AFFIRMED; Opinion Filed July 22, 2014.




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-12-01647-CR

                              RICARDO BELTRAN, Appellant

                                               V.

                             THE STATE OF TEXAS, Appellee

                      On Appeal from the 194th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1056077-M

                            MEMORANDUM OPINION
                           Before Justices Moseley, Lang, and Brown
                                    Opinion by Justice Lang


       This appeal follows a jury conviction and seventy-year sentence for murder. In a single

issue, Ricardo Beltran asserts the trial court erred in denying his request for an instruction on

sudden passion. We affirm the trial court’s judgment.

                   I. FACTUAL AND PROCEDURAL BACKGROUND

       Beltran was charged with the capital murder of Sheldon McKnight. Specifically, the

State alleged Beltran intentionally caused McKnight’s death while in the course of committing or

attempting to commit robbery. See TEX. PENAL CODE ANN. § 19.03(a)(2) (West 2011).

       No dispute existed at trial that McKnight was intentionally killed. McKnight’s partially

clothed body was found on his bed in his burning apartment, and medical evidence showed he
was stabbed seventy-one times in his upper body and leg, suffered blunt-force trauma to his

head, had defensive wounds, and died from the injuries. No dispute existed at trial either that a

robbery occurred. McKnight’s apartment was ransacked and many of his belongings were found

in his car, which Beltran had stolen, and in Beltran’s apartment. Finally, no dispute existed that

Beltran acted in conjunction with his friend, Victor Ramos. Beltran and Ramos were seen with

McKnight a few hours before McKnight was killed and were seen fleeing the scene of a one-car

accident involving McKnight’s car. The only disputed issues at trial were whether McKnight

was killed in the course of the robbery, as the State alleged, and whether Beltran acted in self-

defense, was justified in using deadly force, and acted under the immediate influence of sudden

passion.

          The sole witness to testify as to the circumstances surrounding McKnight’s death was

Beltran. According to Beltran, he and Ramos went to McKnight’s apartment to “chill” and for

drugs. High from “partying,” Beltran fell asleep on McKnight’s bed. He awoke a short time

later to find McKnight sexually assaulting him. 1 Beltran screamed in panic and moved, but

McKnight jumped on him and pushed his face into a pillow.

          Hearing Beltran’s screams, Ramos came into the room from another room and hit

McKnight on the head. McKnight grabbed Ramos, and Beltran grabbed McKnight from behind.

Beltran yelled at Ramos “to get some help.” However, rather than getting help, Ramos began

stabbing McKnight. McKnight began “flailing” and trying to “get . . . loose . . . trying to go

toward [Ramos],” but Beltran held tight to McKnight to protect Ramos and himself. Beltran told

Ramos again to “[g]et some help.” Ramos, though, continued stabbing McKnight, and Beltran

closed his eyes “for a while.” McKnight continued to struggle, and at some point, Beltran let go

of him. Beltran testified McKnight was “getting stabbed everywhere” and “kept moving his

   1
       Evidence at trial revealed McKnight’s DNA was found on Beltran’s boxer shorts.



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hands.” The stabbing continued and “before [Beltran] knew it, [McKnight] was . . . dead.”

“Panicking” and “shocked,” Beltran asked Ramos if they should call the police, but Ramos said

“no.” The two then fled the apartment, but returned when they realized they had left some of

their belongings in the apartment.

        Beltran testified that when they returned to get their belongings, Ramos suggested they

“should make it seem like a robbery.” The two loaded McKnight’s car with items from his

apartment and drove away in McKnight’s car.             Asked if his intentions when he went to

McKnight’s apartment were to rob and kill McKnight, Beltran denied they were and denied he

killed or stabbed McKnight. Beltran also denied knowing where Ramos got the knife with which

he stabbed McKnight and denied he intended to help Ramos kill McKnight. Asked about the

fire, Beltran testified he learned of the fire later, but was “sure” Ramos set it.

        Authorized to convict Beltran as a principal or as a party, the jury rejected Beltran’s self-

defense claim and returned a general verdict finding Beltran guilty of murder. See TEX. PENAL

CODE ANN. § 7.01(a), 7.02(a)(2) (West 2011). Following the punishment phase of trial, in which

Beltran again denied killing McKnight and testified his testimony during the guilt/innocence

stage of trial concerning McKnight’s death was true, the jury assessed a seventy-year sentence.

                                      II. SUDDEN PASSION

        At trial, Beltran argued an instruction on sudden passion was warranted as a result of his

being physically and sexually assaulted by McKnight. In denying the request, the trial court

found Beltran’s testimony at both the guilt/innocence and punishment phases of trial that he did

not kill or intend to help Ramos kill McKnight and that he grabbed McKnight when McKnight

went towards Ramos determinative. On appeal, Beltran asserts the trial court’s ruling was

incorrect because the jury was authorized to convict him under the law of parties, and his

testimony that he held and restrained McKnight while Ramos stabbed McKnight was more than

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enough evidence to justify the instruction, even if he denied killing or intending to help kill

McKnight. Further, Beltran asserts that, while he grabbed McKnight when McKnight went

towards Ramos, his actions were nonetheless provoked by McKnight’s conduct toward him and,

given how quickly the fight began and ended, he had no time for “calm reflection.”

                                      A. Standard of Review

       An appellate court reviewing jury charge error engages in a two-step process. Kirsch v.

State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). The first step is to determine if the charge

was erroneous. Id.    The second step, which occurs only if the reviewing court determines error

occurred, is to analyze the error for harm. Id.

                                        B. Applicable Law

       A defendant who is convicted of murder and raises the issue of whether he caused the

death under the immediate influence of sudden passion arising from an adequate cause is

entitled, upon timely request, to a jury instruction on sudden passion at the punishment phase of

trial. See TEX. PENAL CODE ANN. § 19.02(d) ; Wooten v. State, 400 S.W.3d 601, 605 (Tex. Crim.

App. 2013). Sudden passion is a mitigating circumstance that, if proven by a preponderance of

the evidence, reduces murder from a first degree felony, which carries a maximum punishment

of life imprisonment, to a second degree felony, which carries a maximum punishment of twenty

years’ imprisonment. See TEX. PENAL CODE ANN. §§ 12.32, 12.33, 19.02(d); McKinney v. State,

179 S.W.3d 565, 569 (Tex. Crim. App. 2005).             The penal code defines “sudden passion” as

“passion directly caused by and arising out of provocation by the individual killed . . . which

passion arises at the time of the offense and is not solely the result of former provocation.” TEX.

PENAL CODE ANN. § 19.02(a)(2). “Adequate cause” is defined 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.” Id. § 19.02(a)(1).

                                                  –4–
       To justify a sudden passion instruction, the record must contain some evidence of both

(1) adequate cause arising out of the victim’s, not the defendant’s, own making; and (2) sudden

passion demonstrated by the defendant acting in an excited and agitated state of mind at the time

of the killing. See Smith v. State, 355 S.W.3d 138, 149 (Tex. App.-–Houston [1st Dist.] 2011,

pet. ref’d); Merchant v. State, 810 S.W.2d 305, 310 (Tex. App.-–Dallas 1991, pet. ref’d).

Additionally, the record must “minimally support” a causal connection “between the

provocation, passion, and homicide.” Wooten, 400 S.W.3d at 605 (quoting McKinney v. State,

179 S.W.3d 565, 569 (Tex. Crim. App. 2005). Whether the evidence in the record is weak,

impeached, contradicted, or unbelievable is irrelevant. Id.

                                 C. Application of Law to Facts

       Beltran argues his testimony that he held and restrained McKnight while Ramos stabbed

McKnight was more than enough evidence to justify an instruction on sudden passion. We

disagree. As stated, 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 record, here, however, reflects the

contrary.

       Beltran was the sole witness who testified regarding the circumstances surrounding

McKnight’s death. He said his reaction to finding McKnight assaulting him was to move and

scream in panic. He testified he was personally unable to react to McKnight’s pushing his face

into the pillow. After Ramos hit McKnight on the head and McKnight released Beltran, Beltran

said he was able to grab McKnight. He grabbed McKnight to protect Ramos and himself and to

give Ramos an opportunity to get help. We conclude 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. See ,

                                               –5–
e.g., Moore v. State, 969 S.W.2d 4, 15 (Tex. Crim. App. 1998) (Keller, J., concurring and

dissenting) (“Evidence of adequate cause does not automatically raise the issue of sudden

passion: ‘There could be evidence of a cause which could produce anger, rage, resentment, or

terror adequate to make an ordinary person incapable of cool reflection, but no evidence that the

accused acted in an excited and agitated state of mind at the time of the killing.’”) (quoting

Merchant, 810 S.W.2d at 309-10); Jones v. State, 687 S.W.2d 425, 428 (Tex. App.-–Dallas

1985, pet. ref’d) (finding no evidence of sudden passion, only a conscious awareness of danger

where defendant who was being chased by victim saw victim reach for kitchen drawer where

knives stored, surmised victim was reaching for knife, and fatally stabbed victim before she

could reach for knife).

       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. We conclude the trial court

did not err in denying the requested instruction. See Wooten, 400 S.W.3d at 605. Beltran’s sole

issue is decided against him.

                                     III. CONCLUSION

       We affirm the trial court’s judgment.



                                                     /Douglas S. Lang/
                                                     DOUGLAS S. LANG
                                                     JUSTICE



Do Not Publish
TEX. R. APP. P. 47

121647F.U05



                                               –6–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

RICARDO BELTRAN, Appellant                            On Appeal from the 194th Judicial District
                                                      Court, Dallas County, Texas
No. 05-12-01647-CR        V.                          Trial Court Cause No. F-1056077-M.
                                                      Opinion delivered by Justice Lang. Justices
THE STATE OF TEXAS, Appellee                          Moseley and Brown participating.

       Based on the Court’s opinion of this date, we AFFIRM the trial court’s judgment.


Judgment entered this 22nd day of July, 2014.




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