AFFIRMED and Opinion Filed June 24, 2019 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-18-00488-CR FRANK ROBERT BLAES, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 3 Dallas County, Texas Trial Court Cause No. F17-00535-J 

### MEMORANDUM OPINION Before Chief Justice Burns, Jus tice Myers, and Justice Carlyle Opinion by Justice Carlyle Frank Robert Blaes appeals his conviction and sentence for murd er. He contends (1) the evidence was legally insufficient to support the jury’s implici t finding that he did not act in selfdefense and (2) the evidence was factually insufficient to supp ort the jury’s implicit finding at sentencing that he did not act under the influence of sudden pa ssion. We affirm and, because the issues are settled in law, i ssue this memorandum opinion. See T EX

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. P. 47.4. I. Background
A. Initial Altercation at the Motel Blaes and three other homeless men—Carl Lee, Gerry Norman, and Gary Stevenson— agreed to split the cost of renting a motel room for a night. A fter the men checked in, Blaes and Norman fought. Lee and Stevenson each testified that Blaes sudd enly attacked Norman and–2– threatened to kill him over money. 1 Before they could intervene, Blaes had overpowered Norman, punched and kicked Norman numerous times, and left Norman injur ed on the floor. Blaes then took his backpack and left the motel. According to both Lee and Steven son, Norman did not initiate th e altercation or throw any punches at Blaes. Moreover, neith er Lee nor Stevenson believed Norman posed a threat to Blaes. Lee testified Norman was incapable of defending himself against Blaes because he was much older and suffered from serious medical conditions—including liver ca ncer and COPD, for which he required oxygen therapy. Lee test ified Blaes “knew [Norman] was n’t no competition for him,” and Stevenson agreed Norman “didn’t even have a chance.” Blaes testified to a different v ersion of events. He stated tha t, after he returned to the motel room from smoking a cigarette, his backpack was not where he le ft it. When he asked the other men about it, Norman said he was “missing some money” and then threatened to “kick [Blaes’s] ass.” Norman then hit Blaes with a telephone, and Blaes hit him back, knocking him down. Norman got back up and told Blaes he was going to kill him. Blaes resp onded, “I don’t think so,” and hit Norman again, knocking him over the bed. At that point, Norman threatened to have Blaes killed, and the two men began trading punches until they got tired and agreed to stop fi ghting. Blaes said he was afraid the three men would later gang up on him, so he g rabbed his backpack, left the motel, and went to sleep under a bridge.

1 It is unclear what “money” was at issue in the initial alterca tion between Blaes and Norman. According to Lee, Blaes accused Norman of “taking money from him or something like that.” Lee did not thi nk Blaes confronted Norman about paying for the room, because N orman had already paid for the room. And as far as Lee knew, Blaes never paid his share. He testified that Blaes approached Norman and “ start[ed] accusing him of having his money. And [Nor man] told him he didn’t. So [B laes] just started hitting him.” Stevenson testified that Blaes came into the room and attacked Norman, saying “You owe me $50; I wanna kill you; I wanna kill you.” Blaes, however, testified that the initial d ispute arose because Norman confronted him about money Norman claimed he was missing . According to Blaes, he paid for his share of the room, and he believed he should have been refunde d that money because he ultimately did not end up staying in the room—it is for this alleged refund Bl aes acknowledges he tried to find Norman in the lead-up to the confrontation the following day.–3– B. The Next Day The next day, Norman was fatally injured after a violent confro ntation with Blaes. Lee and Stevenson testified to the same general events. After arriving at a fast-food restaurant where they often hung out, Lee and Stevenson encountered Blaes. According to Lee, Blaes said, “There that motherfucker is; he better have my money.” They saw Blaes walk over and hit Norman, which Lee said knocked Norman to the ground. They heard Blaes threate n to kill Norman and heard him demanding money. At some point, Norman got away and staggered i nto the restaurant to call for help. Stevenson called 911. Bl aes walked to a bus stop. Witnesses inside the restaurant said Norman asked to use the ph one, he looked beat up, and his eyes were purple and swollen. Norman did seem angry, accord ing to one witness, who reported he said he was going to “ go out there and kill him.” Soon thereafter, however, Lee and Stevenson saw Blaes kicking N orman in the head with steel-toed boots while Norman was on the ground. A restaurant w itness, one Haynes, saw Blaes stomping Norman where he’d fallen. Stevenson said they tried to break it up and that Blaes was “trying to kill him.” Haynes said this was not a fight, it was an attack. Lee heard Blaes again threaten to kill Norman and noted Norman ended up knocked out w ith blood running from his head. After Blaes realized Norman was no longer responsive, he went back to the bus stop. Paramedics took Norman to the hospital. Lee saw Blaes punch Norman “[p]robably about 15 times,” and saw Blaes kick him “at least five to six times.” Stevenson admitted on cross-examinati on that though he may not have seen the absolute beginning of t his part of the beating by “mis s[ing] a blow or something,” he “saw 99.5% of it.” Stevenson had known Norman a long time, and Norma n was not the kind of person who went looking for fights. No witness saw Norman hit Blaes . No witness saw Norman with a w eapon of any kind.–4– Blaes’s Account The State showed the jury Blaes’s initial interview with police . In that interview, Blaes claimed he went down to the restaurant to see Lee and encounter ed Norman there. He explained to the detective that, because he did not end up staying in the room, he wanted his money back. According to Blaes, Norman had only refunded $12 of the origina l $31 he paid. So he asked Norman “where’s my cash?” and Norman responded: “Fuck you and y our cash.” At that point, according to Blaes, Norman swung at him. Blaes hit Norman, they swung at each other a few times, and Blaes left. He said they were fighting between two t rucks, so no one could see them. But he acknowledged punching Norman with his fists and “kick[in g] him in his ribs a couple times.” When asked whether Norman seemed like he was injured, B laes said Norman kept swinging at him and was getting up when he was leaving to go to the bus stop. Blaes said that after the fight, he just walked ove r to the bus stop, got on a bus, a nd left. When asked if he felt threatened by Norman to the point that he felt like Norman was going to kill him, Blaes shrugged, t hought about it for a few seconds , and then responded: “I felt threatened.” But Blaes acknowle dged that, although Norman swung at him, Norman never actually hit him. Blaes denied threatening to kill Norman and said that if Norman said otherwise, “he’s full of shit.” The detective then told Blaes Norman had died because of his injuries. Blaes appeared surprised and said he only “hit him maybe three times that day. ” He elaborated that he initially hit Norman, kneed him twice, and then hit him again. Norman fell do wn, but he got up as Blaes was walking away to the bus stop. When the detective suggested he p robably just meant to hurt Norman because they were fighting, Blaes responded: “I was defending myself is what I was doing.” At trial, Blaes said that after he left the motel following the first altercatio n, he slept under a bridge. He went over to the res taurant early that morning and was sitting around. At some point,–5– he was sitting on the retaining wall near the restaurant when L ee and Stevenson approached. Blaes asked them: “[S]o, where’s your boy at? You know, so I can get my money back.” Lee said Norman would be there in a minut e, Lee went to sit down, and St evenson went to the store. A couple of minutes later, Norman came up behind Blaes and hit him in the side of the head. At that point, Norman jumped down off the retaining wall and the two started fighting. When asked whether any of Norman’s punches were hitting him, Blaes t estified: “Yeah, it was a fight.” Blaes denied stomping Norman with his boots or kicking him in t he head, and he explained that witnesses must have seen him “kicking my backpack and his backp ack out of the way so I wouldn’t trip over it every time he cam e at me or he wouldn’t trip over it every time he came at me.” Blaes claimed the two fought only once that day, and Norman was getting up off the ground when he left. When asked whether he intended to cause Norman se rious bodily injury, Blaes responded: “I was just trying to keep him from beating the crap outta me.” He then responded more directly that he did not intend to cause serious bodily ha rm. He added: “It’s tragic what happened. But in no means did I mean for anything like that to happen. By no means.” On cross, Blaes admitted that he told the detective in his inte rview that Norman never actually hit him. He also acknowledged that the boots he wore h ad steel toes and that kicking someone in the ribs or head with those boots would cause seriou s bodily injury. Finally, he acknowledged he never saw Norm an with a weapon when they fought

. Norman’s Injuries Paramedics found Norman lying on his back, bleeding from the le ft side of his head, bleeding from a laceration on his left eye, and bruising on his eyes and chin. At the hospital, doctors performed emergency surgery to remove portions of his skull to alleviate pressure on his brain due to bleeding. The treating physicia n testified that Norman’s con dition was consistent with a traumatic brain injury. The medi cal examiner noted injuries to Norman’s eyes, fac e, chin, lip, ear,–6– head, shoulder region, arms, chest, and abdomen. The autopsy re port concluded Norman died as a result of blunt-force trauma t o the head, and classified his de ath as a homicide. II. The evidence was legally suf ficient to support the jury’s i mplicit rejection of Blaes’s claim that he acted in self-defense. In his first issue, Blaes conte nds the evidence was legally ins ufficient for the jury to reject his assertion that he acted in self-defense. We review sufficie ncy challenges to the jury’s rejection of a self-defense claim under the standard articulated in Jackson v. Virginia , 443 U.S. 307, 318– 19 (1979); Alexander v. State , No. 05-1700599-CR, 2018 WL 5919129, at *6 (Tex. App.—Dallas Nov. 13, 2018, pet. ref’d) (mem. op., not designated for public ation). Thus, we must determine whether, after viewing all the evidence in the light most favor able to the verdict, any rational factfinder could have found the essential elements of murder an d rejected the defendant’s assertion of self-defense beyond a reasonable doubt. See Saxton v. State , 804 S.W.2d 910, 914 (Tex. Crim. App. 1991); Alexander , 2018 WL 5919129, at *6. Whether a defendant acted in self-defense is a factual issue fo r the jury, and it is exclusively within the jury’s province to determine the weight and credibil ity of the evidence supporting a self-defense claim. See Saxton , 804 S.W.2d 910 at 914; Alexander , 2018 WL 5919129, at *6. We therefore cannot “re-evaluate the weight and credibility of the record evidence and thereby substitute our judgment for that of the fact-finder.” Williams v. State , 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). To convict Blaes of murder as charged in the indictment, the ju ry had to find beyond a reasonable doubt that Blaes eith er: (1) intentionally or knowin gly caused Norman’s death; or (2) both intended to cause Norman serious bodily injury and committ ed an act that was clearly dangerous to human life which caused Norman’s death. T EX

. P ENAL C ODE A NN . § 19.02(b)(1)-(2). Under section 9.31 of the Penal Code, “a person is justified in using force against another when and to the degree the actor reasonably believes the force is im mediately necessary to protect the–7– actor against the other’s use or attempted use of unlawful forc e.” Id. § 9.31(a). Section 9.32 adds that the use of deadly force requires a reasonable belief that deadly force is “immediately necessary . . . to protect the actor against the other’s use or attempted use of unlawful deadly force.” Id. § 9.32(a)(2). The term “deadly force” refers to “force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury.” Id. § 9.01(3). Here, there was abundant evidence to show both that Blaes inten ded to cause Norman serious bodily injury and that he committed an act that was cle arly dangerous to human life which resulted in Norman’s death. See id. § 19.02(b)(1)-(2). Multiple witnesses reported seeing Blaes repeatedly punch and kick Norman with steel-toed boots. Moreove r, both Lee and Stevenson testified they saw Blaes kicking Norman in the head, an act whi ch Blaes himself acknowledged would likely cause serious bodil y harm. And Norman died from bl unt-force trauma to the head. In essence, Blaes asks us to re-w eigh the evidence on his self- defense claim. He asserts that, because Lee and Stevenson acknowledged they may not have seen portions of his confrontation with Norman at the restaurant, 2 the jury was required to credit his testimony that Norman initiated those confrontations. But whether Norman or Bl aes started the fight, a rational fact-finder could have concluded he was not justified in using deadly force. And Lee testified he saw Blaes attack Norman in the initial confrontation at the res taurant, and Haynes said she saw Blaes attack Norman in the second confrontation. Moreover, in h is interview with police, Blaes admitted Norman never actually hit him, which contradicted his testimony at trial. In addition, Lee and Stevenson both testified that Norman stood no chance in a fight with Blaes—an assessment that proved accurate based on witness accou nts of the confrontations

2 Lee testified his back was turned and his view was obstructed in the lead up to the final confr ontation at the restaurant. Bu t he testified he saw Blaes attack Norman in the initial altercation that day. St evenson testified he did not see Norman approach the retaining wall to sit down before the initial confrontation at the restaurant, but he saw Blaes a ttack Norman after he sat down. Stevenson further acknowledged that he may not have seen the entire second confrontation at the restaurant, but he saw “99.5%” of it.–8– between the two. Thus, it does not matter whether Lee or Steven son acknowledged being unable to see each confrontation in its entirety. Viewed in the light most favorable to the verdict, the evidence was sufficient for the jury to conclude beyond a reaso nable doubt that Blaes did not beat Norman to death in response to a reasonable belief that such fo rce was immediately necessary to protect against Norman’s use or attempted use of unlawful force —much less deadly force. We overrule Blaes’s first issue.

III. The evidence was factually sufficient to support the jury’ s implied finding that Blaes did not act in sudden passion. Blaes argues in his second issue that—at the punishment phase—t he jury was required to find by a preponderance of the evidence that he caused Norman’s death while “under the immediate influence of sudden passion arising from an adequate cause.” See id. § 19.02(d). The term “sudden passion” refers to “ passion directly caused by and arising out of provocation by the individual killed . . . which . . . ar ises at the time of the o ffense and is not solely the result of former provocation.” Id. § 19.02(a)(2). The term “adequate cause” means a “cause that w ould commonly produce a degree of anger, rage, resentment, or terror in a per son of ordinary temper, sufficient to render the mind incapable of cool reflection.” Id. § 19.02(a)(1). Although sudden passion is raised at the punishment phase, “it is analogous to an affirmative defense because the defendant has the burden of pro of by a preponderance of the evidence.” Gaona v. State , 498 S.W.3d 706, 710 (Tex. App.—Dallas 2016, pet. ref’d). Thus , in reviewing a factual-sufficiency c hallenge to a jury’s negative finding of sudden passion, we consider all the evidence in a neutral light without usurping t he jury’s function of assessing the weight of the evidence and the credibility of the witnesses’ te stimony. See Matlock v. State , 392 S.W.3d 662, 670–71 (Tex. Crim. Ap p. 2013). We cannot reverse un less the “verdict is so much–9– against the great weight of the evidence as to be manifestly un just, conscience-shocking, or clearly biased.” Id. at 671. Blaes again asks us to substitute our judgment for the jury’s w ith respect to the weight and credibility of the evidence against him. He argues that because , “from [his] point of view, Norman, Carl Lee, and Gary Stevenson ganged up on him, took his money, and stole his bag,” and then Norman “tried to sucker punch him in the side of the head,” it was easy to see how he “would snap.” He contends Lee’s and Stevenson’s testimony could not be trusted because they may have conspired with Norman to take Blaes’s money, adding that “[i]t makes much more sense that a man whose sole possess ions were in danger of being taken, who h ad only recently a djusted to life on the streets, and who seemed to be taken advantage of by the other three men, would lose his capability for cool refl ection.” Maybe, maybe not. The jury was not required to adopt Blaes’s version of the facts . Witnesses testified Blaes instigated the confrontation with Norman at the motel, asked wh ere he could find Norman the next day, instigated the initial conf rontation with Norman outside t he restaurant, left the restaurant after Norman went inside the restauran t, then returned to attack Norm an again, and that Norman never tried to hit him during any of t he confrontations. We conclude the jury’s rejection of Blaes’s claim that he acted under the immediate influence of su dden passion w as not so “against the great weight of the evidence as to be manifestly unjust, conscience-shocking , or clearly biased.” See Matlock , 392 S.W.3d at 671.–10– We affirm.

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. P. 47.2(b) 180488F.U05 /Cory L. Carlyle/ CORY L. CARLYLE JUSTICE–11– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
FRANK ROBERT BLAES, Appellant

No. 05-18-00488-CR V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 3, Dallas County, Texas Trial Court Cause No. F17-00535-J. Opinion delivered by Justic e Carlyle. Chief Justice Burns and Justice Myers participating. Based on the Court’s opinion of t his date, the judgment of the trial court is AFFIRMED

. Judgment entered June 24, 2019