NO. 07-00-0584 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A SEPTE MBE R 19, 2001

______________________________ QUINTON JERMAINE WILSON, APPELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE208 TH DISTRICT COURT OF HARRIS COUNTY; NO. 820418; HON ORABLEDENIS E COLLINS , JUDGE

_______________________________ Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
In oneiss ue, app ellan t Qu into n Je rm aineWil so n challenges the punishment assessed fo r his conviction of murder by asserting that the trial court’s failure to find he
com mitted mu rder under the influence of sudden passion ari sing from an adequate cause is against the great weight and pre pon der ance of theevid ence an d is m anif est lyunjust. W e affirm thejudgm ent of the trial court for the reasons s et forth.2

Appellant pled guilty to the offense of m urder, and the trial court assessed h is punishment

at 4 5 ye arscon fine m ent in t he I nst itut iona l Div is ion of th e Departm ent of Criminal Justice. He argues that he show ed by a preponderance of t he evidence that the death of the victim , Keith Tucker (Tucker), occu rred when he w as under the influence of sudden passion arising from an adeq uate cause, i.e. , he was afraid because Tucker pulled
a gun and thr

eatene d tokill him. Therefore, the pr oper range ofpunishment was not less than two years or m ore than 20 years. Section 19.02( d) of the Penal Cod e provide s: At the punishm ent stage of a trial, the defendant m ay raise the issue as to whether he caused the death under the imm edi ate influ ence of sudden passion arising from an adequate cause. If the defendant proves t he issue in the affirmative by a prepondera nce of the evide nce, the offense is a felony of the second degree.
Te x. Pen. Code A nn. § 19.02(d) (Vernon 1994). W ithout satisfactory proof of “sudden passion arisi ng from an adequate cause,” the offense is a felony of the first degree. Id. § 19.02(c ). “Adeq uate ca use ” is d efin ed to m ean “cause that w ould comm only produce a degree of anger, rage, resentm ent, or terror in a person of ordinary tem per, sufficient to render the m ind incapable of cool ref lection.” Id. § 19.02 (a) (1). “S udde n passion”
means “passion directly caused by and arising out of provocation bythe individual kil led
or another acting with the person killed which passion arises at the time of the offense and is not so lely the res ult of for m er provo cation.” Id. §19.02(a)(2).3

The de fenda nt is required to prove that he acted und er the influence of sudden passion ar ising from an adequate cause by a preponderance of the evidence . Because appellant seeks review of the court’s f

ailure to make a finding on which appellant had the burden of

pr oo f, we mu st mak e a re vi ew of th e e vi de nc e a nd de te rmi ne whe ther, after considering all the evide nce, the judgm ent is so against the great w eight and preponderance of the evidence as to be m anifestly unjust. Dudley v. State , 992 S.W.2d 565, 567 (Tex.A pp.--Texarkana 1999, no pet.); Naasz v. State , 974 S.W.2d 418, 421 (Tex.App.--D allas 1998, pet. ref’d). In m aking our review, w e m ust rem ember that the factfinder

is the sole judge of th e weight and credibility of the witness es. Santellan v. State , 939 S.W.2d 155, 164 (Tex.Crim .App. 1997).
Atthe punishm ent hear ing, the State requested to supplement the pre-sen tence investigation report to include sum maries of t he statem ents of three w itnesses. Whi le the actual pre-sentence investigation report is not included in the record, a sum mary of the tes tim ony sought to be added is included in the reporter’s record. Tandra W ashington stated she w itnessed the m urder of Tucker, w hom she had know n for 15 years, and that appellant shot him as hetried to ride away on his bicycle. S he saw app ellant walk over to Tuc ker, who was lying on the ground, and shoot him several m ore times. Folond a Sa m ple also witnessed the shooting and stated Tucker w as riding his bicycle and appellant
ran after him a nd shot him . Appellant then walked up to Tucker and continued to shoot hi m. Final ly, Terrance Brow n, a 12-year-old boy w ho witnessed t he m urder, saw t he sa me thing as the other tw

o witnesses. The State also sought to am end the report to show that4

no gun was

ever found atthe scene of the crime. The court allowed supplem entation of the report with thos e statem ents and that inform ation. Sergeant

Eric Mehl of the Hou ston Police Departm ent testified that, although the pre-sentence investigation report showed that Tucker had robbed appel lant a week or so beforehis death , Serg eant M ehl could no t find a ro bbery re port had been m ad e to the police. He also heard rum ors that Tucker shot at appellant prior to the m urder, but no one could give Sergeant Mehl the nam es of any w itnesses who had knowledgeof this event
or anyspecifi c detail s. He never heard during his investigation that Tucker w as a m ember of a gang, although he had b een told Tu cker w as a dru g dealer. Tucker also ha d an extensive crim inal h isto ry. Ad ditio nally , in hisinvestigation of the m urder, Sergeant M ehl
never heard the allegation that Tucker pulled a pistol fromhis shirt just prior to t he m urder. Sergeant

Mehl ad m itted tha t it would have been pos sible for so m eone to re mov e a gun from the crime s cene before police arrived. Appellant s tated at th e hearin g that he “was scared at the ti me, in fear” because Tucker “had pulled a g un at me a nd sh ot at me r ec en tl y. ” S ome ti me prior to the shooting, appellant and Tucker, w ho both sold drugs , argued over m oney. Tu cker cam e to appell ant’s sister’s house w ith a shotgun to buy m arijuana. He pointed the gun at appellant and eventually took the m arijuana, a v ideo game, an d som e m oney. Tucker threatened to k ill app ellan t. When ap pella nt t ried to g et h is mo ney back, Tucker grabbed a shotgun and began to s hoot at his car. After that incident, appellant bought a gun.5

Two days b efore th e m urder, Tucker cam e to appellant’s apartm ent, and appellant
ran from him becaus e he wasscared. On the day of the m urder , Tucker rode by appell ant’s apartm ent on his bicycle and told appellan t to get off Tucker’s block. After Tucker rode past appellant, he stopped and came back. They had words, and Tuc ker told appellant he would kill him. A ppellant pulle d hisgun out of h is pocket

and sho t Tucke r. W hen Tuc ker

fell, app ellan t walke d upand sho t him once m ore because he w as scared. Appellant dropped his gun and ran. He stated that there should have been tw o guns at the crime scen e, hi s and Tu cker’s. Al though app ellan t fle d toCal ifor nia, he e ven tua lly returned to Texasand turned him self in to the authorities.
On cross- ex amination, he said he shot Tucker in the back and the he ad. Appella nt’s father told him som ebody else cam e an d sh ot T ucker a gain after appellant left. Appellant claimed Tucker pulled a gun first, and hejust happened to be f aster t han Tucker. He shot Tucker a secon d time in thehead because Tucker “w as still moving” and he was “scared that he was going to kill me.” The autopsy report showed Tucker

had four gunshot wounds: one each in the back, the head, the w rist and the hand.
The cause of sudden pas sion must be such as to produce anger, rage, resentm ent,
or fear in a person of ordinary tem per so as to render the m ind incapable of cool reflection. Naasz , 974 S.W. 2d at 423. A m ere claim of fear or ordinary anger is not sufficient. Will iams v. State, 35 S.W.3d 783, 787 (Tex.App.--Bea umont 2001, p et. ref

’d); Naasz , 974 S.W.2d at 423. There also m ust be evidence tha t direct provocation by the victimor6

som eone acting with the victimoccurred at the tim e of the killing. Evidence of prior provocation alone is not sufficient, and the defenda nt may not rely on h is own ac

ts i n precipitating a confront a tion. Id. at 423-24. The factfinder m ust be able to find that the defendant

killed the vict im in a n excited and agitated state of m ind ari sing ou t of direct provocation. Id.
Based on the evidence, the court could have foun d that appellant had adequate ti me to cool off after his previ ous encounters with T u cker, the most recent of which occurred two days prior to the m urder. Although on the day of t he incident appellant cl ai ms Tucker pul led a gun on h im first, and he shot Tu cker because he was afraid, there is also evi dence tha t Tu cke r ro de p ast app ellan t on his bicycle, tha t hedid n ot p ull a weapon, and tha t appellant s hot him in the bac k. Shooting som eone in the back as he passes by after an argum ent is not an ob jectively c om m on r

esp ons e in area son able person. Saldi

var v. State , 980 S.W.2d 475, 506 (Tex.App.--H ouston [14 th Dist.] 1998, pet. ref’d). The f actfinder could also have believed that appellant walked up to Tucker, who
waslying o n t he ground after being shot once, a nd shot him three m ore times, and that those subsequent shotsw erenot them indle ss res ult of a h ighly agitated state of fear, but actions perform ed coolly and deliberately. Because the conflicts in the evidence required a determ ination of the credibility of the evidence, the final resolution of those issues was to be m ade by the factfinder, and w e will not disturb those findings on app eal. Cain v. State , 958 S.W.2d 404 , 408-09 (Tex .Crim.App. 1997). W e do not beli eve the court’s failure to find that appellant acted under sudden passion ari sing from adequate cause was7

so against the great weight and preponderance of theevidence as to be m anifestly unjust.

Ap pella nt’s issu e is ove rru led a nd, accord ingly , th e j udg m ent of t he t rial cour

t is affirmed.
John T. Boyd Chief Justi ce Do not publish.