
Opinion issued April 7, 2005














In The
Court of Appeals
For The
First District of Texas




NO. 01-03-01040-CR




ANDRE CLEVELAND, Appellant

V.

THE STATE OF TEXAS, Appellee




On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause No. 960271




EN BANC OPINIONAppellant, Andre Cleveland, pleaded not guilty to the charge of murdering his
wife.  A jury found appellant guilty of murder, found against appellant on the special
issue of sudden passion, and assessed punishment at confinement for life in prison. 
Appellant brings four points of error concerning the guilt-innocence phase of his trial. 
In his first two points of error, appellant contends that the trial court erred by denying
his motion to suppress evidence of the search of his residence and by overruling his
objection to closing argument by the State that allegedly commented on appellant’s
post-arrest silence.  In his third and fourth points of error, appellant contends that the
State failed to disprove beyond a reasonable doubt that he killed his wife while acting
in self-defense, and that the evidence is therefore legally and factually insufficient to
sustain his murder conviction.  Concerning the punishment stage of his trial,
appellant’s fifth and sixth points of error assert that, although he had the burden to
prove by a preponderance of the evidence that he killed his wife out of sudden
passion arising out of an adequate cause, the evidence is legally and factually
insufficient to sustain the jury’s negative answer to the sudden passion special issue. 
We affirm. Background
          Carolyn Cleveland and appellant, her husband, had been together for
approximately 15 years.  They lived in Spring, Harris County, Texas, with their 15-year-old daughter Andrea, Carolyn’s 20-year-old daughter, Jessica, and Jessica’s
infant baby.  Two firearms, a handgun and a shotgun, were kept in the house.  On the
afternoon of  March 6, 2003, Carolyn gave the handgun and the shells for the shotgun
to Jessica to hide because Carolyn planned to serve appellant with divorce papers that
evening.
          When appellant arrived at the house at about 6:00 p.m., Carolyn went
downstairs to give appellant the divorce papers.  Andrea, Jessica and Jessica’s baby
were in the upstairs portion of the house.  Appellant and Carolyn had been discussing
matters for about an hour and a half when Jessica’s baby became hungry.  Jessica
walked downstairs, holding her five-month-old baby, to get the child’s formula from
the refrigerator.  As Jessica approached the kitchen, Jessica saw her mother seated on
a sofa.  Appellant was on his knees in front of her.  Jessica heard appellant tell
Carolyn that he wanted a divorce, but that “he would kill her before he would let her
get a divorce and take the house.”  When appellant saw Jessica, he cursed at her,
accused her of causing problems in the marriage, and told her to go back upstairs. 
Jessica got the baby’s formula and began to return to her room.  
          As Jessica reached the top of the stairs, she heard her mother “squeal” loudly.
Jessica put her baby in a room upstairs and ran downstairs to help her mother,
accompanied by Andrea, who had also heard the scream.  Andrea and Jessica saw
appellant pin Carolyn down with one of his knees as he used one arm to beat her and
the other arm to stab her.  Andrea and Jessica tried to help Carolyn, but appellant
“wrestled” them.  Although Jessica managed to escape into the kitchen and get a
knife, appellant took the knife from her and used it to stab her in the chest.  When
Carolyn collapsed, bleeding, on the floor by the front door, Jessica went upstairs to
call 911.  
          Appellant scrubbed the sofa with a towel where Carolyn had been seated, but
then returned to stabbing Carolyn as she remained face down on the floor.  Andrea
tried to help Carolyn by striking appellant with a cooking pan, but she had to back
away from him when he swung at her.  After Jessica called 911, she and Andrea
attempted CPR on Carolyn.  Appellant did not assist, scream, cry, or do anything to
help Carolyn.  He did, however, treat his own injury by wrapping a cloth around the
small cut on his hand.  
          At 8:39 p.m., a Harris County deputy constable approached appellant’s house
in response to a stabbing-in-progress call.  Appellant walked out of the house towards
the deputy and very calmly said, “I stabbed her because she always—,” but did not
complete his sentence.  The deputy handcuffed appellant and took him into custody. 
When the deputy heard Andrea and Jessica screaming hysterically for help, he entered
the house.  He brought appellant with him, in handcuffs, because no other officers
were present to assist.  As Andrea and Jessica continued to attempt CPR on their
mother, appellant appeared “very, very calm” as he observed his wife on the floor.  
          After emergency personnel arrived at the house and pronounced Carolyn dead,
the deputy returned the handcuffed appellant to the patrol car.  Harris County
Sheriff’s Deputy J.D. Gideon arrived at the scene and read appellant his rights. 
Appellant waived his rights and agreed to speak to the officers.   
          J. Ortiz, a deputy assigned as a crime-scene technician and latent fingerprint
examiner in the identification division of the Harris County Sheriff’s Department,
obtained appellant’s consent to search the house.  Deputy Ortiz entered the house,
photographed and videotaped it, and collected evidence that included six knives.  The
autopsy showed that Carolyn received 22 stab wounds and died as a result of
multiple, sharp-force injuries.
          Appellant gave an oral statement to Deputy Gideon while in custody at the
police station.  In that conversation, appellant told Deputy Gideon that his wife
informed him that she had filed for divorce, that she would take the house and the
money, that he “lost it,” walked to the kitchen, went back to the couch, and stabbed
her.
          At trial, appellant testified that he did not want to divorce Carolyn and still
loved her, but he acknowledged that he had previously filed for divorce and that they
had discussed divorce months earlier.  Appellant claimed that, when he knelt down
before Carolyn in an attempt to persuade her to attend marriage counseling with him,
she pulled a four-inch knife that was slightly larger than a steak knife from the side
of the sofa, which caused him to fear for his life.  According to appellant, Carolyn
swung the knife at him once, but she did not cut him, and he quickly disarmed her. 
Appellant stated that, at that point, “I panicked and I started stabbing her.”  Appellant
described his mental state at the time of the stabbing as “in another world,”
“panicking,” and in “fear of [his] life,” but he denied being upset.  Appellant
acknowledged that nothing prevented him from simply leaving the house after he
took the knife from Carolyn and that Jessica, who cut him with a knife, inflicted the
only wound that he received that night.  Appellant denied stabbing Jessica and denied
making any statement about stabbing his wife to the deputy constable who first
arrived at the house.  Appellant acknowledged that, before peace officers responded
to the stabbing at his house, he spoke on the telephone to family members, his
employer, and to the 911 operator, whom he told that he had stabbed his wife, but
without mentioning self-defense.  
Sufficiency of the Evidence to Establish Murder by Disproving Self-Defense
          Because appellant raised the issue of self-defense, to convict him for murder,
the State had to prove the elements of the offense beyond a reasonable doubt, and the
State had to persuade the jury that appellant did not kill his wife in self-defense. 
Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003).  In his third and fourth
points of error, appellant contends that the evidence is legally and factually
insufficient to support his conviction for murder because the State did not rebut his
assertion of self-defense beyond a reasonable doubt. 
          In assessing legal sufficiency, we determine whether, based on all of the record
evidence, viewed in the light most favorable to the verdict, a rational jury could have
found the accused guilty of all essential elements of the offense beyond a reasonable
doubt.  Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979);
Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003). In conducting our
review of the legal sufficiency of the evidence, we do not reevaluate the weight and
credibility of the evidence, but ensure only that the jury reached a rational decision. 
Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).
          In a factual sufficiency review, we view all the evidence in a neutral light and
will set the verdict aside only if the evidence is so weak that the verdict is clearly
wrong and manifestly unjust or the contrary evidence is so strong that the standard
of proof beyond a reasonable doubt could not have been met.  Escamilla v. State, 143
S.W.3d 814, 817 (Tex. Crim. App. 2004).  In conducting a factual sufficiency review,
we must discuss the evidence that appellant contends most undermines the jury’s
verdict.  See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). Unless the
available record clearly reveals that a different result is appropriate, we must defer to
the jury’s determination concerning what weight to give conflicting testimony
because resolution of facts often turns on evaluation of credibility and demeanor.  See
Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).  
          A person commits the offense of murder if he intentionally or knowingly
causes the death of an individual, or intends to cause serious bodily injury and
commits an act clearly dangerous to human life that causes the death of an individual. 
Tex. Pen. Code Ann. §§ 19.02(b)(1), 19.02(b)(2) (Vernon 2003).  However, a person
is generally justified in using deadly force against another if he reasonably believed
that deadly force was necessary to protect himself against the other’s use or attempted
use of unlawful force, and a reasonable person in the actor’s situation would not have
retreated.  Tex. Pen. Code Ann. §§9.31(a), 9.32(a) (Vernon 2003).  A defendant has
the burden of producing some evidence to support a claim of self-defense.  Zuliani,
97 S.W.3d at 594.  Once the defendant produces that evidence, the State then bears
the burden of persuasion to disprove the raised defense.  Id.  The burden of
persuasion does not require the State to produce evidence; it requires only that the
State prove its case beyond a reasonable doubt.  Id.  A determination of guilt by the
factfinder implies a finding against the defensive theory.  Id.  The issue of self-defense is a fact issue to be determined by the jury, which is free to accept or reject
the defensive issue.  Saxton v. State, 804 S.W.2d 910, 913-14 (Tex. Crim. App.
1991).  As the sole judge of the weight and credibility accorded any witness’s
testimony, the jury is free to believe or disbelieve the testimony of all witnesses, and
to accept or reject any or all of the evidence produced by the respective parties.  See
Upton v. State, 853 S.W.2d 548, 552 (Tex. Crim. App. 1993).  
          Appellant contends that the evidence is legally and factually insufficient to
disprove that he acted in self-defense because he feared for his life when his wife
swung at him with a knife. By his own admission, however, appellant stabbed his
wife after disarming her, while she was unarmed and seated on a sofa, even though
he could have easily left the house instead.  Appellant acknowledged that his wife
never harmed him physically in any way.  From appellant’s own testimony, a rational
jury could have therefore concluded that deadly force was not immediately necessary
for appellant to defend himself.  In addition, Andrea and Jessica both testified that
appellant stabbed Carolyn in the back as she was lying face down and bleeding by the
front door.  A rational jury also could also have reasonably concluded that appellant’s
conduct in continuing to stab his wife in the back as she lay bleeding on the floor was
inconsistent with his claim of self-defense.  Finally, the jury could have reasonably
found appellant’s claims of self-defense incredible because he did not claim self-defense until he testified at trial.
          After reviewing all of the evidence in the light most favorable to the verdict for
legal sufficiency analysis, we conclude that a rational jury could have reasonably
found against appellant on the issue of self-defense beyond a reasonable doubt.  See
Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2788-89.  Upon viewing all the evidence in
a neutral light for factual sufficiency analysis, we further conclude that the jury was
justified in finding appellant guilty of murder beyond a reasonable doubt by impliedly
finding against him on his claim of self-defense.  See Escamilla, 143 S.W.3d at 817. 
The evidence supporting the verdict is not so weak that the jury’s finding appellant
guilty of murder beyond a reasonable doubt is clearly wrong and manifestly unjust;
nor is appellant’s contrary evidence so strong that the State’s burden to disprove self-defense beyond a reasonable doubt could not have been met.  See id.
          We overrule appellant’s third and fourth points of error.
Motion to Suppress Evidence 
          In his first point of error, appellant contends that the trial court erred by
allowing the State to introduce evidence of the search of appellant’s residence in
violation of appellant’s federal constitutional right against unreasonable searches and
seizures,
 because the State failed to prove that appellant consented to the search
voluntarily, knowingly, and intelligently.
          A search conducted with the voluntary consent of the suspect is an exception
to the constitutional requirement that a search be conducted only pursuant to a
warrant issued upon a finding of probable cause.  See Ohio v. Robinette, 519 U.S. 33,
40, 117 S. Ct. 417, 421 (1996); Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.
Ct. 2041, 2043-44 (1973); Maxwell v. State, 73 S.W.3d 278, 281 ( Tex. Crim. App.
2002); Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000). The State
must prove by a preponderance of the evidence that the consent was freely and
voluntarily given.  Maxwell, 73 S.W.3d at 281.  We examine all of the circumstances
to determine whether the State met this burden.  Id.  To be valid, consent must not be
coerced by explicit or implicit means, by implied threat, or by covert force. 
Schneckloth, 412 U.S. at 228, 93 S. Ct. at 2048; Carmouche, 10 S.W.3d at 331. 
Among the factors that determine voluntariness are whether the consenting person is
in custody, whether he was arrested at gunpoint, and whether the person was
informed that he did not have to consent.  Carmouche, 10 S.W.3d at 331.
          We review the trial court’s ruling on a motion to suppress evidence for abuse
of discretion. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  At a
suppression hearing, the trial court is the sole and exclusive trier of fact and judge of
the credibility of the witnesses and their testimony.  Maxwell, 73 S.W.3d at 281.  The
appropriate standard for reviewing a trial court’s ruling on a motion to suppress is
bifurcated:  we defer almost totally to the trial court’s determination of historical facts
and review de novo the court’s application of the law.  Id.; Guzman, 955 S.W.2d at
89. 
          Appellant contends that he did not consent voluntarily to the search of his
house because, when he gave the consent (1) he had not been given Miranda

warnings; (2) he had not been told that he had the right to decline consent; (3) he had
not been taken before a magistrate; and (4) he was handcuffed in the backseat of the
patrol car. The record does not support appellant’s first two assertions, but shows
instead that, when Deputy Gideon first approached appellant at his house on the night
of the stabbing, the deputy read appellant his rights.
  Additionally, the written
consent form that appellant signed informed him that he had a right to decline
consent,
 as follows:
I, Andre Paul Cleveland, having been informed by the
below officers of my constitutional right not to have a
search made of my premises and/or vehicle hereafter
mentioned without a search warrant and of my right to
voluntarily consent to such a search, hereby authorize J.
Ortiz and J[.] Gideon and other peace officers of the Harris
County Sheriff’s Department, to conduct a complete search
of [my] residence located at 2415 Woodsboro, in Harris
County, Texas.  These officers are authorized by me to
seize any and all letters, papers, material and other
property, which they desire.  This consent is being given to
the above peace officers freely and voluntarily and with out
[sic] threats or promises of any kind and is given with my
full and free consent.  

          Appellant correctly asserts that he was never taken before a magistrate prior to
giving his consent, but cites no authority requiring that he appear before a magistrate
for the consent to be voluntary.  See Rosalez v. State, 875 S.W.2d 705, 722 n. 20
(Tex. App.—Dallas 1993, pet. ref’d) (“[T]he failure to take an accused before a
magistrate does not in itself invalidate a consent to search unless such failure in some
manner caused or contributed to bringing about the consent to search.”).  Because the
record shows that Deputy Gideon read appellant his rights at the scene before he gave
consent, and also shows that appellant was informed, both orally and in writing, of
his constitutional right not to have officers search his residence, his not receiving
those warnings from a magistrate does not render his consent to search involuntary. 
          Appellant’s last assertion concerning the voluntariness of his consent to search
is that he was handcuffed in the backseat of the patrol car before he signed the
consent form.  The record shows that, when Deputy Ortiz approached appellant to
request his consent, the deputy read the consent-to-search form aloud to appellant,
appellant indicated that he understood it and signed it after his handcuffs were
removed.  The record further demonstrates that the officers’ guns were not drawn
when appellant consented, and that no threats were made to appellant.  See Rayford
v. State, 125 S.W.3d 521, 528-29 (Tex. Crim. App. 2003) (“Nor is consent rendered
involuntary merely because the accused is under arrest, at least when the officers’
guns are not drawn.”).  Appellant’s consent was not rendered involuntary merely
because he was under arrest in handcuffs in the rear seat of a patrol car before signing
the consent form.
          We conclude that appellant’s consent was voluntary under the circumstances
demonstrated by the record, which show that the written consent form was read aloud
to appellant, who understood it, that appellant was read his rights before giving his
consent, that appellant was advised in writing that he had a constitutional right not
to have a search made of his premises without a warrant, and that no threats or
promises were made to induce appellant’s consent.  Additionally, appellant’s
demeanor was described as “fully cooperative,” “normal,” “seemed like he knew what
he was doing,” and “functioning okay.” 
          Viewing the circumstances as a whole and giving deference to the trial court’s
implied findings of historical fact, we hold that the State established by a
preponderance of the evidence that appellant voluntarily consented to the search of
his residence, and, therefore, that the trial court did not abuse its discretion by
overruling appellant’s stated objections to admitting the evidence seized from his
residence. 
          We overrule appellant’s first point of error.
Jury Argument Concerning Post-Arrest Silence
          In his second point of error, appellant contends that the portion of the 
prosecutor’s closing argument to the jury regarding appellant’s self-defense claim
“was a comment on the appellant exercising his right to remain silent under the State
Constitution.”  Appellant’s complaint on appeal concerns only article I, section 10 of
the Texas Constitution.  See Tex. Const. art. I, § 10.  
          Appellant complains of the following closing argument by the State’s attorney
during the guilt-innocence phase of trial:  
State’s attorney: . . . [H]e never even uttered a word about self-defense until yesterday from that stand.  That’s the
first time we ever heard that ludicrous story. . . Lots
of chances to tell about self-defense.
                              . . . 
 
State’s attorney:He talked to his momma, he talked to his sister, he
talked to Boston Market, he talked to a 911 operator. 
He talked to Hagerty.  He talked to Gideon.  Not
once did the word “self-defense” come out of his
mouth.  He got to sit right there in that chair, watch
every one of the State’s witnesses come in here and
tell what they had to say and then he got to
formulate his defense.  Unlike any other witness, he
got a preview of the State’s case.

Appellant’s trial counsel objected to the argument by asserting that appellant “has a
right to remain silent.  I object to being improper argument on the part of counsel.” 
The trial court overruled the objection and allowed appellant a “continuing
objection.”
          Article I, section 10 of the Texas Constitution protects a defendant’s post-arrest
silence even before his Miranda warnings have been administered.  Heidelberg v.
State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004).  In contrast, the Fifth
Amendment of the federal constitution protects post-arrest silence made only after
a defendant’s Miranda warnings have been given.  Id. 
          Rule of Appellate Procedure 33.1(a)(1)(A) provides, in part, that for a
complaint to be presented on appeal, a timely request, objection, or motion must have
been made to the trial court, which “states the grounds for the ruling that the
complaining party sought from the trial court with sufficient specificity to make the
trial court aware of the complaint, unless the specific grounds were apparent from the
context.”  Tex. R. App. P. 33.1(a)(1)(A).  Additionally, it is well-settled that the legal
basis of a complaint raised on appeal cannot vary from the legal basis asserted at trial. 
Heidelberg, 144 S.W.3d at 537.  Heidelberg held that an objection at trial, that
Heidelberg’s Fifth Amendment rights were violated, was not sufficient to preserve
a complaint on appeal that his rights to post-arrest silence under the Texas
Constitution  were violated.  See id.  
          To preserve error concerning the greater post-arrest silence protections
afforded to defendants under the Texas Constitution, a defendant’s objection must
refer specifically to either the Texas Constitution or the Sanchez case.  See
Heidelberg, 144 S.W.3d at 537; Sanchez v. State, 707 S.W.2d 575, 582 (Tex. Crim.
App. 1986).  Because appellant complained only generally at trial of his “right to
remain silent,” without any further assertions concerning his rights to post-arrest
silence under either the Texas Constitution or the Sanchez case, we hold that
appellant’s trial objection was not sufficient to make the trial court aware of his
complaint.  See Heidelberg, 144 S.W.3d at 537; Sanchez, 707 S.W.2d 582; Tex. R.
Evid. Ann. 103(a)(1).  We further hold that the specific grounds of appellant’s
complaint were not apparent from the context.  See Tex. R. App. P. 33.1(a)(1)(A). 
Appellant has not preserved this issue on appeal.
          We overrule appellant’s second point of error.
 
Sufficiency of Evidence of Sudden Passion in Punishment Phase of Trial
          Until September 1, 1994, evidence that the defendant killed a person while
acting under the immediate influence of sudden passion arising from an adequate
cause was raised by a defendant at the guilt-innocence phase of trial; to obtain a
conviction for murder, the State had the burden to disprove the sudden passion issue
beyond a reasonable doubt. Bradley, 688 S.W.2d at 851.  In 1993, the Legislature
changed the sudden passion issue from a guilt-innocence issue to a punishment issue,
as follows: “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.” 
See Act of May 29, 1993, 73rd Leg., R.S., ch 900, § 1.01, 1993 Tex. Gen. Laws 3586,
3614 (codified by Tex. Pen. Code Ann. § 19.02(d) (Vernon 2003)); see also
Hernandez v. State, 127 S.W.3d 206, 211-12 (Tex. App.—Houston [1st Dist.] 2003,
pet. ref’d) (holding that defendant bears burden at punishment phase of trial to prove
issue of sudden passion by preponderance of evidence).  The jury charge at the
punishment phase of appellant’s trial contained a special issue asking the jury
whether appellant proved by a preponderance of the evidence that he killed his wife
out of sudden passion arising from an adequate cause.  The jury’s punishment verdict
was:  “We do not.”  
          In addition to sudden passion, other offenses in our Penal Code place the
burden of proof on the defendant to prove certain issues by a preponderance of the
evidence.  For example, the offense of aggravated kidnapping similarly places the
burden of proof on the defendant in the punishment phase of trial; if the defendant
proves by a preponderance of the evidence that the kidnapping victim was voluntarily
released in a safe place, the defendant receives a reduced punishment range. See Tex.
Pen. Code Ann. § 20.04 (d) (Vernon 2003).  The Penal Code also proscribes that
certain defenses are affirmative defenses that the defendant must prove in the guilt-innocence phase of trial by a preponderance of the evidence.  See Tex. Pen. Code
Ann. § 2.04 (Vernon 2003) (stating law of affirmative defenses); see also Tex. Pen.
Code Ann. § 8.01 (Vernon 2003) (insanity is affirmative defense); Tex. Pen. Code
Ann. § 8.05 (Vernon 2003) (duress is affirmative defense); Tex. Pen. Code Ann. §
25.05 (d) (Vernon 2003) (inability to provide child support is affirmative defense for
criminal nonsupport).  Similarly, a defendant is presumed to be competent to stand
trial unless proved incompetent by a preponderance of the evidence.  See Tex. Code
Crim. Proc. Ann. art. 46B.003(b) (Vernon Supp. 2004-2005).  
          The issue of sudden passion in a murder case thus places the burden of proof
on the defendant to prove the issue by a preponderance of the evidence in the same
manner as the following:  voluntary release in an aggravated kidnapping case; the
affirmative defenses of insanity and duress; the affirmative defense of inability to pay
child support in a criminal nonsupport case; and proof of incompetency to stand trial. 
          Appellant’s fifth and sixth points of error challenge the legal and factual
sufficiency of the evidence concerning the jury’s negative finding on the affirmative
defense of sudden passion, which appellant had the burden to prove by a
preponderance of the evidence.  Tex. Pen. Code Ann. §§ 19.02(d); 20.04.  Well-established law permits appellate review of the factual sufficiency of the evidence to
support a jury’s negative finding on an issue for which the defendant had the burden
of proof at trial. Meraz v. State, 785 S.W.2d 146, 154-55 (Tex. Crim. App. 1990);
Hernandez, 127 S.W.3d at 211-12; Zuniga v State, 144 S.W.3d 477, 482 (Tex. Crim.
App. 2004).
          Concerning legal sufficiency challenges to a jury’s negative finding on an issue
for which the defendant had the burden of proof at trial, however, in Patterson v.
State, 121 S.W.3d 22, 24 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d, untimely
filed), we concluded that lack of jurisdiction precluded review of these challenges.
 
We now overrule that portion of Patterson and hold, based on the reasoning set out
below, that we may properly review both types of sufficiency challenges—those by
which we review the evidence as a matter of law, for legal sufficiency, and those by
which we review the evidence neutrally, for factual sufficiency.
Legal Sufficiency Reviews of Sudden Passion
          A. Jurisdiction
          The State contends that we lack jurisdiction to conduct a legal sufficiency
review of a jury’s negative finding on the sudden passion issue. See Patterson, 121
S.W.3d at 24; see also Naasz v. State, 974 S.W.2d 418, 421 (Tex. App.—Dallas 1998,
pet. ref’d) (“When a defendant seeks appellate review of a jury’s failure to make a
finding on which the defendant has the burden of proof, such as on an affirmative
defense, the defendant invokes our factual review jurisdiction.”) (emphasis added). 
Naasz relied on Meraz.  Naasz, 974 S.W.2d at 421 (citing Meraz, 785 S.W.2d at 154-55).  Meraz, however, did not hold that appellate courts have no jurisdiction to
conduct legal sufficiency reviews on a jury’s negative finding of an issue that the
defendant must prove.  Meraz addressed only what review governs factual sufficiency
reviews of a jury’s negative finding on issues that the defendant had the burden to
prove.  See Meraz, 785 S.W.2d at 154-55; Howard v State, 145 S.W.3d 327, 333-34
(Tex. App.—Fort Worth 2004, no pet.).
          Pursuant to article V, section 6(a) of the Texas Constitution, “Courts of
Appeals shall have appellate jurisdiction . . . conclusive on all questions of fact
brought before them on appeal or error.”  Clewis v. State, 922 S.W.2d 126, 129 & n.4
(Tex. Crim. App. 1996) (quoting Tex. Const. art. V, § 6(a)).  The Constitution thus
permits review of both legal and factual sufficiency of the evidence when the State
has the burden of proof concerning elements of the offense.  See id. at 131, n. 4
(citing Tex Const. art. V, §§ 5 & 6).
          In civil cases, appellate courts have jurisdiction to review the evidence for legal
sufficiency when an appellant challenges the legal sufficiency of the evidence to
support the jury’s adverse answer to an issue on which he had the burden of proof. 
See Howard, 145 S.W.3d at 333-34 (citing Victoria Bank & Trust Co. v. Brady, 811
S.W.2d 931, 940 (Tex. 1991); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690
(Tex. 1989)).  We discern no rational basis on which to reconcile Patterson’s
conclusion, that we lack jurisdiction to review challenges to the legal sufficiency of
the evidence to support a factfinder’s negative finding on an issue that a criminal
defendant had to prove at trial, with Article V, section 6(a)’s conferring this Court
with final, conclusive jurisdiction over factual resolutions, which jurisdiction we have
consistently and unquestionably exercised to review legal and factual sufficiency
challenges in criminal cases in which the State had to prove the elements of the
offense at trial, and in civil cases in which either party challenges the factfinder’s
negative finding on issue that the challenging party had to prove at trial.  We
therefore conclude and hold that Article V, Section 6(a) of the Constitution vests this
Court with jurisdiction to review the evidence as a matter of law for legal sufficiency
 and neutrally for factual sufficiency.
 See Howard, 145 S.W.3d at 332.  Accordingly,
a majority of the en banc court overrules the portion of the Patterson opinion in
which we stated that we have no jurisdiction to conduct a legal sufficiency review of
the jury’s negative finding on an issue that the defendant had to prove.  See Patterson,
121 S.W.3d at 24.
          B. Standard of Review
          We must next determine what standard of review applies for determining the
legal sufficiency of the evidence concerning negative findings on issues that the
defendant had to prove by a preponderance of the evidence.
          We review legal and factual sufficiency of the evidence when the State has the
burden of proof concerning elements of an offense as follows.  Review for legal
sufficiency assesses the evidence in the light most favorable to the jury’s verdict and
is the minimum standard for comporting with federal due process as stated in 
Jackson v. Virginia, 443 U.S. at 318-19, 99 S. Ct. at 2788-89.  See Clewis, 922
S.W.2d at 128-29.  Review for factual sufficiency assesses the evidence neutrally.
See Clewis, 922 S.W.2d at 131-33.  The remedies an appellant seeks and receives
from the reviews also differ.  If the evidence is legally insufficient to establish the
elements of the offense, the appellant is acquitted and may not be retried for the
offense; if the evidence is factually insufficient to establish the elements of the
offense, the appellant may be retried for the offense.  Id. at 131.
          As stated in Meraz, in criminal cases in which a defendant challenges the
factual sufficiency of the evidence to support a jury’s negative finding on an issue
that the defendant had to prove, the standard is the same used in civil cases,
specifically, whether the verdict is so against the great weight and preponderance of
the evidence as to be manifestly unjust. Meraz, 785 S.W.2d at 154-55; Howard, 145
S.W.3d at 330-33.  Although the Meraz court concluded that the proper standard for
review of factual sufficiency challenges to a negative finding on an issue that the
defendant had to prove is not the legal sufficiency standard used in Jackson v.
Virginia, 443 U.S. at 318-19, 99 S. Ct. at 2788-89,  Meraz is silent concerning what
standard of review applies to evaluate the legal sufficiency of the evidence when a
jury returns a negative answer on an issue that the defendant had to prove.

          Consistent with our reliance on civil law for the standard of review for factual
sufficiency reviews, we conclude that the proper standard in criminal cases for review
of legal sufficiency challenges to a jury’s negative finding on an issue that the
defendant had to prove is the same standard applied in civil cases.  See Howard, 145
S.W.3d at 333 (citing Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.
1989)); Meraz, 785 S.W.2d at 154-55; Zuniga, 144 S.W.3d at 482. Under that
standard, a criminal defendant who attacks the legal sufficiency of the evidence to
support a negative finding on an issue that he had to prove must overcome two
hurdles.  Howard, 145 S.W.3d at 333-34 (citing Victoria Bank & Trust Co. v. Brady,
811 S.W.2d 931, 940 (Tex. 1991)).  First, the court of appeals must examine the
record for evidence that supports the finding while ignoring all evidence to the
contrary.  Id. at 334.  Second, if no evidence supports the negative finding, the
appellate court examines the entire record to determine whether it establishes the
contrary proposition as a matter of law.  Id. (citing Sterner, 767 S.W.2d at 690).
          We hold that the Sterner standard is the proper standard by which to review a
criminal defendant’s legal sufficiency challenge to the trier of fact’s negative finding
of an issue that the defendant had to prove by a preponderance of the evidence.  See
id.  Our holding today places us in line with a majority of Texas courts that apply the
civil standard from Sterner to these challenges.  See Howard, 145 S.W.3d at 332;
Nolan v. State, 102 S.W.3d 231, 237-38 (Tex. App.—Houston [14th Dist.] 2003, pet.
ref’d) (applying civil standard to legal sufficiency challenge to jury’s rejecting
affirmative defense); Centell v. State, Nos. 07-98-0344-CR & 07-98-0345CR, 2000
WL 96246, at *4 (Tex. App.—Amarillo Jan. 28, 2000, pet. ref’d) (not designated for
publication) (same); Brena v. State, No. 07-97-0429-CR, 1999 WL 606681, at *2
(Tex. App.—Amarillo Aug. 11, 1999, pet. ref’d) (not designated for publication)
(same); Moranza v. State, 913 S.W.2d 718, 723 (Tex. App.—Waco 1995, pet. ref’d)
(same); Cover v. State, 913 S.W.2d 611, 619 (Tex. App.—Tyler 1995, pet. ref’d)
(same).
          The Sterner standard for legal sufficiency, employed to review the jury’s
negative finding on an issue that the criminal defendant had to prove, differs from the
Jackson v. Virginia legal sufficiency standard.  See Jackson v. Virginia, 443 U.S. at
318-19, 99 S. Ct. at 2788-89.  Jackson addresses a due process review of the evidence
in the light most favorable to the jury’s verdict concerning the elements of the offense
that the State had to prove beyond a reasonable doubt.  See id.  The Sterner standard
for legal sufficiency review, however, applies only when reviewing the evidence to
support the factfinder’s having rejected an issue that the defendant had to prove by
a preponderance of the evidence.
  Sterner, 767 S.W.2d at 690.  Additionally,
although a finding of legal insufficiency of the evidence under the Jackson v. Virginia
standard would require acquittal of the defendant, see 443 U.S. at 318-19, 99 S. Ct.
at 2788-89, a holding of legal insufficiency of the evidence to support the jury’s
negative finding on the issue of sudden passion would compel the conclusion that the
defendant established sudden passion as a matter of law and therefore compel a
remand for sentencing on the second-degree punishment range for sudden passion.

Tex. Pen. Code Ann. § 19.02(d).
          As when addressing other legal and factual sufficiency challenges in criminal
cases, in applying the Sterner legal-sufficiency standard of review, we must also defer
to the factfinder’s determination of the credibility of the witnesses and the weight to
give evidence.  See Muniz, 851 S.W.2d at 246 (stating that in conducting legal
sufficiency review of evidence under the Jackson standard, appellate courts do not
reevaluate weight and credibility of evidence, but ensure only that jury reached
rational decision); Johnson, 23 S.W.3d at 8 (stating that appellate court conducting
factual sufficiency review must defer to jury’s determination concerning what weight
to give conflicting testimony because resolution often turns on evaluation of
credibility and demeanor).  Applying the two-part Sterner standard for legal
sufficiency in criminal cases thus gives full play to the factfinder’s role as the
exclusive determiner of facts.
          Assuming, in a hypothetical case, that applying the first prong of the Sterner
legal-sufficiency standard showed that no evidence in the record supported the jury’s
negative finding on the sudden passion issue, we would then be required to examine
the record under the second prong of the Sterner test.  See Sterner, 767 S.W.2d at
690.  Applying the second prong, we would search the entire record to determine
whether the defendant established, as a matter of law, that he caused the death out of
sudden passion arising out of adequate case.  See id.; Tex. Pen. Code Ann. §
19.02(d).  If the search of the record revealed evidence of sudden passion that was
subject to a credibility assessment by the factfinder, which the jury was therefore
entitled to disbelieve, we would not consider that evidence in our matter-of-law
assessment. See Muniz, 851 S.W.2d at 246; Johnson, 23 S.W.3d at 8.
  If, however,
the search of the record revealed evidence of sudden passion that was not subject to
a credibility assessment by the jury, for example, a stipulation of evidence by the
State and the defendant stating that the defendant caused the death of the deceased
out of sudden passion arising out of an adequate cause, then the evidence would show
as a matter of law that the defendant proved the issue of sudden passion. 
          We can envision no circumstances in which physical evidence could
conclusively resolve the issue of sudden passion and acknowledge that, in most cases,
sudden passion is resolved exclusively by the jury’s assessment of whether the
witness is credible.  The Sterner matter-of-law determination is thus left for those rare
instances in which the sudden passion issue can be determined from evidence that is
not subject to a credibility determination by the jury as, for example, a stipulation of
evidence by the parties.  Although this is a very high standard that a defendant would
rarely meet, it nevertheless provides a mechanism that enables appellate courts to
exercise their constitutionally vested jurisdiction and provide relief to a defendant
who can conclusively establish that the jury disregarded evidence that was not subject
to a credibility assessment and which conclusively established the defendant’s
punishment-mitigation issue.

          C. Analysis of Appellant’s Sudden Passion Facts for Legal Sufficiency 
          Applying the Sterner matter-of-law standard, we first examine the record solely
for evidence that supports the jury’s negative finding on the issue of sudden passion,
while ignoring all evidence contrary to that finding.  “Sudden passion means 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.”  Tex. Pen. Code Ann. § 19.02(a)(2)
(Vernon 2003).  Adequate cause means 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.  Tex. Pen. Code Ann. § 19.02(a)(1)
(Vernon 2003).
          Appellant denied being upset, angry or irate.  Appellant appeared calm and did
not scream, cry, or do anything to help Carolyn.  The record shows no immediate
influence arising out of an adequate cause when appellant stabbed his wife as she lay
bleeding on the floor, after interrupting the stabbing to scrub the sofa where he had
stabbed her earlier.  Ignoring all evidence contrary to the jury’s negative finding on
the sudden-passion issue, we conclude that some evidence in the record shows that
appellant did not kill his wife out of sudden passion arising from an adequate cause. 
 Having reached that conclusion, our legal sufficiency inquiry ends.  See Sterner, 767
S.W.2d at 690; Howard, 145 S.W.3d at 333-34.  We hold that the evidence
concerning the jury’s negative finding on sudden passion is legally sufficient as a
matter of law.
          We overrule appellant’s fifth point of error.
Factual Sufficiency Review of Sudden Passion
          An appellate court may properly conduct a factual sufficiency review of the
jury’s negative finding on the sudden passion issue in the punishment stage of trial. 
Hernandez, 127 S.W.3d at 211-12 (holding that appellate court may conduct factual
sufficiency review of jury’s negative answer to issue of sudden passion special issue
that defendant had burden to prove by preponderance of evidence in punishment
phase of trial); see Zuniga, 144 S.W.3d at 482 (stating that criminal defendant may
assert factual insufficiency challenge to attack jury’s failure to find elements of
affirmative defense, or issue on which defendant had burden of proof).  When the
defendant has asserted an affirmative defense or has the burden of proof on an issue,
a reviewing court considers all the evidence and determines whether the judgment is
“so against the great weight and preponderance of the evidence so as to be manifestly
unjust.”  Id.  In our factual sufficiency review of the evidence, we review all of the
evidence neutrally, but we do not intrude on the factfinder’s role as the sole judge of
the weight and credibility given to any witness’s testimony.  See Johnson, 23 S.W.3d
at 7-8.
          Appellant asserts two arguments that the evidence is factually insufficient to
establish sudden passion.  He first contends that the State conceded that he killed his
wife out of sudden passion by stating as follows in its closing argument in the guilt-innocence phase of trial:  “Well, let’s look at what evidence there is of intent to kill. 
22 stab wounds in the front, in the back, on the side, in the head, on the face.  That’s
not intent to kill; that’s overkill.  That’s hatred and that’s - - that’s: If I can’t have
you, nobody can.”  Contrary to appellant’s assertion, the State’s closing argument and
theory at trial simply demonstrated “hatred” and “overkill,” which do not
categorically constitute passion arising out of an adequate cause.  See Tex. Pen.
Code Ann. § 19.02(a)(1) (defining adequate cause as anger, rage, resentment, or
terror, in a person of ordinary temper “sufficient to render the mind incapable of cool
reflection.”); Hernandez, 127 S.W.3d at 211 (holding that ordinary anger or causes
of defendant’s own making are not legally adequate causes).  
          In his second factual sufficiency challenge, appellant asserts that he met the
statutory definition of sudden passion through evidence that he felt “strange” and
“upset.”  We disagree.  Feeling “strange” and “upset” does not constitute sudden
passion arising out of adequate cause.  See Tex. Pen. Code Ann. § 19.02(a)(1)
(defining adequate cause as anger, rage, resentment, or terror, in a person of ordinary
temper “sufficient to render the mind incapable of cool reflection.”); Gaston v. State,
930 S.W.2d 222, 226 (Tex. App.—Austin 1996, no pet.) (holding that although
defendant “went blank or into a trance, stopped thinking, felt hurt and angry, and lost
control of himself” due to wife’s nagging, taunting, and promising divorce and
property dispute, evidence was not adequate cause to support sudden passion jury
instruction).
          Appellant does not contend that the evidence is factually insufficient because
he felt “panicked.”  But, even if evidence of panic could constitute sudden passion
here, we note further that appellant’s feeling panicked conflicts with other evidence
that he was calm, not upset, not angry and not irate.  Reconciling these conflicts was
thus best left to the jury to resolve by credibility assessments of the witnesses’
testimony.  Compare Miller v. State, 753 S.W.2d 473, 476 (Tex. App.—Houston [1st
Dist.] 1988, pet. ref’d) (holding evidence of panic insufficient to raise sudden passion
issue, and thus no jury instruction required) with Brunson v. State, 864 S.W.2d 888,
895 (Tex. App.—Austin 1989, no pet.) (holding evidence of panic sufficient evidence
to raise issue of sudden passion requiring jury instruction on issue).
          Evidence that rebuts appellant’s defense of sudden passion arising from an
adequate cause includes testimony that described his demeanor as not upset, not
angry, not irate, but calm, in addition to evidence that appellant continued to stab his
wife as she lay bleeding on the floor, even after he stopped to scrub her blood from
the sofa where he had stabbed her earlier.
          After viewing all of the evidence in a neutral light, we hold that the evidence
supporting the jury’s failure to find that appellant acted in sudden passion is not so
against the great weight and preponderance of the evidence that the verdict is clearly
wrong and manifestly unjust.  See Zuniga, 144 S.W.3d at 481.
          We overrule appellant’s sixth point of error.Conclusion
          We affirm the judgment of the trial court.



                                                             Elsa Alcala
                                                             Justice


En Banc court consists of Chief Justice Radack and Justices Taft, Nuchia, Jennings,
Keyes, Alcala, Hanks, Higley, and Bland.

Justice Jennings, concurring, joined by Justice Keyes.

Publish.  Tex. R. App. P. 47.2(b).
