                              Fourth Court of Appeals
                                    San Antonio, Texas
                                MEMORANDUM OPINION
                                        No. 04-15-00640-CR

                                         Eduardo REYES,
                                            Appellant

                                                  v.

                                       The STATE of Texas,
                                             Appellee

                     From the 226th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2014CR0808
                              Honorable Sid L. Harle, Judge Presiding

Opinion by:      Luz Elena D. Chapa, Justice

Sitting:         Sandee Bryan Marion, Chief Justice
                 Marialyn Barnard, Justice
                 Luz Elena D. Chapa, Justice

Delivered and Filed: June 15, 2016

AFFIRMED

           Eduardo Reyes pled guilty to charges of murder and aggravated assault with a deadly

weapon. Reyes raised and issue of sudden passion in mitigation of punishment, which was tried to

the court. The trial court rejected Reyes’s claim of sudden passion and sentenced Reyes to thirty

five years’ confinement on each count, to run concurrently. Reyes appeals, arguing there is

factually insufficient evidence to support the trial court’s rejection of his claim of sudden passion.

We affirm.
                                                                                      04-15-00640-CR


                                            DISCUSSION

       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

cause.” TEX. PENAL CODE ANN. § 19.02(d) (West 2011). If the defendant proves the issue in the

affirmative by a preponderance of the evidence, the murder offense is reduced from a first degree

felony to a second degree felony. Id. § 19.02(d).

       “‘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). “‘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.” Id. § 19.02(a)(2). To

be entitled to an affirmative finding on the issue of sudden passion, the defendant must demonstrate

that there was an adequate cause or 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.” McKinney v. State, 179

S.W.3d 565, 569 (Tex. Crim. App. 2005). Fear or anger alone is insufficient to establish sudden

passion unless “the cause of the fear could produce fear that rises to a level of terror which makes

a person of ordinary temper incapable of cool reflection.” De Leon v. State, 373 S.W.3d 644, 650

(Tex. App.—San Antonio 2012, pet. ref’d). “[A] defendant may not rely on a cause of his own

making to support a claim of sudden passion.” Id.

       When the defendant raises a factual sufficiency challenge to an adverse finding on a plea

he had the burden to prove by a preponderance of the evidence, we apply the civil standard of

review and determine whether the finding was against the great weight and preponderance of the
                                                -2-
                                                                                      04-15-00640-CR


evidence. Matlock v. State, 392 S.W.3d 662, 667 n. 14, 671 (Tex. Crim. App. 2013); See Bernard

v. State, 401 S.W.3d 145, 147 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (holding standard

applies to factual sufficiency review of finding on claim of sudden passion). We review all of the

evidence in a neutral light, and we may not usurp the factfinder’s function of assessing the weight

and credibility of the witnesses’ testimony by substituting our judgment for the factfinder’s.

Matlock, 392 S.W.3d at 671. We may sustain the challenge only if the evidence contrary to the

finding greatly outweighs the evidence supporting it and the finding “is so much against the great

weight of the evidence as to be manifestly unjust, conscience-shocking, or clearly biased.” Id.

       Reyes testified he had been in a relationship with Megan, the murder victim, for three or

four years, and they had a child together. He testified he became aware that Moses, a student at

Megan’s school, had made sexual advances toward Megan on Facebook. Reyes stated that on the

morning of the murder, he woke up early because he was excited that he and Megan were going

to “g[e]t back together” and “try to work things out.” He expected Megan to stop by his house

before school so they could talk, but she did not. Reyes decided to take their baby and ride the bus

to meet Megan at school in the afternoon. He testified that he took a knife with him for self-defense

because he had previously been in a fight with Moses and Moses had threatened him. Reyes stated

he had been told that Moses was “talking shit.”

       Reyes testified that when he arrived at the school, he saw Megan and a crowd forming near

her, and some students were pointing at him and making gang signs. Reyes stated Megan

approached him and they started arguing about “dumb stuff.” Reyes testified he and Megan

continued arguing, and then Megan took the baby and walked away. According to Reyes, a crowd

of students came toward him and jeered at him. Reyes stated he followed Megan and tried to get

the baby back, but then he heard Megan say “I’m going to go with him.” Reyes testified:



                                                -3-
                                                                                    04-15-00640-CR


                I don’t remember much. I don’t even remember stabbing her. I don’t
       remember none of that. I just -- I just remember as soon as -- as soon as I heard
       “why Eddie” or something, I just remember hearing my name and I looked down
       at my hands and I just remember seeing just blood on my hands and black spots
       from -- I don’t know, man. I just remember looking at the knife, backing up to the
       streets. I kept asking myself “what the fuck did I do?” I remember backing up
       walking backwards to the streets and a guy hit from behind, so when I turned
       around, it was somebody out of the crowd.
                I just remember we were starting swinging at each other. After that, he
       backed up and I just noticed the whole crowd came up behind him, too, and I was
       just circling and I just remember getting hit from all directions, so I just started
       swinging at everybody.

       Crystal, another student, testified she was sitting at a bus stop at school when Megan and

Reyes came and sat next to her. Crystal testified they were arguing loudly and Reyes kept asking

Megan to give the baby back to him. Crystal stated there was not a crowd of students around where

they were sitting, but there were twelve to fifteen male students from the school at another bus

stop across the street. Crystal testified Reyes kept grabbing Megan by the arm with which she was

holding the baby, and one of Megan’s friends came from across the street and took the baby away.

Crystal testified Reyes then started punching Megan while Megan was still sitting down “until she

dropped to the floor and that’s when everyone ran from across the street and then I had seen her

bleeding and I noticed that she had got stabbed and then someone else was cut.”

       Robert, another student at Megan’s school, testified he was crossing the street and saw

Reyes punching Megan “[a]round the stomach and the chest area.” Robert stated he told Reyes to

stop and Reyes “turned around and he punched me in the arm.” Robert testified he saw blood and

first thought it was Megan’s but then realized Reyes had stabbed him. Robert denied that anybody

else had approached Reyes before Reyes stabbed him, but after he was stabbed, several others

approached and tried to take the knife out of Reyes’s hand. Robert testified Reyes and Megan had

broken up and Megan was “with Moses.” He further testified he was not in a gang and was not

aware of any students at the school who were in a gang.


                                               -4-
                                                                                     04-15-00640-CR


       Reyes’s mother, Ana Maria Garcia, testified she had a conversation with Reyes the

morning of the murder. She said she advised Reyes not to go to the school and not to take the baby.

Garcia testified she told Reyes not to go “[b]ecause I saw how mad -- he was angry, he was mad,

he was crying. He was saying that he was going to go and give the baby to Megan and then she

was going to leave so he was going to be without the baby.”

       Dr. Jack Ferrell, a clinical forensic psychiatrist who interviewed Reyes, testified Reyes was

sane and competent, but “had some difficulty putting complex emotions, complex situations into

proper categories. It was sort of black or white about a lot of things.” He stated Reyes told him

that Reyes and Megan would often argue, slap each other, tear each other’s clothes, separate, and

then get back together.

       Reyes argues he “was in a fit of rage induced by the combination of the threat he felt with

Moses taking over his relationship, Megan walking away, and the threat he felt when Megan took

the baby.” However, Reyes acknowledged he took the baby into a dangerous situation for which

he armed himself with a knife for self-defense and, according to Garcia, Reyes knew Megan was

going to leave him and take the baby. Reyes may not rely on a cause of his own making to support

a claim of sudden passion. See De Leon, 373 S.W.3d at 650. Garcia’s testimony that Reyes was

“angry, mad, and crying” before Reyes took the bus to Megan’s school showed the passion existed

before Reyes went to the school and there was reasonable opportunity for Reyes’s passion to cool.

Furthermore, Crystal and Robert contradicted Reyes’s testimony that a group of menacing students

was forming around him and Megan before the stabbing. Having reviewed all the evidence in a

neutral light, we cannot say that the trial court’s rejection of Reyes’s claim of sudden passion

arising from adequate cause “is so much against the great weight of the evidence as to be

manifestly unjust, conscience-shocking, or clearly biased.” See Matlock, 392 S.W.3d at 671.



                                               -5-
                                                                             04-15-00640-CR


                                       CONCLUSION

     We affirm the trial court’s judgments.

                                               Luz Elena D. Chapa, Justice

DO NOT PUBLISH




                                              -6-
