                                                                           PD-1482-15
                          PD-1482-15                COURT OF CRIMINAL APPEALS
                                                                    AUSTIN, TEXAS
                                                 Transmitted 11/23/2015 12:00:00 AM
                                                   Accepted 11/23/2015 11:07:41 AM
               NO.   ______________________________                  ABEL ACOSTA
                                                                             CLERK

                        IN THE COURT OF CRIMINAL

                             APPEALS OF TEXAS

                      AUSTIN, TEXAS
     ______________________________________________

                         JUAN RODRIGUEZ-OLIVAS,
                                Appellant

                                     VS.

                    THE STATE OF TEXAS,
                          Appellee
     _______________________________________________

     On Petition for Discretionary Review from Cause no. 02-13-00520-
           CR in the Second Court of Appeals, Fort Worth, Texas
     _______________________________________________

     APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
     _______________________________________________

                           Respectfully Submitted,

    Anthony D. Lyons                              John D. Nation
    State Bar No. 12741750                        State Bar No. 14819700
    320 S. R.L. Thornton Frwy,                    4925 Greenville,
    Ste. 300                                      Ste. 200
    Dallas, Texas 75203                           Dallas, Texas 75206
    214-941-1881                                  214-800-5160
    214-941-1399 (fax)                            214-800-5161 (fax)



                            Attorneys for Appellant


November 23, 2015
            IDENTITY OF PARTIES AND COUNSEL


Appellant:

Juan Rodriguez-Olivas

Trial and Appellate Counsel:

Anthony Lyons, Trial
320 South R.L. Thornton Freeway, Suite 300, Dallas, Texas 75203

John D. Nation, Appeal, 4925 Greenville, Suite 200, Dallas, Texas
75206

Appellee:

The State of Texas

Trial Counsel:

Janice Warder, Ron Poole
District Attorney’s Office, Cooke County, Texas
101 S. Dixon Street, Suite 309, Gainesville, Texas 76240

Trial Court:

235th District Court, Cooke County, Texas:

Hon. Janelle Haverkamp
101 S. Dixon
Gainesville, Texas 76240




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               Appellant’s Petition for Discretionary Review
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                                 TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL........................................... 2

TABLE OF AUTHORITIES.................................................................. 4

STATEMENT REGARDING ORAL ARGUMENT ............................... 6

STATEMENT OF THE CASE............................................................... 6

STATEMENT OF PROCEDURAL HISTORY ...................................... 6

FACT STATEMENT ............................................................................. 6

APPELLANT’S GROUND FOR REVIEW NO. ONE ............................ 9

  1. Did the court of appeals err in finding facts based on the
  videotape of Appellant’s detention, rather than determining whether
  the videotaped evidence supported the trial court’s determination of
  historical facts? ................................................................................. 9

APPELLANT’S GROUND FOR REVIEW NO. TWO .......................... 12

  2. Did the court of appeals err in holding that the facts known to
  police justified a continued detention beyond the normal scope of an
  investigative detention? ................................................................... 12

APPELLANT’S GROUND FOR REVIEW NO. THREE ...................... 15

APPELLANT’S GROUND FOR REVIEW NO. FOUR......................... 16

APPELLANT’S GROUND FOR REVIEW NO. FIVE .......................... 19

CONCLUSION AND PRAYER FOR RELIEF .................................... 24

CERTIFICATE OF COMPLIANCE .................................................... 25

CERTIFICATE OF SERVICE ............................................................. 25


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                                TABLE OF AUTHORITIES

Cases

Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007 ..........10

Anderson v. Bessemer City, 470 U.S. 564, 574-575 (1985). ............... 11

Anderson v. State, 787 S.W.2d 221, 229 (Tex. App.—Fort Worth 1990,

  no pet.) ............................................................................................. 14

Brick v. State, 738 S.W.2d 676, 681 (Tex. Crim. App. 1987) .............. 16

Florida v. Royer, 460 U.S. 491, 500 (1983) ....................................... 14

Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App.1987), cert.

  denied, 484 U.S. 905 (1987). .......................................................... 23

Good v. State, 723 S.W.2d 734, 738 (Tex. Crim. App. 1986). ............ 23

Hill v. State, 303 S.W.3d 863, 872 (Tex. App.—Fort Worth 2009, pet.

  ref'd)................................................................................................. 12

McCartney v. State, 542 S.W.2d 156, 160 (Tex. Crim. App. 1976) .... 21,

  22

Meekins v. State, 340 S.W.3d 454, 458-459 (Tex. Crim. App. 2011). 17

Montanez v. State, 195 S.W.3d 101 (Tex. Crim. App. 2006), .............10

Munera v. State, 965 S.W.2d 523, 532 (Tex. App.—Houston [14th

  Dist.] 1997, pet. ref'd) ...................................................................... 16

Ohio v. Robinette, 519 U.S. 33 (1996) (Ginsberg, J., concurring). ..... 14


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               Appellant’s Petition for Discretionary Review
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Perez v. State, 818 S.W.2d 512, 517 (Tex. App.—Houston [1st Dist.]

  1991, no pet.). ................................................................................... 14

Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000). ........... 17

Rodriguez-Olivas v. State, No. 02-13-00520-CR (Tex. App.—Fort

  Worth 2015) ............................................................................. passim

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973);....................... 17

United States v. Watson, 423 U.S. 411, 424 (1976). ........................... 17

Zimmerman v. State, (85 Tex. Cr. R 630), 215 S.W. 101 (Cr. App. 1919)

  ................................................................................................... 21, 22

Statutes

TEX. PENAL CODE § 19.02 (b) (1)...................................................... 6

Rules

Tex. R. App. Pro. 66.3 (c): .......................................................... passim




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                Appellant’s Petition for Discretionary Review
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          STATEMENT REGARDING ORAL ARGUMENT

     Appellant does not request oral argument.


                    STATEMENT OF THE CASE

     Appellant was indicted for the offense of murder, TEX. PENAL

CODE § 19.02 (b) (1). Specifically, he was charged with killing Linda

Barrett, his girlfriend. (R. III 18-19). To this indictment Appellant

pleaded not guilty and he proceeded to jury trial on both guilt-

innocence and punishment. The jury found him guilty as charged and

assessed punishment at life imprisonment, having found against

Appellant on the sudden passion issue. (R. VI 54).


             STATEMENT OF PROCEDURAL HISTORY

     The court of appeals issued the opinion on October 15, 2015. No

motion for rehearing was filed.

                         FACT STATEMENT

     Although the decedent, Linda Barrett, had been dead for some

time, her body was not discovered until June 15, 2012. Shaun

Kaufman, an acquaintance of Appellant, was out driving with his

girlfriend, attempting to discover what was wrong with his car. (R.III

25). At that time, he saw Appellant, whom he knew as “Juan” or

“Mickey.” Appellant needed a battery charge to restart his stranded
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               Appellant’s Petition for Discretionary Review
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vehicle. (R.III 28). Kaufman and Appellant drove to Appellant’s trailer

home to get jumper cables. (R.III 29).

      When they arrived at his residence, Kaufman followed Appellant

into the master bedroom and watched while Appellant unlocked a

closet. Inside, Kaufman saw a dead woman’s body, wrapped in plastic

and seated on a chair. (R.III 29-31). Though he could not see the face,

Kaufman asserted that he knew the woman to be Linda Barrett or

Burns, Appellant’s girlfriend. Kaufman said nothing, but shook his

head. Appellant told him that “she [Linda] was going to get him caught

up.” (R.III 31-32).

      Kaufman went to his mother’s house, took an un-prescribed

Xanax pill and called the police. After the call went out, Gainesville

Police Department Investigator Jack Jones, who knew both Appellant

and Linda Burns, set up surveillance on Truelove Street. Appellant’s

vehicle drove by, stopping to let off a male passenger. When Appellant

drove by again, Jones noted the vehicle to Sgt. Jonathan Frith, who

drove off in pursuit. (R.IV 57).

      Frith followed the vehicle and observed the driver making two

turns without signaling. Based on this evidence, Frith stopped the

vehicle and approached from the driver’s side. This he did with his gun


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               Appellant’s Petition for Discretionary Review
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drawn. (R.IV 18-19). Shortly thereafter, he lowered his weapon and

secured it once Appellant and his passenger, Linda Kuykendall, left the

car. (R.IV 22). Investigator Jack Jones arrived at the scene and

participated in the detention.

      Frith “frisked” the vehicle for weapons. (R.IV 41-42). Jones

performed a more thorough search of the passenger compartment,

finding a credit card in Linda Barrett’s name in the rear seat and a BB

pistol in the rear floorboard. (R.IV 63).

      Sgt. Frith conceded that Appellant essentially was under arrest

when he exited the vehicle. (R.IV 40). Jones disagreed, asserting that

Appellant was not under arrest or in custody, but in any event was not

free to leave. (R.IV 64-65). Jones stated that the search of the

passenger compartment was by consent; Frith did not know whether

consent was obtained or not. (R.IV 40; 62-63).

      Jones contended that he had obtained Appellant’s consent to

search his residence. The record reflects that Jones asked Appellant if

they could go to his residence and “look for Linda.” Appellant replied,

“Sure, I guess.” (R.IV 66).

      Sgt. Daniel Orr interviewed Shaun Kaufman at the station. Orr

told Investigator Jones that if he smelled decay at the residence, he was


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               Appellant’s Petition for Discretionary Review
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to stop and call in. Orr further advised him that if he encountered a

locked closet to stop and inform him. (R.IV 164-167).

     These sensible precautions were not followed. Investigator

Jones, Appellant and Frith arrived at the residence. Jones informed

Frith he had consent to enter and search the residence. (R.IV 67).

Appellant unlocked the door and a pit bull came out. The scent of

animal urine and feces was overpowering.

     Jones observed a locked closet in the northeast corner of the

master bedroom. The officer told Appellant he wanted to look inside.

Appellant took out his keys and opened the closet. Jones only at this

time noticed the odor of a decomposing body and saw a woman,

wrapped in plastic, slumping over in a chair. (R.IV 69-70). Only then

was Appellant handcuffed and formally placed under arrest. (R.IV 70).

          APPELLANT’S GROUND FOR REVIEW NO. ONE

     1.    Did the court of appeals err in finding facts based

on the videotape of Appellant’s detention, rather than

determining whether the videotaped evidence supported the

trial court’s determination of historical facts?




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       Reasons for Review:

       Tex. R. App. Pro. 66.3 (c): decided important question of law

contrary to Court of Criminal Appeals and Supreme Court decisions.

       Arguments and Authorities:

       At several points in its opinion, the court reviews the video

evidence and makes what can only be considered fact findings.1 These

statements are not couched in terms of reviewing the trial court’s fact

findings and in its findings the court betrays its sympathy for the trial

court’s denial of Appellant’s motion to suppress.

       A court of appeals may properly review a videotape to determine

if the trial court’s fact-findings are appropriate, as long as this review

is deferentially done. Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007). Deferential review, however, excludes fact finding

by the court, either for or against the trial court’s suppression ruling.

In Montanez v. State, 195 S.W.3d 101 (Tex. Crim. App. 2006), cited but




1
 Rodriguez-Olivas v. State, No. 02-13-00520-CR (Tex. App.—Fort Worth 2015)
slip op. at 6 (“It is evident from the video that Jones and Rodriguez-Olivas were
familiar with each other.”); slip op. at 7 (discussion of Appellant possibly selling
prescription drugs, an issue not advanced either at trial or on appeal); slip op. at 7
(officer refocusing attention on identity of female passenger); slip op. at 8 (“From
the video, it is apparent that Jones and other officers are receiving information
regarding Kaufman's interview while they are detaining Rodriguez-Olivas and
Kuykendall.”).
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                 Appellant’s Petition for Discretionary Review
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not studied by the court, the court of criminal appeals quoted this

passage from Anderson v. Bessemer City:

         The rationale for deference to the original finder of fact
     is not limited to the superiority of the trial judge's position
     to make determinations of credibility. The trial judge's
     major role is the determination of fact, and with experience
     in fulfilling that role comes expertise. Duplication of the
     trial judge's efforts in the court of appeals would very likely
     contribute only negligibly to the accuracy of fact
     determination at a huge cost in diversion of judicial
     resources. In addition, the parties to a case on appeal have
     already been forced to concentrate their energies and
     resources on persuading the trial judge that their account
     of the facts is the correct one; requiring them to persuade
     three more judges at the appellate level is requiring too
     much.

195 S.W.3d at 109, quoting Anderson v. Bessemer City, 470 U.S. 564,

574-575 (1985).

     One might add that fighting the trial court’s findings on appeal is

expected of appellants; they cannot, however, anticipate fact findings

by an appellate court to which they have no opportunity to respond.




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               Appellant’s Petition for Discretionary Review
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            APPELLANT’S GROUND FOR REVIEW NO. TWO

      2.     Did the court of appeals err in holding that the

facts known to police justified a continued detention beyond

the normal scope of an investigative detention?

      2.1    Did the court of appeals err in holding that the

investigative detention was not the fruit of an unlawfully

prolonged detention?

      Reasons for Review:

      Tex. R. App. Pro. 66.3 (c): decided important question of law

contrary to Court of Criminal Appeals and Supreme Court decisions.

      Arguments and Authorities:

      The court of appeals overruled Appellant’s first three points of

error challenging the detention of his vehicle and almost immediate

arrest, holding that the facts developed by the officers in the allegedly

brief investigative detention justified a continued detention beyond

that necessary to effectuate the traffic stop. Slip op. at 32, citing Hill v.

State, 303 S.W.3d 863, 872 (Tex. App.—Fort Worth 2009, pet. ref'd)

(holding that an officer who develops reasonable suspicion during the

course of a lawful traffic stop may continue the detention of the

occupants of the vehicle to investigate criminal activity beyond the


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               Appellant’s Petition for Discretionary Review
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scope of the law violation that formed the basis of the initial stop).

Cited in support of this holding were three factors developed during

the stop: discovery of a BB gun, 100 hydrocodone pills and a credit card

bearing the decedent’s name. Slip op. at 33.

      Possession of a BB gun, which is legal, makes it no more or less

likely that Appellant had murdered his girlfriend or that he had

committed any offense other than the traffic violation. Since Appellant

and the decedent were in a relationship, it should come as no surprise

that her credit card would be in his vehicle.

      The court is simply reaching when it asserts that the

hydrocodone pill bottle justified a continuing detention. Investigator

Jones thought that “too many pills were missing” from the bottle. This

is pure speculation—how many missing pills is too many? The bottle

obviously belonged to Appellant and the simplest explanation of the

missing pills is that he lawfully took them. There was no evidence

justifying a reasonable suspicion that Appellant was engaged in selling

hydrocodone.

      None of the facts cited by the court justified a detention of

Appellant’s vehicle beyond that necessary to effectuate the traffic stop.

The court was simply fishing for facts that might justify the prolonged


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               Appellant’s Petition for Discretionary Review
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detention. An investigative detention must be temporary and last no

longer than is necessary to effectuate the purpose of the stop. Florida

v. Royer, 460 U.S. 491, 500 (1983). This limitation means that once

the reason for the stop has been satisfied, the stop may not be used as

a fishing expedition for unrelated criminal activity. Ohio v. Robinette,

519 U.S. 33 (1996) (Ginsberg, J., concurring). Consequently, a

detention that is not temporary and reasonably related in scope to the

circumstances which justified the interference is unreasonable, and

thus violates the Fourth Amendment.

     The propriety of the duration of the detention is judged by

whether police officers pursued a means of investigation which

confirmed or dispelled their suspicions quickly and in a manner that

did not exceed the scope of the detention. Anderson v. State, 787

S.W.2d 221, 229 (Tex. App.—Fort Worth 1990, no pet.); Perez v. State,

818 S.W.2d 512, 517 (Tex. App.—Houston [1st Dist.] 1991, no pet.). The

court of appeals failed to realize that the prolonged nature of the

detention in this case was not based on a legitimate ongoing

investigation but a ploy to “soften up” Appellant and obtain consent to

search his residence. The detention was illegal and unreasonable and




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               Appellant’s Petition for Discretionary Review
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the consent to search, following hard on the heels of the stop, was

similarly illegal.2

            APPELLANT’S GROUND FOR REVIEW NO. THREE

       3.     Did the court of appeals err in holding that

Appellant’s consent to search his residence was not vitiated

by the illegal detention?

       Reasons for Review:

       Tex. R. App. Pro. 66.3 (c): decided important question of law

contrary to Court of Criminal Appeals and Supreme Court decisions.

       Arguments and Authorities:

       Implicit in the court of appeals’ rejection of Appellant’s attack on

the detention is a rejection of Appellant’s point of error asserting that

his consent to search his residence was a fruit of the illegal detention.

If police obtain evidence as the result of a consensual search during an

illegal seizure, a defendant may have the evidence suppressed unless

the State proves that the causal relationship between the police


2
  A reasonable reader might well wonder why the officers went to all the trouble in
this case when a simpler investigative route would have been both efficacious and
constitutional. Nothing in the record reflects that Appellant was about to escape
and his behavior with Shaun Kaufman indicates that he was taking no steps to
conceal the crime. Officers could have simply corroborated details of Kaufman’s
account and legally obtained a search warrant prior to entering the residence. One
might also wonder why the court of appeals went to such lengths to justify the
illegal detention, given that a routine investigation would have been both simpler
and legal.
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                 Appellant’s Petition for Discretionary Review
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misconduct and the defendant’s consent is attenuated—that is, the

illegal seizure did not taint the otherwise voluntary consent. Brick v.

State, 738 S.W.2d 676, 681 (Tex. Crim. App. 1987); Munera v. State,

965 S.W.2d 523, 532 (Tex. App.—Houston [14th Dist.] 1997, pet. ref'd).

      Nothing in the record shows any break in the causal relationship

between the illegal detention and the consent to search the residence.

The consent in fact occurred during the illegal detention. Nothing

happened between, if between is quite the word, the detention and the

consent. Therefore, there is no attenuation to allow consent to be used

as a basis for the search. The court of appeals erred in failing to hold

that the consent in this case was a fruit of the illegal detention.

           APPELLANT’S GROUND FOR REVIEW NO. FOUR

      4.    Did the court of appeals err in holding that

Appellant’s consent to search his residence was voluntary:

      Reasons for Review:

      Tex. R. App. Pro. 66.3 (c): decided important question of law

contrary to Court of Criminal Appeals and Supreme Court decisions.

      Arguments and Authorities:

      The court of appeals held that Appellant’s consent to search his

residence was otherwise voluntary. Slip op. at 42-44. To be voluntary


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               Appellant’s Petition for Discretionary Review
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under the Fourth and Fourteenth Amendments, consent must not be

coerced by explicit or implicit means nor by implied threat or covert

force. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); Meekins v.

State, 340 S.W.3d 454, 458-459 (Tex. Crim. App. 2011). Whether a

person’s consent to search was voluntary is a question of fact to be

determined in each case from the totality of the circumstances of the

particular situation. Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim.

App. 2000). Factors that a court may examine when determining if a

person voluntarily consented to a search include, but are not limited

to, the person’s age, education and intelligence, whether the

consenting person was in custody, whether the person was arrested at

gunpoint, whether the person had the option of refusing consent, the

constitutional advice given, the length of the detention, the

repetitiveness of any questioning and the use of physical punishment.

See Reasor, 12 S.W.3d at 818. The ultimate question to be determined

is whether the individual’s will has been overborne and his capacity for

self-determination critically impaired, such that his consent to search

must have been involuntary. United States v. Watson, 423 U.S. 411,

424 (1976). The State must prove voluntariness by clear and

convincing evidence. Meekins, 340 S.W.3d at 459.


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               Appellant’s Petition for Discretionary Review
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      Before Appellant gave his consent, he had been detained by

officers at gunpoint. Although they later holstered their weapons, this

hardly negates the aggressive nature of the detention. He was held over

an hour by officers who had detained him so long for the express

purpose of obtaining his consent. His consent was less than

unequivocal: “sure, I guess I could.” Slip op. at 10.

      The court of appeals held that the actions of the officers in the

gunpoint detention were necessary. That is not the question. Necessary

or not, the officers’ actions militate against a finding of voluntary

consent. Further, no written consent was offered to Appellant and little

in way of admonishments were given. The court of appeals clearly erred

in failing to hold that Appellant’s consent was nothing more than a

submission to authority and was involuntary under the circumstances.




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               Appellant’s Petition for Discretionary Review
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           APPELLANT’S GROUND FOR REVIEW NO. FIVE

      5.    Did the court of appeals err in holding that

prosecution argument misplacing the burden of proof as to

a person of ordinary temperament was harmless?

      Reasons for Review:

      Tex. R. App. Pro. 66.3 (c): decided important question of law

contrary to Court of Criminal Appeals and Supreme Court decisions.

      Arguments and Authorities:

      A prosecutor argued as follows during the punishment hearing:

      And, let’s assume for a minute, that we believed the latest version

of Mr. Rodriguez’s stories. The story, the tearful story that he told us

here on the witness stand. Then we would have to examine whether he

can meet the definition in the Court’s charge, that of ordinary temper.

But we know that he is a drug addict. He always acted schitzy. And we

know from the rest of the testimony that he is not a—

      [Defense Counsel] Excuse me.

      [Prosecutor] –person of ordinary temper.

      [Defense Counsel] Judge, we object to as to whether or not Mr.

Rodriguez can meet the burden of ordinary temper. I don’t think he

has the burden to meet. I believe that if the Court’s charge outlining the


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               Appellant’s Petition for Discretionary Review
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law, that rage or anger must be such that a person of ordinary

temperament would be enraged, not necessary to the exclusion of

anybody else, if they don’t have ordinary temper. And my objection is

that the state is attempting to set a standard that the law does not

require. That’s my objection, Your Honor.

      [The Court] Okay, I’m overruling the objection. And again, I just

remind the jury that this is the argument of the lawyers. The law that

is applicable in this case is contained—contained in the jury charge,

which will, again, be placed in the jury room for your review.

      This is where the attorneys are able to argue to you what they

believe the law is, and what they believe the facts are. But you are to be

governed by the law and it is stated in the charge.

      [Defense Counsel] Judge, I want to be sure my objection is clear.

      [The Court] Okay.

      [Defense Counsel] I’m not arguing her argument. I’m arguing

that’s not the law so—

      [The Court] I understand.

      [Defense Counsel] Yes, ma’am.

      [The Court] I’m overruling your objection.

      [Defense Counsel] Thank you, ma’am.


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               Appellant’s Petition for Discretionary Review
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(R.VI 25-26).

     Appellant argued on direct appeal that this was an erroneous and

harmful misstatement of the law. The court of appeals “assumed

arguendo” that the prosecutor had misstated the law but then launched

into a discussion of why the error was harmless. Slip op. at 50-51.

     With all due respect, a discussion of the nature of the error is

necessary to determine the degree of harm. The prosecutor

erroneously stated the law, and what is more, the prosecutor’s view of

the law has been wrong since 1919.

     In McCartney v. State, 542 S.W.2d 156, 160 (Tex. Crim. App.

1976), the Court noted that the definition of adequate cause is both

objective and subjective. It is objective because it views the alleged

provocation through the eyes of an ordinary man; it is subjective

because the fact-finder must view from the actor’s standpoint in order

to determine the condition of mind of the accused at the time of the

offense.

     The Court further noted:

     The only Texas case found that alluded to the objective-
     subjective nature of the adequate cause definition,
     Zimmerman v. State, (85 Tex. Cr. R 630), 215 S.W. 101 (Cr.
     App. 1919), affirmed that it is the ordinary man’s response
     to the alleged provocation that is material, not the


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               Appellant’s Petition for Discretionary Review
                               Page 21 of 25
       epileptic defendant’s, but that the jury must place the
       ordinary man in the defendant’s situation.

542 S.W.2d at 160. (emphasis added).3

       In McGhee v. State, No. 01-09-00147-CR (Tex. App.—Houston

[1st Dist.] 2011) (memorandum opinion), the defendant proposed to

call an expert witness to testify that he was a person of ordinary temper.

The trial court excluded the evidence and the court of appeals held that

this ruling was correct, citing McCartney:

       Thus, the issue is not whether appellant is a man of
       ordinary temper; the issue is how the objectively
       reasonable man would react if placed in appellant’s
       situation. Therefore, the trial court did not err in excluding,
       on relevancy grounds, the expert’s testimony regarding
       whether appellant was a man of ordinary temper.

Slip op. at 27.

       The prosecutor asserted in this argument that ordinary

temperament was an element of Appellant’s burden of proof, not an

objective standard against which his conduct was to be measured. Also

erroneous was the prosecutor’s assertion that Appellant could not meet

this burden, not because his conduct during the offense showed lack of


3
  The Court found Zimmerman “unsatisfactory” on this issue because the main
issue was insanity and the defendant raised the sudden passion issue for the first
time on appeal. The Court went on to say that most jurisdictions have applied the
common-law ordinary man test, thus ruling out conditions peculiar to the
individual that arguable made him easier to provoke. 542 S.W.2d at 160.
(emphasis added).
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                 Appellant’s Petition for Discretionary Review
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ordinary temperament, but because of his past conduct (drug addict)

and his inherent personality flaws (“schitzy’). Even worse, the

prosecutor suggested that Appellant had failed to prove this supposed

element of sudden passion, when Appellant was barred by the rules of

evidence from presenting expert testimony on this issue. This

argument was manifestly improper and clearly contrary to the

applicable law.

      Neither is the court’s resolution of the harm issue correct. Our

law is clear that sustaining an objection to improper argument and

instructing the jury to disregard the argument is normally sufficient to

cure error arising from the improper argument. See Gardner v. State,

730 S.W.2d 675, 696 (Tex. Crim. App.1987), cert. denied, 484 U.S. 905

(1987). However, the converse is equally true--the overruling of a

proper objection places "the stamp of judicial approval" on the

improper argument and magnifies the possibility of harm. See Good v.

State, 723 S.W.2d 734, 738 (Tex. Crim. App. 1986). In other words,

rather than curing the error, by overruling the objection the trial court

compounds the error.

      The chief reason the error was harmless, according to the court,

was that the jury charge correctly stated the law. Slip op. at 51. This is


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               Appellant’s Petition for Discretionary Review
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true and the charge provided some small ameliorative effect. But

whatever curative effect the charge provided was far outweighed by the

trial court overruling the objecting and compounding the error. Stated

another way, it mattered little what the charge said, the judge told the

jury that the prosecutor’s argument was correct and was the law. The

court of appeals’ harm analysis is flawed and such be examined by this

Court.

             CONCLUSION AND PRAYER FOR RELIEF

      WHEREFORE,        Appellant    prays   that   his   Petition   for

Discretionary Review be granted.

                                    Respectfully submitted,


                                    /s/ John D. Nation
                                    John D. Nation
                                    State Bar No. 14819700
                                    4925 Greenville, Suite 200
                                    Dallas, Texas 75206
                                    214-800-5160
                                    214-800-5161 (facsimile)


                                    /s/ Anthony D. Lyons
                                    Anthony D. Lyons
                                    State Bar No. 12741750
                                    320 S. R.L. Thornton Freeway
                                    Suite 300
                                    214-941-1881
                                    214-941-1399 (facsimile)


  _________________________________________________________
               Appellant’s Petition for Discretionary Review
                               Page 24 of 25
                  CERTIFICATE OF COMPLIANCE

     Pursuant to Tex. R. App. Pro. 9.4 (i) (3), I hereby certify that this

brief contains 4,419 words, in 14-point, Georgia font.

                                    /s/ John D. Nation
                                    John D. Nation


                     CERTIFICATE OF SERVICE

     This is to certify that I have mailed a true copy of this brief to

Hon. Janice Warder, District Attorney, Cooke County, 101 S. Dixon

Street, Suite 309, Gainesville, Texas 76240 via the electronic filing

system or to her facsimile number, 940-668-5499, on this 16th day of

November 2015.

                                    /s/ John D. Nation
                                    John D. Nation




  _________________________________________________________
               Appellant’s Petition for Discretionary Review
                               Page 25 of 25
                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-13-00520-CR


JUAN MANUEL RODRIGUEZ-                                            APPELLANT
OLIVAS

                                      V.

THE STATE OF TEXAS                                                     STATE


                                   ----------

          FROM THE 235TH DISTRICT COURT OF COOKE COUNTY
                    TRIAL COURT NO. CR12-00257

                                   ----------

                       MEMORANDUM OPINION1

                                   ----------

                               I. INTRODUCTION

      Appellant Juan Manuel Rodriguez-Olivas appeals his conviction for murder

while using a deadly weapon, to-wit: a knife.2 In five points, Rodriguez-Olivas


      1
      See Tex. R. App. P. 47.4.
      2
      See Tex. Penal Code § 19.02 (West 2011).
argues that the trial court erred by overruling his motion to suppress evidence;

that the evidence was insufficient to support the jury’s verdict that he did not act

in sudden passion when he stabbed his girlfriend, Linda Barrett, to death; and

that the State misstated the law at the punishment phase and that this

misstatement was harmful. We will affirm.

                                 II. BACKGROUND

      Shaun Kaufman and his girlfriend, Sandra Mozingo, were working on his

car on June 15, 2012. As they test-drove the car, Kaufman saw Rodriguez-

Olivas, whom Kaufman knew as an acquaintance through his friend Barrett.

Kaufman knew Rodriquez-Olivas as “Juan” and also by his street name,

“Mickey.” Kaufman also knew his friend Barrett as both Linda Barrett and Linda

Burns—she had previously been married to his friend. Kaufman learned that

Rodriguez-Olivas’s car had broken down and offered to assist.

      From there, the three drove to Rodriguez-Olivas’s trailer home in order to

retrieve some jumper cables. Because Rodriguez-Olivas insisted that he wanted

to show Kaufman something, Kaufman followed Rodriguez-Olivas into the trailer

home. While there, Rodriguez-Olivas took Kaufman to his bedroom, unlocked a

closet, stated something to the effect of “she’s going to get [me] caught up,” and

showed Kaufman a dead body that had been wrapped with some type of plastic

wrap in a chair.

      Kaufman testified at trial that he was “speechless” as these events

transpired and that he knew the body was Barrett’s.        After Rodriguez-Olivas


                                         2
showed him the body, Kaufman left the trailer home immediately and went back

to his car. “I walked off,” Kaufman testified. Rodriguez-Olivas followed, and

Kaufman gave him a ride back to his car. During the ride, Rodriguez-Olivas

showed Kaufman a gun that was tucked into his waistband. After jump-starting

Rodriguez-Olivas’s car, Kaufman left. En route to his house, Kaufman stopped

along the way and told Mozingo what had just happened. The two then retrieved

some clothes from Kaufman’s house and drove to the apartment of Kaufman’s

mother, where Kaufman took a Xanax and then proceeded to call 911. Kaufman

averred that he went to his mother’s apartment to call 911 because he feared

that Rodriguez-Olivas might come try to find him at his own residence.

      After identifying who he was and where he was calling from, Kaufman told

the 911 operator that a man named “Juan” who lived on a street named

“Truelove” had just showed him the dead body of his friend “Linda Burns.” Not

knowing the exact address, he also described Rodriguez-Olivas’s trailer home to

the 911 operator. According to Kaufman, Rodriguez-Olivas’s trailer home was

the “only one like it on the block.” Kaufman said that he called within thirty

minutes of Rodriguez-Olivas’s having shown him the body.            From there,

responding Officer Chris Jones of the Gainesville Police Department drove

Kaufman to the police station, where he gave interviews to Jones and Sergeant

Daniel Orr. The record indicates that Kaufman arrived at the police station at

5:00 p.m.    While there, Kaufman gave a more detailed account of what




                                        3
Rodriquez-Olivas had shown him, including telling them that the closet where he

saw Barrett’s body was locked with a padlock.

      Orr testified that, based on Kaufman’s 911 call, he generated “call notes”

and broadcast them to all available officers. Orr said that the call notes also

included information regarding previous calls made to the police that involved

Rodriguez-Olivas and a “Linda Barrett.”        Orr said that during the time he

interviewed Kaufman, other officers had detained Rodriguez-Olivas and had

obtained consent to search his residence. Orr said that based on Kaufman’s call

and interview, he had already begun the process of obtaining a search warrant.

Thus, Orr said that he instructed the officers to wait for the search warrant if they

smelled the odor of a decomposing body upon entering the trailer home.

      Gainesville Police Investigator Jack Jones, who was on duty assisting with

the patrol division on June 15, 2012, read the call notes on his mobile computer.

Jones testified that he knew “Juan Rodriguez” from previous law-enforcement

interactions. From these interactions, Jones also knew that “Juan Rodriguez”

lived on Truelove Street and that he dated a woman named “Linda.” Jones also

knew the make and model of Rodriguez-Olivas’s vehicle.              Jones went to

Rodriguez-Olivas’s trailer home and set up surveillance in an attempt to locate

Rodriguez-Olivas’s vehicle. Jones said that he intended to have a consensual

encounter with Rodriguez-Olivas or wait for him to violate some state law in order

to stop and question him about Kaufman’s report. Jones soon saw Rodriguez-

Olivas’s silver Lincoln Town Car. Unable to stop the vehicle, Jones questioned a


                                         4
man who had exited the vehicle shortly after Jones saw it. The man told Jones

that he did not know the name of the male who was driving the vehicle but that

he knew the name of the driver’s passenger, “Linda.”          When Jones asked

whether the man was armed, the man expressed that because he was a felon,

he could not have a gun, but that he did not know whether the driver of the

vehicle had one.

      Soon after seeing Rodriguez-Olivas’s vehicle the first time, and as Jones

and Sergeant John Frith of the Gainesville Police Department talked from their

patrol units outside of the trailer home, Rodriguez-Olivas’s vehicle drove down

Truelove Street again. According to Jones, Frith followed Rodriquez-Olivas and

conducted a traffic stop. The record indicates that the traffic stop occurred at

5:07 p.m.

      Jones proceeded to the location where Frith had stopped Rodriguez-

Olivas. Jones said that upon arriving, Frith informed him that there was possibly

a “black pistol” in the vehicle. According to Jones, shortly after he arrived at the

traffic-stop location, he requested Rodriguez-Olivas’s consent to search the

vehicle. Jones said that Rodriquez-Olivas consented. Jones also testified that

he later asked Rodriquez-Olivas for consent to search the trailer home, to which

Rodriquez-Olivas purportedly stated, “[S]ure, I guess.” Jones further averred that

Rodriquez-Olivas granted consent to search the closet once Jones, Rodriquez-

Olivas, and Frith were inside the trailer home. Inside the closet, Jones found




                                         5
Barrett’s body as Kaufman had described—deceased, sitting in a chair, and

wrapped with some type of plastic wrap.

      In a video taken from Jones’s in-car camera, Jones can be seen

addressing Rodriguez-Olivas shortly after Frith had made the traffic stop and

Rodriguez-Olivas had exited the vehicle. Jones initially asked Rodriguez-Olivas

about the person he dropped off earlier. Jones can also be heard saying to

Rodriguez-Olivas, “You’re sweating profusely.”

      It is evident from the video that Jones and Rodriguez-Olivas were familiar

with each other. At one point, Jones even wiped Rodriguez-Olivas’s brow to

remove sweat, and Rodriguez-Olivas can be heard saying, “I appreciate it.”

Jones can then be heard stating to Rodriguez-Olivas, “Juan, you’re nervous,” to

which Rodriguez-Olivas’s can be heard replying, “I’m just hot, man.” Jones can

next be heard asking, “Do you have any dope on you?”              Rodriguez-Olivas

responded “I’ve got my pills.” At that time, and only three minutes into the stop,

Jones asked Rodriguez-Olivas, “That’s it? Nothing illegal in the vehicle? You

don’t mind if I take a look?” Yet again, Jones asked, “You don’t mind if I take a

look?” Rodriguez-Olivas’s response is inaudible, but Jones can next be heard

stating, “Alright, step right back here to the rear of the vehicle.” Rodriguez-Olivas

complied, and Jones began searching the vehicle.

      In his search of the vehicle, Jones found a bottle containing over 100

hydrocodone pills. According to statements made by Jones in the video, the

bottle’s label had been partially torn off. Jones can be heard asking Rodriguez-


                                          6
Olivas, “What are these?” And Rodriguez-Olivas can be heard replying, “Those

are my pain pills.” There is also an exchange between Jones and Rodriguez-

Olivas in the video wherein Rodriguez-Olivas explained to Jones that the receipt

for the pills was in the vehicle. Jones can be heard a short time later explaining

to a fellow officer that too many pills were missing from the prescription relevant

to the fill date and that he suspected Rodriguez-Olivas might be selling them.

      Jones also discovered a black BB gun in the vehicle. At one point, Jones

can be heard discussing with another officer how “real” the BB gun appeared.

Jones also discovered a credit card with the name “Linda Barrett” on it. From

there, eleven minutes after the stop, Jones began to focus his attention on

finding out the identity of the passenger, who, as Jones can be heard stating in

the video, “Ironically, is [named], Linda.”     Jones can be heard asking the

passenger, later determined to be Linda Kuykendall, what different last names

she could be known by. He then further questioned her about her identity and

whether she had ever been arrested before. Kuykendall’s answers are less than

clear and, at times, are non-responsive ramblings. Jones can be heard declaring

to her at one point, “I need one-word answers.”

      Jones can further be heard expressing to Kuykendall that she was not

under arrest or in any “trouble” but that the officers were “looking for a Linda, to

make sure she is okay” and that they needed to determine if she was that Linda.

Jones stated to Kuykendall, “If you are her, that’s great! If you’re not, that’s




                                         7
[inaudible].”   During his exchange with Kuykendall, Jones can also be heard

expressing to her that he thought she was under the influence of drugs.

      From the video, it is apparent that Jones and other officers are receiving

information regarding Kaufman’s interview while they are detaining Rodriguez-

Olivas and Kuykendall.      Jones can be heard expressing some confusion to

another officer over the passenger of Rodriguez-Olivas’s vehicle being named

“Linda,” and the other officer can be heard stating that Kaufman “had definitely

seen a body,” which was “covered in blood,” and that the body was in “the trailer

house.”

      At 5:27 p.m., Jones told Rodriguez-Olivas that he was not under arrest and

that he and Kuykendall were free to sit in his air-conditioned patrol vehicle, out of

the sun. In explaining why he was detaining the two, Jones told Rodriguez-

Olivas that the officers were looking for a Linda who is “supposed to be with you,”

but that it was apparently “not this Linda.”

      Rodriguez-Olivas explained that he had previously been in a relationship

with a “Linda Barrett” but that they had previously fought and she had left him

“weeks ago.” Jones then asked Rodriguez-Olivas when the last time he had

seen Barrett was, and Kuykendall interjected that Rodriguez-Olivas and Barrett

had fought a month before. Rodriguez-Olivas can be heard telling Jones that he

had not seen Barrett for more than a week. Rodriguez-Olivas can also be heard

telling Jones that he believed that Barrett had been cheating on him.




                                          8
      At 5:37 p.m., Jones asked Kuykendall if she would allow him to take her

picture and send it to other officers to determine whether she was in fact the

“Linda” they were looking for. Kuykendall complied. While they awaited the

results, it became apparent again that Jones and Rodriguez-Olivas were familiar

with each other. The conversation could only be described as cordial. At one

point, Rodriguez-Olivas can be heard asking, “How have you been, Mr. Jones?”

      At 5:45 p.m., as Jones awaited information on Kuykendall’s identity, he

allowed Rodriguez-Olivas and Kuykendall to exit the patrol unit because they had

asked to be allowed to smoke cigarettes. As the two sat on the curb, Jones

retrieved cigarettes and a lighter from Rodriguez-Olivas’s vehicle. The two then

smoked cigarettes while sitting on the curb in the shade of a tree. During this

time, Kuykendall made several phone calls on her cell phone. She can be heard

explaining to someone that the police “were really nice and just doing their job.”

      At 6:00 p.m., while Rodriguez-Olivas and Kuykendall continued smoking,

Jones can be heard having a conversation with another officer on his cell phone

wherein he explains that he has a good rapport with Rodriguez-Olivas and that

he believed that instead of detaining Rodriguez-Olivas and Kuykendall any

longer, he could simply ask Rodriguez-Olivas for consent to search his trailer

home.     From there, Jones again asked Rodriguez-Olivas about Barrett.

Rodriguez-Olivas can be heard giving a phone number to Jones that was

allegedly Barrett’s, but the phone number apparently failed to dial a connecting

telephone. Rodriguez-Olivas again expressed to Jones that he had not seen


                                         9
Barrett in more than a week, even interjecting that he had recently gone to her

aunt’s house in the middle of the night looking for her.

      Jones again can be heard speaking to another person on his cell phone.

During this conversation, Jones can be heard explaining that it appeared as

though the “Linda” who was with Rodriguez-Olivas was not the same person as

Barrett, whose credit card had been found in the vehicle.

      At 6:16 p.m., the following exchange occurred between Jones and

Rodriguez-Olivas,

      Jones: I’m trying to speed this up and get you out of here.

      Rodriquez-Olivas:    All right.

      Jones: Okay.

      Rodriguez-Olivas: Okay.

      Jones: With your permission, I want to go by your house with you
             and me and we’ll make sure Linda is not there. That’s all I
             want to do.

      Rodriquez-Olivas:    Oh, really?

      Jones: All I want to do is make sure Linda is not at your house and
             then we are going to leave.

      Rodriquez-Olivas: Well, I mean I, I gotta go to work later
                        (inaudible).

      Jones: Work with me. Dude, we’re not a block away.            [Jones
             motioning to his left.]

      Rodriquez-Olivas:    Sure, I guess I could.

      Jones: Thank you.



                                         10
      From there, Jones allowed Rodriguez-Olivas to lock his vehicle. While

attempting to do so, they discovered that his vehicle’s battery had died. Jones

then instructed Rodriguez-Olivas to take his medication from the vehicle so that

“nobody takes it.” Then, Rodriguez-Olivas followed Jones to the patrol vehicle.

As Jones entered the vehicle from the front, driver’s side door, Rodriguez-Olivas

can be seen walking to the passenger side of the vehicle to enter the backseat.

In the video’s audio, and less than four minutes later, Jones can be heard

entering the trailer home with Rodriguez-Olivas. Video from Frith’s in-car camera

shows that Frith was awaiting Jones and Rodriguez-Olivas, and as the two

arrived, Rodriguez-Olivas unlocked the door, and the two officers followed

Rodriguez-Olivas in.   Again from Jones’s video, audio of the conversation

between Jones and Rodriguez-Olivas while in the trailer home can be heard. At

one point, Jones can be heard asking, “What is that smell?” Rodriguez-Olivas

can be heard explaining that the sewer in the trailer home was backed up.

Rodriguez-Olivas can also be heard stating “that’s ours” in response to Jones’s

question of where Rodriguez-Olivas and Barrett’s bedroom was. Then Jones

can be heard asking, “What’s in here?” Rodriguez-Olivas responded, “That’s just

a closet.” Jones asked, “Can I see in there?” Rodriguez-Olivas replied, “Yes.”

Moments later, Jones can be heard stating, “Turn around.”

      According to Jones’s testimony, at the moment he said “turn around,” he

was handcuffing Rodriguez-Olivas and placing him under arrest. Jones testified

at the suppression hearing that the subject of whether Rodriguez-Olivas was free


                                       11
to leave at any time during the stop and subsequent detention “never came up.”

Jones said that Rodriguez-Olivas did express concern about making it to work on

time, but that he allowed Rodriguez-Olivas to use Jones’s cellphone to call work

and tell them he would be late. At trial, Jones testified that although the subject

of Rodriguez-Olivas’s being free to leave never came up, Rodriguez-Olivas was

not free to leave because the officers had reasonable suspicion to detain

Rodriguez-Olivas for further investigation past the initial traffic stop.

      By Jones’s account, while en route to Rodriguez-Olivas’s residence, Jones

spoke with Orr and received instructions that if he got to the residence and

smelled a decomposing body, he should secure the scene and wait for a warrant

to enter the residence to search it. Before arriving at the trailer home, Rodriguez-

Olivas informed Jones that the home was filthy and odoriferous due to animals.

Jones said that as Rodriguez-Olivas opened the door, he smelled a strong odor

of animal feces and urine. Jones recalled that once inside, Rodriguez-Olivas

pointed Jones and Frith to one of the bedrooms, stating to them “that’s ours.”

When they entered the bedroom, Jones smelled a strong odor of sewage in

addition to the animal feces and urine smells.

      Jones described the entry into the trailer home,

      Once we made our way in through the front door, we turned back
      north through the front door, went into a master bedroom that he
      identified as, I believe it was our bedroom or that’s our bedroom.
      And inside this bedroom, I observed open sewage lines, along with
      inoperable commode full of human waste. It was the foul -- the odor
      was extremely foul.



                                          12
      Jones said that he was unable to distinguish a decomposing body smell

from the other odors. Once in the bedroom, Jones noted that there was a closet,

which was locked. Jones said that he asked Rodriguez-Olivas if he could look

inside the closet. At trial, Jones described the opening of the closet through this

colloquy,

      [Prosecutor]: Where was it and what was it?

      [Jones]: On the northeast corner of this master bedroom that
               [Rodriquez-Olivas] claimed as -- as ours, there was a
               closet with a clasp and a lock on it. [Rodriquez-Olivas]
               was asked about this closet, and I informed him that I
               wanted to look inside of it.

      [Prosecutor]: What did he say when you told him you wanted to
                    look inside of it?

      [Jones]: He began to reach into his shorts’ pocket and pull out a set
               of keys.

      [Prosecutor]: What did he do then?

      [Jones]: The first key he used he attempted to unlock the lock and
               it failed. The second key on the same set of key rings
               opened the lock. And as he was removing the lock from
               the clasp and the key, the door opened up.

      [Prosecutor]: What did you do when the door opened up?

      [Jones]: I looked inside the closet.

      [Prosecutor]: What did you see?

      [Jones]: I saw a body of a deceased female that was -- appeared to
               be wrapped in some sort of clear plastic. She was in a
               chair, slumped over, kind of to the back, towards the left
               side, towards the east side. She appeared to be there for
               several days. That’s when a foul odor came across me.



                                        13
                All this was within seconds. All this occurred less than one
                minute.

      [Prosecutor]: And you said a foul odor, something on top of the
                    odors you had already smelled; is that correct?

      [Jones]: I didn't smell that until the closet door was opened, yes,
               sir.

      [Prosecutor]: That was the smell of a decomposing body; is that
                    correct?

      [Jones]: You could definitely smell more than what I had smelled
               when I walked into the front of the residence.

      Frith testified at the suppression hearing and at trial. Frith said that he

became involved in this case after reviewing the call notes regarding Kaufman’s

911 call. After going to the apartment of Kaufman’s mother and speaking with

Officer Chris Jones, Frith proceeded to the Truelove Street location and spoke

with Investigator Jones. As the two spoke from their patrol vehicles, Frith said

that they saw Rodriguez-Olivas’s vehicle drive by. Frith followed the vehicle and

eventually made a traffic stop, allegedly based on Rodriguez-Olivas’s failure to

use his turn signal twice.   Because Frith had been informed that Rodriguez-

Olivas might have a gun, Frith approached the vehicle with his service weapon

drawn but concealed.

      Video from Frith’s in-car camera, which was played for the jury, shows

Frith approaching the vehicle with his service weapon drawn and behind his

back. After making contact with Rodriguez-Olivas, and after both Rodriguez-

Olivas and Kuykendall can be seen placing their hands outside the vehicle, Frith



                                       14
re-holstered his service weapon. At this same time, two other officers arrived,

one of them being Jones. In the video, Jones can also be seen approaching the

vehicle with his service weapon drawn and down to his side.          As he made

contact with the passenger, Jones re-holstered his weapon. Within seconds,

however, Jones can be seen quickly drawing his weapon and declaring, “Let me

see your hands, Juan!”     Seconds later, Jones re-holstered his weapon and

assisted Kuykendall from the vehicle.

      Rodriguez-Olivas can be seen getting out of the vehicle, as can

Kuykendall, who was now being questioned by Jones. Frith can also be seen

conducting a brief “pat down” of Rodriguez-Olivas, and quickly searching the

immediate “grab area” of the vehicle. Frith’s testimony was consistent with the

images depicted on the video. At trial, Frith said that after he stopped Rodriguez-

Olivas for the traffic infractions, Rodriguez-Olivas was not free to leave but was

also not under arrest.

      Frith averred that because Jones had informed him that Rodriguez-Olivas

had consented to a search of his residence, he proceeded there while Jones

stayed with Rodriguez-Olivas.      Later, Jones and Rodriguez-Olivas arrived.

According to Frith, Rodriguez-Olivas let the two officers into the trailer home.

Much like Jones’s testimony, Frith described how Rodriguez-Olivas led the two

officers through the odor-filled trailer home, eventually stopping in a bedroom,

where Rodriguez-Olivas unlocked and opened a closet. Frith testified that he

saw a dead body inside and that Rodriguez-Olivas was placed under arrest.


                                        15
      Dallas County Chief Medical Examiner Jeffrey Barnard testified that he

conducted the autopsy on the body found in Rodriguez-Olivas‘s closet.

Barnard’s autopsy revealed that Barrett’s body was in an advanced state of

decomposition. The body had been wrapped in a plastic bag, along with bloody

sheets, some clothing, personal items, and jewelry.         By Barnard’s account,

Barrett had been injured with a dual-edged knife more than thirty times, with

wounds proceeding from her head down to her extremities. Some of the wounds

were “defensive” wounds. Barnard testified that even the more shallow wounds

would have required a fair amount of force but that one wound was five and one-

half inches deep and would have required a lot of force—only the blade hitting

bone stopped its penetration going further.

      Barnard averred that Barrett’s uterus was enlarged and her endometrium

thickened, but he could not determine whether she was pregnant at the time of

death because of the advanced state of decomposition. Toxicology revealed the

presence of some ethanol, which was consistent with having consumed alcohol

prior to death but which could also have merely been a product of decomposition.

Barnard concluded that Barrett died as a result of homicidal violence from

multiple sharp-force injuries. Barnard explained that in general, stab wounds are

inflicted by an attacker in close proximity to the victim. In his opinion, all of the

injuries were inflicted closely in time, although due to the degree of

decomposition, Barnard could not rule out some of the injuries having been

inflicted post-mortem.


                                         16
      Carl Wilson testified at trial that he had been arrested on June 6, 2012, for

aggravated assault. While in jail, he said that he came in contact with Rodriguez-

Olivas. By Wilson’s account, he and Rodriguez-Olivas were talking one morning

in their cell and Rodriguez-Olivas told Wilson that he had argued with his

girlfriend because she had broken a flat-screen television and a window, after

which the neighbors called the police. Wilson averred that Rodriguez-Olivas told

him that later on, “she just wouldn’t shut up,” so he stabbed her in the head.

      Wilson said Rodriguez-Olivas was “acting crazy” while in jail.        Wilson

testified that Rodriguez-Olivas told him that after he stabbed Barrett, he tried to

electrocute her with an extension cord in an effort to bring her back to life.

Rodriguez-Olivas also allegedly claimed to Wilson that he and his dog ate some

of Barrett’s brains. Rodriguez-Olivas told Wilson that after he killed Barrett, he

put the body in the closet and went to work. Rodriguez-Olivas also claimed to

Wilson that he had blood on his clothes when he was pulled over and that he had

intended to use a brick to sink Barrett’s clothes in a river but had forgotten to do

so. Wilson said that Rodriguez-Olivas showed no emotion when he was talking

about the murder. Wilson recalled that after Rodriguez-Olivas spoke with his

attorney, he told Wilson that he was going to plead insanity at trial. Wilson

contacted the police and told them what Rodriguez-Olivas had said.

      Gainesville Police Investigator Chris Garner testified that he participated in

the interview of Shaun Kaufman at the police department              Later, Garner

attempted to interview Rodriguez-Olivas.      After reading Rodriguez-Olivas his


                                        17
Miranda warnings, Rodriguez-Olivas said that he did not want to talk. Garner

said that he photographed defensive-type scratches and cuts on Rodriguez-

Olivas’s arms and hands. Garner said that when Rodriguez-Olivas received his

Miranda warnings, and after Rodriguez-Olivas stated that he did not want to talk,

he did not ask Rodriguez-Olivas any further questions but that as they were filling

out written Miranda warnings, Rodriguez-Olivas volunteered that “it was self-

defense.”

      Garner testified that he also participated in executing the search warrant

on Rodriguez-Olivas’s residence that was obtained shortly after Barrett’s body

was found. Garner bagged as evidence various items, including a double-edged

knife and a folder of paperwork addressed to Barrett from All Babies Born Alive,

a women’s center in Gainesville. The paperwork, which had blood on it, stated

that Barrett was in the seventh week of pregnancy and that she did not want an

abortion.

      Texas Ranger Ron Pettigrew testified that he responded to a request to

assist the investigation.   Pettigrew said that when he arrived, he observed

Garner’s attempt to interview Rodriguez-Olivas; that he saw Rodriguez-Olivas

decline to talk after being read his Miranda rights; and that he heard Rodriguez-

Olivas later volunteer that it was “self-defense” as Garner was filling out the

Miranda paperwork.

      Pettigrew said that he also went to the trailer home to assist in executing

the search warrant and to photograph the scene.          Pettigrew explained the


                                        18
images that depicted the condition of Rodriguez-Olivas’s residence, which the

State introduced and published for the jury. Pettigrew pointed out various blood

droplets around Rodriguez-Olivas’s residence, including on the floors, walls, and

ceiling. Pettigrew also described a bloody double-edged knife that was found as

well as papers and receipts in Barrett’s name.

         The defense called Edna Collins, Barrett’s aunt and foster sister, who

testified that she also knew Rodriguez-Olivas during the couple’s two-plus year

relationship. Collins said that she last saw Rodriguez-Olivas roughly four days

before he killed Barrett.     According to Collins, when the couple would fight,

Barrett would come to Collins’s house and Rodriguez-Olivas would come over

looking for her. Collins said that Rodriguez-Olivas would usually show up late at

night.

         Collins testified that Barrett had lived on Truelove Street with Rodriguez-

Olivas for more than a year and that the last time she saw Barrett, Barrett was

upset because she and Rodriguez-Olivas had been arguing. Collins said that on

that occasion, Barrett’s shirt had been torn and she had scratches on her neck.

Collins testified that when Barrett and Rodriguez-Olivas fought, it was usually

because he had accused her of cheating on him. Collins said that Rodriguez-

Olivas was very jealous and possessive of Barrett.

         According to Collins, she frequently talked to Barrett about breaking off her

relationship with Rodriguez-Olivas. The last time Collins saw her, Barrett said

that Rodriguez-Olivas was doing drugs; Collins asked Barrett to stay with her and


                                           19
to avoid Rodriguez-Olivas, but Barrett told Collins that everything would “be

okay” because she loved him and was pregnant.

      The defense also called Christina Davis, Barrett’s friend. Davis said that

Rodriguez-Olivas came to her home on June 15, 2012, and said something

about Barrett cheating on him, which Davis testified was not true. Davis said that

Rodriguez-Olivas also claimed that Barrett had run away with another guy, but

Davis believed that Barrett had not done so. Davis said that she did not approve

of Rodriguez-Olivas because she thought he was abusive to Barrett and that he

did drugs. Davis recalled that about a month before Barrett was killed, she made

Rodriguez-Olivas leave her house after he came by and wanted to “shoot up.”

      Rodney Simpson also testified for the defense. Simpson averred that he

knew Barrett; that he had previously had a sexual relationship with her and that

the two often “hung out,” but that they did not have a “relationship” during the

time she dated Rodriguez-Olivas.        Specifically, Simpson denied having any

relationship with Barrett in April 2012. Simpson testified that he knew Vance

Burns, who had been Barrett’s boyfriend and who she married after he went to

the penitentiary. Simpson also averred that Barrett was not having a sexual

relationship with their mutual, married friend.

      Simpson testified that he saw Rodriguez-Olivas in a convenience store in

March 2012 and that Rodriguez-Olivas threatened him and told him he had better

“watch his back.” Simpson said that he saw him again at an auto shop a couple




                                         20
of days later and that Rodriguez-Olivas apologized for the incident in the

convenience store.

      Rodriguez-Olivas testified in his own defense. According to Rodriguez-

Olivas, he and Barrett intended to get married and she was pregnant with their

child. Rodriguez-Olivas said that after a home test indicated Barrett’s pregnancy,

she went to All Babies Born Alive to confirm. From there, Barrett attended a

follow-up appointment. Rodriguez-Olivas claimed that after learning of Barrett’s

pregnancy, he “slowed down” his drug use and sought a second job to support

the expected baby. Rodriguez-Olivas averred that he and Barrett had problems;

that they argued about his drug use; and that they had once argued before she

went to an All Babies Born Alive appointment because she had said something

about taking a pill to abort the baby, and he wanted her to have the baby.

      Rodriguez-Olivas testified that he killed Barrett at their trailer home with a

knife. By Rodriguez-Olivas’s account, Barrett had been at home the night before,

but as he was preparing to shower, he heard the dog barking. Rodriguez-Olivas

said that first he called out for Barrett, but she did not respond. After seeing

movement outside, Rodriguez-Olivas said that he watched Barrett leave the

residence, walk around the corner, and then “jump” into a parked car with “a tall

black dude.” Rodriguez-Olivas said that he thought he recognized the driver as

Simpson. After they drove away, Rodriguez-Olivas said that he went back inside

and became sad after thinking about Barrett having left. According to Rodriguez-

Olivas, Barrett had developed a pattern of leaving unexpectedly in the middle of


                                        21
the night, when he wasn’t looking. Then she would come home in the morning

and say she had been at Collins’s.

      Rodriguez-Olivas testified that on that specific night, as he watched

television, he cried, and that he was unable to fall asleep. He drove to Collins’s

house in the middle of the night but discovered that Barrett was not there.

Rodriguez-Olivas said that Barrett eventually came home a little after sunrise the

next day and claimed that she had been at Collins’s house.

      Rodriguez-Olivas said that he told Barrett to leave because he was mad

that she had lied to him, but Rodriguez-Olivas said that she would not leave.

Instead, according to Rodriguez-Olivas, Barrett went into the bedroom, and he

followed. From there, Barrett left the bedroom, and Rodriguez-Olivas said that

he thought she was leaving again, but instead she came back with a knife.

Rodriguez-Olivas testified that Barrett pointed the knife at him, and he told her

again to leave, claiming that he knew she was not at Collins’s house and that she

had been with Simpson the night before.       Rodriguez-Olivas said that Barrett

continued to insist that she was at Collins’s, so Rodriguez-Olivas said he began

to “escort” her toward the living room but that she began poking and stabbing at

him with a knife.

      Rodriguez-Olivas testified that he jumped back, but that Barrett lunged at

him with the knife, cutting him on his hands. Rodriguez-Olivas said that the knife

she had was a different knife than the knife shown to the jury. Rodriguez-Olivas

averred that he was able to take the knife away from her and that he continued


                                       22
asking her to leave as he cried, “[W]e’re supposed to be getting married, what

about the baby?” By Rodriguez-Olivas’s account, Barrett replied to him, “I killed

the damn baby” and declared that she had been cheating on him with Simpson;

that Rodriguez-Olivas could not satisfy her sexually; and that he was “nothing,

nobody.” Rodriguez-Olivas said that Barrett told him that she cheated on him

with Simpson in the couple’s bed.

      Rodriguez-Olivas testified that at that moment, he “lost it [and] stabbed

her.” He said that he did not know how many times he stabbed her and that she

did not fight him or scream as he stabbed her, but that she did say “sorry.”

Rodriguez-Olivas stated that he had never before felt the way he felt when he

“lost it”; that he did not think about what he was doing as he stabbed Barrett; and

that he was unable to reflect at all during that moment. He also said, however,

that at “one point” his attack was in self-defense. Rodriguez-Olivas said that he

felt that his actions were in self-defense because he “felt tremendous pain,

physical pain, and [he didn’t] see a difference in what [he] was feeling that day

[than] from having a car accident.”

      Rodriguez-Olivas said that when he was stabbing Barrett, he was not in

fear for his life, but that instead, he was “mad” and “sad.” Rodriguez-Olivas

claimed that he did not realize what he had done until the following morning,

when he woke up on the couch, walked into the bedroom, and saw her body. He

averred that he did not know what he was going to do with the body and that he

wanted to tell his family but just “wasn’t even thinking about it.” Rodriguez-Olivas


                                        23
further averred that Collins was lying about whether he had gone to her house on

the day of his arrest to ask her if she had seen Barrett.

      Rodriguez-Olivas claimed that when he saw Kaufman on the day of his

arrest, Kaufman had come to him wanting some of his prescription Xanax pills.

Rodriguez-Olivas said he did not remember showing Barrett’s body to Kaufman.

Rodriguez-Olivas did, however, recall opening the closet door to get Kaufman

some pills, allegedly Xanax and hydrocodone, and he surmised that Kaufman

could have seen Barrett’s body then. He specifically denied that he ever told

Kaufman that “she [is] going to get me caught up.”

      Rodriguez-Olivas said that he did not remember talking to Wilson while in

jail and that he believed Wilson was also lying. Rodriguez-Olivas acknowledged,

however, that it was “kind of weird” that Wilson knew that Rodriguez-Olivas had

stabbed Barrett in the head, given “that [information] wasn’t in the paper.”

Rodriguez-Olivas agreed that Barrett’s family tried to get her to leave him. And

he averred that he was “jealous to a certain point,” but only if she left the house

or had a friend in.

      Rodriguez-Olivas averred that he was using methamphetamine “[q]uite

frequently” before Barrett’s murder. By his own account, Rodriguez-Olivas used

methamphetamine multiple times a week during the time leading up to Barrett’s

death, but he said that he was not under the influence of methamphetamine

when he killed her. Rodriguez-Olivas said that the “only” drug he had taken prior

to stabbing Barrett was Xanax. And Rodriguez-Olivas averred that he had “cut


                                         24
down” his drug use after learning of Barrett’s pregnancy. He testified, however,

that he could not maintain full-time employment at his family’s restaurant

because his drug use made him slow and his family was upset that he was using

drugs.

      Rodriguez-Olivas testified to his recollection of the traffic stop. He averred

that he signaled at every turn that day; that he did not voluntarily give consent to

search his car; and that investigator Jones was lying about whether he had given

consent to search his residence. Specifically to the consent to search his car, he

said that he believed that he “couldn’t tell [the officers] no.” Rodriguez-Olivas

stated that he was worried when he saw the officers pull their guns as they

approached his vehicle and that he believed that he was under arrest.

Rodriguez-Olivas said that he was intimidated because three officers were

present during the stop, that he was hot and tired, that he did not feel that he

could leave, and that although he needed to go to work, the officers would not let

him. He further averred that he did not believe he could withhold consent to

search his house.

      The jury returned a guilty verdict, and after the punishment phase, the trial

court submitted a definition for sudden passion in its charge. The jury assessed

punishment of life imprisonment. The trial court entered judgment accordingly,

and this appeal followed.




                                        25
                                   III. DISCUSSION

      In his first, second, and third points, Rodriquez-Olivas challenges the trial

court’s order denying his motions to suppress.

      A.     Standard of Review on Motion to Suppress

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review.      Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

In reviewing the trial court’s decision, we do not engage in our own factual

review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.

State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial

judge is the sole trier of fact and judge of the credibility of the witnesses and the

weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.

Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),

modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.

2006). Therefore, we give almost total deference to the trial court’s rulings on

(1) questions of historical fact, even if the trial court’s determination of those facts

was not based on an evaluation of credibility and demeanor, and (2) application-

of-law-to-fact questions that turn on an evaluation of credibility and demeanor.

Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.

Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.

2002). But when application-of-law-to-fact questions do not turn on the credibility

and demeanor of the witnesses, we review the trial court’s rulings on those


                                          26
questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d

604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.

      Stated another way, when reviewing the trial court’s ruling on a motion to

suppress, we must view the evidence in the light most favorable to the trial

court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818

(Tex. Crim. App. 2006). When the record is silent on the reasons for the trial

court’s ruling, we imply the necessary fact findings that would support the trial

court’s ruling if the evidence, viewed in the light most favorable to the trial court’s

ruling, supports those findings. State v. Garcia-Cantu, 253 S.W.3d 236, 241

(Tex. Crim. App. 2008); see Wiede, 214 S.W.3d at 25. We then review the trial

court’s legal ruling de novo unless the implied fact findings supported by the

record are also dispositive of the legal ruling. Kelly, 204 S.W.3d at 819.

      We must uphold the trial court’s ruling if it is supported by the record and

correct under any theory of law applicable to the case even if the trial court gave

the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex.

Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App.

2003), cert. denied, 541 U.S. 974 (2004).

      B.     An Investigative Detention

      In part of his first, second, and third points, Rodriguez-Olivas argues that

the trial court erred by finding that the officers in this case legally detained him.

Rodriguez-Olivas argues that the officers did not simply detain him, but rather

arrested him without probable cause.


                                          27
      The State responds that what transpired on June 15, 2012, was an

evolving investigative detention that began as both a legal traffic stop and,

independently, an investigative detention based on the information provided by

Kaufman and known by Jones. The State further argues that after Frith stopped

Rodriguez-Olivas, a series of consensual searches revealed a growing amount of

evidence that, under the totality of circumstances, gave Jones reasonable

suspicion to continue to detain Rodriguez-Olivas, and that once Rodriguez-Olivas

unlocked the closet and let Jones search it, then Jones placed Rodriguez-Olivas

under arrest. Thus, the State argues, the trial court did not err by overruling

Rodriguez-Olivas’s motions to suppress. We agree with the State.

            1.     The Record

      As a preliminary matter, we note that although neither party expressly

addresses the issue in their briefing, both Rodriguez-Olivas and the State

address evidence adduced at the suppression hearing and at trial in support of

their positions regarding the trial court’s ruling on Rodriguez-Olivas’s motions to

suppress. In determining whether the trial court’s ruling on a motion to suppress

is supported by the record, a reviewing court generally considers only the

evidence adduced at the hearing on the motion unless the suppression issues

have been consensually relitigated by the parties during the trial on the merits.

Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App.), cert. denied, 519 U.S.

1043 (1996); Dang v. State, 99 S.W.3d 172, 179 (Tex. App.—Houston [14th

Dist.] 2002, reversed on other grounds by 154 S.W.3d 616 (Tex. Crim. App.


                                        28
2005). Because the parties in this case consensually relitigated the suppression

issues at trial, and because both parties refer to evidence adduced at both the

suppression hearing and at trial, we will examine the evidence from both sources

in our review of these issues.

             2.    Investigative Detentions

      The Fourth Amendment protects against unreasonable searches and

seizures by government officials. U.S. Const. amend. IV; Wiede, 214 S.W.3d at

24. To suppress evidence because of an alleged Fourth Amendment violation,

the defendant bears the initial burden of producing evidence that rebuts the

presumption of proper police conduct. Amador, 221 S.W.3d at 672; see Young

v. State, 283 S.W.3d 854, 872 (Tex. Crim. App.), cert. denied, 558 U.S. 1093

(2009). A defendant satisfies this burden by establishing that a search or seizure

occurred without a warrant. Amador, 221 S.W.3d at 672. Once the defendant

has made this showing, the burden of proof shifts to the State, which is then

required to establish that the search or seizure was conducted pursuant to a

warrant or was reasonable. Id. at 672–73; Torres v. State, 182 S.W.3d 899, 902

(Tex. Crim. App. 2005); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App.

2005).

      Whether a search is reasonable is a question of law that we review

de novo.    Kothe v. State, 152 S.W.3d 54, 62 (Tex. Crim. App. 2004).

Reasonableness is measured by examining the totality of the circumstances. Id.

at 63. It requires a balancing of the public interest and the individual’s right to be


                                         29
free from arbitrary detentions and intrusions. Id. A search conducted without a

warrant is per se unreasonable unless it falls within one of the “specifically

defined and well-established” exceptions to the warrant requirement. McGee v.

State, 105 S.W.3d 609, 615 (Tex. Crim. App.), cert. denied, 540 U.S. 1004

(2003); see Best, 118 S.W.3d at 862.

      A detention, as opposed to an arrest, may be justified on less than

probable cause if a person is reasonably suspected of criminal activity based on

specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880

(1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). An

officer conducts a lawful temporary detention when he has reasonable suspicion

to believe that an individual is violating the law. Crain v. State, 315 S.W.3d 43,

52 (Tex. Crim. App. 2010); Ford, 158 S.W.3d at 492. Reasonable suspicion

exists when, based on the totality of the circumstances, the officer has specific,

articulable facts that when combined with rational inferences from those facts,

would lead him to reasonably conclude that a particular person is, has been, or

soon will be engaged in criminal activity. Ford, 158 S.W.3d at 492. This is an

objective standard that disregards any subjective intent of the officer making the

stop and looks solely to whether an objective basis for the stop exists. Id.

      Moreover, the detaining officer need not be personally aware of every fact

that objectively supports a reasonable suspicion to detain; rather, “the cumulative

information known to the cooperating officers at the time of the stop is to be

considered in determining whether reasonable suspicion exists.” Hoag v. State,


                                        30
728 S.W.2d 375, 380 (Tex. Crim. App. 1987); see also United States v. Hensley,

469 U.S. 221, 232–33, 105 S. Ct. 675, 681–82 (1985) (holding that officer may

detain suspect based upon police bulletin so long as issuing entity has

reasonable suspicion to justify detention); Illinois v. Andreas, 463 U.S. 765, 771

n.5, 103 S. Ct. 3319, 3324 n.5 (1983) (“Where law enforcement authorities are

cooperating in an investigation, as here, the knowledge of one is presumed

shared by all.”); Derichsweiler v. State, 348 S.W.3d 906, 915 (Tex. Crim. App.),

cert. denied, 132 S. Ct. 150 (2011) (“[T]he detaining officer need not be

personally aware of every fact that objectively supports a reasonable suspicion to

detain; rather, the cumulative information known to the cooperating officers at the

time of the stop is to be considered.”) (internal citations omitted). Furthermore,

information provided to police from a citizen-informant who identifies himself and

may be held to account for the accuracy and veracity of his report may be

regarded as reliable.   Derichsweiler, 348 S.W.3d at 914–15 (reasoning that

citizen-informant who called 911, providing who he was and what he had

observed, sufficiently reliable information to support investigative detention by

police who had not observed suspicious conduct). In such a scenario, the only

question is whether the information that the known citizen-informant provides,

viewed through the prism of the detaining officer’s particular level of knowledge

and experience, objectively supports a reasonable suspicion to believe that

criminal activity is afoot. Id.; Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App.

1997).


                                        31
             3.    Jones Detained Rodriguez-Olivas

      Here, the cumulative information known to cooperating officers at the time

Frith stopped Rodriguez-Olivas supports the trial court’s implicit conclusion that

the totality of the circumstances supported the officers in this case detaining

Rodriguez-Olivas past the time necessary to effectuate the traffic stop. At the

time Frith initiated the traffic stop, Rodriguez-Olivas was driving a vehicle known

by Jones as a vehicle that “Juan,” who dated a “Linda” and lived on “Truelove

Street,” drove. The vehicle had twice been seen by cooperating officers driving

down Truelove Street in close proximity to a trailer home that officers had placed

under surveillance.    The officers were watching the trailer home because

Kaufman had reported that a “Juan,” who lived on Truelove Street in a trailer

home, had shown him the dead body of his friend, whose first name was “Linda.”

Kaufman had described the trailer home to police, and testified that the trailer

home was the “only one like it on the block.” And Kaufman had availed himself

to the police by accompanying officers to the police station to give a detailed

report, including information that Rodriguez-Olivas possessed what appeared to

him to be a pistol. In fact, Kaufman was with cooperating officers at the police

station at the time Rodriguez-Olivas was stopped.        See Derichsweiler, 348

S.W.3d at 914–15 (“[I]nformation provided to police from a citizen-informant

who . . . may be held to account for the accuracy and veracity of his report may

be regarded as reliable.”).




                                        32
      Upon stopping Rodriguez-Olivas, the officers learned in short order that

the vehicle was in fact being driven by a “Juan” and that he was in possession of

what Frith described as a “black pistol” that was later identified only as a BB gun,

albeit one that resembled an actual firearm to the officers. These additional facts

served as further information known to the cooperating officers as reason to

continue to detain Rodriguez-Olivas past the initial traffic stop because these

facts corroborated Kaufman’s story. See Hill v. State, 303 S.W.3d 863, 872 (Tex.

App.—Fort Worth 2009, pet. ref’d)          (holding that an officer who develops

reasonable suspicion during the course of a lawful traffic stop may continue the

detention of the occupants of the vehicle to investigate criminal activity beyond

the scope of the law violation that formed the basis of the initial stop).

      Within three minutes, and as we will address further below, Rodriguez-

Olivas consented to the search of his vehicle. Upon searching the vehicle, Jones

found the BB gun, over 100 hydrocodone pills that Jones suspected were being

sold by Rodriguez-Olivas, and a credit card with the name “Linda Barrett” on it.

These additional facts served to justify the prolonging of the investigative

detention. See id. (“[A]n officer may rely on all the facts ascertained during the

course of his contact with a detainee to develop articulable facts that would justify

a continued detention.”).

      After searching the vehicle, Jones’s investigation turned to identifying

Kuykendall. As the video from Jones’s in-car camera demonstrates, Jones and

the detaining officers were initially confused by the fact that Kuykendall’s first


                                          33
name was “Linda.” As Jones questioned Kuykendall, a task made difficult by her

rambling responses and evasive answers, he and other officers contacted the

officers who were interviewing Kaufman in order to determine if she was the

“Linda” whom Kaufman believed he had seen in Rodriguez-Olivas’s closet.

During this time, both Rodriguez-Olivas and Kuykendall discussed that

Rodriguez-Olivas and another “Linda,” who Rodriguez-Olivas’s had dated, had

argued previously.     Rodriguez-Olivas also volunteered that he believed that

Barrett had cheated on him.

      At this point in time, Jones, along with cooperating officers, knew that they

had detained a “Juan,” who lived on Truelove Street in a trailer home and who

had dated a “Linda.” They further knew that “Juan” possessed what appeared to

be a pistol and that he had argued with Barrett previously. All of these facts were

consistent with Kaufman’s story.      Thus, Jones continued to be justified in

detaining Rodriguez-Olivas for further investigation. See Mohmed v. State, 977

S.W.2d 624, 628 (Tex. App.—Fort Worth 1998, pet. ref’d) (“An officer is entitled

to rely on all of the information obtained during the course of his contact with the

citizen in developing the articulable facts which would justify a continued

investigatory detention.”).

      While still in the process of determining Kuykendall’s identity, Jones asked

Rodriguez-Olivas for consent to search his residence, to which Rodriguez-Olivas

can be heard on video replying, “Sure, I guess.” See Meekins v. State, 340

S.W.3d 454, 458 (Tex. Crim. App. 2011) (holding trial judge did not err by finding


                                        34
that driver’s response of “I guess” demonstrated consent to search).         Within

seconds of entering the trailer home, the audio from Jones’s microphone

demonstrates that Jones asked whether he could see what was in the closet, and

Rodriguez-Olivas said, “Yes.”

      Citing to cases related to the area of law concerned with whether a person

is in custody for purposes of the admissibility of statements against one’s interest

at trial, Rodriguez-Olivas argues that the officers were not simply detaining him,

but rather had in fact arrested him without probable cause. See Stansbury v.

California, 511 U.S. 318, 323, 114 S. Ct. 1526, 1529 (1994) (holding that officer’s

subjective and undisclosed view concerning whether person being interrogated is

suspect is irrelevant to assessment whether person is in custody for Miranda

purposes); see also Shiflet v. State, 732 S.W.2d 622, 628 (Tex. Crim. App. 1985)

(holding oral statement admissible despite defendant, who was a suspect,

making admission against interest). Rodriguez-Olivas’s reliance on these cases

is misplaced.     In short, Rodriguez-Olivas confuses the analysis of an

investigative detention with the analysis pertaining to whether statements against

interest are admissible at trial. Notwithstanding the cases cited by Rodriguez-

Olivas, the officers in this case were justified in detaining Rodriguez-Olivas

beyond the scope of the traffic infractions for which he was initially stopped. See

Hill, 303 S.W.3d at 873 (“[W]e hold that under the totality of circumstances the

officers in this case had reasonable suspicion to continue to detain Hill to




                                        35
investigate whether Hill was engaged in, or would soon engage in, criminal

activity.”).

       We hold that the trial court did not err by implicitly finding that, under the

totality of the circumstances, the officers in this case had reasonable suspicion to

detain Rodriguez-Olivas to investigate his involvement in the events that

Kaufman had reported. See Hill, 303 S.W.3d at 873; Stevens, 235 S.W.3d at

740.      We overrule this portion of Rodriquez-Olivas’s first, second, and third

points.

       C.      Duration of the Detention

       Even though Rodriguez-Olivas does not address the voluntariness of his

consent to search his vehicle, he does address the duration of the investigatory

detention as part of his first, second, and third points. Specifically, Rodriguez-

Olivas argues that the detention between the time he was stopped and the time

he consented to search his residence, which lasted sixty-nine minutes, “lasted

considerably longer than necessary to confirm or dispel the officers’ suspicions

about” his involvement in Barrett’s murder. Cf. Josey v. State, 981 S.W.2d 831,

845 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d) (permitting ninety-minute

detention because officers did not continue to hold appellant after all legitimate

components of the investigative detention had been completed). We disagree.

       The reasonableness of the duration of a detention depends on whether the

police diligently pursued a means of investigation that was likely to confirm or

dispel their suspicions quickly, during which time it was necessary to detain the


                                         36
defendant. United States v. Sharpe, 470 U.S. 675, 685, 105 S. Ct. 1568, 1575

(1985). Reasonableness is measured by balancing the nature of the intrusion

into an individual’s Fourth Amendment interests against the public interest of

legitimate government interest at stake. Zayas v. State, 972 S.W.2d 779, 789

(Tex. App.—Corpus Christi 1998, pet. ref’d).

      Reasonableness is to be judged from the perspective of a reasonable

officer at the scene, rather than with the advantage of hindsight.        Rhodes v.

State, 945 S.W.2d 115, 118 (Tex. Crim. App.), cert. denied, 522 U.S. 894 (1997).

Allowances must be made for the fact that officers must often make quick

decisions under tense, uncertain, and rapidly changing circumstances.              Id.

Additional factors to consider in determining the reasonableness of the detention

include the nature of the crime under investigation, the degree of suspicion, the

location of the stop, the time of day, the number of suspects present, and the

reaction of each suspect. See Akins v. State, 202 S.W.3d 879, 885 (Tex. App.—

Fort Worth 2006, pet. ref’d) (citing Illinois v. Wardlow, 528 U.S. 119, 124–25, 120

S. Ct. 673, 676 (2000)).

      Here, it should first be noted that Rodriguez-Olivas consented to the

search of his vehicle within three minutes of the traffic stop. This alone supports

the trial court’s implicit ruling that the officers in this case acted reasonably. See

Vasquez v. State, 324 S.W.3d 912, 925 (Tex. App.—Houston [14th Dist.] 2010,

pet. ref’d) (Frost, J., concurring) (“Viewing the totality of the circumstances, the

continued detention of appellant during the two-minute period between the


                                         37
completion of the computer check and appellant’s consent to a search of the

vehicle was ‘reasonable’ as a matter of substantive Fourth Amendment law.”).

      Furthermore, the factors present in this case demonstrate that the officers

acted reasonably. The officers were investigating a possible homicide. They

had received information from an informant who made himself available to the

police by going to the police station and giving a statement. Based on prior

police interaction, the officers suspected that Rodriguez-Olivas was the “Juan”

who lived on “Truelove Street”; who dated a woman named “Linda”; and who

lived in a trailer home as Kaufman had described. They stopped Rodriguez-

Olivas after he had twice driven by Jones, who had set up surveillance outside of

the trailer home. Rodriguez-Olivas’s passenger, Kuykendall, further piqued the

officers’ suspicions given her first name and her odd responses to questioning.

Jones even pursued electronic means in trying to ascertain whether Kuykendall

was the “Linda” that Kaufman had reported. See Martinez v. State, 304 S.W.3d

642, 655 (Tex. App.—Amarillo 2010, pet. ref’d) (holding that officers diligently

pursued a means of investigation that was likely to dispel or confirm their

suspicions as quickly as possible by detaining driver until burglary victim could be

brought to scene to identify property found in vehicle). And as Kaufman had

detailed to the police, Rodriguez-Olivas was found with a BB gun that appeared

to be an actual pistol.

      We conclude that the trial court did not abuse its discretion by implicitly

concluding that the officers did not unconstitutionally prolong their detention of


                                        38
Rodriguez-Olivas. See Magana v. State, 177 S.W.3d 670, 673 (Tex. App.—

Houston [1st Dist.] 2005, no pet.) (holding that driver’s consent to search his

vehicle and home was not fruit of unlawful, prolonged detention where driver

consented within fifteen minutes of traffic stop).    We overrule this portion of

Rodriguez-Olivas’s first, second, and third points.

      D.     Voluntary Consent

      In the remainder of his first, second, and third points, Rodriguez-Olivas

argues that the consent he gave to search his residence was involuntary. Thus,

Rodriguez-Olivas argues that the trial court erred by not suppressing all of the

evidence discovered past the point of his detention, including statements he

made to Wilson in his jail cell.

             1.     Consent Law

      One of the exceptions to the Fourth Amendment warrant requirement is a

search conducted pursuant to a person’s voluntary consent.        Schneckloth v.

Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2044–45 (1973); Meekins, 340

S.W.3d at 458. The validity of a consent to search is a question of fact to be

determined from all the circumstances. Maxwell v. State, 73 S.W.3d 278, 281

(Tex. Crim. App.), cert. denied, 537 U.S. 1051 (2002). A person’s consent to

search can be communicated to law enforcement in a variety of ways, including

by words, actions, or circumstantial evidence showing implied consent. Johnson

v. State, 226 S.W.3d 439, 440–41 (Tex. Crim. App. 2007) (reasoning that calling

911 and asking for police assistance constituted implied consent for police to


                                        39
enter defendant’s home and investigate a homicide); Gallups v. State, 151

S.W.3d 196, 201 (Tex. Crim. App. 2004) (holding that hand gesture made toward

officer to be sufficient consent for the officer to enter defendant’s home). “But the

Fourth . . . Amendment[] require[s] that a consent not be coerced, by explicit or

implicit means, by implied threat or covert force.” Schneckloth, 412 U.S. at 228,

93 S. Ct. at 2048; Maxwell, 73 S.W.3d at 281. The trial judge must conduct a

careful sifting and balancing of the unique facts and circumstances of each case

in deciding whether a particular consent to search was voluntary or coerced.

Schneckloth, 412 U.S. at 233, 93 S. Ct. at 2050.

      Courts review the totality of the circumstances of a particular police-citizen

interaction from the point of view of an objectively reasonable person, without

regard for the subjective thoughts or intents of either the officer or the citizen.

Maryland v. Macon, 472 U.S. 463, 470–71, 105 S. Ct. 2778, 2783 (1985)

(“Whether a Fourth Amendment violation has occurred ‘turns on an objective

assessment of the officer’s actions in light of the facts and circumstances

confronting him at the time,’ and not on the officer’s actual state of mind at the

time the challenged action was taken.”) (quoting Scott v. United States, 436 U.S.

128, 136, 98 S. Ct. 1717, 1723 (1978)). The ultimate question is whether the

person’s “will ha[s] been overborne and his capacity for self-determination

critically impaired,” such that his consent to search must have been involuntary.

United States v. Watson, 423 U.S. 411, 424, 96 S. Ct. 820, 828 (1976) (quoting

Schneckloth, 412 U.S. at 225, 93 S. Ct. at 2047).


                                         40
       Under federal law, the government must show voluntary consent by a

preponderance of the evidence, but Texas has long stated that the State must

“prove the voluntariness of a consent to search by clear and convincing

evidence.” Compare United States v. Arias-Robles, 477 F.3d 245, 248 (5th Cir.),

cert. denied, 550 U.S. 978 (2007); State v. Ibarra, 953 S.W.2d 242, 245 (Tex.

Crim. App. 1997). The legal analysis, however, is the same in both Texas and

federal courts: whether consent was voluntary is a fact question and must be

analyzed based on the totality of the circumstances. Meekins, 340 S.W.3d at

460.

       Trial courts may consider numerous factors in the voluntariness analysis.

See Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000) (noting factors

that the Supreme Court has taken into consideration in determining whether

consent is voluntary). Because issues of consent are necessarily fact intensive,

a trial court’s finding of voluntariness must be accepted on appeal unless it is

clearly erroneous. See Juarez v. State, 758 S.W.2d 772, 779 (Tex. Crim. App.

1988) (“Voluntariness is a question of fact to be determined from the totality of

the circumstances, and we accept the trial court’s finding unless it is clearly

erroneous”) (internal citation omitted), overruled on other grounds by Boyle v.

State, 820 S.W.2d 122, 125 (Tex. Crim. App. 1989), cert. denied, 503 U.S. 921

(1992).




                                       41
            2.     Consent to Search Rodriguez-Olivas’s Trailer Home

      Here, viewing the evidence in the light most favorable to the trial court’s

ruling and considering the totality of circumstances, we cannot conclude that the

trial court’s implied conclusion that Rodriguez-Olivas voluntarily consented to the

search of his residence was clearly erroneous. Meekins, 340 S.W.3d at 459.

Indeed, during the course of a conversation between Jones and Rodriguez-

Olivas, and as Rodriguez-Olivas smoked a cigarette with Kuykendall on the curb,

Jones asked Rodriguez-Olivas for consent to search his trailer home. The record

demonstrates that Jones relayed to another officer that he believed that he could

obtain consent from Rodriguez-Olivas based on his relationship with him. Jones

and Rodriguez-Olivas’s relationship can be observed in the video from Jones’s

in-car camera. Rodriguez-Olivas and Jones were cordial toward one another.

Rodriguez-Olivas even asked Jones, “How have you been, Mr. Jones?” At one

point, Jones even wiped the sweat from Rodriguez-Olivas’s brow, to which

Rodriguez-Olivas can be heard thanking Jones.

      Further, Jones had already obtained consent to search Rodriguez-Olivas’s

vehicle, and twice after searching the vehicle, Rodriguez-Olivas’s consented to

Jones’s re-entry of the vehicle—once under Rodriguez-Olivas’s instructions that

the receipt to his prescription was in the vehicle and another time to retrieve

cigarettes and a lighter so that Rodriguez-Olivas and Kuykendall could smoke.

Kuykendall can even be heard in the video telling someone on her phone that

Jones was “nice” and “just doing [his] job.” And Rodriguez-Olivas can clearly be


                                        42
heard stating to Jones upon Jones’s request to search his residence, “Sure, I

guess,” after which, Rodriguez-Olivas and Jones locked Rodriguez-Olivas’s

vehicle, and Rodriguez-Olivas can be seen getting into Jones’s patrol vehicle on

the opposite side of the vehicle, after Jones had entered the patrol vehicle. All of

these acts seen and heard on the video are consistent with Jones’s testimony

that Rodriguez-Olivas voluntarily consented to the search of his trailer home.

      Rodriguez-Olivas argues that his consent was not voluntary because it

was “nothing more than submission to a show of authority.” Rodriguez-Olivas

cites to the fact that there were three officers at his vehicle within seconds of

Frith having stopped him. He also cites to the fact that officers drew their service

weapons when they first approached his vehicle, and that they patted him down

upon requesting that he exit his vehicle.          We conclude that under the

circumstances, the officers were justified in taking these actions.

      As the United States Supreme Court stated in Terry v. Ohio, 392 U.S. 1,

24, 88 S. Ct. 1868, 1881 (1968),

      In view of these facts, we cannot blind ourselves to the need for law
      enforcement officers to protect themselves and other prospective
      victims of violence in situations where they may lack probable cause
      for an arrest. When an officer is justified in believing that the
      individual whose suspicious behavior he is investigating at close
      range is armed and presently dangerous to the officer or to others, it
      would appear to be clearly unreasonable to deny the officer the
      power to take necessary measures to determine whether the person
      is in fact carrying a weapon and to neutralize the threat of physical
      harm. See also Lewis v. State, 502 S.W.2d 699, 702–03 (Tex. Crim.
      App. 1973).




                                         43
      The record in the instant case evidences that the actions taken by the

officers, who in the course of the traffic stop had to make quick decisions on the

scene as how to protect themselves, acted reasonably. Indeed, the officers were

acting upon the report that the person they suspected was driving the vehicle,

Rodriguez-Olivas, was armed and possibly had murdered someone. See Wood

v. State, 515 S.W.2d 300, 306 (Tex. Crim. App. 1974) (“The facts detailed reflect

that a reasonably prudent man would have been warranted in believing the

appellant was armed and presented a threat to the officer's safety while

investigating the suspicious behavior described.”).    The officers in this case

quickly re-holstered their weapons once they concluded that Rodriguez-Olivas

did not present an immediate threat. Furthermore, Rodriguez-Olivas’s consent to

search his residence occurred more than an hour after officers had withdrawn

their weapons. We conclude that under the circumstances, the officers’ initial

show of force was not unreasonable and that the trial court properly concluded

that Rodriguez-Olivas’s consent was not affected by the early and brief display of

weapons.

      We hold that the trial court’s conclusion that Rodriguez-Olivas had

consented to the search of his residence was not clearly erroneous. Meekins,

340 S.W.3d at 458 (holding that trial court did not clearly err by finding that

driver’s statement “I guess” was voluntary consent to search vehicle).




                                       44
               3.    Consent to Search the Closet

         Rodriguez-Olivas also argues that Jones exceeded the consent granted to

search his trailer home when Jones searched the closet.           Rodriguez-Olivas

argues that assuming his consent to search his residence was voluntary, Jones

exceeded the scope of his consent because Jones had asked him if they could

search the trailer home for Barrett, and that searching the closet exceeded the

requested consent.

         The State counters that Rodriguez-Olivas gave additional consent through

his action of unlocking the closet to allow Jones to see inside. We agree with the

State.

         The extent of a search is limited by the scope of the consent given by an

individual. Simpson v. State, 29 S.W.3d 324, 330 (Tex. App.—Houston [14th

Dist.] 2000, pet. ref’d). The scope of consent is determined objectively; in other

words, we determine what the typical, reasonable person would have understood

by the exchange between the suspect and the officer. Florida v. Jimeno, 500

U.S. 248, 252, 111 S. Ct. 1801, 1804 (1991); Simpson, 29 S.W.3d at 330.

Additionally, a suspect is free to withdraw or limit his consent at any time.

Jimeno, 500 U.S. at 252, 111 S. Ct. at 1804; Simpson, 29 S.W.3d at 330.

         Assuming without deciding that Rodriguez-Olivas limited his initial consent

to search his trailer home to visible areas of the trailer and not the closet

(although clearly Barrett could have been and was in the closet), we conclude

that the record evidence supports the trial court’s implied finding that Rodriguez-


                                          45
Olivas consented to the search of his closet. Indeed, when Jones asked what

was in the closet and after Rodriguez-Olivas stated “that’s just a closet,” Jones

asked to be allowed to look inside. Rodriguez-Olivas responded, “Yes.” Jones

and Frith testified at the suppression hearing that Rodriguez-Olivas then

proceeded to unlock the closet and allow Jones to look inside. Rodriguez-Olivas

never objected to Jones’s looking into the closet. Rodriguez-Olivas’s silence

upon Jones looking into the closet after Rodriguez-Olivas had unlocked it

affirmed the consent to search therein. See Jimeno, 500 U.S. at 252, 111 S. Ct.

at 1804; Simpson, 29 S.W.3d at 330. We overrule the remainder of Rodriguez-

Olivas’s first, second, and third points.

      E.     Sudden Passion Defense

      In his fourth point, Rodriguez-Olivas argues that the evidence in this case

demonstrated that he acted under the immediate influence of sudden passion

when he killed Barrett and that the jury’s verdict finding otherwise is reversible

error. The State argues that Rodriguez-Olivas has shifted the burden of his

sudden-passion defense and that the jury was free to disbelieve Rodriguez-

Olivas’s testimony that he acted under the immediate influence of sudden

passion when he killed Barrett. We agree with the State.

      At the punishment phase of a trial, a “defendant may raise the issue as to

whether he caused the death under the immediate influence of sudden passion

arising from an adequate cause.         If the defendant proves the issue in the

affirmative by a preponderance of the evidence, the offense is a felony of the


                                            46
second degree.” Tex. Penal Code Ann. § 19.02(c), (d); see McKinney v. State,

179 S.W.3d 565, 569 (Tex. Crim. App. 2005).         “Sudden passion,” under the

circumstances of this case, means passion provoked by the decedent that

“arises at the time of the offense and is not solely the result of former

provocation.” Tex. Penal Code Ann. § 19.02(a)(2). An “[a]dequate cause” is

“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).

      The issue of sudden passion is akin to an affirmative defense because the

defendant has the burden of proof by a preponderance of the evidence. See

Matlock v. State, 392 S.W.3d 662, 667 & n.14 (Tex. Crim. App. 2013); Bradshaw

v. State, 244 S.W.3d 490, 502 (Tex. App.—Texarkana 2007, pet. ref’d). We

review a sufficiency challenge to a jury’s rejection of an affirmative defense to

determine whether the jury’s adverse finding was so against the great weight and

preponderance of the evidence as to be manifestly unjust. Matlock, 392 S.W.3d

at 671. We consider the evidence in a neutral light, but we “may not usurp the

function of the jury by substituting [our] judgment in place of the jury’s

assessment of the weight and credibility of the witnesses’ testimony.” Id.

      Here, the jury was free to disbelieve Rodriguez-Olivas’s testimony that

because Barrett had taunted him and allegedly said that she had aborted her

pregnancy, he acted under a sudden passion formed at the time he stabbed her.

The record evidence indicates that Rodriguez-Olivas and Barrett argued


                                        47
frequently, that Barrett previously had been seen in torn clothing with scratches

on her neck, and that Rodriguez-Olivas was frequently jealous regarding Barrett

and the possibility of her cheating on him. The jury also heard ample evidence

that Rodriguez-Olivas used methamphetamine and that he had previously

confronted Simpson in an accusatory manner about his relationship with Barrett.

      The record evidence further indicates that Rodriguez-Olivas attempted to

conceal Barrett’s body in the closet; that he had planned to discard bloody

clothing in a river; and that he had told Wilson that he had murdered Barrett

because she would not “shut up,” she had previously broken a flat-screen

television, and she had caused the police to be called to the trailer home. The

record also indicates that police had in fact been to the trailer home previously

because of disputes between Rodriguez-Olivas and Barrett.

      From the evidence in the record, we hold that the jury’s decision to reject

Rodriguez-Olivas’s defense—that he caused Barrett’s death while under a

sudden passion and with adequate cause—is not so against the great weight and

preponderance of the evidence as to be manifestly unjust. See Matlock, 392

S.W.3d at 671. We overrule Rodriguez-Olivas’s fourth point.

      F.     Prosecutor’s Comment

      In his fifth point, Rodriguez-Olivas argues that the prosecutor committed

harmful error during closing arguments at the punishment phase. The State

counters that, assuming error, the trial court cured any potential error by

instructing the jury to follow the law as outlined in the jury charge.


                                          48
      After having read the definitions of “sudden passion” and “adequate cause”

to the jury as they were contained in the court’s charge, the following colloquy

took place,

      [Prosecutor]: [L]et's assume for a minute, that we believed the latest
                    version of [Rodriguez-Olivas’s] stories. The story, the
                    tearful story that he told us here on the witness stand.
                    Then we would have to examine whether he can meet
                    the definition in the Court’s charge, that of ordinary
                    temper. But we know that he is a drug addict. He
                    always acted schitzy. And we know from the rest of
                    the testimony that he is not a –

      [Defense Counsel]: Excuse me.

      [Prosecutor]: -- person of ordinary temper.

      [Defense Counsel]: Judge, we object to as to whether or not
                         Mr. Rodriguez[-Olivas] can meet the burden of
                         ordinary temper. I don’t think he has the burden
                         to meet. I believe that if the Court's charge
                         outlining the law, that rage or anger must be
                         such that a person of ordinary temperament
                         would be enraged, not necessary that to the
                         exclusion of anybody else, if they don’t have
                         ordinary temper. And my objection is that the
                         State is attempting to set a standard that the law
                         does not require. That’s my objection, Your
                         Honor.

      THE COURT: Okay. I’m overruling the objection. And again, I just
                 remind the jury that this is the argument of the
                 lawyers. The law that is applicable to this case is
                 contained -- contained in the jury charge, which will,
                 again, be placed in the jury room for your review.

                           This is where the attorneys are able to argue to
                     you what they believe the law is, and what they
                     believe the facts are. But you are to be governed by
                     the law and it is stated in the charge.



                                       49
      Assuming arguendo that the prosecutor misstated the law, we cannot

conclude that the statement was harmful.          We have held that prosecutorial

misstatements of law are not constitutional in nature. Coggeshall v. State, 961

S.W.2d 639, 643 (Tex. App.—Fort Worth 1998, pet. ref’d); see also Tex. R. App.

P. 44.2(a), (b). In conducting a harm analysis under Rule 44.2(b), we disregard

nonconstitutional errors unless appellant’s substantial rights are affected.         A

substantial right is affected when error has a substantial and injurious effect or

influence on the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim.

App. 1997). To determine whether a prosecutor’s misstatement of law had a

substantial and injurious effect or influence on the jury’s verdict, we look at all the

evidence and the court’s charge, as well as the alleged misstatement. Herrera v.

State, 11 S.W.3d 412, 415 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d).

Absent evidence to the contrary, a jury is presumed to follow the instructions set

forth in the court’s charge. Hutch v. State, 922 S.W.2d 166, 172 (Tex. Crim. App.

1996); see also Walker v. State, 300 S.W.3d 836, 850 (Tex. App.—Fort Worth

2009, pet ref’d) (“Courts will abandon this presumption only if there is evidence

showing that the jury did not follow the instructions.”).         Such presumption,

however, can be rebutted. See Resendiz v. State, 112 S.W.3d 541, 546 (Tex.

Crim. App. 2003).

      Here, the jury charge correctly stated the definition for sudden passion,

and Rodriguez-Olivas does not argue otherwise.             Furthermore, even after

overruling defense counsel’s objection, the trial court instructed the jury to follow


                                          50
the law as defined in the court’s charge. See Young v. State, 283 S.W.3d 854,

882 (Tex. Crim. App. 2009) (Cochran, J., concurring) (“We must, however,

‘presume [] that jurors, conscious of the gravity of their tasks, attend closely [to]

the particular language of the trial court’s instructions in criminal cases and strive

to understand, make sense of, and follow the instructions given them.’”) (citing

Francis v. Franklin, 471 U.S. 307, 324 n.9, 105 S. Ct. 1965, 1976 n.9 (1985));

Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App. 1996). We fail to find

anything in the record suggesting that the prosecutor’s alleged misstatement had

a substantial and injurious effect or influence on the jury’s verdict. See Tex. R.

App. P. 44.2(b). We overrule Rodriguez-Olivas’s fifth point.

                                  IV. CONCLUSION

      Having overruled Rodriguez-Olivas’s five points on appeal, we affirm the

trial court’s judgment.




                                                    /s/ Bill Meier
                                                    BILL MEIER
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER AND MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 15, 2015




                                         51
