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                              COURT OF APPEALS
 
                   THIRTEENTH DISTRICT OF TEXAS
 
                       CORPUS
  CHRISTI B
EDINBURG
 
 
 EMILIO VASQUEZ,                                                            Appellant,
                                                   v.
 
 THE STATE OF TEXAS,                                                      Appellee.
 
 
                         On appeal from the
398th District Court
                                  of Hidalgo
  County, Texas.
 
                                                                                                         
                                    O P I N I
O N
 
        Before Chief Justice Valdez
and Justices Dorsey and Rodriguez
                              Opinion
by Chief Justice Valdez




          Appellant
pleaded guilty to the offense of first degree murder.  The trial court sentenced appellant to
twenty-five years imprisonment in the Institutional Division of the Texas
Department of Criminal Justice.  We
affirm.
As an initial matter, we must examine whether this Court has
jurisdiction over the appeal.  The State
argues that we should dismiss the appeal for want of jurisdiction on grounds
that appellant filed a general notice of appeal rather than a specific notice
of appeal under rule of appellate procedure 25.2(b)(3).  See Tex.
R. App. P. 25.2(b)(3).
To invoke an appellate court=s jurisdiction over an
appeal, an appellant must give timely and proper notice of appeal.  White v. State, 61 S.W.3d 424, 428 (Tex. Crim.
App. 2001).  To perfect an appeal from a
judgment that was rendered on a defendant=s plea of guilty and
in which the punishment assessed did not exceed the punishment recommended by
the prosecutor and agreed to by the defendant, a notice of appeal must (1)
specify that the appeal is for a jurisdictional defect, (2) specify that the
substance of the appeal was raised by written motion and ruled on before trial,
or (3) state that the trial court granted permission to appeal.  Tex.
R. App. P. 25.2(b)(3); see White, 61 S.W.3d at 428-29 (notice
requirements or rule 25.2(b)(3) should be interpreted according to their plain
meaning).




Contrary to the State=s assertion, the
record fails to reflect that appellant=s plea of guilty was
entered pursuant to a plea bargain. 
Rather, the plea admonishments and the judgment of conviction each show
that appellant pleaded guilty without a plea bargain agreement with the State.[1]  Accordingly, the extra-notice requirements of
rule 25.2(b)(3) do not apply and we will proceed to address the merits of this
appeal.
In his sole issue, appellant argues that the trial court erred in not
making a finding of Asudden passion,@ thus reducing
appellant=s punishment range
from 5 to 99 years or life, to 2 to 20 years.  The existence of
sudden passion is an issue for the punishment stage of trial.  Sanchez v. State, 23 S.W.3d 30, 34 (Tex. Crim.
App. 2000).  The penal code defines Asudden passion@ as Apassion 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.@  Tex.
Pen. Code Ann. ' 19.02(a)(2) (Vernon 1994).  If, by a preponderance of the evidence,  the defendant proves that he caused the death
under the immediate influence of sudden passion arising from an adequate cause,
the offense is a felony of the second degree. 
Id. at ' 19.02(d).  AAdequate cause@ means cause that
would commonly produce a degree of anger, rage, resentment, or terror in a
person or ordinary temper, sufficient to render the mind incapable of cool
reflection.  Id. at '19.02(a)(1).




When a defendant seeks appellate review of a failure to make a finding
on which the defendant has the burden of proof, we apply a factual sufficiency
standard of review.  Meraz
v. State, 785 S.W.2d 146, 154-55 (Tex. Crim. App.
1990).  Under this standard, we will set
aside the court=s finding if it is
against the great weight and preponderance of the evidence.  See Johnson v. State, 23 S.W.3d 1, 10
(Tex. Crim. App. 2000); Meraz,
785 S.W.2d at 146.
In the instant case, appellant and his friends had spent an evening
visiting night clubs, drinking, and using cocaine.  They returned to the home of Baldomero Alvarez in the early hours of the morning and
continued to drink and use cocaine.  A
white Lincoln Town car passed the house and the individuals inside the vehicle
fired shots at Alvarez=s home.  
Appellant and his friends took appellant=s car and followed the vehicle.  They lost visual contact with the car.  However, as they were driving back to Alvarez=s home, someone again
fired shots at them from a nearby house where a white Lincoln was parked.  One of appellant=s co-defendants
borrowed appellant=s gun and used it to
return fire.  Without further
confrontation, appellant and friends returned to Alvarez=s house.  Appellant then drove three miles to his home
to pick up additional ammunition for his gun because he was Aangry@ and highly
upset.  Appellant then returned to
Alvarez=s home.  




Appellant and his friends, armed with two semi-automatic pistols and
an assault rifle, drove back to the house where the white Lincoln was parked,
exited the car,  and fired multiple shots
at the house.  As a result of the
shooting, a seven-year-old girl was killed and her nine-year-old sister was
wounded.  The children were sleeping on
the floor of the living room at the time of the incident.
The trial court=s finding that
appellant was not acting under sudden passion was not against the great weight
and preponderance of the evidence as to be manifestly unjust.  Evidence of provocation by someone other than
the victim or someone acting in concert with the victim is insufficient to
raise the issue of sudden passion.  See
Tex. Pen. Code Ann. '19.02(d) (requiring
passion to be Adirectly caused by and
arising out of provocation by the individual killed or another acting with the
person killed@); Merchant v.
State, 810 S.W.2d 305, 310 (Tex. App.BDallas 1991, pet. ref=d).  There is no evidence that the victims of the
shooting, children aged seven and nine, either provoked the shooting or were
acting in concert with the individuals who fired shots at appellant and
friends.  Cf., Thibodeaux v. State,
733 S.W.2d 668, 670-71 (Tex. App.BAustin 1987, pet. ref=d) (no instruction on
sudden passion given where deceased victim was infant). 




Moreover, the evidence does not show that appellant was incapable of Acool reflection@ at the time of the
shooting.  See Tex. Pen. Code Ann. '19.02(a)(1).  Although under the influence of drugs and
alcohol, appellant was able to leave the victim=s home following the first exchange of fire,  return to Alvarez=s house, drive to his
own home to obtain additional ammunition, and travel back to Alvarez=s house before
returning to the scene of the crime when the fatal shots were fired.  There was no evidence that appellant was
emotionally aroused or afraid for his life at the time of the shooting.  
We overrule appellant=s sole issue on appeal
and affirm the trial court=s judgment.
 
 
_____________________
ROGELIO
VALDEZ
Chief
Justice
 
Publish
Tex. R. App. P. 47.3(b).
 
Opinion
delivered and filed
this the 6th
day of June 2002.
 
 




[1] According to the
record of the sentencing hearing, the State had originally agreed to recommend
that appellant=s sentence be capped
at 25 to 35 years imprisonment in exchange for appellant=s testimony against
his co-defendants; however, appellant did not testify.  At sentencing, the State argued that Aany ambiguity@ in the existence of a
plea bargain would need to be resolved in favor of appellant.  Nevertheless, the record fails to otherwise
reflect that appellant=s plea was entered
pursuant to a plea bargain.


