AFFIRMED; Opinion Filed November 30, 2018.




                                               In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-17-00669-CR

                               DAVID MARTIN RUIZ, Appellant
                                           V.
                               THE STATE OF TEXAS, Appellee

                       On Appeal from the 219th Judicial District Court
                                    Collin County, Texas
                           Trial Court Cause No. 219-81281-2017

                              MEMORANDUM OPINION
                             Before Justices Myers, Evans, and Brown
                                     Opinion by Justice Myers
       The trial court convicted appellant David Martin Ruiz of murder and assessed punishment

at life imprisonment. In three issues, appellant contends the trial court erred by failing to conduct

a hearing on his motion for new trial; that the trial court violated appellant’s constitutional rights

by determining appellant knowingly and voluntarily waived his right to a jury trial; and that the

evidence is insufficient to support the trial court’s implied negative finding on the issue of “sudden

passion.” We affirm.

                                            DISCUSSION

                                     1. Motion for New Trial

       In his first issue, appellant contends the trial court violated his constitutional rights under

the Sixth and Fourteenth Amendments and Article I, section 10, of the Texas Constitution by

failing to hold a hearing on appellant’s motion for new trial, which raised the issue of ineffective
assistance of counsel during the trial process. Appellant argues a hearing was required because he

raised a claim of ineffective assistance of counsel and that the affidavit attached to the motion

demonstrated that (1) the matter raised was not determinable from the record and (2) there were

reasonable grounds to support potential relief.

       A motion for new trial must be “presented” to the trial court within ten days of its filing.

TEX. R. APP. P. 21.6; Obella v. State, 532 S.W.3d 405, 407 (Tex. Crim. App. 2017); Smith v. State,

No. 05–16–00466–CR, 2017 WL 4247964, at *1 (Tex. App.––Dallas Sept. 25, 2017, no pet.)

(mem. op., not designated for publication); Johnson v. State, No. 05–16–00422–CR, 2017 WL

3275902, at *2 (Tex. App.––Dallas July 31, 2017, no pet.) (mem. op., not designated for

publication). “This means the defendant must give the trial court actual notice that he timely filed

a motion for new trial and requests a hearing.” Obella, 532 S.W.3d at 407 (quoting Rozell v. State,

176 S.W.3d 228, 230 (Tex. Crim. App. 2005)). Merely filing the motion for new trial is

insufficient to show presentment. Stokes v. State, 277 S.W.3d 20, 21 (Tex. Crim. App. 2009).

“The rationale for requiring presentment is the same as that which supports preservation of error

generally.” Obella, 532 S.W.3d at 407.

       Absent a proper objection that alerts the trial court to the erroneous admission, the
       error has not been preserved for appellate review. Thus, a reviewing court does not
       reach the question of whether a trial court abused its discretion in failing to hold a
       hearing if no request for a hearing was presented to it.

Id. (quoting Rozell, 176 S.W.3d at 230).

       The record in this case shows that appellant’s motion for new trial and motion in arrest of

judgment was filed on June 26, 2017. There is no indication in the record, however, that the motion

was presented to the trial court. The trial court never ruled on the motion and the only notation in

the docket sheet is that the motion was filed. Because the record does not show the motion for

new trial was actually presented to the trial court, the issue of whether the court erred in denying

appellant’s motion for new trial without conducting a hearing is not preserved for our review. See
                                                  –2–
Obella, 532 S.W.3d at 407; Smith, 2017 WL 4247964, at *2; Johnson, 2017 WL 3275902, at *2.

We overrule appellant’s first issue.

                                           2. Jury Waiver

        In his second issue, appellant argues the trial court violated appellant’s constitutional rights

under the Sixth and Fourteenth Amendments and Article I, section 10, of the Texas Constitution

by failing to determine whether appellant knowingly, intelligently, and voluntarily waived his right

to a jury trial.

        Article 1.13 of the Texas Code of Criminal Procedure sets out the requirements for a jury

waiver in Texas. See TEX. CODE CRIM. PROC. ANN. art. 1.13. Article 1.13 provides in part that

the defendant “shall have the right, upon entering a plea, to waive the right of trial by jury,

conditioned, however, that . . . the waiver must be made in person by the defendant in writing in

open court with the consent and approval of the court, and the attorney representing the state.” Id.;

Johnson v. State, 72 S.W.3d 346, 347 (Tex. Crim. App. 2002).

        At the end of a May 25, 2017 pretrial hearing, appellant directly asked the trial court “if

there’s any chance that I can have a trial by a judge instead of by jury.” The trial court responded

that this was appellant’s decision, not the court’s, and suggested that appellant talk to his attorney

about the decision. The record shows that a written jury waiver was signed and filed the next day,

May 26th. The next time a jury waiver is mentioned in the record is at the start of the bench trial

five days later, when the trial court stated that it had seen a jury waiver and asked, “[S]o is this a

bench trial? How are we proceeding this morning?” The State responded, “Bench trial,” to which

the trial court replied, “Very well.” The State does not dispute that appellant’s waiver was not

made in person and in open court. By failing to observe the mandatory requirements of article

1.13, the trial court erred because appellant’s jury waiver was not conducted in person and in open

court. See Johnson, 72 S.W.3d at 347.

                                                  –3–
         Even so, however, appellant is not entitled to a reversal because he was not harmed by this

error. Because appellant alleges that the waiver was not made in open court, and does not allege

that there was no waiver, he is alleging statutory, not constitutional error. Id. at 348. Thus, we

analyze harm under rule 44.2(b). See id.; see TEX. R. APP. P. 44.2. If the error does not affect a

substantial right, it must be disregarded. Johnson, 72 S.W.3d at 348. The lack of a valid waiver

under article 1.13 is not harmful when the record otherwise reflects that a defendant waived his

right to a jury trial. Id. at 349.

        Here, there is a written waiver signed by appellant and his attorney stating that he knew he

had an absolute right to a jury trial and that he desired to waive his right to a jury. The presence

of this written waiver indicates appellant’s knowledge of his right to a jury trial. Moreover, it was

appellant who initially, directly approached the trial court about the possibility of a bench trial

instead of a jury trial. Nor does appellant argue, or the record reflect, that he was unaware of his

right to a jury trial. Thus, we conclude the error did not affect appellant’s substantial rights and

was harmless. See Johnson, 72 S.W.3d at 349; Preston v. State, Nos. 05–14–01131–CR, 05–14–

01132–CR, 05–14–01133–CR, 2015 WL 4241406, at *5 (Tex. App.—Dallas Jul. 14, 2015, no

pet.) (mem. op., not designated for publication); Hutchinson v. State, No. 11–12–00124–CR, 2014

WL 2957398, at *10 (Tex. App.—Eastland June 26, 2014, pet. ref’d) (mem. op., not designated

for publication). We overrule appellant’s second issue.

                                         3. Sudden Passion

        In his third issue, appellant contends the evidence is insufficient to support the trial court’s

implied rejection of the claim that he was acting under the immediate influence of sudden passion

arising from adequate cause.

        At the punishment stage of a murder trial, the defendant may raise the issue as to whether

he caused the death “under the immediate influence of sudden passion arising from an adequate

                                                  –4–
cause.” TEX. PENAL CODE ANN. § 19.02(d); Beltran v. State, 472 S.W.3d 283, 289 (Tex. Crim.

App. 2015); Wooten v. State, 400 S.W.3d 601, 605 (Tex. Crim. App. 2013). A defendant has the

burden of production and persuasion with respect to his claim that he caused the victim’s death

under the immediate influence of sudden passion. Wooten, 400 S.W.3d at 605. When a defendant

establishes by a preponderance of the evidence that he caused a victim’s death under the influence

of sudden passion, the offense level is reduced from a first-degree to a second-degree felony. TEX.

PENAL CODE ANN. § 19.02(d); Trevino v. State, 100 S.W.3d 232, 237 (Tex. Crim. App. 2003).

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

individual 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” 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.” Id. § 19.02(a)(1).

       “‘Sudden passion’ requires first that the record contain objective evidence that direct

provocation by the victim or someone acting with the victim occurred at the time of the killing.”

Naasz v. State, 974 S.W.2d 418, 423–24 (Tex. App.––Dallas 1998, pet. ref d) (citing Merchant v.

State, 810 S.W.2d 305, 310 (Tex. App.––Dallas 1991, pet. ref’d)). “Evidence of prior provocation

alone is not enough”; the provocation must be of such a nature that it elicits more than mere

“ordinary anger.” See id. at 423–24. The record must also contain evidence from which the trier

of fact “could subjectively decide the accused killed the victim while in an excited and agitated

state of mind arising out of the direct provocation.” Id. at 424. “Neither ordinary anger nor fear

alone raises an issue on sudden passion arising from adequate cause.” Moncivais v. State, 425

S.W.3d 403, 407 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). Mere yelling and pushing will

also generally not constitute adequate cause sufficient to raise an issue of sudden passion. See

McKinney v. State, 179 S.W.3d 565, 570 (Tex. Crim. App. 2005); Shannon v. State, No. 08–13–

                                                 –5–
00320–CR, 2015 WL 6394922, at *13 (Tex. App.––El Paso Oct. 21, 2015, no pet.) (not designated

for publication).

       The Court of Criminal Appeals has held that the Jackson v. Virginia standard is the standard

reviewing courts should apply to determine the sufficiency of evidence in support of the elements

of a criminal offense that the State must prove beyond a reasonable doubt. Brooks v. State, 323

S.W.3d 893, 895 (Tex. Crim. App. 2010). But the Jackson standard does not apply to elements of

an affirmative defense that the defendant must prove by a preponderance of the evidence. Matlock

v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013). “Although the issue of sudden passion is

a punishment issue, it is analogous to an affirmative defense because the defendant has the burden

of proof by a preponderance of the evidence.” Gaona v. State, 498 S.W.3d 706, 710 (Tex. App.—

Dallas 2016, pet. ref’d). Thus, the Jackson standard does not apply to review the sufficiency of

the evidence supporting the fact-finder’s rejection of sudden passion during punishment. Smith v.

State, 355 S.W.3d 138, 147–48 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d)); see TEX. PENAL

CODE ANN. § 19.02(d). For this reason, we conduct both a legal and factual sufficiency review in

addressing this issue. Gaona, 498 S.W.3d at 710; Bradshaw v. State, 244 S.W.3d 490, 502 (Tex.

App.—Texarkana 2007, no pet.); see also Matlock, 392 S.W.3d at 667.

       When reviewing a legal sufficiency challenge to a negative finding on sudden passion, the

standard of review is the same as the legal sufficiency standard used in civil cases. Gaona, 498

S.W.3d at 710–11; Smith, 355 S.W.3d at 147–48. We first review the record for a scintilla of

evidence to support the trier of fact’s negative finding on sudden passion and disregard all evidence

to the contrary unless a reasonable fact finder could not. Gaona, 498 S.W.3d at 711; Smith, 355

S.W.3d at 147–48. If we find no evidence that supports the trier of fact’s finding, we determine

whether the contrary proposition was established as a matter of law. Gaona, 498 S.W.3d at 711;

Smith, 355 S.W.3d at 148. We defer to the fact finder’s determination of the credibility of the

                                                –6–
testimony and weight to give the evidence. Gaona, 498 S.W.3d at 711; Smith, 355 S.W.3d at 148.

        In addressing a factual sufficiency challenge to the trier of fact’s negative finding of sudden

passion, we consider all the evidence in a neutral light, bearing in mind that the trier of fact assesses

the weight of the evidence and the credibility of the witnesses’ testimony. See Butcher v. State,

454 S.W.3d 13, 20 (Tex. Crim. App. 2015); Matlock, 392 S.W.3d at 671. We will sustain a

defendant’s factual sufficiency claim only if the verdict is so against the great weight of the

evidence as to be manifestly unjust, conscience-shocking, or clearly biased. Butcher, 454 S.W.3d

at 20; Matlock, 392 S.W.3d at 671; Jamison v. State, No. 05–16–00086–CR, 2016 WL 1725489,

at *6 (Tex. App.—Dallas April 27, 2016, pet. ref’d) (mem. op., not designated for publication).

        Appellant was indicted for murder. The indictment against him alleged that, on or about

May 31, 2008, he did:

        Intentionally or knowingly cause the death of an individual, namely Adrain Porier,
        hereinafter styled deceased, by stabbing deceased with a knife, a deadly weapon;

        Intentionally or knowingly cause the death of an individual, namely Adrain Porier,
        hereinafter styled deceased, by stabbing deceased with a sharp object, a deadly
        weapon;

        Intentionally or knowingly cause the death of an individual, namely Adrain Porier,
        hereinafter styled deceased, by stabbing deceased with an object, a deadly weapon,
        whose exact nature is unknown to the Grand Jurors;

        With intent to cause serious bodily injury to an individual, namely Adrain Porier,
        hereinafter styled deceased, commit an act clearly dangerous to human life that
        caused the death of the deceased by stabbing deceased with a knife, a deadly
        weapon;

        With intent to cause serious bodily injury to an individual, namely Adrain Porier,
        hereinafter styled deceased, commit an act clearly dangerous to human life that
        caused the death of the deceased by stabbing deceased with a sharp object, a deadly
        weapon;

        With intent to cause serious bodily injury to an individual, namely Adrain Porier,
        hereinafter styled deceased, commit an act clearly dangerous to human life that
        caused the death of the deceased by stabbing deceased with an object, a deadly
        weapon, whose exact nature is unknown to the Grand Jurors[.]

See TEX. PENAL CODE ANN. § 19.02(b).
                                                  –7–
           The State initially questions whether sudden passion was even raised––much less

considered––at punishment. Defense counsel argued at guilt/innocence that he believed “adequate

cause exists to rise to sudden passion of self-defense or whatnot.” In his closing argument at the

punishment hearing, defense counsel stated, “I believe we’ve raised some issues here in this phase.

It leads to examine whether there was an immediate influence to cause––adequate cause for the

actions of [appellant].” In the punishment phase, appellant testified that he was sexually abused

when he was in prison in Arizona and that this may have influenced what happened that night. But

there was no mention of sudden passion in appellant’s testimony or in defense counsel’s closing

argument at punishment. Nor did the trial court make any negative finding in that regard. Even

so, however, we need not resolve this question because even if we assume the issue was adequately

raised, appellant failed to carry his burden of proving by a preponderance of the evidence that he

acted in sudden passion when he stabbed the victim.1

           With this in mind we review the evidence, which shows that in May of 2008, appellant was

living with Philip Demming and the victim in this case, Adrain Porier, at an apartment complex in

Plano. Porier and Demming became friends in the eighth grade and had known each other for

approximately 15 years. Porier and appellant met while they were participating in laboratory

studies for various drugs; appellant did not have a place to stay. Porier invited appellant to stay at

the apartment.

           Demming was not comfortable around appellant, testifying that he had a “strange feeling

“about [appellant]” the first time he met him and there “was just something about him that I didn’t

like.” As he got to know appellant, Demming later learned appellant had been in prison and “had

a history of being in gangs and gang relations, stuff like that.” In fact, appellant’s criminal history,



     1
       In his brief, appellant asserts the State presented no evidence to support a negative finding on sudden passion. Appellant, however, bore the
burden on this issue and the State was not required to refute any of appellant’s evidence in order for the trial court to reject a claim of sudden
passion. See Gaona, 498 S.W.3d at 809.

                                                                       –8–
as shown by the State’s punishment evidence, included convictions for aggravated driving under

the influence, theft from a person, possession of marijuana, endangerment, and aggravated assault.

It also showed that appellant had served time in jail and in prison.

       The week of the murder, the three men went to a bar, Bullwinkles, where Demming saw

appellant start an argument with two men who were playing pool and push one of them to the

ground. Demming decided he no longer wanted appellant in the apartment, and appellant was

asked to move out. Appellant agreed to move out but returned when he was not able to find another

place to live. He apologized, promised not to start any more fights, and was allowed to stay.

       On the night of the stabbing, the three men went back to Bullwinkles, where they ordered

a pitcher of beer and sat on the patio. Demming left the bar after about an hour. Appellant argued

with Porier, the owner of the bar stepped in, and appellant “took a swing” at him. When the owner

told appellant he had called the police, appellant jumped a fence and left the bar.

       Later that night, Kristin Scarbrough, who lived next door to Demming, heard someone

yelling at the people on her balcony from the balcony next door. Appellant was “badgering”

Scarbrough’s friends and yelling at them, asking them if they had any marijuana. Porier came

outside, told appellant to go back inside, and told the group “[t]hat he would handle the situation.”

There was loud arguing coming from the apartment next door, after which Scarbrough saw Porier’s

body get slammed against the window. From her balcony she saw Porier push appellant back and

step forward, and then saw Porier’s body “kind of hunched over.” Porier did not move. She

noticed blood around his legs and ran inside to find Demming, who was at her apartment, telling

him “something wasn’t right” and that they “needed to get over there and see what was going on.”

       Appellant came back onto the apartment balcony. When Scarbrough and her friends asked

him what happened, appellant said he had “knocked him the fuck up.” Appellant did not seem

concerned. “Pretty much everyone” in Scarbrough’s apartment ran over to check on Porier, and

                                                –9–
Scarbrough called 911. That 911 call, which was recorded and admitted into evidence, was made

on Saturday, May 31, 2008, at 12:36 a.m.

       Appellant fled the apartment with a knife in his hand and carrying two bags––one bag

across his body and the other over his shoulder. Scarbrough and her boyfriend chased him while

she was on the phone with the 911 operator, but they eventually lost sight of him. Porier died of

multiple stab wounds to his abdomen and left leg. Police and the U.S. Marshals Service searched

for appellant. He was apprehended in January of 2016 while crossing the border from Mexico into

Arizona.

       Appellant testified that on the night of the murder, he, Porier, and Demming went to

Bullwinkles and had approximately three shots of Patron and Corona, and ordered several pitchers

of beer. Appellant denied that Demming left the bar before him and testified that the three men

left the bar together, at around 11:30 p.m. or 12:00 a.m. Appellant also testified that he did not

remember getting into a fight with the owner of the bar or that the owner called the police.

According to appellant, he was drunk when they left the bar and Demming and Porier walked him

home. The men stopped near an auto repair shop and appellant started feeling “paranoid,” thinking

Porier and Demming were going to do something to him. He wrestled with Demming, and Porier

grabbed appellant around the neck from behind.

       Appellant suddenly realized Demming and Porier were his friends, and he “played dead”

so that Porier would release him. Appellant remembered waking up sometime later on the couch

in the apartment. Porier told him he had to leave the apartment, and that he should collect his

things and leave immediately. Appellant told Porier he had “been kicked out of better places,”

and, when he turned to leave, Porier just started punching him. Appellant was in a daze and tried

to get away, but Porier just kept punching him. Appellant had grabbed a knife from the kitchen

and when Porier moved to punch him, he ducked down and pushed toward Porier to avoid the

                                              –10–
punches. He still had the knife in his hand when he pushed toward Porier. Porier fell down, and

appellant ran for the door. Appellant grabbed his bag and pushed past the neighbors to leave the

apartment.

       Appellant testified that he ran away because he thought the neighbors were going to hurt

him, and that he was just following Demming, who was running in front of him. At some point,

appellant fell into a creek and laid there “for a while.” Appellant later returned to the apartment

when it was still dark outside but he saw only yellow tape over the door––no police were there––

and he “figured” Porier had been taken to the hospital. Appellant made his way to downtown

Dallas, where he saw on television that Porier had died. The next day, appellant went to Arizona

and eventually made his way to Mexico. According to appellant, he came back to the United States

because God told him to come forward and face the charges. On cross-examination, appellant

admitted Porier did not have a weapon during the fight, that Porier was stabbed eight times, and

that one of the stab wounds was so deep it had an exit point.

       Appellant supports his argument that the evidence was sufficient to show he acted in

sudden passion by claiming the quarrel that preceded the stabbing was fueled by alcohol and that

he acted in anger, rage, resentment, and/or terror when responding to Porier punching him. But

the only evidence appellant may have been reacting to a violent provocation by Porier was

appellant’s own testimony, which the trial court, in its role as the trier of fact, was free to reject.

The trial court could have chosen to believe the testimony of the witnesses who said appellant

looked like he wanted to fight, that he stabbed Porier repeatedly, announced he had “knocked him

the fuck up,” and that appellant did not appear concerned about what had happened. Moreover,

appellant’s argument appears to be that he acted in fear when he pushed Porier away with the knife

in his hand. Yet, as we noted earlier, neither ordinary anger nor fear alone raises an issue on

sudden passion arising from adequate cause. See Moncivais, 425 S.W.3d at 407.

                                                –11–
       Because some evidence exists to support the trial court’s implied negative finding on

sudden passion, the record satisfies the first part of the legal sufficiency standard and we need not

consider the second part of the analysis. See Gaona, 498 S.W.3d at 711; Moncivais, 425 S.W.3d

at 408. We likewise conclude, after reviewing all of the evidence in a neutral light, that the trier

of fact’s implied rejection of the claim of sudden passion is not so against the great weight and

preponderance of the evidence as to be manifestly unjust. Consequently, the evidence is also

factually sufficient to support the court’s implied negative finding on sudden passion. We overrule

appellant’s third issue.

       We affirm the trial court’s judgment.


                                                              /Lana Myers/
                                                              LANA MYERS
                                                              JUSTICE

Do Not Publish
TEX. R. APP. 47.2(b)
170669F.U05




                                               –12–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 DAVID MARTIN RUIZ, Appellant                       On Appeal from the 219th Judicial District
                                                    Court, Collin County, Texas
 No. 05-17-00669-CR        V.                       Trial Court Cause No. 219-81281-2017.
                                                    Opinion delivered by Justice Myers.
 THE STATE OF TEXAS, Appellee                       Justices Evans and Brown participating.

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

Judgment entered this 30th day of November, 2018.




                                            –13–
