                                                                              PD-1076-14
                                                            COURT OF CRIMINAL APPEALS
March 24, 2015                                                               AUSTIN, TEXAS
                                                          Transmitted 3/23/2015 8:10:04 AM
                                                            Accepted 3/24/2015 8:56:04 AM
                                                                              ABEL ACOSTA
                 IN THE TEXAS COURT OF CRIMINAL        APPEALS                        CLERK

RICARDO BELTRAN,                     §        CCA No. PD-1076–14
    APPELLANT                        §
                                     §
V.                                   §        COA No. 05-12-01647-CR
                                     §
THE STATE OF TEXAS,                  §
    APPELLEE                         §        TC No. F10-56077-M


     APPEALED FROM CAUSE NUMBER F10-56077-M IN THE 194 th JUDICIAL
DISTRICT COURT OF DALLAS COUNTY, TEXAS; THE HONORABLE ERNEST
WHITE, JUDGE PRESIDING; AFFIRMED BY THE HONORABLE FIFTH COURT
OF APPEALS IN CAUSE NUMBER 05-12-01647-CR.

                                  §§§

     STATE'S RESPONSE BRIEF ON APPELLANT BELTRAN’S
           PETITION FOR DISCRETIONARY REVIEW

                                  §§§


                                  SUSAN HAWK
                                  Criminal District Attorney
                                  Dallas County, Texas


                                  MICHAEL R. CASILLAS, Assistant
                                  Criminal District Attorney,
                                  Appellate Division
                                  133 N. Riverfront Blvd., LB 19
                                  Dallas, Texas 75207-4399
                                  (214) 653-3600/FAX (214) 653-3643
                                  State Bar No. 03967500
                                  Michael.Casillas@dallascounty.org
                                  Mcasillas@dallascounty.org
                       SUBJECT INDEX/TABLE OF CONTENTS

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . 1

PRELIMINARY STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY STATEMENT OF THE ISSUES PRESENTED . . . . . . . . . . . . . . 5

ARGUMENT AND AU T H O R IT IE S

        Factual Record’s Establishment Of Inapplicability Of Sudden Passion

        The Fifth Court Of Appeals Did Not Err In Affirming The Trial
        Court’s Judgment Because Beltran’s Testimony Could In No Way
        Support A Finding Of Sudden Passion By A Rational Jury. . . . . . . . . . . . . 8

CONCLUSION AND PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

CERTIFICATE/PROOF OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23




                                                      ii
                                 INDEX OF AUTHORITIES

CASES                                                                                                PAGES

Beltran v. State, No. 05-12-01647-CR,
      2014 Tex. App. LEXIS 7915 (Tex.
      App. – Dallas July 22, 2014, pet.
      granted)(not designated for publication) . . . . . . . . . . . . . . . . . . . 2,4,7,9,10,16

Daniels v. State, 645 S.W.2d 459 (Tex. Crim. App. 1983) . . . . . . . . . . . . . . 9,11,12

Fry v. State, 915 S.W.2d 554 (Tex. App. –
       Houston [14 th Dist.] 1995, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9,12

Gonzales v. State, 717 S.W.2d 355 (Tex. Crim. App. 1986) . . . . . . . . . . . . . . . . . 12

Gross v. State, 380 S.W.3d 181 (Tex. Crim. App. 2012)                     . . . . . . . . . . . . . . . . . . . 20

Henley v. State, No. 02-13-00178-CR, 2014 Tex.
      App. LEXIS 13562 (Tex. App. – Fort Worth
      December 18, 2014, no pet.)(not yet reported) . . . . . . . . . . . . . . . . . . . . . . 13

Jones v. State, 687 S.W.2d 425 (Tex.
      App. – Dallas 1985, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9,12

Mathis v. State, 67 S.W.3d 918 (Tex. Crim. App. 2002)                     . . . . . . . . . . . . . . . . . 13,14

McKinney v. State, 179 S.W.3d 565 (Tex. Crim. App. 2005)                         . . . . . . . . . . 8,9,11,12

Moore v. State, 969 S.W.2d 4 (Tex. Crim. App. 1998) . . . . . . . . . . . . . . . . . . . . 8,12

Moye v. State, No. 05-94-00841-CR, 1997 Tex. App.
     LEXIS 1952 (Tex. App . – Dallas April 16,
     1997, no pet.)(not designated for publication) . . . . . . . . . . . . . . . . . . . . . 9,12

Thompson v. State, 236 S.W.3d 787 (Tex. Crim. App. 2007)                         . . . . . . . . . . . . . . . 19


                                                    iii
Trevino v. State, 100 S.W.3d 232 (Tex. Crim. App. 2003) . . . . . . . . . . . . . . . . . . . 8

Troncoso v. State, No. 06-03-00065-CR, 2004 Tex. App.
     LEXIS 2578 (Tex. App. – Texarkana March 24,
     2004, pet. ref’d)(not designated for publication) . . . . . . . . . . . . . . . . . . . 9,12

Wooten v. State, 400 S.W.3d 601 (Tex. Crim. App. 2013) . . . . . . . . . . . . . . . . . 8,11


ARTICLES, RULES, CODES, AND CONSTITUTIONS

Tex. Pen. Code §6.04             . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Tex. Pen. Code §7.01             . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Tex. Pen. Code §7.02             . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Tex. Pen. Code §19.02(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8




                                                           iv
              IN THE TEXAS COURT OF CRIMINAL APPEALS

RICARDO BELTRAN,                             §         CCA No. PD-1076–14
    APPELLANT                                §
                                             §
V.                                           §         COA No. 05-12-01647-CR
                                             §
THE STATE OF TEXAS,                          §
    APPELLEE                                 §         TC No. F10-56077-M


     APPEALED FROM CAUSE NUMBER F10-56077-M IN THE 194 th JUDICIAL
DISTRICT COURT OF DALLAS COUNTY, TEXAS; THE HONORABLE ERNEST
WHITE, JUDGE PRESIDING; AFFIRMED BY THE HONORABLE FIFTH COURT
OF APPEALS IN CAUSE NUMBER 05-12-01647-CR.

TO THE HONORABLE TEXAS COURT OF CRIMINAL APPEALS:

              ST A T E M E N T REGARDING ORAL ARGUMENT

      The decision of the Fifth Court of Appeals is correct and deserving of this

Court’s approval. Even though the unique underlying substantive issues involved in

the instant case and the potential ramifications of this Court’s decision relative thereto

could have far reaching consequences for the jurisprudence of the State of Texas, the

instant case is one in which this Court has already declined to extend to the parties the

privilege of presenting oral argument. Based on the state of the record and the nature

of the legal issues involved, the State finds itself in complete agreement as to this

Court’s previous decision that refused to grant the parties the privilege of presenting

oral argument.

                                            1
                 P R E L IM IN ARY STATEMENT OF THE CASE

       Appellant/Petitioner (hereinafter “Beltran”) was charged via indictment with

capital murder for his role in having killed Sheldon McKnight. (CR-O: 13).1 Beltran

testified in his own defense not only during guilt-innocence, but also punishment.

(RR-7: 64-170; RR-9: 43-68). As the Fifth Court noted, “The sole witness to testify

as to the circumstances surrounding McKnight’s death was Beltran.” Beltran v. State,

No. 05-12-01647-CR, 2014 Tex. App. LEXIS 7915, at *2 (Tex. App. – Dallas July

22, 2014, pet. granted)(not designated for publication).

       Beltran testified that he had gone to McKnight’s apartment with Victor Ramos

and, after having used drugs, had fallen asleep on a bed in McKnight’s residence –

only to be awakened by the sensation of having his anus licked by McKnight. (RR-7:

103; RR-9: 59).       Beltran testified that he panicked and screamed and then felt

McKnight – who outweighed Beltran by a substantial amount – jump on Beltran’s

back and then start pushing Beltran’s face into a pillow. (RR-7: 103-06).

       In response to Beltran’s screams, Ramos came into the room and hit McKnight

in the head, which caused McKnight to fall on top of Beltran. (RR-7: 106). When



       1
        The appellate record in this case includes an original Clerk’s Record and two supplemental
Clerk’s Records. The abbreviation “CR-O” refers to the original Clerk’s Record and the
abbreviation “CR-S” followed by a 1 or a 2 refers to the first or second volume of the supplemental
Clerk’s Record.

                                                 2
McKnight moved to grab Ramos, Beltran grabbed McKnight from behind. (RR-7:

107, 151-52). Beltran expressly testified, “Once I grabbed him [i.e., McKnight], I was

telling [Ramos], get some help.” (RR-7: 107). According to Beltran, Ramos grabbed

McKnight’s leg and McKnight and Beltran fell back on McKnight’s bed. (RR-7: 107-

08). Beltran made clear that he continued to hold McKnight and continued to tell

Ramos to get some help and that he was screaming, “Get some help” to Ramos. (RR-

7: 107-08).

      Beltran asserted that it was only at this point in the events that he saw Ramos

produce a knife and proceed to stab McKnight with the knife. (RR-7: 108). Even

though McKnight started to flail around and attempted to go after Ramos, Beltran

continued to hold McKnight as he was kicking and continued to tell Ramos, “Get some

help.” (RR-7: 108). Beltran had the presence of mind to tell Ramos not only to get

some help, but also to stop stabbing McKnight even after having seen Ramos stab

McKnight in the face. (RR-7: 150-51). After having seen Ramos stab McKnight in

the face, Beltran eventually released his grip on McKnight and got out from under

McKnight, only to see Ramos stab McKnight to death. (RR-7: 108-10, 154). Beltran

made clear that he had not held McKnight for the purpose of helping Ramos stab

McKnight, but had held McKnight for his own defense and for the defense of Ramos.

(RR-7: 110).

                                          3
      While the trial court’s guilt-innocence charge contained an instruction on self-

defense, the jury rejected Beltran’s self-defense claim and found Beltran guilty of the

lesser included offense of murder. (CR-O: 51, 54-60; CR-S-1: 4-18). At punishment,

the trial court refused to instruct the jury on the defensive issue of sudden passion.

(RR-9: 70-71). The trial court explained that the defensive issue was not being

submitted because Beltran had repeatedly denied having killed McKnight and because

Beltran had admitted that, before he grabbed McKnight, McKnight had been getting

off of Beltran and moving toward Ramos. (RR-9: 70-71).

      The Fifth Court affirmed the trial court’s refusal to instruct the jury on sudden

passion, noting that Beltran had been “consciously aware of the danger McKnight

[had] posed, [had] tried to get control of the situation, and [had] acted with thought,

not in an excited and agitated state.” Beltran, No. 05-12-01647-CR, 2014 Tex. App.

LEXIS 7915, at *8. Accordingly, the Fifth Court wrote, “On this record, we conclude

there is no evidence Beltran caused McKnight’s death under the immediate influence

of sudden passion. Accordingly, the record does not ‘minimally support’ a causal

connection between the provocation and homicide.” Beltran, No. 05-12-01647-CR,

2014 Tex. App. LEXIS 7915, at *9.

      Beltran then filed his Petition for Discretionary Review, which this Court




                                           4
granted.2 In his sole ground for review, Beltran contended that some evidence that

Beltran acted in self-defense did not negate all the evidence that he acted in sudden

passion.3

            SUMMARY STATEMENT OF THE ISSUES PRESENTED

       Beltran’s ground for review contends that the logic of the Fifth Court’s analysis

was flawed because any evidence that Beltran acted in self-defense failed to negate the

evidence that Beltran acted while under the influence of sudden passion. Thus, Beltran

contends that this Court should reverse the judgment of the Fifth Court and remand the

case to the Fifth Court for the Fifth Court to conduct a harm analysis of whether

Beltran was harmed by the trial court’s refusal to submit the sudden passion

instruction.4

       Regarding Beltran’s ground for review, a sudden passion instruction may not be

provided unless the record contains evidence from which a jury could rationally

conclude that the defendant on trial committed the offense while he was under the

influence of sudden passion that had rendered him incapable of cool reflection. Since

the record was undisputed regarding how Beltran’s own testimony had showed that he



       2
           See Beltran’s Petition For Discretionary Review (“PDR”), at pp. 1-19.
       3
           See Beltran’s PDR, at pp. 1-19.
       4
           See Beltran’s PDR, at p. 20.

                                                  5
had never been rendered incapable of cool reflection and since the Fifth Court

expressly relied on that very testimony of Beltran’s, Beltran was not entitled to the

submission of a sudden passion instruction because the record was such that no

rational jury could have found that Beltran had acted while in the throes of sudden

passion. Accordingly, this Court’s opinion should not only affirm the judgment of the

Fifth Court, but also should reiterate that a sudden passion instruction may not be

provided when the record is such that a rational jury could not find that the defendant

had acted while in the throes of sudden passion.

      For all the aforementioned reasons, this Court should either deem the granting

of Beltran’s petition for discretionary review improvident or should issue an opinion

that affirms the judgment of the Fifth Court by reiterating that a sudden passion

instruction may not be provided when the record is such that no rational jury could

make a finding a sudden passion based on that record.




                                           6
                             ARGUMENT AND AUTHORITIES

        In substance, Beltran contends that the Fifth Court erred by concluding that

Beltran’s testimony that he had acted in self-defense negated Beltran’s testimony that

he had acted while under the influence of sudden passion.5 While Beltran’s argument

asserts that the Fifth Court’s opinion concluded that evidence of Beltran’s having acted

in self-defense negated Beltran’s testimony that Beltran had acted while under the

influence of sudden passion, the Fifth Court’s opinion actually stated that Beltran’s

`testimony had shown that Beltran had “acted with thought, . . .” Beltran, No. 05-12-

01647-CR, 2014 Tex. App. LEXIS 7915, at *8. Since this Court’s jurisprudence is

clear regarding how the evidence must show that the defendant actually acted under

an influence so great that it caused him to lose his capacity for cool reflection and that

a sudden passion instruction should be provided only when the record is such that a

rational jury could find that the defendant had acted while under the influence of

sudden passion, the Fifth Court did not err in affirming the trial court’s judgment of

conviction because Beltran’s own testimony repeatedly demonstrated that Beltran had

never been rendered incapable of cool reflection. Accordingly, a finding of sudden

passion was not one that a rational jury could have made on the record in the instant

case.


        5
            See Beltran’s Merit Brief, at pp. 1-21.

                                                      7
   Factual Record’s Establishment Of Inapplicability Of Sudden Passion

      The Fifth Court Of Appeals Did Not Err In Affirming The Trial
      Court’s Judgment Because Beltran’s Testimony Could In No Way
      Support A Finding Of Sudden Passion By A Rational Jury.

      A finding that a defendant committed a murder while under the immediate

influence of sudden passion can render the murder committed a second degree felony

instead of a first degree felony. See, e.g., Trevino v. State, 100 S.W.3d 232, 237 (Tex.

Crim. App. 2003). The defendant bears the burden of proving sudden passion by a

preponderance of the evidence. See Tex. Pen. Code §19.02(d); Trevino, 100 S.W.3d

at 237.

      In order for sudden passion to be an issue that should be submitted to the jury,

there must be evidence that the defendant on trial “actually acted under the influence

of a fear so great that it caused him to lose his capacity for cool reflection.” Wooten

v. State, 400 S.W.3d 601, 609 (Tex. Crim. App. 2013). While the evidence that

entitles a defendant to submission of the sudden passion instruction may be strong,

weak, contradicted, unimpeached, or unbelievable, the evidence “cannot be so weak,

contested, or incredible that it could not support such a finding by a rational jury.”

McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005); Moore v. State, 969

S.W.2d 4, 11 (Tex. Crim. App. 1998). When the evidence shows that the defendant

had not been rendered incapable of cool reflection, the issue of sudden passion should


                                           8
not be submitted because an essential element of the issue has been refuted, especially

in those situations where it is the defendant’s own testimony that demonstrates that he

or she had not been deprived of his capacity to exercise cool reflection. See, e.g.,

McKinney, 179 S.W.3d at 570; Daniels v. State, 645 S.W.2d 459, 461 (Tex. Crim.

App. 1983); Fry v. State, 915 S.W.2d 554, 558 (Tex. App. – Houston [14 th Dist.]

1995, no pet.); see also, e.g., Troncoso v. State, No. 06-03-00065-CR, 2004 Tex. App.

LEXIS 2578, at *23-24 (Tex. App. – Texarkana March 24, 2004, pet. ref’d)(not

designated for publication); Moye v. State, No. 05-94-00841-CR, 1997 Tex. App.

LEXIS 1952, at *31-32 (Tex. App . – Dallas April 16, 1997, no pet.)(not designated

for publication), citing Jones v. State, 687 S.W.2d 425, 428 (Tex. App. – Dallas 1985,

pet. ref’d).

       In the instant case, the Fifth Court expressly noted how the evidence had shown

that Beltran had been “consciously aware of the danger McKnight [had] posed, [had]

tried to get control of the situation, and [had] acted with thought, not in an excited and

agitated state.” Beltran, No. 05-12-01647-CR, 2014 Tex. App. LEXIS 7915, at *8.

Accordingly, the Fifth Court wrote, “On this record, we conclude there is no evidence

Beltran caused McKnight’s death under the immediate influence of sudden passion.

Accordingly, the record does not ‘minimally support’ a causal connection between the

provocation and homicide.” Beltran, No. 05-12-01647-CR, 2014 Tex. App. LEXIS

                                            9
7915, at *9. As such, the opinion of the Fifth Court leaves no doubt that the Fifth

Court’s conclusion that there had been no evidence that Beltran had acted while under

the influence of sudden passion was based on the evidence that showed that Beltran

had never been rendered incapable of cool reflection, but actually had “acted with

thought.” Beltran, No. 05-12-01647-CR, 2014 Tex. App. LEXIS 7915, at *8.

      A review of the record reveals the correct nature of the Fifth Court’s conclusion.

While Beltran claimed more than once that he had panicked, Beltran repeatedly

claimed that he had grabbed and held McKnight and that he had told Ramos to seek

help. (RR-7: 104-10, 145-52). According to the record, Beltran also admitted that,

while Ramos was in the act of stabbing McKnight, Beltran told Ramos to stop. (RR-7:

150-51).

      Beltran repeatedly made clear, however, that he had not even moved to grab

McKnight until after McKnight had moved to go after Ramos. (RR-7: 107, 151).

According to Beltran’s own testimony, Beltran grabbed McKnight and told Ramos to

go get help not only before Beltran had even noticed that Ramos had a knife, but also

during the time that McKnight was flailing around (while being stabbed by Ramos)

and even after having seen McKnight get stabbed in the face by Ramos. (RR-7: 104-

10, 150).

      As such, the record makes clear that Beltran always had the presence of mind

                                          10
not only to urge Ramos to go and get help, but also to tell Ramos to stop stabbing

McKnight. (RR-7: 150-51). If anything, Beltran’s own testimony demonstrates that

Beltran was not entitled to sudden passion because Beltran’s actions were not

“emotional responses to provocation,” but were “deliberate and done with

forethought.” McKinney, 179 S.W.3d at 571. Stated differently, Beltran was not

entitled to sudden passion because Beltran’s testimony establishing the deliberate

nature of the combination of his conduct and thought processes meant that Beltran had

not “actually acted under the influence of a fear so great that it [had] caused him to lose

his capacity for cool reflection.” Wooten, 400 S.W.3d at 609.

       Under this Court’s own long-standing precedent, Beltran’s testimony showing

that he had never been rendered incapable of cool reflection negated sudden passion

as an issue on which the jury should be instructed. In Daniels, Daniels testified that

he had shot the victim because he had been in fear that the victim was going to kill

him. Daniels, 645 S.W.2d at 461. However, Daniels’ testimony on cross-examination

showed that Daniels had never lacked the ability for cool reflection. Daniels, 645

S.W.2d at 461. Accordingly, this Court concluded that Daniels’ own assessment of

the situation had refuted one of the essential elements required to raise the issue of

sudden passion, that the actor had been rendered incapable of cool reflection. Daniels,

645 S.W.2d at 461.

                                            11
      Moreover, the Daniels opinion is no way constitutes the only time that this Court

has concluded that sudden passion was not applicable because the record had shown

that the defendant on trial had not been rendered incapable of cool reflection. See, e.g.,

McKinney, 179 S.W.3d at 550-71; Gonzales v. State, 717 S.W.2d 355, 357 (Tex.

Crim. App. 1986). Likewise, Texas jurisprudence contains other examples from the

intermediate appellate courts that are entirely consistent with this Court’s

aforementioned jurisprudence regarding how a jury should not be instructed on sudden

passion when the defendant on trial was not rendered incapable of cool reflection. See,

e.g., Fry, 915 S.W.2d at 558; Jones, 687 S.W.2d at 428; see also, e.g., Troncoso, No.

06-03-00065-CR, 2004 Tex. App. LEXIS 2578, at *23-24; Moye, No. 05-94-00841-

CR, 1997 Tex. App. LEXIS 1952, at *31-32.

      Furthermore, this Court’s precedents require that a sudden passion instruction

is to be provided only if the record is such that a finding of sudden passion was one

that a rational jury could make. See McKinney, 179 S.W.3d at 569; Moore, 969

S.W.2d at 11. Based on the legal requirements that a defendant must prove sudden

passion by a preponderance of the evidence and the record must be such that a rational

jury could have found that the defendant had been deprived or his or her ability to

engage in cool reflection because he or she had acted while under the immediate

influence of sudden passion, the State disagrees with Beltran’s contention that evidence

                                            12
of acting in self-defense does not negate evidence of having acted under the influence

of sudden passion. While there may be some case with a highly unique set of facts that

would in theory support Beltran’s contention, sudden passion should not submitted if

the record is such that no rational jury could have made a finding of sudden passion

based thereon. If the factual record is such that it could not provide the basis for a

rational jury to find sudden passion, then evidence that supports self-defense may well

negate sudden passion, especially where – as here – the evidence fails to show that the

defendant was rendered incapable of cool reflection. See, e.g., Henley v. State, No.

02-13-00178-CR, 2014 Tex. App. LEXIS 13562, at *17 (Tex. App. – Fort Worth

December 18, 2014, no pet.)(not yet reported)(“Sudden passion is not an element of

self-defense or defense of another. The need for immediate action in defense of

another does not rest on sudden passion but, rather, on the need to act immediately to

protect the other person.”).

      Regarding whether a record was sufficient for a rational jury to have made a

certain finding based thereon, this Court has – in the context of whether a lesser

included offense instruction should have been submitted – provided guidance as to

whether the defendant’s own testimony had been such that a rational jury could have

concluded therefrom that the defendant had been guilty only of the requested lesser

included offense. See Mathis v. State, 67 S.W.3d 918, 925 (Tex. Crim. App. 2002).

                                          13
In Mathis, this Court assessed Mathis’ testimony and concluded – based on the

inconsistencies thereof and the physical evidence – that Mathis’ testimony had failed

to constitute evidence upon which a jury could have rationally found that Mathis’

actions towards the victim had been merely reckless. Mathis, 67 S.W.3d at 926.

      In the instant case, the record was undisputed that Beltran lied repeatedly when

he was interviewed by the police and even initially gave the police a false name. (RR-

7: 135-37, 165-66). Beltran’s lies to the police included lies about having been at

McKnight’s apartment before (so as to explain the potential presence of Beltran’s DNA

and/or fingerprints) and lies about not having had anything to do with McKnight’s

death. (RR-7: 137, 165-66).

      While Beltran’s demonstrated willingness to lie was so great that no rational jury

would be willing to give credence to anything Beltran had to say in his own favor, the

remainder of Beltran’s testimony provided further evidence from which no rational

jury could have ever found that Beltran had been rendered incapable of cool reflection.

Beltran admitted that – almost immediately upon McKnight’s death – Beltran himself

had taken McKnight’s shoes and some of McKnight’s clothing because Beltran’s own

clothing was bloody. (RR-7: 110, 126-27, 155-57). While Beltran tried to claim that

he had taken the clothes because he was in a panic, Beltran’s having taken the clothes

actually proves that Beltran was thinking clearly immediately after the death of

                                          14
McKnight because Beltran’s taking of McKnight’s clothes solved the dilemma

presented by the bloody state of Beltran’s own clothes. (RR-7: 110-12).

        While Beltran claimed that Ramos was also panicking, Beltran admitted that it

was Ramos who had suggested making the crime scene look like McKnight had been

the victim of a robbery, which actually seems like more deliberative planning (as

opposed to a panicked reaction that occurred without any cool reflection). (RR-7: 112-

14). Beltran also admitted that he donned a disguise while loading McKnight’s

property into McKnight’s vehicle, which was still more evidence that Beltran was fully

capable of engaging in deliberative conduct soon after the death of McKnight. (RR-7:

120).

        While Beltran claimed that he had originally left his clothes and a bloody towel

in McKnight’s apartment, Beltran admitted the he had still had the presence of mind

not only to realize that he had left his clothes and the bloody towel at the crime scene,

but also that it was necessary to return to the crime scene and retrieve those items

because they could connect him to the crime. (RR-7: 113, 159). Clearly, Beltran’s

ability to assess accurately that he had left evidence at the crime scene that could

connect him thereto – and that he needed to retrieve that evidence – are in no way

consistent with a mind that had been rendered incapable of cool reflection.

        Once Beltran and Ramos had a collision in McKnight’s vehicle, Beltran also

                                           15
appreciated the potential benefits of taking McKnight’s television from the wrecked

vehicle. (RR-7: 130-35). Beltran explained that he thought he could use the television

either to barter for assistance (such as obtaining a ride or other aid from another

person) or as a prop to obscure his identity. (RR-7: 132-33, 143). Moreover, the logic

of Beltran’s plan was conclusively demonstrated by Beltran’s own testimony wherein

Beltran admitted that he had actually been able to use McKnight’s television in just the

way he had planned and had done so by trading it to a black male who offered to let

Beltran and Ramos hide in a nearby house to which the black male had access. (RR-7:

132-35). When the black male informed Beltran that he and Ramos needed to leave,

Beltran still had the presence of mind to ask the black male if leaving by the back door

would be acceptable. (RR-7: 133-34).

      For all the aforementioned reasons, the Fifth Court in no way erred by

concluding that the trial court’s refusal to submit the sudden passion instruction

constituted no error whatsoever. Beltran, No. 05-12-01647-CR, 2014 Tex. App.

LEXIS 7915, at *8-9. However, the legal principles discussed so far herein are not the

only reasons why the judgment of the Fifth Court should be affirmed. Based on the

unique facts of the instant case, Beltran is in a very real sense arguing in effect for

recognition in the law that the concept of sudden passion should have some type of

component whereby the basis for the alleged sudden passion may be either transferred

                                           16
to another or exercised vicariously.

      Had Beltran claimed that he had grabbed McKnight and had then continued to

restrain McKnight even while Ramos was stabbing McKnight because Beltran himself

had been so enraged and terrified by McKnight’s conduct in sexually assaulting Beltran

and then trying to smother Beltran, then perhaps, Beltran’s testimony would have been

sufficient for a rational jury to have found sudden passion therefrom. However,

Beltran never asserted that his act of holding McKnight had been something that

Beltran had done as a result of having had his capacity to engage in cool reflection

overcome by his fear, terror, or rage.

      Moreover, Beltran repeatedly claimed that he had never intended to harm

McKnight, that all he had done was hold McKnight while he himself was telling

Ramos to get help, and that he had never stabbed McKnight nor intended to assist or

facilitate Ramos’ stabbing of McKnight. (RR-7: 103-10, 119, 138, 145-51; RR-9: 67).

According to Beltran’s version of the events, only Ramos perpetrated any conduct

against McKnight that actually inflicted any killing blows to McKnight. As such,

Beltran seems to be claiming that Ramos could stab McKnight based on what

McKnight had done to Beltran and that Beltran should receive the sudden passion

instruction even though the record contains no evidence that anything was done to

Ramos that would have caused Ramos to act in sudden passion or that would have

                                          17
justified Ramos’ having acted while under the influence of sudden passion.

      While Beltran’s having been subjected to having his anus licked by McKnight

and having had his face pushed into a pillow might have been the type of conduct that

could have justified Beltran’s having been rendered incapable of cool reflection, the

record is devoid of any evidence that Ramos was subjected to those actions or that

Ramos had even known what had caused Beltran initially to scream. While Ramos

could well have been justified in attacking McKnight in an effort to defend Beltran, the

fact that Ramos might have been justified in acting in defense of Beltran would not

necessarily provide any grounds for a conclusion that Ramos’ actions had been

committed while Ramos was under the influence of sudden passion.

      Finally, Beltran repeatedly testified to the effect that he had held McKnight for

the purpose of providing Ramos with an opportunity to obtain the help that Beltran was

telling Ramos to go get. (RR-7: 107-09, 150-52). While Beltran’s having held

McKnight undoubtedly facilitated Ramos’ stabbing of McKnight, Beltan never claimed

that his act of holding McKnight was conduct he had engaged in as a result of having

been rendered incapable of cool reflection. (RR-7: 64-170). As discussed earlier,

Beltran repeatedly demonstrated that he had never been rendered incapable of cool

reflection because he doggedly reiterated that he had held McKnight (while telling

Ramos to go get help) because he wanted Ramos to be able to go get help. (RR-7:

                                           18
107-09, 150-52). Clearly, Beltran’s having held McKnight (after McKnight had

started moving toward Ramos) and Beltran’s having admitted having done so while

telling Ramos to go obtain help is more akin to acting in a deliberate manner because

Beltran’s act of holding McKnight is the type of act that would facilitate Ramos’ ability

to follow Beltran’s instructions to go get help by making certain that McKnight did not

interfere with Ramos’ ability to seek assistance from some other person.

      Accordingly, the judgment of the Fifth Court should also be affirmed because

– on the record presented herein – a conclusion that Beltran was entitled to sudden

passion would amount to a conclusion that the sudden passion that might (under the

proper set of facts) pertain to the person who had merely held the victim could

somehow be attributed to the person who had actually inflicted the killing blows (even

though that person had not been subjected to the acts from which the sudden passion

might have arisen). While the State is aware that the law recognizes the concept of

transferred intent, the State has found no case recognizing that acting in the throes of

sudden passion may be accomplished vicariously or that the cause of sudden passion

that might exist as to one person may be transferred to another person who had not

experienced what may have inspired the sudden passion in the original person. See,

e.g., Tex. Pen. Code §6.04; Thompson v. State, 236 S.W.3d 787, 792 (Tex. Crim.

App. 2007). While the State is aware that one person can be legally responsible for the

                                           19
actions of another person under a legal theory such as the law of parties liability, the

State has found no case establishing that a second person may been deemed to have

acted in sudden passion based on the actions that may have caused sudden passion to

exist in a different, original person, especially when there has been no showing that

the second person experienced whatever it was that could have caused sudden passion

to exist in the original person. See, e.g., Tex. Pen. Code §7.01; Tex. Pen. Code

§7.02; Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012). In light of the

State’s inability to find any case recognizing a legal doctrine of transferred or vicarious

sudden passion and based on the record in the instant case, the instant case fails to

constitute the type of case in which such a novel legal doctrine should be recognized

or promulgated by this Court.

       For all the aforementioned reasons and based on all the legal authority cited in

support thereof and in conjunction therewith, the ultimate judgment of the Fifth Court

should remain unchanged, either through an outright affirmance thereof or through a

conclusion that Beltran’s petition for discretionary review was improvidently granted.




                                            20
                         CONCLUSION AND PRAYER

      Since the record more than justified the trial court’s refusal to submit the sudden

passion instruction, this Court should affirm the judgment of the Fifth Court or dismiss

Beltran’s petition for discretionary review based on the conclusion that it was

improvidently granted.

      For all the aforementioned reasons, the State prays that the ultimate judgment

of the Fifth Court will be affirmed. Alternatively, the State prays that this Court will

conclude that Beltran’s petition for discretionary review was improvidently granted.


                                        Respectfully submitted,

                                        SUSAN HAWK
                                        Criminal District Attorney
                                        Dallas County, Texas




                                        _________________________________
                                        MICHAEL R. CASILLAS, Assistant
                                        Criminal District Attorney,
                                        Appellate Division
                                        133 N. Riverfront Blvd., LB 19
                                        Dallas, Texas 75207-4399
                                        (214) 653-3600/FAX (214) 653-3643
                                        State Bar No. 03967500
                                        Michael.Casillas@dallascounty.org
                                        Mcasillas@dallascounty.org




                                           21
                        CERTIFICATE/PROOF OF SERVICE

      I hereby certify that – no later than March 27, 2015 – a true, electronically-

formatted copy of the instant State's Response Brief has been served on opposing co-

counsel, the Hon. Robert N. Udashen and the Hon. Brett Ordiway, and has also been

served on the State’s Prosecuting Attorney, the Hon. Lisa McMinn, by use of the

electronic service function that accompanies the State’s filing of the instant State’s

Response Brief with this Court through the electronic filing service provider to which

the State subscribes.




                                       ____________________________________
                                       MICHAEL R. CASILLAS




                                          22
                      CERTIFICATE OF COMPLIANCE

      By affixing my signature below, I hereby certify – based on the word count

function of the word-processing software program that was used in connection with

the preparation of the instant State’s Response Brief – that the entirety of the body of

the instant State’s Response Brief is comprised of 4,630 words. Additionally, I hereby

certify that the relevant portions of the instant State’s Response Brief – as defined by

Tex. R. App. P. 9.4(i)(1) – are comprised of 3,423 words. Accordingly, I also hereby

certify that the number of words in the instant State’s Response Brief is in no way in

excess of the 15,000-word limit specified in Tex. R. App. P. 9.4(i)(2)(B).




                                        ____________________________________
                                        MICHAEL R. CASILLAS




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