


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-05-00056-CR
 
Ifren Escobedo,
                                                                      Appellant
 v.
 
The State of Texas,
                                                                      Appellee
 
 
 

From the 89th District Court
Wichita County, Texas
Trial Court No. 40,960-C
 

Opinion

 




          This case involves a conviction for
murder, whereby Ifren Escobedo received a life sentence and a $10,000 fine.  Escobedo
raises two issues on appeal: (1) the evidence is insufficient to disprove
sudden passion; and (2) the court abused its discretion by allowing Escobedo to
be impeached with a prior conviction for public lewdness.  We affirm.
BACKGROUND 
          In 1991, Escobedo met the victim, Gerald Curley, at a park.  Curley
followed Escobedo to a friend’s house.  Escobedo asked Curley to stop following
him.  However, Curley then followed Escobedo to his apartment where they
engaged in homosexual acts.  When Curley ignored requests to leave, Escobedo
strangled Curley with an electrical cord and left the apartment.  After confessing
the crime to his ex-wife, Escobedo returned home, stuffed the body into Curley’s
car and abandoned it in an isolated area.    
For several years, the murder remained unsolved
until a new examination of the evidence led to Escobedo’s arrest.  In a
videotaped statement, Escobedo confessed to the crime, unable to articulate a
reason for the killing, stating that he “snapped.”  Escobedo denied feeling
provoked or motivated by theft.  He claimed to be nonviolent and said he discarded
Curley’s possessions.    
Various witnesses testified that the crime could
qualify as either one of deliberation or sudden passion.  Other
witnesses viewed Escobedo as incapable of murder and said he appeared upset and
remorseful.  Detective Greg Burt testified that Escobedo denied feeling provoked
or angry at the time of the killing and admitted to taking some of Curley’s possessions. 
  
Escobedo testified at the guilt/innocence phase
of the trial.  Finding public lewdness to be a crime of moral turpitude, the
trial court allowed Escobedo to be impeached with a prior misdemeanor conviction
for public lewdness.  The jury convicted Escobedo and assessed punishment as
indicated above.    
SUDDEN PASSION
          Escobedo contends in his first issue
that the evidence is factually insufficient to disprove that he acted under the
influence of sudden passion from adequate cause.  
Because
the crime occurred before 1994, we apply the law in effect at that time.  Murder
involves “intentionally or knowingly” causing an individual’s death.  Act
of May 28, 1973, 63d Leg., R.S., ch. 426, art. 2, §
1, 1973 Tex. Gen. Laws 1122, 1123 (amended 1993) (current version at Tex. Pen. Code Ann. § 19.02(b)(1) (Vernon
2003)); Johnson v. State, 815 S.W.2d 707, 709 (Tex. Crim. App.
1991).  Murder committed “under the immediate influence of sudden passion
arising from an adequate cause” constitutes voluntary manslaughter.[1] 
Act of May 28, 1973, 63d Leg., R.S., ch. 426, art. 2, §
1, 1973 Tex. Gen. Laws 1122, 1124 (amended 1993) (current version at Tex. Pen. Code Ann. § 19.04 (Vernon 2003)).
 “Sudden
passion” results from provocation by the victim or someone acting with the victim
that “arises at the time of the offense and is not solely the result of former
provocation.”  Act of May 28, 1973, 63d Leg., R.S., ch.
426, art. 2, §
1, 1973 Tex. Gen. Laws 1122, 1124 (repealed 1993) (current version at Tex. Pen. Code Ann.  § 19.02(a) (Vernon
2003); Johnson, 815 S.W.2d at 710.  “Adequate cause” is the “degree of
anger, rage, resentment, or terror in a person of ordinary temper, sufficient
to render the mind incapable of cool reflection.”  Id.    
Various
circumstances may establish a lack of sudden passion: (1) absence of
“provocative conduct, or at least none occurring at the time of the offense,”
thus negating adequate cause; (2) provocation sufficient to “render a
man of ordinary temper incapable of cool reflection,” but defendant still acted
“coolly and deliberately;” or (3) provocation insufficient to “render a
man of ordinary temper incapable of cool reflection,” but that provoked
defendant.  Id at 711; Saenz v. State,
930 S.W.2d 249, 251 (Tex. App.—Amarillo 1996, no writ).  Where sudden
passion is raised by the evidence and the jury renders a murder conviction, the
defendant may challenge the sufficiency of the evidence in two distinct ways: 
1.       Whether
the evidence was sufficient to establish the offense of murder; and
 
2.       Whether
the evidence was sufficient to disprove the issue of [sudden passion].  
 
Johnson,
815 S.W.2d at 711; see Garza v. State, 878 S.W.2d 213, 217
(Tex. App.—Corpus 
Christi 1994, pet ref’d).  In conducting a factual sufficiency review,
we review all the evidence in a “neutral light” and determine whether the fact
finder was “rationally justified in finding guilt beyond a reasonable doubt.”  Zuniga
v. State, 144 S.W.3d 477, 484-485 (Tex. Crim. App. 2004).
[T]here are two ways in which the evidence may
be [factually] insufficient.  First, when considered by itself, evidence
supporting the verdict may be too weak to support the finding of guilt beyond a
reasonable doubt.  Second, there may be both evidence supporting the verdict
and evidence contrary to the verdict.  Weighing all the evidence under this
balancing scale, the contrary evidence may be strong enough that the
beyond-a-reasonable-doubt standard could not have 
been met.
 
Id at 485.     
Escobedo
attacks his murder conviction only on the basis that the evidence is factually
insufficient to disprove that he acted with sudden passion.  We disagree for
three reasons.
First,
the jury could reasonably conclude that no provocation either existed or occurred
at the time of the offense.  See Johnson, 815 S.W.2d at 711; Saenz,
930 S.W.2d at 251.  Escobedo testified that it is not uncommon for
homosexual individuals to engage in forward conduct.  In fact, despite feeling uncomfortable
by Curley’s persistence, Escobedo nevertheless invited Curley into his
apartment.  Most importantly, Escobedo admitted that no violence occurred and he
felt neither provoked nor angry at the time of the killing.  See Garza, 878 S.W.2d at
219.  The jury could reasonably
find an absence of provocation.  
Second,
even if Curley’s aggressive behavior and refusal to leave the apartment amounted
to “provocative conduct,” the jury could reasonably conclude that the
provocation was insufficient to “render a man of ordinary temper
incapable of cool reflection.”  See Johnson, 815 S.W.2d at 711; Saenz,
930 S.W.2d at 251.  Escobedo testified that no violence occurred and, despite
his discomfort, he invited Curley inside the apartment.  Certainly, Curley
should have exited the apartment upon request, but his refusals to do so would
not provoke a man of ordinary temper to commit murder.  See Carillo v. State, 889 S.W.2d 501, 504 (Tex. App.—Houston [14th Dist.] 1994, no writ); see also Rayme v. State, 178 S.W.3d 21, 29 (Tex. App.—Hous. [1st Dist.] 2005, pet
ref’d).  If Escobedo felt afraid or threatened, he could have easily
contacted the police or vacated the apartment.  Rather, Escobedo failed to act
as a “man of ordinary temper” and strangled Curley to death.  The jury could
reasonably conclude that Escobedo responded in the face of insufficient
provocation.  See
Carillo, 889 S.W.2d at
504; see also Rayme, 178 S.W.3d at 29.
Third,
the jury could reasonably conclude that, even if Curley’s conduct gave rise to either
possible or sufficient provocation, Escobedo acted with “cool
reflection.”  See Johnson, 815 S.W.2d at 711; Saenz,
930 S.W.2d at 251.  At trial, Dr. Nizam Peerwani testified that it would
have taken 3-5 minutes of continuous pressure to kill Curley, who may have
passed out within the first forty-five seconds.  See Sowell v. State, 503 S.W.2d 793, 795 (Tex.
Crim. App. 1974).  Dr. Peerwani further testified that strangulation is a
lengthy process, unlike most sudden passion crimes that involve more
spontaneous actions, such as a shooting or stabbing.  Fractures in Curley’s
neck evidenced a large amount of force used to strangle Curley.  The jury could
reasonably conclude that Escobedo acted “coolly and deliberately” by continuing
to strangle Curley even after any sudden passion subsided and far longer than
would a “man of ordinary temper.”  See Johnson, 815 S.W.2d at 712;
see also Sowell, 503 S.W.2d at 795. 
Under
these circumstances, the jury did not “pick and choose” between offenses, as
Escobedo claims.  Rather, we hold that the jury could reasonably find, beyond a
reasonable doubt, that Escobedo committed murder without adequate cause or
sudden passion.  Thus, the evidence is factually sufficient to support the
jury’s verdict.  We overrule Escobedo’s first issue.         
Public Lewdness
In his second issue, Escobedo contends that
public lewdness is not a crime of moral 
turpitude.  A crime of moral turpitude may be
used to attack a witness’ credibility.  See Tex. R. Evid. 609(a).  Moral turpitude encompasses crimes
involving: (1) “dishonesty, fraud, deceit, misrepresentation, or deliberate
violence;” (2) matters of “personal morality;” (3) conduct committed “knowingly
contrary to justice, honesty, principle, or good morals;” (4) “baseness,
vileness, or depravity;” (5) conduct “immoral in itself, regardless of whether
it is punishable by law,” in that the “doing of the act itself, and not its
prohibition by statute, fixes the moral turpitude;” or (6) “immoral conduct”
that is “willful, flagrant, or shameless, and which shows a moral indifference
to the opinion of the good and respectable members of the community.”  In re
G.M.P., 909 S.W.2d 198, 208 (Tex. App.—Houston [14th Dist] 1995,
no writ); Turton v. State Bar of Texas, 775 S.W.2d 712, 716
(Tex. App.—San Antonio 1989, writ denied).       
Defining moral turpitude as a vile, baseless or
depraved act in the “private and social duties” owed to society and “contrary
to the accepted and customary rule of right and duty between man and man,” the Tyler Court found public lewdness to be a crime of moral turpitude.  See Green v.
County Attorney of Anderson County, 592 S.W.2d 69, 71 (Tex. Civ. App.—Tyler
1979, no writ).  Escobedo questions Green, contending that public
lewdness is not a crime of moral turpitude because it does not exhibit a “moral
indifference to the opinion of the good and respectable members of the
community.”  We disagree.    
We first note that the Eastland Court has found that a public lewdness conviction for urinating in public is not a
crime of moral turpitude.  See Smith v. State, NO. 11-95-122-CR, 1997 WL 33798095
at *4 (Tex. App.—Eastland, Feb. 27, 1997, pet ref’d)(not designated for
publication).  Smith is distinguishable because it involves the
crime of urinating in public, rather than sexual misconduct.[2] 

We also note that Green failed to explain
the reasoning behind its ruling.  Therefore, we draw guidance from the
reasoning in Polk v. State, where the offense of indecent exposure was held
to constitute a crime of moral turpitude.  See Polk v. State, 865 S.W.2d
627, 630 (Tex. App.—Fort Worth 1993, pet ref’d).  According to the Fort Worth Court, not all instances of indecent exposure, such as those involving “nude
swimmers and pranksters,” rise to the level of moral turpitude.  Id.  Rather, the base, vile and depraved intent to “arouse or gratify sexual desire”
transforms the offense of indecent exposure into a crime of moral turpitude.  Id.  In so holding, Polk spoke to the elements of the offense in defining
indecent exposure as a crime of moral turpitude.  See id.  Although Polk
analyzed a different statute, we find its reasoning instructive to our
analysis.                      
Escobedo and the State entered into a
stipulation whereby they agreed that Escobedo was the same person who pled nolo
contedere to the offense of public lewdness involving deviate sexual
intercourse.  See Tex. Pen Code
Ann. § 21.07(a)(2) (Vernon
2003).  In arguing that public lewdness is not “immoral in itself,” Escobedo
relies on content provided by television, bookstores and libraries.  However,
the public generally chooses to partake of this content and does not
unsuspectingly happen upon individuals engaging in lewd acts.  Further,
Escobedo points to teenagers engaged in private conduct.  Yet, social norms and
values teach that this type of conduct is not intended for public performance. 

Like Polk, all lewd conduct may not constitute
moral turpitude.  However, all public lewd acts, as currently defined by
the Texas Penal Code, violate societal notions of “personal morality” and “good
morals.”   It is not the public lewdness statute alone that frowns upon public
lewdness.  Rather, when performed in public, lewdness more than simply offends
unsuspecting individuals, but is “immoral in itself,” reflecting a “moral
indifference to the opinion of the good and respectable members of the
community.”  See G.M.P., 909 S.W.2d at 208; Turton, 775 S.W.2d at 716.
     
Because the conduct underlying Escobedo’s public
lewdness conviction violates accepted social behavior and offends society at
large, we hold that public lewdness, as defined by the Penal Code, constitutes
a crime of moral turpitude and may be used to impeach a witness’ credibility.  We
overrule Escobedo’s second issue.
          We
affirm the judgment. 
FELIPE REYNA
Justice


Before Chief Justice
Gray,
Justice
Vance, and
Justice
Reyna
Affirmed
Opinion delivered and
filed July 26, 2006
Publish
[CRPM]
    




[1]           The former law recognized sudden
passion as an issue for the guilt-innocence phase of a murder trial.  See Ruiz v. State, 753
S.W.2d 681, 683 (Tex. Crim. App. 1988); see also Chimney v. State,
6 S.W.3d 681, 700 (Tex. App.—Waco 1999, pet ref’d).  Under current law,
sudden passion constitutes a mitigating factor at the punishment phase and
defendant has the burden of proof.  See Bumguardner
v. State, 963 S.W.2d 171, 176 (Tex.
App.—Waco 1998, pet ref’d).   


[2]
Urinating in public is not proscribed
under Section 21.07 of the Texas Penal Code, the statute we are reviewing.  See
Tex. Pen. Code Ann. § 21.07
(Vernon 2003).  


