                                                                          PD-1076-14
                                                         COURT OF CRIMINAL APPEALS
                                                                          AUSTIN, TEXAS
April 2, 2015                                          Transmitted 3/31/2015 5:05:30 PM
                                                           Accepted 4/2/2015 7:56:11 AM
                                                                           ABEL ACOSTA
                             PD-1076-14                                            CLERK

              IN THE TEXAS COURT OF CRIMINAL APPEALS
          _________________________________________________

                     RICARDO BELTRAN
                       PETITIONER-APPELLANT

                                 vs.

                    THE STATE OF TEXAS
                        RESPONDENT-APPELLEE
          _________________________________________________

                   ON DISCRETIONARY REVIEW FROM
                    THE FIFTH COURT OF APPEALS
                     CAUSE NO. 05-12-01647-CR

            APPEAL FROM THE 194TH JUDICIAL DISTRICT COURT
           OF DALLAS COUNTY, TEXAS, CAUSE NO. F-1056077-M
          _________________________________________________

  PETITIONER’S REPLY BRIEF ON THE MERITS
          _________________________________________________

    ROBERT N. UDASHEN, P.C.            SORRELS, UDASHEN & ANTON
    State Bar No. 20369600             2311 Cedar Springs, Suite 250
    rnu@sualaw.com                     Dallas, Texas 75201
                                       214-468-8100 (office)
    BRETT ORDIWAY                      214-468-8104 (fax)
    State Bar No. 24079086
    bordiway@sualaw.com                Counsel for Appellant
                                         Table of Contents

Index of Authorities .................................................................................... 3

Reply............................................................................................................ 4

      I. Beltran’s argument ........................................................................ 4

      II. The State, like the court of appeals, ignores evidence that
      Beltran acted out of sudden passion .................................................. 6

      III. The State’s secondary argument is predicated on a bizarre
      misunderstanding of Beltran’s argument ........................................ 10

      IV. Conclusion ................................................................................... 12

Certificate of Service ................................................................................ 14

Certificate of Compliance ......................................................................... 14




                                                        2
                                       Index of Authorities

Cases

Beltran v. State, 05-12-01647-CR, 2014 WL 3587367 (Tex. App.—Dallas
  2014) ........................................................................................................ 4

Brunson v. State, 764 S.W.2d 888, 895 (Tex. App.—Austin 1989, pet.
  ref’d) ......................................................................................................... 8

Chavez v. State, 6 S.W.3d 56, 65 (Tex. App.—San Antonio 1999, pet.
 ref’d) ......................................................................................................... 5

Golden v. State, 851 S.W.2d 291, 295 (Tex. Crim. App. 1993) ............... 10

Jones v. State, 687 S.W.2d 425, 430 (Tex. App.—Dallas 1985, pet. ref’d) 9

McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005) ...... 8, 10

Moore v. State, 969 S.W.2d 4, 15 (Tex. Crim. App. 1998) ......................... 8

Thompson v. State, 02-12-00351-CR, 2013 WL 5303631 (Tex. App.—
  Fort Worth 2013, pet. ref’d) .................................................................... 5

Wooten v. State, 378 S.W.3d 652, 657 (Tex. App.-Houston [14th Dist.]
 2012, pet. granted) .................................................................................. 5




                                                         3
                                 Reply

 I.   Beltran’s argument

      It is undisputed that Beltran and Victor Ramos killed the com-

plainant. The only question in this case is whether Beltran murdered

the complainant in the course of a robbery, as the State alleged, or

whether, as Beltran maintained, he killed the complainant under the

immediate influence of sudden passion, or killed him in self-defense.

Beltran v. State, 05-12-01647-CR, 2014 WL 3587367 (Tex. App.—Dallas

2014).

      In Beltran’s petition for discretionary review, he urged this Court

that, in evaluating whether the trial court erred in denying Beltran’s

request for a sudden passion instruction, the Dallas Court of Appeals

ignored the evidence that Beltran acted out of sudden passion in an ef-

fort to point to other evidence that he did not act out of sudden passion.

Id. That, itself, is directly contrary to this Court’s precedent and de-

mands reversal. See Trevino v. State, 100 S.W.3d 232, 238-39 (Tex.

Crim. App. 2003) (“The problem with the State’s argument is that it ad-

dresses solely the evidence against sudden passion. While the evidence

the State mentions was presented at trial, an appellate court’s duty is


                                    4
to look at the evidence supporting that charge, not on the evidence re-

futing it.”). Even more demanding, though, is that, ironically, that evi-

dence which the blinders-donning Court focused on—that Beltran acted

in self-defense—also necessitated reversal. Indeed, self-defense and

sudden passion are intricately intertwined, and except in rare instanc-

es, facts that give rise to a self-defense issue also give rise to a sudden-

passion issue. Wooten v. State, 378 S.W.3d 652, 657 (Tex. App.-Houston

[14th Dist.] 2012, pet. granted) (citing Chavez v. State, 6 S.W.3d 56, 65

(Tex. App.—San Antonio 1999, pet. ref’d), rev’d on other grounds 400

S.W.3d 601, 606–07 (Tex. Crim. App. 2013); see also Brunson v. State,

764 S.W.2d 888, 894-95 (Tex. App.—Austin 1989, pet. ref’d) (“It is diffi-

cult for this Court to imagine a situation in which the evidence would be

sufficient to raise the issue of the use of deadly force in self-defense, and

yet would not be sufficient to satisfy the adequate cause prong of the

voluntary manslaughter test.”); Thompson v. State, 02-12-00351-CR,

2013 WL 5303631 (Tex. App.—Fort Worth 2013, pet. ref’d) (an unpro-

voked, violent attack with a box cutter is sufficient provocation to in-

duce the requisite emotional state in a person of ordinary temperament

to justify a sudden-passion instruction); Moore v. State, 969 S.W.2d 4,


                                     5
11 (Tex. Crim. App. 1998) (holding evidence that murder occurred dur-

ing violent fight, including victim’s attempt to run appellant over with a

car, sufficient to raise sudden passion). Thus, even if the concepts were

wholly distinct, that evidence of both was present in no way precludes

an instruction as to sudden passion.

      The State’s response is somewhat difficult to decipher. As best as

Beltran can tell, though, it puts forth two primary arguments. Neither

has any merit.

II.   The State, like the court of appeals, ignores evidence that
      Beltran acted out of sudden passion

      At the outset, the State declares that the court of appeals did not

even do what Beltran said it did: determined that some evidence Bel-

tran acted in self-defense negated all evidence that he acted in sudden

passion. (St. Br. at 7). The State contends that, rather, the court simply

determined the evidence showed Beltran acted with thought. (St. Br. at

7, 9-10).

      That was indeed the court’s conclusion. But repeating it does not

address Beltran’s argument: that flawed reasoning led to that flawed

conclusion. And in fact the State never really addresses Beltran’s argu-



                                    6
ment, instead simply arguing that the court’s conclusion was right1:

that “the opinion of the Fifth Court leaves no doubt that the Fifth

Court’s conclusion that there had been no evidence that Beltran had

acted while under the influence of sudden passion was based on the evi-

dence that showed that Beltran had never been rendered incapable of

cool reflection, but actually had ‘acted with thought.’” (St. Br. at 10).

      Over the following three paragraphs, the State then points to all

that evidence that it contends shows as much. (St. Br. at 10-11). The

very first sentence of that section, though, reveals the flaw in the

State’s argument—the exact flaw in the court of appeals’s analysis of

which Beltran complains: “While Beltran claimed more than once that

he had panicked, Beltran repeatedly claimed that he had grabbed and

held McKnight and that he had told Ramos to seek help.” (St. Br. at 10).




1 The State does, at one point, assert it “disagrees with Beltran’s contention that
evidence of acting in self-defense does not negate evidence of having acted under the
influence of sudden passion.” (St. Br. at 12-13). But this is misleading, because the
State then simply explains that “sudden passion should not submitted if the record
is such that no rational jury could have made a finding of sudden passion based
thereon.” (St. Br. at 13).

Beltran of course agrees that a sudden passion instruction should not be given when
there is no evidence of sudden passion. This case concerns the circumstance in
which there is evidence of sudden passion and self-defense, though.

                                         7
     For, the “While” part is all that matters. “A jury should receive a

sudden passion charge if it is raised by the evidence, even if that evi-

dence is weak, impeached, contradicted, or unbelievable.” McKinney v.

State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005) (emphasis added).

Because, here, Beltran claimed that he panicked, no amount of other ev-

idence the State points to can absolve the court of its duty to instruct

the jury on sudden passion. See, e.g., Brunson, 764 S.W.2d at 895 (quot-

ing multiple dictionary definitions of “panic” and then holding “the con-

clusion is inescapable that when appellant testified, ‘I panicked,’ he was

testifying in shorthand form, ‘I experienced a sudden terror of such de-

gree that it overwhelmed my mind.’”); Trevino, 100 S.W.3d at 239 (con-

sidering appellant’s demeanor after murder as supportive evidence to

justify sudden-passion instruction, and holding that some evidence of

sudden passion consisted of the defendant “freaking out,” “scared and

panicked,” “crying and shaking,” “pacing,” “consistently upset and cry-

ing,” “sounded distressed,” and “looked past” the investigator); Moore,

969 S.W.2d at 15 (Keller, J., concurring and dissenting) (“sudden pas-

sion can also be inferred from the conduct and appearance of the de-

fendant. Some examples could be: running, striking inanimate objects


                                    8
without any apparent rational purpose, shouting, screaming, crying,

and facial expressions.”); see also Jones v. State, 687 S.W.2d 425, 430

(Tex. App.—Dallas 1985, pet. ref’d) (Stephens, J., dissenting) (“Magic

words, such as ‘sudden passion’ are unnecessary, so long as the circum-

stances give rise to the inference that the defendant acted under ‘sud-

den passion.’”).

      The State urges this Court otherwise by pointing to “the context of

whether a lesser included offense instruction should have been submit-

ted” and urging that Beltran’s testimony was not credible and thus did

not support a sudden-passion instruction. 2 (St. Br. at 13-16). Specifical-

ly, the State points to his behavior after the complainant’s death—

Beltran’s lies to the police, and his attempts to cover-up his involve-

ment—as rendering Beltran’s testimony that he panicked unbelievable.

(St. Br. at 13-16). In so doing, the State brazenly ignores this Court’s

very clear instruction otherwise (and as cited in Beltran’s brief). Again,

“[a] jury should receive a sudden passion charge if it is raised by the ev-



2Sandwiched in between the State’s list of evidence supporting that Beltran acted
rationally and its assertion that this Court should ignore evidence he did not are
some three pages arguing that if there is no evidence of sudden passion, such an in-
struction is not warranted. (St. Br. at 11-13). Beltran of course agrees with this ob-
vious truth, too.
                                          9
idence, even if that evidence is weak, impeached, contradicted, or unbe-

lievable.” McKinney, 179 S.W.3d at 569. “[W]hen evidence from any

source raises a defensive issue, and the defendant properly requests a

jury charge on that issue, the trial court must submit the issue to the

jury.” Trevino, 100 S.W.3d at 237. “[I]t is well-settled that a defendant’s

testimony alone is sufficient to raise a defensive issue requiring an in-

struction in the jury charge.” Golden v. State, 851 S.W.2d 291, 295 (Tex.

Crim. App. 1993).

       The State, like the court of appeals, ignores ample evidence in this

case that Beltran acted out of sudden passion in favor of evidence indi-

cating he also acted in self-defense. Beltran urges this Court to recog-

nize as much.

III.   The State’s secondary argument is predicated on a bizarre
       misunderstanding of Beltran’s argument

       The State’s secondary argument fares no better—that, in addition

to the “legal principles discussed so far herein”:

       …the judgment of the Fifth Court should be affirmed be-
       cause—on the record presented herein—a conclusion that
       Beltran was entitled to sudden passion would amount to a
       conclusion that the sudden passion that might (under the
       proper set of facts) pertain to the person who had merely
       held the victim could somehow be attributed to the person
       who had actually inflicted the killing blows (even though

                                    10
     that person had not been subjected to the acts from which
     the sudden passion might have arisen).

(St. Br. at 19). Beltran doesn’t really understand this sentence. Fortu-

nately, the argument can be dispensed of without understanding it, as

the State explicitly arrives at its conclusion by misunderstanding the

premise. In summarizing Beltran’s argument, the State states:

     Had Beltran claimed that he had grabbed McKnight and had
     then continued to restrain McKnight even while Ramos was
     stabbing McKnight because Beltran himself had been so en-
     raged and terrified by McKnight’s conduct in sexually as-
     saulting Beltran and then trying to smother Beltran, then
     perhaps, Beltran’s testimony would have been sufficient for
     a rational jury to have found sudden passion therefrom.
     However, Beltran never asserted that his act of holding
     McKnight had been something that Beltran had done as a
     result of having had his capacity to engage in cool reflection
     overcome by his fear, terror, or rage.

(St. Br. at 16-17). But that is exactly what Beltran argued. He was

charged with capital murder, either individually or as a party. (CR1: 9-

10). He testified at trial that he was indeed a party to the complainant’s

death, having restrained him while Ramos stabbed him, but that he

acted out of panic. (RR7: 104-112). How the State concludes Beltran

contended otherwise is entirely a mystery.

     Beltran was not, then, “in a very real sense arguing in effect for

recognition in the law that the concept of sudden passion should have

                                   11
some type of component whereby the basis for the alleged sudden pas-

sion may be either transferred to another or exercised vicariously.” (St.

Br. at 16-17). Nor was he “claiming that Ramos could stab McKnight

based on what McKnight had done to Beltran and that Beltran should

receive the sudden passion instruction even though the record contains

no evidence that anything was done to Ramos that would have caused

Ramos to act in sudden passion or that would have justified Ramos’

having acted while under the influence of sudden passion.” (St. Br. 17-

18). He was arguing just what the State concedes that, if he so argued,

“perhaps, Beltran’s testimony would have been sufficient for a rational

jury to have found sudden passion therefrom.”

IV.   Conclusion

      Neither of the State’s arguments at all rebuts what he has repeat-

edly urged: that some evidence that he acted in self-defense does not

negate all evidence that he acted in sudden passion. And here, there

was plainly evidence that he acted in sudden passion. Accordingly, Bel-

tran again respectfully requests this Court to reverse the judgment of

the Dallas Court of Appeals and remand this case to that court for an

analysis of whether Beltran was harmed by the trial court’s error.


                                   12
Respectfully submitted,


     /s/ Robert N. Udashen
ROBERT N. UDASHEN, P.C.
Bar Card No. 01274700
rnu@sualaw.com


     /s/ Brett Ordiway
BRETT ORDIWAY
Bar Card No. 24079086
bordiway@sualaw.com

SORRELS, UDASHEN & ANTON
2311 Cedar Springs Road
Suite 250
Dallas, Texas 75201
(214)-468-8100 (office)
(214)-468-8104 (fax)

Attorneys for Appellant




 13
                        Certificate of Service

      I, the undersigned, hereby certify that a true and correct copy of
the foregoing Petitioner’s Reply Brief on the Merits was electronically
served to the Dallas County District Attorney’s Office and the State
Prosecuting Attorney on March 31, 2015.


                                      /s/ Robert N. Udashen
                                  ROBERT N. UDASHEN, P.C.




                      Certificate of Compliance

      Pursuant to TEX. R. APP. P. 9.4(i)(3), undersigned counsel certifies
that this brief complies with:

  1. the type-volume limitation of TEX. R. APP. P. 9.4(i)(2)(C) because
     this petition contains 2,117 words, excluding the parts of the brief
     exempted by TEX. R. APP. P. 9.4(i)(1).

  2. the typeface requirements of TEX. R. APP. P. 9.4(e) and the type
     style requirements of TEX. R. APP. P. 9.4(e) because this brief has
     been prepared in a proportionally spaced typeface using Microsoft
     Word 2011 in 14-point Century Schoolbook.

                                      /s/ Robert N. Udashen
                                  ROBERT N. UDASHEN, P.C.




                                   14
