Affirmed and Memorandum Opinion filed October 13, 2015.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00610-CR

                          ALAN POZZERLE, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 183rd District Court
                            Harris County, Texas
                        Trial Court Cause No. 1384872

                 MEMORANDUM                      OPINION


      A jury convicted appellant Alan Pozzerle of murder and sentenced him to
confinement for thirty-five years in the Institutional Division of the Texas
Department of Criminal Justice. In two issues, appellant claims the trial court erred
in instructing the jury. We affirm.
                                    I.      BACKGROUND

      Appellant’s cell phone was taken out of the motel room in which he was
living. Appellant called his phone and eventually someone answered, demanding
$80 for the phone’s return. Appellant called 9-1-1 to report the theft and went to a
nearby convenience store to retrieve it. Neither the police nor anyone with his
phone arrived. Appellant called his phone again and arranged to pay for the return
of his phone.

      Appellant and another man met the complainant on a street near the motel.
Appellant’s account of what followed varied from that of his companion but both
testified that appellant hit the complainant with an object (described by appellant
as a floor jack handle) and then struck the complainant with his van. Appellant
testified that he then retrieved his phone and left the scene. The man subsequently
was found dead where appellant left him.

                              II.        DEFENSE OF PROPERTY

      Appellant’s first issue asserts the trial court erred by refusing his request to
instruct the jury during the guilt-innocence phase on defense of property as
justification for the complainant’s murder. Appellant cites Texas Penal Code
section 9.41 and 9.42 in support of his claim.

      Under section 9.41(a), “[a] person in lawful possession of land or tangible,
movable property is justified in using force against another when and to the degree
the actor reasonably believes the force is immediately necessary to prevent or
terminate the other’s trespass on the land or unlawful interference with the
property.” See Tex. Penal Code Ann. § 9.41(a) (West 2011). However, the
evidence reflects appellant was no longer in possession of his phone. Where, as
here, the alleged owner of property already had been dispossessed of property and


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was attempting to regain possession at the time force was used, section 9.41(b) is
applicable:

      A person unlawfully dispossessed of land or tangible, movable
      property by another is justified in using force against the other when
      and to the degree the actor reasonably believes the force is
      immediately necessary to reenter the land or recover the property if
      the actor uses the force immediately or in fresh pursuit after the
      dispossession and:
      (1) the actor reasonably believes the other had no claim of right when
      he dispossessed the actor; or
      (2) the other accomplished the dispossession by using force, threat, or
      fraud against the actor.
Id. § 9.41(b) (West 2011) (emphasis added). The record reflects appellant called 9-
1-1 and reported the phone stolen approximately forty-five minutes before the
altercation with the complainant. See Ordonez v. State, 14-10-00132-CR, 2010 WL
5395808, at *3 (Tex. App.—Houston [14th Dist.] Dec. 21, 2010, no pet.) (mem.
op.) (not designated for publication), citing Salley v. State, No. 14–97–00656–CR,
2000 WL 552193, at *3 (Tex.App.—Houston [14th Dist.] 2000, pet. ref’d) (mem.
op.) (not designated for publication) (appellant’s use of force was not immediately
after or in fresh pursuit after dispossession when he walked down to his van,
retrieved a shotgun, returned upstairs, and shot the complainant who had refused to
return appellant’s revolver); Hall v. State, No. 01–88–00511–CR, 1989 WL 21835,
at *2 (Tex. App.—Houston [1st Dist.] 1989, no pet.) (not designated for
publication) (appellant who used force in an attempt to recover a wrecker
approximately one hour after it was taken did not act “immediately or in fresh
pursuit”). Appellant’s use of force against the complainant was therefore not
immediate or in fresh pursuit after he was dispossessed of the phone. Accordingly,
the trial court did not err in refusing to instruct the jury on defense of property.
Appellant’s first issue is overruled.

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                                  II.    SUDDEN PASSION

      In his second issue, appellant argues the trial court erred by refusing his
request to instruct the jury during the punishment phase on the special issue of
sudden passion. See Tex. Pen. Code Ann. § 19.02(d) (West 2011); Wooten v. State,
400 S.W.3d 601, 605 (Tex. Crim. App. 2013).

      A murder committed under the “immediate influence of sudden passion
arising from an adequate cause” is a second-degree felony and carries a maximum
punishment of imprisonment for twenty years. Tex. Penal Code Ann. § 19.02(d).
Sudden passion arises at the time of the murder and is “passion directly caused by
and arising out of provocation by the individual killed.” Id. § 19.02(a)(2).
Adequate cause “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). With respect to the issue of sudden passion, the
defendant has the burden of production and persuasion. Id. § 19.02(d).

      To justify an instruction to the jury on the issue of sudden passion at the
punishment phase, the record must at least minimally support an inference: 1) the
defendant in fact acted under the immediate influence of a passion such as terror,
anger, rage, or resentment; 2) his sudden passion was in fact induced by some
provocation by the deceased or another acting with him which would commonly
produce such a passion in a person of ordinary temper; 3) he committed the murder
before regaining his capacity for cool reflection; and 4) a causal connection existed
between the provocation, passion, and the murder. Wooten, 400 S.W.3d at 605. If
the evidence from any source, during either phase of trial, raises the issue, be it
weak, impeached, contradicted, or unbelievable, the trial court must submit the
issue in the jury charge if it was requested by the defendant. Id. We first determine
whether the trial court erred by failing to submit such an instruction. Id. at 606.

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      In support of his argument that he raised the issue of sudden passion,
appellant refers to the testimony of a witness:

      . . . But that day, he lost it. So, it really tripped me out, you know. I’d
      never seen a bad side to him. Never have. But that day, he tripped all
      the way out.
         ...
      He was silent. His -- his face, I can’t describe it, but he was not
      hisself. He was, like, transformed to something else. I don’t know
      what it was, but he was not hisself. I had never seen him act like that
      before, never.
Appellant also points to his own testimony that “[his] mind was doing a hundred
miles a minute” and he was mad.

      The record reflects appellant testified as follows:

      Yes. I was mad. But as soon as I got my phone, my anger level just
      dropped and I was more squared [sic] than anything because during
      all this time I was also scared because this guy’s pulled a knife on me.
(Emphasis added.)

While there was evidence appellant acted in response to provocation, i.e. the
complainant’s alleged theft of his phone, there was no evidence that appellant
acted under the immediate influence of terror, anger, rage, or resentment. See
Trevino v. State, 100 S.W.3d 232, 241 (Tex. Crim. App. 2003) (per curiam). As
noted above, appellant called 9-1-1 to report the stolen phone approximately forty-
five minutes before the complainant was killed and his own testimony reveals that
he “cooled off.” Moreover, being robbed of a cell phone would not 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. See Nava v.
State, 379 S.W.3d 396, 423 (Tex. App.—Houston [14th Dist.] 2012), aff’d, 415
S.W.3d 289 (Tex. Crim. App. 2013). Appellant’s claim that he was scared because


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the complainant had a knife is insufficient because a “bare claim of fear” does not
demonstrate “sudden passion arising from adequate cause.” Wooten, 400 S.W.3d at
606–607. Accordingly, the trial court did not err in failing to instruct the jury on
the issue of sudden passion at punishment. Appellant’s second issue is overruled.

      Having overruled both of appellant’s issues, the judgment of the trial court is
affirmed.




                                      /s/       Martha Hill Jamison
                                                Justice



Panel consists of Justices Jamison, McCally, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).




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