B. shopping without him and returned after

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midnight, “too drunk to talk.” Belton was “very upset,” believing that Chandra

had endangered their daughter.

      The next day, Chandra was “ugly” to Belton during church services, and she

talked and argued with another man.            When they returned from church they

discovered some spoiled food, so Belton and Chandra left the house in her sports

utility vehicle, ostensibly to go to the grocery store. J.B. told investigators that her

parents were arguing about her mother’s new boyfriend when they left the house.

      In his written statement to the court, Belton described the events that

followed:

             We left in my car. I hoped it would be a good chance to talk
      about what happened the night before when she came home drunk. I
      tried to talk to he[r] about it but while we were sig[n]ing she got a cell
      phone call. She turned away from me and began talking to another
      man. I could see her in the view mirror and I could lip read enough to
      know what she was saying

             I could not believe she would get me to come to Houston only
      to be this way with me. I bec[a]me enraged. I couldn’t think straight.
      I remember[e]d that I had a pistol under my car seat. I pulled on a
      parking lot. I got the gun in a state of anger.

Belton drove into the empty parking lot of Big H Auto Auction, where he had once

worked. He told police investigators that “his wife hit him next to his ear and he

became angry. When his wife saw the gun he had inside his waistband, she got out

and ran to the back of her SUV.” He felt “crazy anger,” and then he shot and

killed Chandra.

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      Three witnesses gave statements to police about the murder. S. Garrison

was working that afternoon as a security guard at Big H Auto Auction. She saw a

sports utility vehicle drive to the back of the parking lot. The vehicle was parked

for five to eight minutes, and then a man and a woman got out and walked a short

distance away. Garrison heard the woman scream and saw the man shoot her once.

After the woman fell to the ground, the man shot her two more times. Garrison

called the police, and the man drove away, leaving the woman there. Z. Davis was

also working as a security guard that afternoon, and he told an investigator that it

appeared to him that the couple was arguing inside the vehicle. He saw the man

shoot the woman three times before driving away. A third witness was working

approximately 35 yards away and heard three gunshots.

      Belton returned to Chandra’s home, parked her SUV in the driveway,

handed her keys to their daughter, and left in his car. Around 5:00 p.m., Harris

County Sheriff’s deputies found Chandra lying in the parking lot with a large pool

of blood beneath her head. She was pronounced dead at the scene. An autopsy

report showed that Chandra had suffered five bullet wounds—two to her head, one

to her breast, and one each to her left and right hands and wrists. The medical

examiner concluded that her death was a homicide caused by multiple gunshot

wounds. Sheriff’s deputies investigating the murder scene found no shell casings,




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but they did find Chandra’s mobile phone, which had broken into three pieces.

They were able to recover the following three text messages:

          She’s mine now sorry u lost

          I told u im hear in Htown ur city stop calling my wife

          I c ur picture on my wife phone pls stop calling her.

The PSI report characterized these messages as having “appeared to have been sent

from one male to another.”

      Belton was arrested in Louisiana, and he later confessed to shooting Chandra

several times. He also told police that this was the third time he had discovered

Chandra cheating on him, and “he had become used to it.” He pleaded guilty to

murder without an agreed recommendation as to punishment, and the trial court

ordered the preparation of a PSI report.

      At the punishment hearing, Belton requested that the trial judge take judicial

notice of his written statement, which was included in the PSI report. The only

evidence formally offered and admitted at the hearing was a group of family

photographs of Chandra. The PSI report included information about Belton’s prior

offenses. In 1987, when Belton was 28 years old, he was convicted of two counts

of aggravated battery for stabbing a woman 11 times with a kitchen knife and for

stabbing an 11-month-old baby four times with a large kitchen knife and breaking

his arm. In 1988, Belton was convicted of attempted second-degree murder for

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stabbing a nurse six times with a large knife.       The PSI report also included

numerous statements, many nearly identical, from Belton’s family and friends

describing Chandra as selfish and greedy, indicating their support for Belton, and

stating that Belton was “raised as a God fearing man by his grandmother,” that the

accusations against him were “not in his character,” and that he “would not

purposely hurt her.” The letters also indicated that Belton had “moved on with his

life” and was in a relationship with a woman who lived in Louisiana.

      The trial court sentenced Belton to life in prison, and this appeal ensued.

                                     Analysis

      On appeal, Belton contends that he established “as a matter of law” that

Chandra’s murder occurred while he was under the immediate influence of sudden

passion, and therefore his offense was a second-degree felony instead of a first-

degree felony. This is a challenge to the legal sufficiency of the evidence to

support the trial court’s finding to the contrary in the context of sentencing. In

reviewing a criminal defendant’s legal sufficiency challenge to a negative finding

on a sentencing issue for which the defendant had the burden of proof, we first

examine the record for evidence that supports the negative finding, and, if no

evidence supports the negative finding, then we examine the entire record to

determine whether it establishes the contrary proposition as a matter of law. Smith

v. State, 355 S.W.3d 138, 148 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d).

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      At the punishment phase of a murder trial, the offense will be reduced from

a first-degree felony to a second-degree felony if the defendant affirmatively

proves by a preponderance of the evidence that “he caused the death under the

immediate influence of sudden passion arising from an adequate cause.” TEX.

PENAL CODE ANN. § 19.02(d); see also Hernandez v. State, 127 S.W.3d 206, 211–

12 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). “‘Sudden passion’ means

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).    “‘Adequate cause’ means 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).

      “Neither ordinary anger nor fear alone raises an issue on sudden passion

arising from adequate cause.” Moncivais v. State, No. 01-09-01131-CR, 2011 WL

2936360, at *2 (Tex. App.—Houston [1st Dist.] July 21, 2011, pet. ref’d). Rather,

such anger or fear must render the defendant incapable of cool reflection. See

Gonzales v. State, 717 S.W.2d 355, 357 (Tex. Crim. App. 1986). “A defendant

must prove that the homicide occurred while the passion still existed and before

there was reasonable opportunity for the passion to cool.” Moncivais, 2011 WL

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2936360, at *3 (citing McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App.

2005)).   “Anticipation of an event and preparation of a response indicates a

defendant had time to deliberate over an action and did not act under the

immediate influence of sudden passion.”         Id.   Evidence of premeditation is

sufficient to support a finding of no sudden passion. Nance v. State, 807 S.W.2d

855, 861 (Tex. App.—Corpus Christi 1991, pet. ref’d).

      The PSI report is part of the appellate record, and there were no objections to

it at the sentencing hearing. The record shows that Belton and Chandra were

separated, and both had become involved in other relationships. Belton drove from

Louisiana to Houston with a gun. Belton told investigators he had become used to

Chandra’s infidelity. He knew of her extramarital affair, and the text messages

found on Chandra’s phone suggested some direct communication between Belton

and Chandra’s boyfriend. Belton left the house with Chandra, drove her to an

empty parking lot, and shot her multiple times, including twice after she had fallen

to the ground. He then drove to his wife’s home, gave her keys to their daughter,

retrieved his car, and returned to Louisiana.

      Belton’s actions, specifically in driving from Louisiana to Houston with a

gun and in taking Chandra to a secluded location before killing her, support an

inference of preparation and premeditation, and therefore the record supports the

trial court’s negative finding on the issue of sudden passion. Apart from his

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request that the trial court take judicial notice of his written statement, Belton

presented no evidence at the punishment hearing to substantiate a claim of sudden

passion. His contention that he became angry about Chandra’s phone conversation

while they were in the car was insufficient as a matter of law to establish an

adequate cause. He already knew that she was having an extramarital affair. See

Hernandez, 127 S.W.3d at 213 (“Sudden passion must arise at the time of the

offense and cannot result solely from former provocation.”); cf. Bradshaw v. State,

244 S.W.3d 490, 503 (Tex. App.—Texarkana 2007, pet. ref’d) (holding that

estranged spouse’s discovery of extramarital relationship would not commonly

produce in a person of ordinary temper a degree of anger, rage, resentment, or

terror sufficient to render the mind incapable of cool reflection).

      Having found that the trial court’s negative finding is supported by the

record, and that there is no evidence to support the contrary position, we conclude

that the evidence is legally sufficient to support the sentence, and we overrule

Belton’s sole issue. See Smith, 355 S.W.3d at 148.




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                                   Conclusion

      We affirm the judgment of the trial court.




                                             Michael Massengale
                                             Justice

Panel consists of Justices Keyes, Massengale, and Brown.

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




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