

Opinion
issued July 21, 2011

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-09-01131-CR
———————————
Jose Antonio Moncivais, Appellant
V.
THE State of
Texas, Appellee

 

 
On Appeal from the 232nd District Court 
Harris County, Texas

Trial Court Case No. 1193142
 

 
O P I N I O N
          A
jury found Jose Antonio Moncivais guilty of murder and assessed his punishment
at 50 years’ confinement in the Institutional Division of the Texas Department
of Criminal Justice.[1]  On appeal, Moncivais contends the evidence is
legally and factually insufficient to support the jury’s negative finding on
the issue of sudden passion during the punishment phase of his trial.  We hold that the evidence is legally and
factually sufficient to support the jury’s negative finding.  We affirm. 
Background
Jose Antonio Moncivais
got into an argument with Brian Escontrias that escalated into a physical fight
in which Brian suffered a laceration to his face.  Moncivais walked away from the fight and went
home with his girlfriend.  An hour later,
Moncivais heard someone hammer on his front door, and the next morning he found
.40 caliber bullet casings in front of his house. 
Later that same day,
Moncivais’s brother called to tell him that Brian’s brothers and several other
men were on their way to confront him over what they perceived to be an attack
on Brian the previous evening.  Moncivais
told his girlfriend that “if things were to get out of line that there was a
gun right there [in the house]—if things just really got out of hand you know
what I’m saying to—she knew what to do.” 
Moncivais went outside to wait for the men, expecting to engage in a
one-on-one fight, and paced back and forth in front of his house.
Brian’s brothers, Erik
and Adrian Escontrias, and three other men arrived at Moncivais’s home.  Erik put on work gloves as he got out of the
car and began to fight with Moncivais.  After
Erik knocked Moncivais to the ground, Adrian joined the fight by pinning down
Moncivais’s arm while Erik continued to hit him.  Moncivais’s girlfriend fired a shot into the
air abruptly stopping the fight and causing everyone to freeze.  Erik, Adrian and the other men then ran
towards their cars.  Moncivais’s
girlfriend shot the gun again and struck one of the men as they ran away.  Moncivais grabbed the gun shouting, “give
[me] the f—ing gun and shoot the motherf—ers.” 
Moncivais continued to pursue Erik, Adrian, and the others as they ran
away and shot in the directions of their cars. 
The driver’s side window of Erik’s car shattered.  Moncivais continued to shoot at the car from
only a couple feet away and shot Erik three times in the back and side.  Erik later died at the hospital.    
At trial, several law
enforcement officers testified to their investigation and three eyewitnesses
testified to the circumstances surrounding the fight.  A neighbor testified that Moncivais looked
mad and agitated as he paced in front of his house waiting for the men to arrive.  Adrian and one of the other men who arrived
with Erik testified that only two people fought with Moncivais.  Adrian asserted that his statement to the
police that the group as a whole attacked Moncivais was not accurate.  Another bystander to the fight testified that
he heard the gun click twice without firing, as if Moncivais was not finished
shooting, and described the clicking as “just out of rage.”  
Moncivais testified
that he felt like his life was in danger and he acted in self-defense.  He testified that the banging on his door the
night before and the .40 bullet casings in front of his house gave him a bad
feeling.  He also stated that Erik and
all of the other men participated in the fight.
The jury found
Moncivais guilty of murder.  At the
punishment phase, the jury found that Moncivais did not commit the murder under
the immediate influence of sudden passion and assessed punishment at 50 years’
confinement.  Moncivais timely appealed.
Sufficiency of the Evidence
  Moncivais contends the evidence is legally
and factually insufficient to support the jury’s finding that he did not kill
Erik under the immediate influence of sudden passion.
A.      Sudden
Passion
Proof of sudden
passion can reduce an offense from a first degree felony to a second degree
felony and the defendant must prove sudden passion by a preponderance of the
evidence.  See Tex. Penal Code Ann. § 19.02(d) (West 2003); see McKinney v. State, 179 S.W.3d 565, 569
(Tex. Crim. App. 2005); see also Hernandez v. State, 127 S.W.3d 206, 211–12 (Tex.
App.—Houston [1st Dist.] 2003, pet. ref’d) (holding that defendant bears burden
at punishment phase to prove issue of sudden passion by preponderance of
evidence).  “‘Sudden passion’ means
passion directly caused by and arising out of provocation by the individual
killed or another acting with the person killed which passion arises at the
time of the offense and is not solely the result of former provocation.”  Tex.
Penal Code Ann. § 19.02(a)(2). 
“‘Adequate cause’ means cause that would commonly produce a degree of
anger, rage, resentment, or terror in a person of ordinary temper, sufficient
to render the mind incapable of cool reflection.”  Tex. Penal Code Ann. §
19.02(a)(1); see also Hernandez, 127 S.W.3d at 211. 
Sudden passion must arise
at the time of the offense and cannot result solely from former provocation.   Hernandez, 127 S.W.3d at 213.  Neither ordinary anger nor fear alone raises
an issue on sudden passion arising from adequate cause.  See id.
at 213–14; see also Naasz v. State,
974 S.W.2d 418, 425 (Tex. App.—Dallas 1998, pet. ref’d) (stating defendant’s
testimony of being upset and angry over culmination of events did not rise to
level of adequate cause).  Similarly, a defendant may not rely on a
cause of his own making to support an argument for sudden passion.  See
Smith v. State, No. 01-09-00634-CR,
2011 WL 1233367, at *7 (Tex. App.—Houston [1st Dist.] Mar. 31, 2011, pet. filed);
see also
Hernandez, 127 S.W.3d at 211 (holding
that ordinary anger or causes of defendant’s own making are not legally
adequate causes); Trevino
v. State, 157 S.W.3d 818, 822 n.4 (Tex. App.—Fort Worth 2005, no
pet.) (stating that defendant’s conduct led complainant to fire a gun at him
and therefore complainant’s conduct did not constitute adequate cause).
A defendant must prove
that the homicide occurred while the passion still existed and before there was
reasonable opportunity for the passion to cool. 
See McKinney, 179 S.W.3d at
569.  Anticipation of an event and preparation of a response indicates
a defendant had time to deliberate over an action and did not act under the
immediate influence of sudden passion.  Id. at 570 (holding evidence that
defendant went home, sat at his desk for some time, and then retrieved his gun
in preparation for fight showed deliberation and not sudden passion).
B.      Legal
Sufficiency
          In
his first issue, Moncivais contends the evidence is legally insufficient to
support the jury’s negative finding on sudden passion and that we should remand
for a new punishment hearing.
1.       Standard of Review 
In Brooks v. State, the Court of Criminal
Appeals held that the Jackson v. Virginia
standard is the only standard that a reviewing court should apply in
determining whether the evidence is sufficient to support each element of a criminal
offense that the State is required to prove beyond a reasonable doubt. 
Brooks v. State, 323 S.W.3d
893, 895 (Tex. Crim. App. 2010) (citing Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979)).  We review issues on which the defendant had
the burden of proof by a preponderance of the evidence, like sudden passion,
under a different standard and apply the legal sufficiency standard utilized in
civil cases.   See Smith, 2011 WL 1233367, at *7; see also Cleveland v. State, 177 S.W.3d 374, 387–88 (Tex.
App.—Houston [1st Dist.] 2005, pet. ref’d), cert.
denied, 547 U.S. 1073, 126 S. Ct. 1774 (2006); see also Nolan v. State, 102 S.W.3d 231, 237–38 (Tex. App.—Houston
[14th Dist.] 2003, pet. ref’d) (applying civil standard to legal sufficiency
review of jury’s rejection of defendant’s affirmative defense).  
The civil legal
sufficiency standard requires a two-step analysis.  First, we examine the record for any evidence
that supports the jury’s negative finding while ignoring all evidence to the
contrary.  See Smith, 2011 WL 1233367, at *7; Cleveland, 177 S.W.3d at 387 (citing Sterner v. Marathon Oil Co., 767
S.W.2d 686, 690 (Tex. 1989)).  Second, if
no evidence supports the negative finding, then we examine the entire record to
determine whether the evidence establishes the affirmative defense as a matter
of law.  Id.  We must defer to the
fact finder’s determination of the weight and credibility to give the testimony
and the evidence at trial.  See Cleveland, 177 S.W.3d at
388–89.  
2.       Legally
Sufficient Evidence of No Sudden Passion
In examining the record under the first
prong of the civil legal sufficiency standard, we conclude that some evidence
exists to support the jury’s negative finding on the issue of sudden
passion.  Moncivais
testified that his brother warned him that Erik was coming to his house to
fight.  Moncivais showed his girlfriend
his gun to use in case the fight escalated. 
The jury heard testimony from the neighbor that Moncivais waited outside
his home for the fight to begin and appeared agitated before they even
arrived.  Anticipation of and preparation
for the fight constitutes some evidence that Moncivais had time to deliberate
regarding his actions.  See McKinney, 179 S.W.3d at 569–70
(holding that defendant was not under immediate influence of sudden passion
when he anticipated event and prepared himself to respond);
see also Ontiveros v. State,
No. 04-09-00590-CR, 2010 WL 4488611, at *3 (Tex. App.—San Antonio Nov. 10,
2010, pet. dism’d) (mem. op., not designated for publication) (holding evidence
that defendant went to retrieve his gun before discovering that his tires were
slashed demonstrated anticipation and preparation even before he was provoked
and was not sufficient to require sudden passion instruction).
The
record satisfies the first prong of civil legal sufficiency standard of review
because some evidence exists that Moncivais was not under the immediate
influence of sudden passion when he shot Erik. 
See Cleveland, 177 S.W.3d at
390.  Therefore, we need not address the
second prong of the civil legal sufficiency standard, whether Moncivais proved
sudden passion as a matter of law, because that prong only applies in the
absence of any evidence to support the jury’s finding.  See id.
at 389.  We hold that the evidence is
legally sufficient to support the jury’s negative finding of sudden
passion.  See Smith, 2011 WL
1233367, at *7.
We
overrule Moncivais’s first issue.  
 
C.    Factual Sufficiency
          In his second issue, Moncivais
contends the evidence is factually insufficient to support the jury’s negative
finding on the sudden passion issue.         
1.       Standard
of Review
We apply the factual
sufficiency standard announced in Meraz
v. State, 785 S.W.2d 146,
154–55 (Tex. Crim. App. 1990), to review an issue on which the defendant has
the burden of proof by a preponderance of the evidence.  Zuniga v.
State, 144
S.W.3d 477, 482 (Tex. Crim. App. 2004) (holding that Meraz standard is suitable for sufficiency reviews regarding
affirmative defenses because burden of proof on defendant is preponderance of
evidence); see Cleveland, 177 S.W.3d
at 390–91 (applying Meraz standard to
review factual sufficiency of jury’s negative sudden passion finding).  Again, the Jackson v. Virginia standard advanced in
Brooks applies to a sufficiency
review of the elements of the offense the State must prove beyond a reasonable
doubt, not to the jury’s negative finding of an issue on which the defendant
had the burden of proof by a preponderance of the evidence.  Brooks,
323 S.W.3d at 924 n.67 (Cochran, J., concurring) (noting that factual
sufficiency standard in Meraz is
appropriate for review of issues, such as affirmative defenses, on which
defendant has burden of proof by preponderance of evidence).   
Under Meraz, we
consider all the evidence neutrally, to determine if the judgment is so against
the great weight and preponderance of the evidence as to be manifestly
unjust.  See Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003); Meraz, 785 S.W.2d at 154–55; Smith, 2011 WL
1233367, at *8.  We may not, however, intrude on the fact
finder’s role as the sole judge of the weight and credibility of the witnesses’
testimony.  See Meraz, 785 S.W.2d at 154–55; Cleveland, 177 S.W.3d at 390–91.   
2.       Factually
Sufficient Evidence of No Sudden Passion
Moncivais relies largely on his own testimony to argue that
the jury’s finding of no sudden passion was against the great weight and
preponderance of the evidence.  He essentially
makes a self-defense argument.  He
testified that the banging on his door the night before and the .40 bullet
casings in front of his house made him apprehensive.  Moncivais testified that when he saw Erik
approach him with gloves on, he feared Erik could stab him.  He also stated that all of the men joined in
the fight, not just Erik and Adrian, and he thought one of the men reached into
the car to get a gun.  In other words,
Moncivais asserts that he felt like his life was in danger when he shot Erik. 
In addition to the
evidence indicating Moncivais’s mindset and self-defense, the jury heard other
evidence from which it could have found sudden passion.  Moncivais believed he would be fighting
one-on-one; instead, he was attacked by at least two men, and potentially up to
five men if the jury believed Moncivais’s testimony.  Adrian held Moncivais’s arm to the ground
while Erik continued to hit him.  
Further, the first gunshot ended the fighting abruptly and only an instant
passed between the fight and when Erik and the others fled the scene.  Several witnesses also testified that
Monvicais was screaming as he pursued his attackers and that the gun clicked
several times as he continued to shoot out of rage.  As the sole judge of the weight and
credibility of a witness’s testimony, the jury was entitled to disbelieve
Moncivais’s testimony.  See Hernandez, 127 S.W.3d at 214.  As discussed above, the jury heard evidence that Moncivais
took certain steps in anticipation of and preparation for the fight, including
showing his girlfriend a gun to use in case the fight escalated and going
outside his home to wait for his attackers. 
See McKinney,
179 S.W.3d at 570; see
also Ontiveros,
2010 WL 4488611, at *3.  Witnesses
also testified that Moncivais’s gun was the only weapon displayed during the
fight and no one else was seen carrying a weapon.  See
McKinney, 179 S.W.3d at 570 (stating evidence that complainant did not have
a gun and only yelled and pushed defendant supports finding that defendant was not
acting under immediate influence of sudden passion). While the jury could have
decided otherwise,
we cannot say based on this evidence that the jury’s finding of no sudden
passion is so against the great weight and preponderance of the evidence as to
be manifestly unjust.  See Hernandez, 127 S.W.3d at 213.    
We overrule Moncivais’s second issue.
Conclusion
We hold the
evidence is legally
and factually sufficient to support the jury’s negative finding on the issue of
sudden passion.  We affirm the judgment
of the trial court.
 
 
 
                                                                   Harvey
Brown
                                                                   Justice

 
Panel consists
of Justices Jennings, Higley, and Brown.
 
Publish.  Tex. R.
App. P. 47.2(b).
 




[1]           See
Tex. Penal Code Ann. §
19.02(b) (West 2003).


