Opinion
04-20-00228-CR
03-30-2022
Jorge RODRIGUEZ, Jr., Appellant v. The STATE of Texas, Appellee
DO NOT PUBLISH
From the 406th Judicial District Court, Webb County, Texas Trial Court No. 2019CRB000030D4 Honorable Oscar J. Hale, Jr., Judge Presiding.
Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Beth Watkins, Justice
MEMORANDUM OPINION
PATRICIA O. ALVAREZ, JUSTICE
AFFIRMED IN PART, REVERSED AND REMANDED IN PART
In this appeal from a murder conviction, Appellant Jorge Rodriguez, Jr., argues the trial court erred in denying his request for a sudden passion instruction during the punishment phase of his trial. For the reasons below, we affirm his conviction but reverse his sentence. We remand for a new trial on punishment.
Background
According to Rodriguez's testimony, he and the victim had a sexual relationship, and the victim paid Rodriguez for sex. Then, Rodriguez burglarized the victim's home more than one 1 time, stealing landscape tools, a television and DVD player, an Alexa device, and a couple of watches. Rodriguez testified that he pawned a lawnmower he stole but returned an edge trimmer. When he returned the trimmer, Rodriguez testified that he and the victim sat and talked and smoked cigarettes for an hour before the victim asked if Rodriguez would have sex with him to compensate for the theft. At first, Rodriguez agreed, but after both men undressed, Rodriguez changed his mind and told the victim he wanted to leave. According to Rodriguez, the victim grabbed his wrists and sat on him. The two men struggled. Rodriguez stated he managed to push the victim backwards and then run from him. He grabbed a knife in the kitchen. Rodriguez stated he used the knife to defend himself by slashing the victim. The victim collapsed from his sharp force injuries and died.
At trial, the jury was instructed on self-defense during the guilt phase. But after the jury rejected Rodriguez's theory of self-defense, the trial court declined to grant Rodriguez's request for a sudden passion instruction in the punishment phase. Rodriguez now appeals his conviction and punishment.
Sudden Passion Instruction in the Punishment Phase
A. Parties' Arguments
Rodriguez argues that he was entitled to a sudden passion instruction during the punishment phase of his trial and that the trial court applied the wrong legal standard in denying it. The State responds that the evidence did not meet the legal standard for instructing the jury on sudden passion during the punishment phase and that this court should affirm the trial court's judgment.
B. Standard of Review
"Our first duty in analyzing a jury-charge issue is to decide whether error exists." Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (citing Middleton v. State, 125 S.W.3d 450, 2 453 (Tex. Crim. App. 2003)). Where a trial court has refused to give a sudden passion instruction at the punishment phase, it is the reviewing court's duty "to look at the evidence supporting the charge of sudden passion, not the evidence refuting it" in deciding whether error has occurred. Beltran v. State, 472 S.W.3d 283, 294 (Tex. Crim. App. 2015) (citing Trevino v. State, 100 S.W.3d 232, 239 (Tex. Crim. App. 2003) (per curiam)).
If we find error, then we consider whether to reverse based on the resultant harm. Gonzalez v. State, 610 S.W.3d 22, 27 (Tex. Crim. App. 2020) (citing Jordan v. State, 593 S.W.3d 340, 346 (Tex. Crim. App. 2020)); see also Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). In cases like this one where a trial court denied a sudden passion instruction in the punishment phase, if the trial court erred, the Court of Criminal Appeals has "focused on the likelihood that the jury would have found sudden passion based on the state of the record as a whole." Wooten v. State, 400 S.W.3d 601, 608 (Tex. Crim. App. 2013) (citing Trevino, 100 S.W.3d at 236). In Wooten, the Court of Criminal Appeals stated the standard as follows: "If the error is preserved, as it was here, the record must demonstrate that the appellant has suffered 'some harm.'" Id. at 606 (citing Trevino, 100 S.W.3d at 242). "Harm must be evaluated in light of the complete jury charge, the arguments of counsel, the entirety of the evidence, including the contested issues and weight of the probative evidence, and any other relevant factors revealed by the record as a whole." Id. (citing Almanza, 686 S.W.2d at 171). "To assay harm, we focus on the evidence and record to determine the likelihood that a jury would have believed that the appellant acted out of sudden passion had it been given the instruction." Id. (citing Trevino, 100 S.W.3d at 243). 3
C. Applicable Law
1. Sudden Passion (Potential Source of Error)
In the punishment phase of a trial, a sudden passion charge should be given if there is some evidence to support it, and if the defendant requests it. Wooten, 400 S.W.3d at 605 (citing McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005); Trevino, 100 S.W.3d at 238); accord Beltran, 472 S.W.3d at 289. "The defendant has the burden of production and persuasion with respect to the issue of sudden passion." Beltran, 472 S.W.3d at 289 (citing Wooten, 400 S.W.3d at 605). His testimony alone can justify requiring an instruction on the charge. Beltran, 472 S.W.3d at 290 (citing Shaw v. State, 243 S.W.3d 647, 662 (Tex. Crim. App. 2007)). The record must at least reflect an inference that:
See also Griffin v. State, 461 S.W.3d 188, 193 (Tex. App.-Houston [1st Dist.] 2014, no pet.) (noting that sudden passion and self-defense are often raised together but that the inquiries are materially different and that separate analyses are nevertheless required).
"This rule is designed to insure that the jury, not the judge will decide the relative credibility of the evidence. When a judge refuses to give an instruction on a defensive issue because the evidence supporting it is weak or unbelievable, he effectively substitutes his judgment on the weight of the evidence for that of the jury. The weight of evidence in support of an instruction is immaterial." Shaw v. State, 243 S.W.3d 647, 662 (Tex. Crim. App. 2007) (quoting Woodfox v. State, 742 S.W.2d 408, 409-10 (Tex. Crim. App. 1987)).
(1) the defendant acted under the immediate influence of a passion such as terror, anger, rage, or resentment; (2) his sudden passion was in fact induced by some provocation by the deceased or another acting with him, which provocation would commonly produce such a passion in a person of ordinary temper; (3) he committed the murder before regaining his capacity for cool reflection; and (4) a causal connection existed between the provocation, passion, and homicide.Griffin v. State, 461 S.W.3d 188, 192 (Tex. App.-Houston [1st Dist.] 2014, no pet.) (internal quotations omitted) (citing Wooten, 400 S.W.3d at 605); accord Herrera v. State, 513 S.W.3d 223, 225 (Tex. App.-San Antonio 2016, no pet.). 4
2. Likelihood of Instruction Affecting the Verdict (Potential Source of Harm)
If the trial court errs in refusing to give a sudden passion instruction, "we focus on the evidence and record to determine the likelihood that a jury would have believed that the appellant acted out of sudden passion had it been given the instruction." Wooten, 400 S.W.3d at 606 (citing Trevino, 100 S.W.3d at 243). In Trevino, the Court of Criminal Appeals concluded that it was reversible error to deny a punishment-phase sudden-passion instruction where the evidence showed that the appellant may have murdered his wife in sudden passion. Trevino, 100 S.W.3d at 242. Trevino's wife had recently asked for a divorce. Id. at 233. The evidence from the murder scene suggested that Trevino shot his wife in cold blood and then staged the scene to make it look like self-defense. Id. However, it was also possible to infer from the evidence that Trevino shot his wife in sudden passion and then staged the scene to look like self-defense. Id. at 242. The Trevino court determined that the jury should have been permitted to consider both possibilities, and preventing that consideration constituted some harm to Trevino. Id.; see also Benavides v. State, 992 S.W.2d 511, 525 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd) (quoting Gold v. State, 736 S.W.2d 685, 690 (Tex. Crim. App. 1987), overruled on other grounds by Torres v. State, 785 S.W.2d 824, 825 (Tex. Crim. App. 1990)) ("Resolution of such a question is uniquely the province of the fact finder.").
Conversely, in Wooten, the Court of Criminal Appeals stated, "It is highly unlikely that a jury that had already rejected the appellant's claim that he reasonably believed that deadly force was immediately necessary to defend himself would nevertheless find in his favor on the issue of sudden passion." Wooten, 400 S.W.3d at 609. In Wooten, the appellant and the victim fired guns at each other, and no witness could say which party fired first. Id. at 603. Because it was evident that the jury did not believe Appellant's claim that the victim fired first, it did not seem likely that the jury would believe there was adequate cause for sudden passion. See id. at 609. 5
Nevertheless, due to the possibility that a jury could reasonably reject a theory of self-defense while finding plausible support for sudden passion, the reviewing court must assess the record to determine "how prejudice may or may not have occurred." Ovalle v. State, 13 S.W.3d 774, 787 (Tex. Crim. App. 2000) (cited in Trevino, 100 S.W.3d at 241 n. 31); accord Trevino, 100 S.W.3d at 243.
D. Analysis
1. Sudden Passion
a. Immediate Influence of Passion such as Terror, Anger, Rage, or Resentment
Rodriguez testified that he and the victim shared a transactional relationship: Rodriguez needed money for drugs, and the victim paid him for sex. Counsel for Rodriguez argued that the victim was taking advantage of Rodriguez, because he knew that Rodriguez desperately wanted money for drugs. But on this occasion, when Rodriguez declined to have sex as compensation for items he stole, his declination, according to his testimony, was met with aggression. In Rodriguez's brief, he emphasized the resentment element of sudden passion, though he did not elaborate on where the immediate influence of resentment was reflected in the record. Nevertheless, there is a possible inference of overwhelming resentment to be gleaned from the moment of revelation when Rodriguez learned he might be forced into sex if he did not agree to it. See Wooten, 400 S.W.3d at 605.
b. Appellant's Sudden Passion Was Reasonable and Provoked by the Victim
In closing arguments, counsel for Rodriguez argued that a participant in a sexual encounter must be permitted to revoke consent at any time. He argued that it was unreasonable for the victim to reject Rodriguez's decision not to have sex and that it was reasonable for Rodriguez to act defensively when the victim tried to physically overpower him. Rodriguez's testimony that the victim grabbed his wrists in response to Rodriguez's decision not to have sex, and that the victim 6 allegedly sat on Rodriguez to overpower him while the two men were naked, is some evidence that the victim provoked Rodriguez. See Trevino, 100 S.W.3d at 238. Caselaw also shows that a sudden passion arising from a fast evolving, sexually charged struggle may be considered reasonable, depending on the facts in the record. See, e.g., Beltran, 472 S.W.3d at 294-95. In Beltran v. State, for example, it was reasonable for the defendant to experience a sudden passion of terror after he awoke to the victim licking his anus without consent: "Without more said, we hold that this was evidence of provocation by [the victim] that would commonly produce sudden passion in a person of ordinary temper and thus was evidence of provocation sufficient to induce sudden passion in Beltran." Beltran, 472 S.W.3d at 294-95. We believe this case presents a similar circumstance.
c. Rodriguez Committed Murder Before Regaining Capacity for Cool Reflection
Rodriguez testified that after he and the victim removed their clothes and Rodriguez changed his mind about engaging in sex, the physical struggle between the two men developed quickly. Rodriguez testified that the victim physically overpowered him, and that Rodriguez was fighting to get away from the victim. Rodriguez stated he managed to get away from the victim and run towards the door, but that he was cornered before he could flee. Rodriguez explained that he was slashing at the victim, trying to push him off and away, when the victim collapsed and died from his injuries. He stated, "I was swinging left and right. I don't know. I was just swinging. I held my breath, took a deep breath, closed my eyes, and just swang. I don't know exactly how to tell you. I was just swinging left and right." He explained that he also cut himself without realizing it, both on his hand and his knee, which he discovered later. He testified that the victim collapsed during this struggle, and then it was over. Rodriguez's testimony constitutes some evidence that Rodriguez caused the victim's death before he could clearly reflect on what was happening. See Beltran, 472 S.W.3d at 295. 7
d. Causal Connection Existed Between Provocation, Passion, and Homicide
The jury could arguably have deduced, from Rodriguez's testimony, that the victim attempted to sexually assault Rodriguez, and that such an assault provoked Rodriguez's sudden reaction, triggering a chain reaction that resulted in the victim's death. See id. Both men were naked when the victim, who was purportedly larger than Rodriguez, grabbed Rodriguez's wrists and sat on him. When Rodriguez managed to escape his position and retreat to the kitchen, he found a knife. When the victim pursued Rodriguez to overpower him, Rodriguez retrieved the knife. Rodriguez used the knife against the victim when Rodriguez found himself cornered. The victim succumbed to his knife wounds after he continued to struggle with Rodriguez rather than retreat. Regardless of how credible the trial court may have found Rodriguez's testimony, Rodriguez met this fourth requirement for a penalty-phase sudden passion instruction by raising evidence of a causal connection between the victim's provocation, Rodriguez's influence of passion, and the homicide. See id.
However, when Rodriguez requested a sudden passion instruction for the punishment phase of his trial, the trial court denied his request, stating: "[S]ince you did have an instruction for self-defense that was obviously rejected by the jury, I didn't feel it would be appropriate for the Court to include that instruction because it may be commenting on the weight of the evidence that they've already considered." We disagree with the trial court's decision. It conflicts with the reasoning from Beltran, Wooten, McKinney, and Trevino: all of these cases state that a defendant is entitled to a penalty-phase sudden passion instruction if the record reflects some evidence to support the charge. See Beltran, 472 S.W.3d at 294; Wooten, 400 S.W.3d at 605 (affirming the trial court's decision to deny a sudden passion instruction based on its harm analysis); McKinney, 179 S.W.3d at 569; Trevino, 100 S.W.3d at 238. The only one of those four cases in which the Court of Criminal Appeals concluded that the defendant was not entitled to the charge was 8 McKinney, in which a father escalated a conflict with his son and ultimately shot his son. See McKinney, 179 S.W.3d at 566‒68. The Court of Criminal Appeals concluded that McKinney failed to show provocation at the time of the offense. See id. at 570‒71.
On the record before us, we conclude that Rodriguez's testimony established the minimum requirement of inferences in support of a sudden passion instruction, and that the trial court erred in refusing to give the instruction. We now turn to the issue of harm.
2. Likelihood that Sudden Passion Instruction Would Have Affected Jury Verdict
When the trial court denied Rodriguez's request for a sudden passion instruction, it correctly observed that the jury rejected Rodriguez's self-defense theory in the guilt phase of the trial. In the same vein of reasoning, the State argued in its brief on appeal that Rodriguez's proof in support of sudden passion is the same as the proof in support of his self-defense theory, making it unlikely that the jury would have accepted sudden passion while rejecting self-defense. See Wooten, 400 S.W.3d at 610 n.45. Nevertheless, due to the possibility that the evidence in this case might demonstrate "some harm," we look to the entire record to determine whether a jury might have reasonably found support for sudden passion but not self-defense. See Wooten, 400 S.W.3d at 606; Trevino, 100 S.W.3d at 242; accord Beltran, 472 SW.3d at 290 ("A jury's rejection of self-defense at the guilt/innocence phase does not preclude submission of a sudden passion issue at the punishment phase.")
This case, like Trevino, involved two competing theories of guilt/innocence. See Trevino, 100 S.W.3d at 242. At trial, the State argued that the victim tried to help Rodriguez, a drug-addled burglar, but that Rodriguez callously killed the victim to steal his possessions and silence him about the thefts. Rodriguez argued that the victim was not trying to help him, but rather that the victim only wanted sex and was willing to get it by force. No trial evidence refuted Rodriguez's version of the victim's motivation to have Rodriguez at his home, i.e., to have sex for money. 9
In its appellate brief, the State argues that only one man could have been overcome by sudden passion, and that only the victim had a right to be overcome by such passion. But this argument does not follow the legal rubric for sudden passion. See, e.g., Wooten, 400 S.W.3d at 605. Rodriguez has identified the victim's physical attack on him as the adequate cause of his sudden passion that led to his fatal stabbing of the victim. There are several facts from the trial record that support this defensive theory. First, there were numerous random slices across the victim's torso, supporting Rodriguez's testimony that he closed his eyes and slashed at the victim. The victim also had no cuts to his forearms, suggesting that he was not simply defending himself. Rodriguez later texted his friends that he held onto the knife no matter what and that he fought for his life. Next, furniture in the living room had been pushed toward the front door, where the victim was found naked and dead, supporting Rodriguez's account of a struggle that began when the victim was naked and that moved through the house toward the front door.
The State argues that the evidence does not fit the list of possible signs of sudden passion listed in footnote 21 of Trevino (e.g., running, striking inanimate objects without any apparent rational purpose, shouting, screaming, crying, and facial expressions). See Trevino, 100 S. W3d at 239 n21 (citing Moore v State, 969 S.W.2d 4, 9 (Tex Crim App 1998) (Keller, J, concurring & dissenting)). But this footnoted list is far from exhaustive. See id. Further, no one who testified could say anything about how Rodriguez looked or seemed at the time of the homicide or directly after. Unlike in Trevino, no one could testify to how distraught Rodriguez did or did not seem directly following the homicide or whether he dissociated from it. See id. at 239. We are looking for evidence of sudden passion, but we are in no position to dictate or speculate as to how an individual should respond to extreme stress, especially when we do not have clear evidence of an actual reaction. 10
The State introduced testimony of Rodriguez's across-the-street neighbor, with whom Rodriguez smoked marijuana about an hour after the homicide. This witness did not know the nature of the relationship between Rodriguez and the victim, and he could not recall the details of his conversation with Rodriguez that night, except that Rodriguez told him he fought with the victim and that he had stabbed the man and slit his throat.
Rodriguez's theory of defense in the guilt phase of his trial was self-defense, and he focused on those aspects of his fight with the victim in his testimony at trial, such as how the victim was trying to grab and hold Rodriguez, and how Rodriguez was trying to escape and defend himself. From the guilt phase presentations, there was certainly evidence that the struggle between Rodriguez and the victim was fast, frenzied, and unfocused. The medical examiner testified that there were numerous knife scratches over the victim's chest and abdomen as well as four long slices at the base of the victim's throat, but none that cut any major veins or arteries, and about nine stab wounds over the upper part of his body. The medical examiner stated that one stab wound penetrated the victim's heart, giving the victim seconds, but not minutes, to continue struggling. Evidence showed that there were scratches on Rodriguez's back and Rodriguez's DNA under the victim's fingernails.
Even if the jury did not believe that homicide was reasonably necessary to stop the victim's attack on Rodriguez, a likelihood exists that the jury could have believed Rodriguez acted out of sudden passion had it been given the instruction. See Trevino, 100 S.W.3d at 242‒43.
In concluding a likelihood exists that the jury could have found Rodriguez acted under the influence of sudden passion, we have considered the jury charge, both parties' arguments, and the rest of the record. We note that no charge given at the guilt-innocence phase of trial ameliorated the omission of the sudden passion instruction, which would have capped punishment at twenty years' confinement. Sudden passion would have been a significant mitigating factor for the jury 11 to consider, which defense counsel did not have the opportunity to argue. No other significant mitigating factor exists in the record, magnifying the potential effect of denying a sudden passion instruction. In viewing the record, we conclude that Rodriguez has suffered some harm from the trial court's error in denying his request for a jury instruction on sudden passion, and we sustain his sole point on appeal.
Conclusion
Because Rodriguez has only raised the issue of his punishment phase jury charge, we affirm his conviction. But based on the relevant caselaw for a sudden passion instruction in the punishment phase of trial, we conclude that Rodriguez experienced some harm when the trial court refused to give the instruction. We reverse Rodriguez's sentence and remand for a new trial on punishment. 12