            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                     NO. PD-1076-14

                           RICARDO BELTRAN, Appellant

                                             v.

                                THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE FIFTH COURT OF APPEALS
                         DALLAS COUNTY

       R ICHARDSON, J., delivered the opinion for a unanimous Court.

                                      OPINION

       Ricardo Beltran was convicted by a jury of murder and sentenced to seventy years’

imprisonment. In a single issue on direct appeal, Beltran asserted that the trial court erred

in denying his request for an instruction on sudden passion. The Fifth Court of Appeals

affirmed his conviction, holding that the trial court did not err in refusing to give the

instruction because there was no evidence that Beltran caused the victim’s death under the

immediate influence of sudden passion. We disagree and hold that Beltran was entitled to
                                                                              Beltran — 2


an instruction on sudden passion. We reverse the judgment of the Court of Appeals and

remand this case for a harm analysis in accordance with Almanza v. State.1

                                      BACKGROUND

A. Ricardo Beltran’s Testimony

       The only witness to the death of Sheldon McKnight who testified at appellant’s trial

was appellant, Ricardo Beltran. According to Beltran, on the evening of the murder, he

contacted Victor Ramos to buy some heroin. Before meeting with Ramos, Beltran met up

with another friend, Alprintice Green, at a DART (“Dallas Area Rapid Transit”) station and

boarded a train to meet Ramos. Along the way, Beltran and Green stopped near McKnight’s

apartment so that Green could buy Xanax from McKnight. Beltran testified that he had never

met McKnight and did not speak to McKnight at that time. From there, Beltran and Green

went to a park where they consumed the Xanax, and then they walked to Ramos’s apartment

complex to meet Ramos. When they met Ramos at his apartment complex, the three men sat

outside and started “getting high” and drinking Jack Daniels. At some point, Green

expressed a desire to go home, so Ramos arranged for McKnight to pick them up. McKnight

arrived, and the three men got into McKnight’s car. McKnight drove Green home, and

Beltran then asked to be dropped off at his home, but he changed his mind when Ramos

offered to sell him more heroin.



      1
          686 S.W.2d 157 (Tex. Crim. App. 1984).
                                                                                  Beltran — 3


       The three men (McKnight, Beltran, and Ramos) then went to McKnight’s apartment.

McKnight went upstairs while Ramos and Beltran continued to consume more drugs. After

a time, McKnight came downstairs to sit on the couch next to Beltran, stroked his face, and

told Beltran he was a “pretty little thing.” At that point, Beltran asked Ramos to take him

home, but Ramos said that they needed to “chill,” and McKnight went back upstairs. Ramos

and Beltran resumed snorting heroin. McKnight then came back downstairs and told Beltran

and Ramos that they had to go upstairs because McKnight was expecting “company.”

Beltran and Ramos went upstairs while McKnight stayed downstairs. Once upstairs, Beltran

and Ramos consumed more drugs. Ramos then went downstairs, leaving Beltran on the bed

upstairs. Beltran said that he took off his shoes, laid down, and passed out, with all of his

clothes on.

       Beltran testified that he was awakened by McKnight “behind him.” Beltran was

naked from the waist down, and McKnight was licking Beltran’s anus. Beltran testified that

McKnight was not wearing any clothes.2 Beltran said that he “panicked” and “moved” and

“all of a sudden [McKnight] jumped on top” of him. Beltran said he was screaming “in

panic, not knowing what was going on.” Beltran testified that he was facing down and

McKnight was “pushing [his] face down [into the pillow] trying to shut [him] up,” and that,




       2
         There was evidence at trial that the body of McKnight was found wearing only a woman’s
negligee top and pink panties.
                                                                                 Beltran — 4


“all of a sudden,” he felt McKnight fall on top of him. Beltran then stated that, “all of a

sudden” Ramos was there and had hit McKnight with something. Beltran admitted to being

“light-headed” and having “blurred vision,” and that he was “trying to get up,” and Ramos

was “trying to pull [him] from underneath.” McKnight then grabbed Ramos, and Beltran

said that he “grabbed” McKnight from behind and told Ramos to “get some help.” Beltran

then testified that “all of a sudden,” Ramos started stabbing McKnight, who was “kicking”

and “reacting crazy.” Beltran said that he continued to tell Ramos to get help, but Ramos just

“continued stabbing the man.” Beltran held tight to McKnight to “protect” Ramos and

himself. Beltran just “closed his eyes for awhile,” and Ramos “was still stabbing” McKnight.

After they realized McKnight was dead, Beltran, who was “totally naked” and “full of blood

everywhere,” “just started crying.”

       Beltran decided to take some of McKnight’s clothes since his were covered in blood.

Beltran testified that he was “totally shocked,” “freaking out,” and was “scared.” He and

Ramos left McKnight’s apartment, but returned when Beltran realized that he had left his

clothes there. Ramos then suggested that they “make it seem like a robbery,” and “take the

man’s belongings.” Beltran said that he wanted to leave quickly, so the two loaded

McKnight’s car with items from his apartment and drove away in McKnight’s car. Beltran

then went home and took a shower.

       In response to questions regarding what his intentions were that night, Beltran denied
                                                                                           Beltran — 5


that he intended to rob and kill McKnight, he denied killing or stabbing McKnight, he denied

knowing where Ramos got the knife used to stab McKnight, and he denied that he intended

to help Ramos kill McKnight.

B.      The Jury Charge

        Beltran was charged with capital murder—causing the death of McKnight while in

the course of committing or attempting to commit robbery. The jury was charged that

Beltran could be convicted of either capital murder, or the lesser-included offense of murder,

as a principal or as a party.3 The jury was also given a self-defense charge, but, having found

Beltran guilty of the lesser-included offense of murder, the jury obviously rejected self-

defense.

        Following the punishment phase of the trial, Beltran requested that the court include

an instruction on sudden passion.4 However, the trial court disagreed that Beltran was

        3
         The parties instruction in the jury charge, patterned after T EX. P ENAL C ODE § 7.02(a)(2), read
as follows:

        All persons are parties to an offense who are guilty of acting together in the
        commission of an offense. A person is criminally responsible as a party to an offense
        if the offense is committed by his own conduct, by the conduct of another for which
        he is criminally responsible, or by both. A person is criminally responsible for an
        offense committed by the conduct of another if, acting with intent to promote or assist
        the commission of the offense, he encourages, aids, or attempts to aid the other person
        to commit the offense. Mere presence alone will not make a person a party to an
        offense.
        4
         Beltran’s attorney argued that “[t]he jury is entitled to consider whether Ricardo Beltran acted
out of immediate influence of sudden passion caused by the acts of Sheldon McKnight including
removing Mr. Beltran’s clothes while he was unconscious, licking his anus, smothering him with a
pillow and the resulting fight and that Ricardo Beltran’s actions were caused directly by this which
action was on the defense.”
                                                                                         Beltran — 6


entitled to a sudden passion instruction.5 In the absence of a sudden passion instruction,

which would have capped the available punishment at 20 years’ imprisonment, the jury

assessed punishment at 70 years’ imprisonment.

C.      The Opinion of the Court of Appeals

        On direct appeal, Beltran raised only one issue—that the trial court erred in denying

his request for an instruction on sudden passion. The appellate court disagreed with

Beltran’s argument that his testimony was more than enough evidence to justify a sudden

passion instruction. The appellate court stated that, to justify an instruction on sudden

passion, the record “must contain some evidence that the defendant acted in an excited and

agitated state of mind at the time of the killing.” The appellate court held that the record

“reflect[ed] the contrary,” concluding that “there is no evidence Beltran caused McKnight’s

death under the immediate influence of sudden passion” and that “the record does not

‘minimally support’ a causal connection between the provocation and homicide.” 6




       5
          The trial judge stated that, “One, the defendant in both direct and in—on guilt/innocence,
rather, and punishment denied the killing of the decedent, in fact in punishment testimony he said those
words that he did not do the killing. Two, on the defendant’s testimony in direct, he stated that the
decedent was getting off of him, the decedent was going toward Victor, then that’s when he grabbed
the defendant [sic]. So the Court rules that adequate caught [sic], sudden passion is not applicable
here.”
       6
        Beltran v. State, No. 05-12-01647-CR, 2014 WL 3587367, *2 (Tex. App.—Dallas 2014)
(mem. op., not designated for publication) (citing to Wooten v. State, 400 S.W.3d 601, 605 (Tex. Crim.
App. 2013)).
                                                                                      Beltran — 7


                                           ANALYSIS

       We granted Beltran’s petition for discretionary review to determine whether the Fifth

Court of Appeals erred in holding that the trial court correctly denied Beltran’s request for

a sudden passion instruction.7

A.     The Law On Sudden Passion

       Texas Penal Code Section 19.02(d) provides that,

       at the punishment stage of a trial, the 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
       second degree.

Section 19.02(a)(1) defines “adequate cause” as “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.” Section 19.02(a)(2) defines “sudden passion”

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.”

       In June of 2013, this Court unanimously decided the case of Wooten v. State.8 The

defendant in Wooten was convicted of murder and sentenced to 60 years’ imprisonment. In


       7
          Specifically, we granted review on the following issue: “Whether, for purposes of
determining whether an appellant was entitled to a jury instruction on sudden passion, some evidence
that he acted in self-defense negates all evidence that he acted in sudden passion.”
       8
           400 S.W.3d 601 (Tex. Crim. App. 2013).
                                                                                     Beltran — 8


Wooten, as in this case, the defendant’s request for a sudden passion instruction was rejected.

The Fourteenth Court of Appeals affirmed Wooten’s conviction, but reversed the trial court’s

judgment as to punishment, holding that the trial court committed harmful error by not

including a sudden passion instruction. We reversed that decision, and held that the error did

not harm the defendant. In our Wooten opinion, we included a comprehensive overview of

the law on sudden passion:

       Prior to September 1, 1994, whether a defendant committed murder under the
       immediate influence of sudden passion arising from an adequate cause was an
       issue that was litigated at the guilt phase of the trial. If the evidence raised the
       issue of sudden passion, the question was submitted to the jury, and it had the
       option of finding the defendant guilty of the lesser offense of voluntary
       manslaughter. Because of certain anomalies generated by this framework, the
       Legislature acted in 1993 to remove the crime of voluntary manslaughter from
       the Texas Penal Code. Under the current statutory scheme, the question of
       whether a defendant killed while under the immediate influence of sudden
       passion is a punishment issue.

       . . . The defendant has the burden of production and persuasion with respect
       to the issue of sudden passion. To justify a jury instruction on the issue of
       sudden passion at the punishment phase, the record must at least minimally
       support an inference: 1) that the defendant in fact acted under the immediate
       influence of a passion such as terror, anger, rage, or resentment; 2) that his
       sudden passion was in fact induced by some provocation by the deceased or
       another acting with him, which provocation would commonly produce such a
       passion in a person of ordinary temper; 3) that he committed the murder before
       regaining his capacity for cool reflection; and 4) that a causal connection
       existed “between the provocation, passion, and homicide.” It does not matter
       that the evidence supporting the submission of a sudden passion instruction
       may be weak, impeached, contradicted, or unbelievable. If the evidence thus
       raises the issue from any source, during either phase of trial, then the defendant
                                                                                      Beltran — 9


       has satisfied his burden of production, and the trial court must submit the issue
       in the jury charge–at least if the defendant requests it.9

       A defendant’s testimony alone is sufficient to raise a defensive issue requiring an

instruction in the charge.10 Moreover, sudden passion and self-defense are not mutually

exclusive.11 A jury’s rejection of self-defense at the guilt/innocence phase does not preclude

submission of a sudden passion issue at the punishment phase.12 Before we address whether

Beltran raised the issue of sudden passion, we must first discuss whether the law of parties

impacts our analysis.

B.     The Law Of Parties—Whose Passion Must Be Sudden?

       A person is a criminally responsible party to an offense “if the offense is committed

by his own conduct, by the conduct of another for which he is criminally responsible, or by

both.”13 Texas Penal Code Section 7.02, titled “Criminal Responsibility for Conduct of

Another,” provides that “(a) [a] person is criminally responsible for an offense committed

by the conduct of another if: . . . (2) acting with intent to promote or assist the commission

of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to


       9
            Wooten, 400 S.W.3d at 604-05 (footnotes omitted).
       10
            Shaw v. State, 243 S.W.3d 647, 662 (Tex. Crim. App. 2007).
       11
            Medlock v. State, 591 S.W.2d 485, 487 (Tex. Crim. App. 1979).
       12
          See Trevino v. State, 100 S.W.3d 232, 242-43 (Tex. Crim. App. 2003) (stating that “jury’s
rejection of self-defense at guilt innocence does not necessarily mean that, given an instruction on
sudden passion at punishment, it would have rejected that theory as well”).
       13
            T EX. P ENAL C ODE § 7.01.
                                                                                      Beltran — 10


commit the offense.” Circumstantial evidence may be used to prove party status.14 There

must be sufficient evidence of an understanding and common design to commit the offense.15

       The State’s theory of the case, as set out in its opening statement and as argued in

closing, was that both Ricardo Beltran and Victor Ramos acted together in killing McKnight

during the course of robbing him. The court’s charge to the jurors instructed them that, in

order to find Beltran guilty, they must find from the evidence beyond a reasonable doubt that

Ricardo Beltran intentionally caused the death of Sheldon McKnight by stabbing or striking

him, or they must find from the evidence beyond a reasonable doubt that Ricardo Beltran,

“acting as a party with the intent to promote or assist Victor Ramos” in commission of the

offense, “solicited, encourage, directed, aided, or attempted to aid Victor Ramos,” in

intentionally causing the death of Sheldon McKnight by stabbing or striking him. Either

way, the jurors were charged with deciding whether Beltran was guilty of causing the death

of Sheldon McKnight, either as the one who did the stabbing, or acting as a party with

Ramos, who did the stabbing.

       The State argues that a sudden passion instruction was not warranted because, “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




       14
        Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012) (citing to Ransom v. State, 920
S.W.2d 288, 302 (Tex. Crim. App. 1996)).
       15
            Id. (citing to Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004)).
                                                                                Beltran — 11


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.”16 The State asserts that there are no grounds to conclude

that Ramos’s actions had been committed while Ramos was under the influence of sudden

passion.

       This case presents the unique question of whether the law of parties, which clearly

applied in the guilt/innocence phase of this trial, applies to the issue of whether a sudden

passion instruction should have been given in the punishment phase of the trial. In other

words, must we look to Beltran’s conduct to determine whether he was acting under the

influence of sudden passion, or must we look to Ramos’s conduct to determine whether

Ramos was acting under the influence of sudden passion, derivatively entitling Beltran to a

sudden passion instruction under the law of parties?

       According to Beltran, Ramos did all of the striking and the stabbing. But there was

no evidence as to what prompted Ramos to act. We can assume it was Beltran’s screams for

help, but even Beltran’s testimony does not inform us what was in Ramos’s mind. There is

no evidence that McKnight provoked Ramos into reacting with sudden passion. The

provocation coming from McKnight, if any, was initially directed toward Beltran. Beltran’s




       16
       Brief for the State at 18, Beltran v. State, No. 05-12-01647 CR, 2014 WL 3587367 (Tex.
App.—Dallas 2014).
                                                                                        Beltran — 12


testimony indicates that McKnight’s struggle with Ramos was in response to Ramos’s attack

of McKnight.

        The interplay between the law of parties and sudden passion is an issue of first

impression. For guidance, we looked to the early line of capital murder death penalty cases

wherein this Court explained that the law of parties did not apply at the punishment phase

of the trial.17    In Webb v. State,18 the defendant was convicted of capital murder and

sentenced to death. We held that the death penalty could be imposed even though the

defendant might have been convicted as a party to capital murder. There was ample evidence

to support the appellant’s conviction either as a primary actor or as a party to the intentional

killing of the deceased. A reasonable jury could have found the appellant guilty of causing

the death of the victim either intentionally, or by soliciting, directing, encouraging or aiding

his accomplice to do so. When it came to punishment, however, we reiterated that “the law

of parties does not apply at the punishment phase of a capital murder trial.” 19 This meant

       17
           See Green v. State, 840 S.W.2d 394, 409 (Tex. Crim. App. 1992), overruled on other
grounds by Trevino v. State, 991 S.W.2d 849, 853 (Tex. Crim. App. 1999) (“While the law of parties
has long been held to apply to capital cases, it does not so apply in the punishment phase. Therefore,
the jury is required to make their determination based solely on the behavior and perceived intent of
appellant and not the actions or intent of his co-defendant.”) (emphasis in original) (citing to Green
v. State, 682 S.W.2d 271, 287 n. 4 (Tex. Crim. App. 1984); Ex parte Jacobs, 843 S.W.2d 517, 519
(Tex. Crim. App. 1992) (holding that “a defendant in a capital case can act ‘deliberately’ . . . without
proof that he actually did the shooting”); Belyeu v. State, 791 S.W.2d 66, 74 (Tex. Crim. App. 1989)
(holding that the law of parties does not apply to punishment phase even though in a capital murder
trial a non-triggerman can be guilty of deliberate conduct that would support a sentence of death
because each actor can engage in deliberate conduct).
       18
            760 S.W.2d 263, 267-68 (Tex. Crim. App. 1988).
       19
            Id. at 267 n. 8 (citing to Green v. State, 682 S.W.2d 271, 287 (Tex. Crim. App. 1984)).
                                                                                            Beltran — 13


that, in the punishment phase of a death penalty capital murder trial where the defendant is

convicted as a party to the offense, the conduct of the primary actor is not relevant to whether

the defendant acted “deliberately.”20 Rather, it is the defendant’s conduct by which he

“solicited, encouraged, directed, aided or attempted to aid” the perpetration of the intentional

murder that is relevant.21

        We hold that this same reasoning applies in non-death penalty cases when a defendant,

who has been convicted under the law of parties, requests that a sudden passion instruction


        20
             Prior to its amendment in 1991, Texas Code of Criminal Procedure Article 37.071(b)
provided, in pertinent part, that, “[o]n conclusion of the presentation of the evidence, the court shall
submit the following three issues to the jury: (1) whether the conduct of the defendant that caused the
death of the deceased was committed deliberately and with the reasonable expectation that the death
of the deceased or another would result.” Texas Code of Criminal Procedure Article 37.071 was
amended in 1991, changing subsection (b) to incorporate the following “anti-parties” language into
the second special issue to the jury in determining whether the defendant should be sentenced to death:
“On conclusion of the presentation of the evidence, the court shall submit the following issues to the
jury: . . . (2) in cases in which the jury charge at the guilt or innocence stage permitted the jury to find
the defendant guilty as a party under Sections 7.01 and 7.02, Penal Code, whether the defendant
actually caused the death of the deceased or did not actually cause the death of the deceased but
intended to kill the deceased or another or anticipated that a human life would be taken.” Act effective
September 1, 1991, 72nd Leg., R.S., ch. 838, § 1, 1991 Tex. Gen. Laws 2898, 2899 (codified at T EX.
C RIM. C ODE P ROC. art. 37.071(b)).
        21
        Webb, 760 S.W.2d at 267-68 (citing to Cuevas v. State, 742 S.W.2d 331, 343 (Tex. Crim.
App. 1987) (reprising our holding in Green v. State) (emphasis in original)):

        Of course, application of the law of parties at the guilt phase means it is possible for
        a non-triggerman, such as [the defendant], to be convicted of a capital offense.
        However, a capital defendant will be assessed the death penalty only if the jury
        answers the special issues of Art. 37.071(b) in the affirmative. Special issue number
        one requires the jury to determine “whether the conduct of the defendant that caused
        the death of the deceased was committed deliberately and with the reasonable
        expectation that the death of the deceased or another would result.” Because the law
        of parties may not be applied in answering this issue, an affirmative verdict is possible
        only when the jury finds that the defendant’s own conduct satisfies both parts of special
        issue number one.
                                                                                    Beltran — 14


be included in the punishment charge to the jury. In Rogers v. State,22 we noted that

relevancy in the punishment phase is “a question of what is helpful to the jury in determining

the appropriate sentence for a particular defendant in a particular case.”23 The sentencing

phase presents different issues than those contemplated in the guilt/innocence phase.24

“Unlike the guilt phase, ‘the question at punishment is not whether the defendant has

committed a crime, but instead, what sentence should be assessed.’” 25

       The law of parties applies to the determination of whether a defendant can be found

guilty, either acting alone or together with another as a party, for having caused the death of

the victim. In other words, if a defendant is found guilty as a party, that defendant is found

to have “caused the death” of the victim. In punishment, the law of sudden passion applies

to the determination of whether that defendant “caused the death” while acting under the

immediate influence of sudden passion arising from an adequate cause. In this case, as

charged to the jury, Beltran’s conduct was relevant to the determination of whether he was

acting alone or as a party with Ramos in causing the death of McKnight. Thus, it is Beltran’s




       22
            991 S.W.2d 263 (Tex. Crim. App. 1999).
       23
        Webb, 760 S.W.2d at 265; Sunbury v. State, 88 S.W.3d 229, 232 (Tex. Crim. App. 2002);
Mendiola v. State, 21 S.W.3d 282, 284-85 (Tex. Crim. App. 2000).
       24
            Rogers, 991 S.W.2d at 265.
       25
        Ellison v. State, 201 S.W.3d 714, 718 (Tex. Crim. App. 2006) (citing to Haley v. State, 173
S.W.3d 510, 515 (Tex. Crim. App. 2005); Sunbury, 88 S.W.3d at 234; Rogers, 991 S.W.2d at 265).
                                                                                       Beltran — 15


conduct that is pertinent to whether he acted under the immediate influence of sudden

passion.

       Therefore, the derivative aspect of the law of parties (criminal responsibility for the

conduct of another) does not factor into whether a defendant is entitled to an instruction on

sudden passion. Sudden passion is a mitigating circumstance that is relevant to determining

the appropriate punishment of a defendant. Thus, it is the defendant’s conduct by which he

“act[s] with intent to promote or assist the commission of the offense,” and by which “he

encourages, aids, or attempts to aid the other person to commit the offense” that is

determinative of whether he is entitled to a sudden passion instruction. In this case,

therefore, we look to Beltran’s conduct, not the conduct of Ramos, to determine whether

Beltran was entitled to the sudden passion instruction.26

C.     Was Sudden Passion Sufficiently Raised By Beltran?

       The trial court reasoned that, because Beltran denied killing McKnight, he was not

entitled to a sudden passion instruction. However, the appellate court did not address that

conclusion drawn by the trial court. Our job is to analyze the basis for the appellate court’s

decision, not the basis for the trial court’s decision (if it differs from that of the appellate




       26
          As we have stated, the jury could have found Beltran guilty either as the principal actor or
as a party. In other words, in finding Beltran guilty, the jury necessarily found beyond a reasonable
doubt that Beltran was either doing the stabbing, or he was acting with intent to promote or assist the
stabbing by encouraging, aiding, or attempting to aid Ramos in doing the stabbing. Thus, to the extent
that Beltran was acting as a party to the murder, he may still have been doing so under the influence
of sudden passion, and he was entitled to have the jury consider that.
                                                                                    Beltran — 16


court).27 The court of appeals held that “Beltran’s testimony that he moved away from

McKnight, grabbed and held McKnight to keep McKnight from him and Ramos, and told

Ramos to get help shows Beltran was consciously aware of the danger McKnight posed, tried

to get control of the situation, and acted with thought, not in an excited and agitated state.” 28

       An appellate court’s duty is to look at the evidence supporting the charge of sudden

passion, not the evidence refuting it.29 Even if the evidence is weak or impeached, a

defendant is entitled to the sudden passion charge even if it is contradicted by the State’s

evidence. If there is “some” evidence that a defendant acts with sudden passion, he is

entitled to the charge.30

       Our review of the record confirms that the only source from which it can be

determined whether sudden passion was raised was Beltran’s testimony. If Beltran raised

sudden passion through his testimony, then he satisfied his burden of production, and the trial

court was required to submit the instruction to the jury in the punishment charge.

       In order to have raised sudden passion, the defense would have had to put on some

evidence: (1) that Beltran acted under the immediate influence of terror, anger, rage, or


       27
         Degrate v. State, 712 S.W.2d 755, 756 (Tex. Crim. App. 1986) (holding that a discretionary
review petition should specifically address the decision of the court of appeals).
       28
            Beltran, 2014 WL 3587367 at *3.
       29
        Trevino v. State, 100 S.W.3d at 239 (citing to Sanchez v. State, 745 S.W.2d 353, 357 (Tex.
Crim. App. 1988)).
       30
            Id. at 240.
                                                                                Beltran — 17


resentment; (2) that Beltran’s sudden passion was induced by some provocation by

McKnight, and that such provocation would commonly produce such passion in a person of

ordinary temper; (3) that Beltran committed the murder (in this case, as a party) before

regaining his capacity for cool reflection; and (4) that there was a causal connection between

McKnight’s provocation, Beltran’s passion, and the homicide.31 We conclude that the

appellate court failed to consider the evidence raising the issue of sudden passion and

erroneously focused on the evidence tending to show that Beltran did not act under the

immediate influence of sudden passion.

       1.        Evidence of Beltran acting under the immediate influence of terror

       We agree that there was no evidence that Beltran acted out of anger, rage, or

resentment. There was, however, evidence of Beltran acting under the immediate influence

of terror. Beltran testified that he “panicked,” and that he was “screaming in panic.” He

testified that, at the time that he was grabbing McKnight from behind, which was at the same

time that Ramos was stabbing McKnight, he told Ramos at least twice to “get some help.”

While we agree that this evidence may be weak and perhaps even unbelievable (as evidenced

by the jury’s rejection of self-defense), it was nevertheless enough to support an inference

that Beltran acted under the immediate influence of terror.




       31
            Wooten, 400 S.W.3d at 604-05.
                                                                                 Beltran — 18


       2.        Evidence of Beltran’s sudden passion being induced by provocation by
                 McKnight, and whether such provocation would commonly produce such
                 passion in a person of ordinary temper

       Evidence of provocation by the decedent is required for a sudden passion charge.32

Beltran testified that he passed out on a bed, fully dressed, after a long night of heavy drug

use. He then testified that he was awakened by a naked McKnight behind him licking his

anus. Beltran’s pants and underwear had been removed. Without more said, we hold that

this was evidence of provocation by McKnight that would commonly produce sudden

passion in a person of ordinary temper and thus was evidence of provocation sufficient to

induce sudden passion in Beltran.

       3.        Evidence of Beltran’s conduct occurring before regaining his capacity for cool
                 reflection

       For a claim of fear to rise to the level of sudden passion, the defendant’s mind must

be rendered incapable of cool reflection.33 Beltran’s testimony suggested that his sudden

awakening to being sexually assaulted by McKnight, his screams and panic in struggling to

get out from underneath McKnight, Ramos’s stabbing, and Beltran’s grabbing of McKnight

all occurred within a very brief time span. Beltran used the words “sudden” and “suddenly”



       32
            McKinney v. State, 179 S.W.3d 565, 570 (Tex. Crim. App. 2005).
       33
           Gonzales v. State, 717 S.W.2d 355, 357 (Tex. Crim. App. 1986); Daniels v. State, 645
S.W.2d 459, 460 (Tex. Crim. App. 1983) (noting that fear that rises to the level of terror may
constitute sudden passion when its cause is such that would commonly produce a degree of terror
“sufficient to render the mind incapable of cool reflection”).
                                                                                 Beltran — 19


several times in his description of the incident. Moreover, Beltran testified that he was

“light-headed” and had “blurred vision” when Ramos came in to help Beltran get out from

underneath McKnight.

       It is possible that a jury could decide that there was a disconnect between the

provocation by McKnight in sexually assaulting Beltran and Beltran’s conduct in grabbing

McKnight and holding him while Ramos continued stabbing McKnight. Although Beltran’s

testimony may not have directly addressed whether Beltran grabbed McKnight and held him

because McKnight had been sexually assaulting him, it is possible that a jury could decide

that the sexual assault triggered a level of fear and panic in Beltran that continued throughout

the entire struggle. Thus, although arguably weak and possibly unbelievable, Beltran’s

testimony of fear and shock at being awakened in such a manner by McKnight, and in

struggling with McKnight, supports Beltran’s position that he was not capable of cool

reflection. In fact, Beltran’s testimony suggests the absence of any cool reflection.

       4.     Evidence of a causal connection between McKnight’s provocation, Beltran’s
              passion, and the homicide

       The jury could arguably have deduced, from Beltran’s testimony, that McKnight’s

sexual assault of Beltran and Beltran’s sudden reaction to such sexual assault, triggered a

chain reaction that resulted in McKnight’s death: Beltran was awakened by McKnight

licking his anus and reacted by screaming in panic; McKnight pushed Beltran’s face into the

pillow to stop his screaming; Ramos presumably heard the screaming, entered the room,
                                                                               Beltran — 20


purportedly to help Beltran, and hit McKnight in the head; McKnight then turned on Ramos,

which prompted Beltran to grab McKnight and hold onto him; then Ramos suddenly started

stabbing McKnight, and Beltran was in too much of a daze to have been capable of reflecting

on what he was doing. This causal connection could be inferred from Beltran’s testimony.

Therefore, Beltran met this fourth requirement by raising evidence of a causal connection

between McKnight’s provocation, Beltran’s passion, and the homicide.

                                        CONCLUSION

       We hold that the Fifth Court of Appeals erred in affirming the trial court’s denial of

Beltran’s request for a sudden passion charge. Accordingly, we reverse the judgment of the

Court of Appeals and remand this case for a harm analysis in accordance with Almanza v.

State.34




DELIVERED: October 14, 2015
PUBLISH




       34
            686 S.W.2d 157 (Tex. Crim. App. 1984).
