NO. 07-08-0425-CR 

IN THE COURT OF APPEALS 

FOR THE SEVENTH DISTRICT OF TEXAS 

AT AMARILLO 

PANEL D 

 SEPTEMBER 8, 2010 

ALFREDO PEREZ, APPELLANT 

v. 

THE STATE OF TEXAS, APPELLEE 

 FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY; 

NO. 2007-417,321; HONORABLE JIM B. DARNELL, JUDGE 

Before QUINN, C.J. and CAMPBELL and PIRTLE, JJ. 

OPINION 

Following an open plea of guilty to the offense of murder,1 Appellant, Alfredo 

Perez, was adjudicated guilty as charged. The trial court then proceeded to a 

punishment hearing where Appellant offered evidence of sudden passion. Normally, 

                                                           

1

Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 2003).
2

murder is a first degree felony punishable by confinement for life or for any term of not 

more than 99 years or less than 5 years. Tex. Penal Code Ann. §§ 19.02(c) and 

12.32(a) (Vernon 2003 and Vernon Supp. 2009). If, however, at the punishment stage 

of a trial, the defendant proves in the affirmative by a preponderance of the evidence 

that he caused the death under the immediate influence of sudden passion arising from 

an adequate cause, then the offense is a felony of the second degree punishable by 

confinement for a term of not more than 20 years or less than 2 years.2

 Texas Penal 

Code Ann. §§ 19.02(d) and 12.33(a) (Vernon 2003 and Vernon Supp. 2009). See 

Sanchez v. State, 23 S.W.3d 30, 34 (Tex.Crim.App. 2000). At the conclusion of the 

punishment hearing, the court assessed Appellant's sentence at confinement for life. In 

two issues, Appellant contends the trial court's negative finding on his issue of sudden 

passion is legally and factually insufficient. We affirm. 

Background 

On August 4, 2007, the Lubbock County Grand Jury returned an indictment 

charging Appellant with intentionally and knowingly causing the death of Javier 

Castaneda with a firearm on July 25, 2007. On October 13, 2008, Appellant pled guilty 

to the charge without an agreed recommendation as to punishment. 

 During the punishment phase of the case, Danielle Galindo, Appellant's girlfriend, 

testified that, on July 25, 2007, she and Appellant were riding in his car when they 

                                                           

2

Before September 1, 1994, the existence of sudden passion was an element of the offense of voluntary 

manslaughter (a lesser-included offense of murder), to be determined by the jury at the guilt/innocence 

stage. See Bradley v. State, 688 S.W.2d 847, 849 (Tex.Crim.App. 1985). Effective September 1, 1994, 

the existence of sudden passion became a punishment stage issue. 
3

encountered a group of people walking on 39th Street in Lubbock, Texas. Someone in 

the group threw a brick at them and started shooting. Appellant drove her back to his 

house arriving about 5:00 p.m. He went to his bedroom and retrieved a gun saying he 

was going to pick up his little brother, Vincent Sandoval, because he had seen him 

walking in the area near to where the altercation had occurred. She testified "he was 

really mad when he left," but he promised he would "come right back." She testified that 

when Appellant returned around 6:00 p.m., he was "shocked, mad or something" and 

he told her "somebody got shot." 

 Julian Castaneda, Javier's brother, next testified that on July 25, 2007, he and a 

group of friends, Jose Castaneda (known as "PePe"), Javier Castaneda, Jesse 

Alvaredo, Alfred Luis Molina (known as "LuLu"), and Michael Moreno, were walking 

down 43rd Street when Appellant drove by in his car and said "Y'all keep walking up 

and down like that, we got something for y'all." He and Appellant exchanged a few 

words and Appellant drove away. Subsequently, the group was walking on 39th Street 

when two cars approached. Appellant and Vincent were in one car and two other 

persons were in the other car. After the occupants emptied out of the cars, a nearby 

neighbor told everyone to leave. At this point, LuLu threw a brick at Appellant's car and 

broke out a window. Thereafter, the cars left and the group continued walking down the 

street. 

 Later, as the group entered the parking lot of a nearby elementary school, they 

saw Appellant's car pull up to a stop sign approximately 20 to 30 yards away and sit for 
4

approximately five seconds. Feeling safe because the car was on the other side of the 

street, Julian threw up his hands. Appellant and Vincent then got out of the car. Julian 

approached with an unidentified member of the group taking perhaps five steps when 

Appellant and Vincent started shooting. The group turned and ran. Julian heard Javier 

say, "I'm hit." He grabbed Javier and took him around the corner of the school building. 

Javier later died of a gunshot wound to the stomach. Julian testified that, although he 

and Appellant had problems in the past, Javier had nothing to do with any conflict 

between them. According to his testimony, on that day Javier was "just hanging out." 

 Jose Castaneda testified next and corroborated Julian's account of the events 

that transpired. He also testified that, prior to the commencement of the shooting near 

the elementary school no one said anything to anyone. By Jose's account, when 

Appellant and Vincent got out of the car, they were holding handguns and when they 

started shooting, everyone ran. 

 Detective Larry Manale testified he located .22 caliber, long rifle casings on the 

ground where Appellant had stopped his car near the elementary school. He also 

testified there was a bullet hole in Appellant's car. Although the bullet hole appeared 

recent, he could not say when it was made. A bullet was found inside the door panel, 

but they could not identify the caliber. When asked how long it would take to drive from 

Appellant's house to the location of the shooting, Detective Manale testified he had 

driven the route at a normal speed in a minimum of ten minutes. 
5

 Angelica Reyna testified she saw two cars pull up on 39th Street across from a 

group of kids. She recognized LuLu, who was a friend of her husband’s. She didn't see 

any weapons but told her husband to go outside thinking there was going to be a fight. 

She testified that the persons in the two cars got out and when her husband came 

outside and told them to leave, LuLu broke windows in both cars with bricks. At that 

point the two cars drove away. With the exception of the bricks thrown by LuLu, no one 

appeared to have any weapons. After that, the group started walking away and about 

ten minutes later, she heard gunshots. 

 Detective Jeremy Jones testified the murder weapon was never located. At 41st 

Street and Avenue D, where witnesses placed Appellant and Vincent at the time of the 

shooting, he found shell casings for a .22 long rifle. Witnesses also placed an orangetipped pistol in Vincent's hands and he located an orange-tipped, plastic toy pistol in a 

dumpster not far from where the shooting occurred. During his investigation, Jones 

encountered several inconsistencies in different witness statements. Some witnesses 

said members of the group were carrying a bat and two-by-four, others said they were 

not. Other witnesses said they saw at least three members of the group chasing 

Appellant's car near the elementary school, others did not. 

 After the State rested, Appellant testified. According to his version of the events, 

he and his girlfriend were driving around Lubbock when they encountered a group of 

persons walking. A brick was thrown through his car window and he heard gunshots. 

He panicked and drove off fast--scared. He recognized Julian Castaneda as a member 
6

of the group, and LuLu as the person who had thrown the brick. Later, he found a bullet 

hole in the side of his car. As he drove home, he noticed Vincent walking. When he 

arrived at his house, he ran to his room and grabbed his gun, a .22 caliber rifle, and told 

Danielle that he was going back to get Vincent. 

 After he picked up Vincent, Appellant testified Vincent wanted to go to his dad's 

house. On the way there, he stopped at a stop sign near an elementary school and 

noticed the same crowd that had earlier thrown the brick at his car. He turned the 

corner to avoid a confrontation but noticed the crowd running toward his car. He 

stopped to avoid another car backing out of a driveway and observed that the crowd 

was gaining on him. He jumped out of his car, armed himself with his rifle, and fired 

shots into the air. He then jumped back into his car and drove away. He testified he did 

not know that he had shot anyone until Vincent told him, "I think one of them got hit." 

He later wrapped the gun in a black shirt and threw it into a dumpster before taking off 

for Dunbar Lake. He stayed at the lake all night because "he was on the run." 

 Appellant further testified that, after the initial encounter, he was upset. He 

described his mood at the house when he picked up his gun and at the school when he 

fired the warning shots as mad, panicking, and scared. He testified that, when he fired 

his rifle, he did not know that Javier was in the group. The only person he recognized 

was Julian and he admitted "[t]here had been bad blood between him and Julian 

Castaneda." He testified that in 2006 he had gotten in a fight with Julian's cousins. 

Before that, when he was seventeen, he was jumped by some people who called 
7

themselves the "Texas Head Busters" and was hit twice in the face with a two-by-four. 

He attributed the beating to associates of Julian. When he was eighteen, he was shot 

in the stomach by Julian's friend, Jeremy Paiz. 

 Detective Rene Martinez was then called as a rebuttal witness for the State. He 

testified he investigated a shooting that occurred January 19, 2007. At the conclusion 

of his investigation, he determined that Kevin Corales, Jeremy Paiz, and Steven Lee 

Perez had been involved in shooting Appellant. Information he gathered during the 

investigation led him to believe the shooting had to do with a "drug deal or drug deal ripoff."3

 After the punishment hearing, the trial court issued its judgment sentencing 

Appellant to confinement for life. This appeal followed. 

Discussion 

Appellant contends the trial court's negative finding on the issue of whether he 

acted under the influence of sudden passion arising from adequate cause was so 

against the great weight and preponderance of the evidence as to be manifestly unjust. 

Appellant asserts that the group running towards his car with long objects combined 

with the earlier incident where a brick was thrown at his car and he was fired upon 

represented sufficient provocation to produce a degree of terror that rendered him 

incapable of cool reflection. 

                                                           

3

In the State's case-in-chief, Davela Maynard, a Department of Public Safety Trooper, testified that, on 

June 30, 2007, Appellant had been arrested for possession of marijuana. After Trooper Maynard pulled 

Appellant over for a seat belt violation, Appellant attempted to flee the scene. After detaining Appellant, 

the trooper detected the smell of burnt marijuana and located marijuana in Appellant's possession. 
8

I. Issue No. 1 -- Legal Sufficiency 

A. Standard of Review 

 

An appellate court may review the legal sufficiency of the evidence to support a 

fact finder's rejection of an issue on which the defendant bore the burden of proof, i.e., 

affirmative defenses and the issue of sudden passion. See Clark v. State, 190 S.W.3d 

59, 62 (Tex.App.--Amarillo 2005, no pet.); Cleveland v. State, 177 S.W.3d 374, 388 

(Tex. App.--Houston [1st Dist.] 2005, pet. ref'd) (en banc), cert. denied, 547 U.S. 1073, 

126 S.Ct. 1774, 164 L.Ed.2d 523 (2006); Ballard v. State, 161 S.W.3d 269, 272 

(Tex.App.--Texarkana 2005), aff'd, 193 S.W.3d 916 (Tex.Crim.App. 2006). 

When conducting a legal sufficiency review of the evidence related to an issue on 

which the defendant bore the burden of proof, an appellate court reviews the evidence 

in a light most favorable to the verdict and reverses only when the evidence 

conclusively establishes the opposite. See Wheat v. State, 165 S.W.3d 802, 806 n. 6 

(Tex.App.--Texarkana 2005, pet. dism'd, untimely filed); Howard v. State, 145 S.W.3d 

327, 331 (Tex.App.--Fort Worth 2004, no pet.). An appellate court reviews the legal 

sufficiency of such evidence under a two-part test. See Clark, 190 S.W.3d at 62; 

Cleveland, 177 S.W.3d at 388; Howard, 145 S.W.3d at 334. First, the appellate court 

examines the record for evidence that supports the verdict (i.e., the negative finding) 

while ignoring evidence to the contrary; see Clark, 190 S.W.3d at 62; Cleveland, 177 

S.W.3d at 388; Howard, 145 S.W.3d at 334, and, if there is no evidence to support the 

verdict, the court then examines whether the record supports the defendant's affirmative 
9

defense or issue as a matter of law. See Clark, 190 S.W.3d at 334; Nolan v. State, 102 

S.W.3d 231, 238 (Tex.App.--Houston [14th Dist.] 2003, pet. ref'd). If the record reveals 

evidence of the defendant's affirmative defense or issue that was not subject to a 

credibility assessment, the evidence shows as a matter of law that the defendant proved 

his affirmative defense or issue. See Cleveland, 177 S.W.3d at 388-89. However, if the 

evidence supporting the defendant's affirmative defense or issue was subject to the fact 

finder's assessment of credibility, that evidence is not considered in the appellate court's 

matter-of-law assessment. See Cleveland, 177 S.W.3d at 389. 

B. Analysis 

 The core concept of "sudden passion" is that at the moment of the killing the 

actor's mental state rendered him incapable of rational thought and collected action. 

See Swearingen v. State, 270 S.W.3d 804, 820 (Tex.App.--Austin 2008, pet. ref'd). 

"Sudden passion" is "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. Penal Code Ann. 

§ 19.02(a)(2) (Vernon 2003). "Adequate cause" is "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." Id. at (a)(1). Merely acting in 

response to provocation by another is not enough to raise the issue; see Trevino v. 

State, 100 S.W.3d 232, 241 (Tex.Crim.App. 2003), and the provocation must arise at 
10

the time of the offense. See Tex. Penal Code Ann. § 19.02(a)(1) (Vernon 2003); Nance 

v. State, 807 S.W.2d 855, 861 (Tex.App.--Corpus Christi 1991, pet ref'd). 

 Examining the record for evidence that supports the trial court's negative finding 

on the issue of sudden-passion, while ignoring evidence to the contrary, we find there is 

some evidence that Appellant did not kill Javier out of sudden passion arising from 

adequate cause. Based upon the testimony of Julian and Jose, the trial court could 

have reasonably found that Appellant was the protagonist in a series of unprovoked 

attacks that ultimately ended in Javier's death. According to the testimony of other 

witnesses, Appellant first threatened the group while driving by in his car as the group 

was walking down 43rd Street. Then, he and Vincent, along with two others in a second 

car, confronted the group on 39th Street leading to an altercation where LuLu threw a 

brick through Appellant's car window. Appellant then confronted the group a third time 

near the elementary school where he got out of his car and, standing twenty to twentyfive yards away from the group, opened fire with his rifle. Thus, there is some evidence 

Appellant forced the third confrontation and initiated an unprovoked attack causing 

Javier's death. 

 Having reached the conclusion there is some evidence supporting the trial court's 

negative finding on the issue of sudden passion, our legal sufficiency inquiry is at an 

end. See Howard, 145 S.W.3d at 333-34. We hold that the evidence concerning the 

trial court's negative finding on Appellant's sudden passion issue is legally sufficient as 

a matter of law. Appellant’s first issue is overruled. 
11

II. Issue No. 2 -- Factual Sufficiency

A. Standard of Review 

 When conducting a factual sufficiency review on an affirmative defense or issue 

on which the defendant had the burden of proof,4

 an appellate court reviews all of the 

evidence in a neutral light, but we do not intrude on the fact finder's role as the sole 

judge of the weight and credibility given to any witness's testimony. See Clark, 190 

S.W.3d at 63; Cleveland, 177 S.W.3d at 390-91; Wheat, 165 S.W.3d at 807 n. 6. When 

a defendant has asserted such an affirmative defense or issue, an appellate court 

considers all of the evidence and determines whether the judgment rendered is so 

against the great weight and preponderance of the evidence as to be manifestly unjust. 

See Edwards v. State, 106 S.W.3d 833, 843 (Tex.App.--Dallas 2003, pet. ref'd) (citing 

Clewis v. State, 922 S.W.2d 126, 132 (Tex.Crim.App. 1996)); Cleveland, 177 S.W.3d at 

390; Ballard, 161 S.W.3d at 271. When an appellate court concludes the contrary 

evidence is insufficient to support rejection of defendant's affirmative defense or issue, it 

must clearly state why the verdict is so against the great weight and preponderance of 

the evidence as to be manifestly unjust, why it shocks the conscience, or why it clearly 

demonstrates bias. See Meraz, 785 S.W.2d at 154 n.2; Howard, 145 S.W.3d at 335. 

The fact-finder alone determines the weight to be given contradictory testimonial 

evidence because that determination depends on the fact-finder's evaluation of the 

                                                           

4

It is well-established that an appellate court may review the factual sufficiency of the evidence to support 

a negative finding on the sudden passion issue in the punishment stage of trial. Cleveland, 177 S.W.3d at 

385. See Meraz v. State, 785 S.W.2d 146, 154-55 (Tex.Crim.App. 1990).
12

credibility and demeanor. Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App. 1997). 

As the determiner of the credibility of the witnesses, the fact-finder may choose to 

believe all, some, or none of the testimony presented. Id. at 407 n.5. 

B. Analysis 

 Appellant's contention that the evidence was factually insufficient to establish a 

negative finding on his sudden passion issue relies entirely on a finding that Appellant's 

testimony was credible. He asserts that, at the time of the occurrence, he was merely 

driving Vincent home, he brought the gun for his own protection, he stopped his car to 

avoid hitting another car, and, when he saw the group rapidly approaching with long 

objects, he got out of the car and fired warning shots into the air. Based upon his 

testimony, Appellant contends he was provoked by the group at a time when he was 

emotionally charged from the earlier confrontation where a brick was thrown through the 

window of his car and he was fired upon. 

 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. Penal Code Ann. § 19.02(a)(2) (Vernon 2003). Here, the only 

evidence of an identifiable, physical act that threatened Appellant was testimony and 

physical evidence establishing that his vehicle had been shot at some undetermined 

time in the past and that LuLu threw a brick into Appellant's car window during a prior 

confrontation that day. Passion solely the result of former provocation is insufficient. 
13

See McKinney v. State, 179 S.W.3d 565, 570 (Tex.Crim.App. 2005). When, as here, 

Appellant was the aggressor, or precipitator of the confrontation, and neither Julian, nor 

those acting with him, did anything to provoke him at the time of the offense, it cannot 

be said that Appellant's passion was directly caused by and arose out of adequate 

provocation at the time of the offense. See Nance v. State, 807 S.W.2d 855, 861 

(Tex.App.--Corpus Christi 1991, pet. ref'd). 

 Furthermore, in most cases, the issue of sudden passion is resolved exclusively 

by the fact-finder's assessment of whether the witness is credible; Cleveland, 177 

S.W.3d at 391, and the fact-finder may choose to believe all, some, or none of the 

testimony presented. Cain, 958 S.W.2d at 407 n.5. The fact-finder alone determines 

the weight to be given contradictory testimonial evidence because that determination 

depends on the fact-finder's evaluation of the credibility and demeanor of the witness. 

958 S.W.2d at 408-09. With the exception of testimony that Julian and an unidentified 

member of the group took steps towards Appellant after Appellant got out of the car at 

least twenty yards away, there is no evidence of any provocative acts, words, or 

omissions occurring immediately prior to Appellant shooting Javier. Thus, the trial court 

was free to disbelieve Appellant's testimony and believe the State's witnesses who 

testified Appellant engaged in an unprovoked attack resulting in a fatal gunshot wound. 

 After viewing the evidence in a neutral light, we hold that the trial court's 

negative answer on the sudden passion issue is not so against the great weight and 
14

preponderance of the evidence as to be manifestly unjust. See Cleveland, 177 S.W.3d 

at 390. Appellant's second issue is overruled. 

III. Attorney's Fees 

We also note an issue not raised by Appellant regarding the assessment of 

attorney's fees.5 The written judgment in this case reflects the assessment of courtappointed attorney's fees totaling $6,868.00, as costs of court. In order to assess 

attorney's fees as court costs, a trial court must determine that the defendant has 

financial resources that enable him to offset in part or in whole the costs of legal 

services provided. Tex. Crim. Proc. Ann. art. 26.05(g) (Vernon 2009). Here, the clerk's 

record reflects the trial court found Appellant indigent and unable to afford the cost of 

legal representation both before trial in August 2007, and again after trial in October 

2008. Unless a material change in his financial resources occurs, once a criminal 

defendant has been found to be indigent, he is presumed to remain indigent for the 

remainder of the proceedings. Tex. Code Crim. Proc. Ann. art. 26.04(p) (Vernon Supp. 

2009). Therefore, because there is evidence of record demonstrating that immediately 

following rendition of judgment Appellant was indigent and qualified for court-appointed 

counsel, we presume that his financial status has not changed. 

                                                           

5

Courts of appeals may review unassigned error in criminal cases, particularly where the record discloses 

error that should be addressed in the interest of justice. Hammock v. State, 211 S.W.3d 874, 878 

(Tex.App.--Texarkana 2006, no pet.). Where, as here, the error appears on the face of the judgment and 

does not involve the merits of the criminal trial, but instead solely addresses the clerical correctness of the 

judgment, we find that the interest of justice allow that we address the issue. 
15

 Furthermore, the record must reflect some factual basis to support the 

determination that the defendant is capable of paying attorney's fees. Barrera v. State,

291 S.W.3d 515, 518 (Tex.App.--Amarillo 2009, no pet.); Perez v. State, 280 S.W.3d 

886, 887 (Tex.App.--Amarillo 2009, no pet.). 

 We note that the record in this case does not contain a pronouncement, 

determination, or finding that Appellant had financial resources that enable him to pay 

all or any part of the fees paid his court-appointed counsel, and we are unable to find 

any evidence to support such a determination. Therefore, we conclude that the order to 

pay attorney's fees was improper. See Mayer v. State, 309 S.W.3d 552, 555-56 

(Tex.Crim.App. 2010). No trial objection is required to challenge the sufficiency of the 

evidence regarding the defendant's ability to pay. Id. When the evidence does not 

support an order to pay attorney's fees, the proper remedy is to delete the order. Id. at 

557; see also Anderson v. State, No. 03-09-00630-CR, 2010 Tex.App. LEXIS 5033, at 

*9 (Tex.App.--Austin, July 1, 2010, no pet.) (also modifying judgment to delete attorney's 

fees). Accordingly, we modify the judgment to delete the order to pay attorney's fees. 

Conclusion

 Having modified the trial court's judgment to delete the order obligating Appellant 

to pay $6,868.00 in attorney's fees, the judgment, as modified, is affirmed. 

 

 Patrick A. Pirtle 

 Justice 

Publish.