                                  NO. 12-13-00378-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

BERNIE RAY LUCAS,                                 §      APPEAL FROM THE 2ND
APPELLANT

V.                                                §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                          §      CHEROKEE COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Bernie Ray Lucas appeals his conviction for murder. He raises one issue relating to the
trial court’s failure to include a sudden passion instruction in the jury charge. We affirm.


                                          BACKGROUND
       A Cherokee County grand jury indicted Appellant for the murder of Shelia Gail Cobb,
alleged to have occurred on or about October 13, 2007. Appellant pleaded “not guilty,” and a
jury trial was held. The jury found Appellant “guilty” and assessed his punishment at fifty years
of imprisonment. This appeal followed.


                                         SUDDEN PASSION
       In his sole issue, Appellant argues that the trial court erred by failing to “submit the issue
of sudden passion” to the jury in its charge on punishment, resulting in egregious harm. The
State contends that the evidence did not raise the issue of sudden passion.
Standard of Review and Applicable Law
       When an appellant argues that the trial court erred by not granting his request to charge
the jury on sudden passion, we first determine whether the complained of error exists. Wooten v.
State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013). If error exists, we then determine whether
the error was harmful. See id.
         In a murder trial, a defendant may raise the issue of whether he caused the victim’s death
under the immediate influence of sudden passion arising from an adequate cause. See TEX.
PENAL CODE ANN. § 19.02(d) (West 2011). “Sudden passion” is defined as “passion directly
caused by and arising out of provocation by the individual killed or another acting with the
person killed which passion arises at the time of the offense and is not solely the result of former
provocation.”      Id. § 19.02(a)(2). The mere fact that a defendant acts in response to the
provocation of another is not sufficient to warrant a charge on sudden passion. Trevino v. State,
100 S.W.3d 232, 241 (Tex. Crim. App. 2003).
         “Adequate 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. TEX. PENAL CODE ANN. § 19.02(a)(1). Adequate cause is not determined by
considering the defendant’s peculiar conditions, such as low mentality or unstable emotions. See
Gonzales v. State, 689 S.W.2d 900, 904 (Tex. Crim. App. 1985).1 Instead, adequate cause is
determined by applying the “person of ordinary temper” standard, which is the same as the
reasonable person standard. See id. at 903. This approach is used to avoid differing applications
of the law. See id.
The Evidence
         It is undisputed that Appellant shot and killed Sheila Cobb.                       However, Appellant
contends the evidence raised the question of whether Cobb’s killing was the result of sudden
passion. To support this contention, Appellant presented evidence from several witnesses who
testified about his relationship with Cobb, his mental health, his childhood, his wife’s recent



         1
           Sudden passion was originally an element of the crime of voluntary manslaughter. See Act of May 23,
1973, 63rd Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883, 913 amended by Act of June 14, 1973, 63rd Leg.,
R.S., ch. 426, § 1, 1973 Tex. Gen. Laws 1122, 1124, repealed by Act of June 19, 1993, 73rd Leg., R.S., ch. 900,
§ 1.01, 1993 Tex. Gen. Laws 3586, 3613-14. In 1993, the legislature eliminated voluntary manslaughter as a
category of homicide, and amended Section 19.02 to reduce the punishment range for murder upon proof of “sudden
passion arising from an adequate cause.” See id. The amendment to Section 19.02 included the same definitions for
sudden passion and adequate cause that were used in the former penal code provision relating to voluntary
manslaughter. See id. Accordingly, we apply voluntary manslaughter precedents to our interpretation of sudden
passion and adequate cause under Section 19.02. See Miller v. State, 33 S.W.3d 257, 260 (Tex. Crim. App. 2000)
(“When the Legislature meets, after a particular statute has been judicially construed, without changing that statute,
we presume the [L]egislature intended the same construction should continue to be applied to that statute.”).


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death, his addiction to alcohol, and his intoxication by alcohol and cocaine at the time of the
offense.
       According to the record, Jacksonville police officers arrived at Appellant’s residence on
October 13, 2007, after receiving reports of a “demented person.” Appellant’s daughter, Nancy
Apilado, testified that before the police were notified, Appellant called and told her that he shot
his girlfriend. She testified that Appellant was “irate and upset,” and said he shot Cobb because
“she wouldn’t have sex with him, and he said my mom told him to do it.” 2
       Apilado was outside Appellant’s home when the police arrived, but Appellant refused to
exit the residence. According to Patrol Sergeant Jesse Mayberry, Appellant admitted killing
Cobb, did not want to be arrested, and said he needed “help” and that “he would come out but
. . . wanted to drink a few more beers.” Assistant Chief of Police John Page testified that while
he was trying to convince Appellant to exit his residence, Appellant kept saying “she . . . did me
wrong,” and “she did me wrong and I don’t want to have to go to jail because of what she did.”
Approximately two hours after they arrived, Appellant opened the door to his residence and the
officers arrested him.        During the arrest, Sergeant Mayberry removed a .38 revolver from
Appellant’s back pocket.
       When the officers entered Appellant’s residence, they found Cobb’s body lying on
Appellant’s bedroom floor. She was nude, except for a pair of socks, and appeared to have been
shot five times. Her clothing was “neatly folded” on top of Appellant’s dresser.
       The record further reflects that on the morning of Cobb’s death, Appellant had been
drinking alcohol and smoked crack cocaine. Appellant’s sister, Judy McGee, testified that
Appellant “was always slow academically,” had a traumatic childhood, and was an alcoholic.3
She testified that Appellant went to rehab for his alcoholism, and has never been hospitalized for
a mental illness.
       Dr. Jill Pontius testified that in April 2007, she diagnosed Appellant with “Bi[p]olar
Disorder Type Two, Depressed with Psychotic Features and Bereavement.” She related that
Appellant had a history of elevated energy, impulsivity, decreased need for sleep, and
depression. Additionally, Dr. Pontius testified that Appellant had feelings of hopelessness and


       2
           At the time of the shooting, Apilado’s mother (Appellant’s wife) was deceased.
       3
           McGee testified that their father committed suicide when Appellant was eight years old.




                                                         3
guilt surrounding the circumstances of his wife’s death because he made the decision to take her
off life support. Since then, Appellant reported hearing his wife’s voice in his house. Dr.
Pontius stated that she prescribed medication for Appellant that seemed to be working, although
he had reported “fleeting short lived thoughts of suicide by the police.”
         Dr. David Self, a psychiatrist called to testify on behalf of the defense, opined that
Appellant did not meet the legal definition for insanity at the time he shot and killed Cobb.4 He
explained that at the time of the shooting, Appellant was actively suffering from bipolar disorder
with elements of psychosis that involved hallucinations. Dr. Self also testified that Appellant
suffers from a personality disorder that contributed to a distorted view of his relationship with
Cobb. According to Dr. Self, Cobb and Appellant’s relationship was one of prostitute-client, but
Appellant viewed it as a romantic love affair.
         Dr. Self recounted that although Appellant did not have a high level of self-esteem,
Appellant told him that when he was with Cobb, she would do and say things that made him feel
“better than he had ever felt in his life.” But because of Appellant’s personality disorder, Dr.
Self explained, Appellant could feel extremely threatened by potential rejection or abandonment.
Specifically, Dr. Self testified that it would be much more emotionally provocative for Appellant
“than it would be for an ordinary man to think that a woman he had a prostitution relationship
with might be terminating a relationship.”
         Dr. Self further testified that Appellant’s personality, childhood experience, and the way
he was in the world made him more susceptible to being taken advantage of, and that Appellant’s
view of his relationship with Cobb was “far more important than it should have been in
anybody’s mind under the circumstances.” He explained that Appellant’s general mental state,
when viewed in light of the fact that he was intoxicated by cocaine and likely alcohol, showed
that “[h]is ability to perceive a circumstance correctly, to reason his way through it, to form a
plan and execute it[,] was severely impaired.” Dr. Self believed that “without this confluence of
factors that produced [Appellant’s] deranged mental state[,] this offense would not have occurred
on this given date.”




         4
           Under the penal code, it is an affirmative defense to prosecution that, “at the time of the conduct charged,
the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.” TEX. PENAL
CODE ANN. § 8.01(a) (West 2011).


                                                          4
Discussion
         The record indicates that Appellant was mentally ill, intoxicated, and hallucinating when
he killed Cobb, but these factors are not applicable in determining adequate cause.           See
Gonzales, 689 S.W.2d at 904. Apilado’s testimony shows that Appellant’s killing of Cobb was
provoked by Cobb’s refusal to have sexual intercourse with him. See TEX. PENAL CODE ANN.
§ 19.02(a)(2).      The mere fact that Appellant killed Cobb in response to this rejection is
insufficient to prove adequate cause upon provocation. See id. § 19.02(d); Trevino, 100 S.W.3d
at 241. A woman’s rebuffs of a man’s sexual advances do not provide adequate cause for her
murder, because such rejection would not “commonly produce a degree of anger, range,
resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of
cool reflection.” See TEX. PENAL CODE ANN. § 19.02(a)(1).
         The record does not support a sudden passion instruction because Appellant’s killing of
Cobb did not arise from an adequate cause. See id. § 19.02(d). The trial court did not err by
denying Appellant’s request. Accordingly, we overrule Appellant’s sole issue on appeal.


                                                  DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.


                                                                GREG NEELEY
                                                                     Justice

Opinion delivered March 11, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                           MARCH 11, 2015


                                         NO. 12-13-00378-CR


                                       BERNIE RAY LUCAS,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                  Appeal from the 2nd District Court
                           of Cherokee County, Texas (Tr.Ct.No. 16,984)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, that this decision be certified to the court below for
observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
