Opinion filed Au gust 28, 20 09



### In The 

# Eleven th Court of Appeals

____________ 

### No. 1 1- 08 -0 00 71 -CR

____ ____ __ RA MON CISN ERO S, Ap pellant

V.
STA TE OF TEX AS , A ppellee

On App eal from the 118th Distric t Court How ard County, Texas Trial Court Cause No. 9786

M E M O R

A N D U M O P I N I O N The jury convicted Ramon Cisneros of murder and asse ssed his punishment at confineme nt fo r s e ve nte e n y e ars and

six mo nth s. We a ff

ir m. Issues on Appe al Appellant h as b ri efe d seven issues on a ppeal. F irst, appellant conte nds that the trial cour t

a bu se d it s d isc re tio n b y

de nyinghis mot ion

to se ve r a

nd g ra nti ngthe State ’s mot ion

to c on so lid a te his trial with the trial of a c odefe ndant. I n his second and third issues, a p p el l an t ar g ues that the evidenc e is both leg ally and factually insufficient. I n the nex t four issues, appellant contends that the trial cour

t erre d when i t fa i l ed to instruct the jury on the issue of sudden pa ssion arising f rom
a de qu a te c a

us e , to ins tr

uc t th e jur

y wh e n h is c od e fe nd ant e nte re d a ple a ba rg a in a g re e me nt, a nd

to2

s u b mi t c h ar g e s o nth e le s s e r in c lu d e d o f f e n s e s o f a g g r a v a te d

a s s a u lt an d c r im in a ll y

n eg lige nt ho mic ide . We wi ll a dd

re ss t he c ha lle ng e s to the su ff

ic ie nc y of the e vid e nc e fi rs t. Sufficiency of the E

videnc e Ap pe lla nt c on te nd s th a t th e e vid e nc e is l e g a lly and fa c tua lly ins uf fi c ie nt t o s up po rt

his

c on vic tio n. I n or de r to de te rm ine if the e vid e nc e is l e g a lly su ff ic ie nt, the a

pp e llate c ourt

re vie ws a ll of the e vidence in the light most fa vorable to the verdic t and deter mines whether

any rational trier of fact could have found the essential elements of the crime bey ond a re asonable doubt. Jack son v. Vi rg ini a , 4 43 U. S. 3 07 , 3 19 (1 97 9) ; L a s t e r v
. S t a te , 2 7 5 S

. W

. 3 d 512, 517-18 (Te x . Crim. App. 20 09 ); J ac k so n v . S tat e , 17 S.W .3d 664, 667 (Tex. Crim. App. 2000). To deter mine if the evide nce is factua lly

sufficie nt, the appellate court re views all of the e vidence in a neutra l light. Laster , 275 S.W .3d at 519; W

ats on v . S tat e , 20 4 S.W. 3d 40 4, 41 4 (T e x. Cr im. Ap p. 20 06 ); J oh ns on v . S

tat e , 23 S.W .3d 1, 10-11 (Te x . Crim. App. 2000); Cai n v . S tat e , 958 S.W .2d 404, 407-08 (Te x . Crim. App. 19 97 ); Cle wis v . S

tat e , 922 S.W .2d 1 2 6 , 1 2 9 (Tex. Crim. App. 1996). Then, the r eviewingcourt deter mines whether

the evidenc e supporting the verdict is so weak that the ver dict is clear ly wrong and manifestly unjust or whether the verdic t is ag ainst the g reat w eig ht a nd preponde ran ce o f t he conflicting evidenc e. W

atson , 2 04 S.W. 3d

a t 41 4- 15 ; Johnson , 23 S.W .3d at 10-11. Ap pe lla nt a nd De nn is B os we ll w e re ind ic te d f or the mur de r o f t

he vic timby

c a us inghim to fa ll f ro m th e sid e of

a br idg e . App e lla

nt a nd B os we ll w e re tr ie d in

a joi nt t ri a l. BigSpring Police D etec tive J im Ri der te stified that he knew the victim as a tra nsient who kept his things in thr ee differ ent “ca mps.” Detec tive Rider usually saw him walking up and down Hig hway 87. Olg a Perc hes testified that she c alled the victim “Austra lia” bec ause he would tell her things a bout Australia whe n he came into the Rip Gr iffin Trave l Center on Interstate 20 w here she worke d. Perche s stated t hat the victim often talke d about “of f-the- wall things” but that he would not “har m” anyone. On the nig ht of his death, the victim came into the trave l center b et we en 10:00 and 11:00 p.m. Perches sa

w the victim leave the store an d wa l k t o war d the bridg e that cr ossed I nterstate 20. There was a light blue car in the parking lot. Perches sa w two g irls ge t out of the ca r. She also saw a man walk quickly afte r t he victim

. L ater , she heard an a mbulance. T he man a

nd the tw o g ir ls came int o th e bu ild ingand us e d th e re str oo ms. Whil e Pe rc he s w a s a sk inga c us tom e r i f3

he knew what had ha

ppened, the man w h o h ad followe d the victim walked pa ssed her . Perche s ide nti fi e d th e man a s a

pp e lla nt. Pe rc he s st a te d th a t she kn e w B os we ll be c a us e sh e ha d wor

ke d w ith him . Pe rc he s st a te d th a t th e man s he sa w f oll owthe vic timwa s n ot B os we ll. B ig Spr ingPol ic e De pa

rtme nt P a tr ol S e rg e ant Joh n St ow e rs te sti fi ed th a t he re sp on de d to

a ca ll concer

ning a vehi cl e/ p ed est rian a ccide nt under the N orth Hig hway 87 bridg e cr ossing I nterstate 20. Ser g eant Stowers rec eived the call shortly befor e 11:00 p.m. He located the victim’s body direc tly under the bridg e, but could not find any evidenc e that a vehicle had actua lly struck the vic tim

. Way

ne Jones, an identification tec hnician for the B ig SpringPolice Depa rtment, te s ti f

ie d that the victim had bee n remove d when he arr ived on the sce ne. Jones photogra phed the a

rea , including the blo od sta in o n th e hig hw ay
. Jone s fo un d tw o se ts of sh oe pr int s on top of the br idg e . T he pr int s
wer e ag ainst the rail of the bridg e. One s et o f prints matched the victim’s shoes; the other set of prints were not identified. The distanc e fr om the lo ca t i o n o f the shoe pr ints on the bridge to the hig hw ay be low wa s tw e nty -e ig ht f

e e t. J on e s st a te d th a t he fo un d th e fo otp ri nts ne xt to the ra il w he re a “ ha lf moo n s ha

pe of dir t” had “a ccumulate d from the we ather and that ty pe of thing .” Jones estimated that the are a wa s two fee t by one and one -half f

eet. The re w as no dirt on the re st of the bridg e. Jones testified that the footprints on the bridge were about a foot to the right of and above the bloodstain on the hig hway be low . T he re wa s n o e vid e nc e of dr a g mark s. A tt h e e m e r g e n c y r o o m , J o n e s p h o t o g r a p h e d t h e v i c t i m an d

r e m o v e d i t e m s f r o m t h e b o dy. J ones found a wallet and a pocketknife

. The pocketknife was located “[d] eep down” in the pocket of the vic tim ’s jea ns
. Th e bla de wa s b e nt a nd no t ve ry sh arp . In th e vic tim ’s oth e r p oc ke t w a s a shank that appe are d to ha ve been made from a broken letter opener
. Howeve r, there wer e no g rind marks on the sha

nk except at “the ve ry

end whe re [it had] been broken of f.” J ennife r Cisneros testified that, a bout two y ear s prior to the victim’s death, he had ha rasse d her w here she wa s working at that time. She and the victim had a “ confr ontation” one morning , and she wa s shoved up ag ainst the wall. When J ennife r told the victim that she wa s go i n g t o call the police, the victim told her “ that he knew wher e [J ennife r and her da ug hter] laid [ their] heads at night.” He lef

t, and she did not repor

t the incident to the police.4

J ennife r saw the victim a g ain two y ear s later on the night that he died. At that time, she was datin g a pp e lla nt; a t the tim e of tr ia l, s he and a pp e lla nt w e re marr ie d. Jenn if

e r, a pp e lla nt, B os we ll, J .P. McBr ide, and L aF ond J ohnson were sitti ng in Bos we ll’s baby blue ca r outside of the tra

vel cente r; they

wer e wa iting on B oswell’s g irlfriend to g et off w ork. Jennifer and a ppellant had be en arguing a nd drinking

. When the victim wa lked out, Jennifer told a ppellant that the victim ha d hurt her “ one time.” Appellant bec ame a n gry at t he victim and told Boswe ll to let him out of the ca r. Jennifer stated that she thoug ht appellant wa nted to confr ont the victim. Eventually , Boswe ll allowed appellant to g et out of t h e ca r. Boswell asked a ppellant if he “ want[ed] to go bac k.” Jennifer testified that B oswell meant did appe llant want t o g o back to jail. Appellant said that nobody was g oing to hur

t J ennife r and star

ted to walk af

ter the vic tim. J ennife r testified that B oswell said, “ F --k it, then.” Boswe ll gr abbed the key s from the ig nition, “followed” a ppellant, and “ heade d out” towar d the bridg e. Jennifer did n o t see w hat happe ned bec ause she went inside to use the r estroom. She did see that a

ppellant had “ met up with” t he victim , and she remember ed that appe llant’s hands we re up. J ennife r wa s inside the store wa iting for J ohnson to ge t off the phone when a ppellant returne d. Appellant wa s very serious and told her

to “[g]et in the car .” Appe llant di d n o t t el l her what had ha

ppened on the bridg e. L ater , Boswe ll’s gir lfriend sa id that a dead man was found under the bridg e. Jennifer wa s shocked a nd scar ed. Jennifer re membere d appellant sa y ing that he “didn’t do it.” J ennife r testified that she wa s terrifie d when she g ave he r s t at em ent t o police and that that was why some of her te sti mony a t tr ia l va

ri e d f ro m he r p ri or

state me nt. Tere sa Paig e wa s traveling toward the bridg e with her w indows down and he r sunroof ope n. She could hea

r people arguing. Whil e she was stopped at a traff ic light, she saw a

n older man w ho was “ hunched ove r” w alk ri gh t behind her car . A Hispanic ma le was y elling at the older man. Another ma

n told the H ispanic man to stop. The situation made Paig e ner vous, and she r olled up her w indows, shut the sunroof, and locked the door s. She drove of f whe n the light turne d g ree n. She loo ke d b a c k in he r re ar vie w mir ro r an d saw tw o men on the br idg e . Sh e tho ug ht t hat th e Hi sp a nic man was holding the older ma n by his shoulders, but she could not be sure

.5

J ohnson testified that she we nt with J ennife r, B oswell, and appellant to w ait for B oswell’s g irlfriend to g et off w ork. Jennifer sawthe victim and said that one time he ha d threatened to hit her. Appellant g ot mad and said that he was g oing to “ beat [the victim’s] ass.” J ohns o n said that they tr ie d to ta lk a

pp e lla nt ou t of it. John so n te sti fi e d that the y ha d a ll s e e n th e vic tim“ ple nty of tim e s”

and that sh e kn e w h e wa s no t “ me nta lly a ll the re .” B os we ll a sk e d a pp e lla nt, “ Ma n, do y ou wa nt t o g o back?” J ohnson stated that she thought Boswe ll mea nt did appellant want to g o back to pr ison. Appellant said, “ I ’ll g o back.” Boswe ll a nd appellant “took off running .” Be fore he lef t, appellant g ave Johnson money to make a phone ca ll. J ohnson thought that B oswell and a ppellant wer e g oing to h ara ss t

he vic tim , a

nd sh e we nt i ns ide the sto re to m a ke a ph on e c a ll. J ohnson stated that, the next time she saw appellant, she w as still on the phone. Appellant told her to g et off the phone and said something about throwing “the guy over the bridg e.” Johnson testified that she did not know if appe llant was ser ious and that she “f rea ked out” a

nd hung up the phone. They sat in the car for a few minutes. She saw the police car s and the emer g ency vehicle. Th e y dr ov e of f. L a te r, the y

sto pp e d, and

a pp e lla nt a nd B os we ll g ot o ut o f the c ar. John so n c ou ld tell that the men were arg uing. She was nervous and tol d them that she wa nted to g o home. They took her to her

mother’s home. Dr. Gle nn Robert Grobe n tes t i fi ed that he wa s a deputy medical e x aminer in L

ubbock County

. Dr. Grobe n perf

ormed the autopsy on the victim. The victim had injuries to his head and upper chest. The main injury was a lace ration and contusion to the bac k of his head. T he victim had a depressed skull fra cture wher e the bone had been driven t owar d the center of his skull . This injury

was c onsistent with a fall from the br idge and with the victim landing on his back. The victim’s spine was br oken in two place s, and his spinal cord wa s torn in both place s. He a lso had contusions

on his br a in and mul tip le sk ull fr a c tur e s. On

his le ft sid e , h is r ibs we re fr a c tur e d a nd ha d to rn int o his lungs. Dr. Grobe n testified that the larg e bruise a cross the vic tim’s back appe are d to be the ar ea of imp a c t. D r. Gr ob e n co ncl ud ed tha t th e vic timdie d a s a re su lt o f i nju

ri e s f ro m th e fa ll. Dr . G ro be n f

ur the r test if ied that th e vic timwa s 5 ' 10 " ta ll a nd we ig he d 1 90 po un ds . T he vic tim tested “totally

neg ative” f

or drug s and alc ohol. He was of m edium build and was fifty -one y ear s old. The las t witn e ss t

he State c a lle d w a s a

pp e lla nt. Ap pe lla

nt w a ive d h is r ig hts un de r U .S. C O N ST . amend. V a

nd ag ree d to be ca lled as a witness for the State a s a “ta ctical de cision” out of a6

c on c e rn tha t a dir e c te d v e rd ic t might be gr ante d in fa vo r o f B os we ll. Th e tr ia l c ourt tho ro ug hly admonished appe llant on the rec ord. Appellant testified that “ no d ea l ” wa s involved with his testim ony and that he ha d elec ted for the jur y to determine punishment in the event that the jury found him g uilty . Appellant stated that he under stood it was unusual for the State to c all a codef endant as a w itness, that he could have waited to testify

afte r the State ha d rested, a nd that he chose to testify

at that time beca

use he w anted t h e j u r y t o h e ar h i s s t o r y. Appellant testi fi ed t hat he wa s sitti ng behind the drive r in the ca r at the tra

vel ce nter. B o s w e ll , Je n n if

e r , Jo h n s o n , an d

M c B r id e w e r e in

th e c a r w it h h im

. F o u r

o f th e m h a d dr u n k a s ixpack of tall boy s. They wer e waiting on B oswell’s g irlfriend to g et off w ork. Appe llant testified that there wer e “some quite attrac tive looking ladie s” in the ca r next to t hem. When appellant “ let Mr. B os we ll i n on it,” Jenn if

e r g ot ma d an d start e d to argue wi th h im. He kn e w that w hat he ha d s a id was “ wrong ” so he “ sat there ” and “ took it.” The victim came out of the store . Appellant stated that he had seen the victim before and that “[e]very one has se en him walking up and down Gr eg g Street.” Jennifer told him, “ That’s the guy that threatened me and Hija.” Appellant testified that “Hija” meant J ennife r’s daug hter. Appe llant stated that he took it upon himself to “threaten the g uy .” At first, Boswe ll would not le t him out of the ca r. When he did, appe llant “cha sed the g uy .” His only intentions “ wer e just to threaten the g uy .” Appellant had his ha nds up in the air a

nd was y elling. H e wa s not awar e that B oswell had followed him. The victim threw his hands up i n the air, and appe llant stated that he “ took that as a c onfrontation.” T he victim kept walking , and appe llant

“ c ha se d” him

. Twice befor e they

g ot to the bridg e, appellant and the victim stopped and face d eac h other. Ap pe lla nt t e sti fi e d th a t he thr e w u p h is hand s and a sk e d the vic tim , “ What’ s u p?” and “ Yo u li ke to b e a to nw o m e n
. W h y

d o n ’ ty o ut r

y t o b e a to na

m an ?” Ap p el l ant ca

ug ht the victim on the bridg e. The victim was standing on the sidewa lk, and appellant state d that that made the vic tim “look a lot bigg er tha n” him. Appellant testified that he ha d a lr e a dy

ma de a “ bu tt” ou t of hi mse lf

by c on fr on tin g the vic timand that he wa s “ no t g oin g to back dow n from [the victim] afte r [appellant] had called him down.” The victim r eac hed back like7

he had some thing in his hand. Appellant testified that he thoug ht about three times and then said, “The hell with it. L et’s g et it on.” Appellant steppe d up onto the sidewalk a nd lost his footing

. He fell down on all fours, a nd the vic timg ra

bb e d him in a hea dlo c k. Ap pe lla nt t e sti fi e d th a t he ha d n o id e a wh a t ha pp e ne d n e xt. He wa s “laying on [his] butt on the road,” and then Boswell wa s helping him up. He had he ard fo ots te ps bu t di d n ot kn ow who it was . H e did no t kn owif

the vic timjum

pe d o r i f B os we ll “clotheslined” him. Appellant stated that Boswe ll wa s in the are a whe n the victim jumped, fell, or sli pp e d. Ap pe lla

nt t e sti fi e d th a t he wa s tw e nty -e ig ht y e ars old and “ a bo ut s ix fo ot” ta ll. The State re sted, and a

ppellant testified in his own beha lf. Appellant testified that he had been f ri en d s wi t h Boswell for about twe lve y ear s. Boswe ll was like a brothe r to him, and it was “tough” t o t es t i fy

at this trial. Appellant testified that he thoug ht that the victim might have be en pushed or “ clotheslined.” Appellant testi fied that, if he was g oing to admit in hi s letters to J ennife r and to ano th e r

g ir lf r ie n d th a t h e h a d

p u s h e d th e v ic ti m o v e r

th e b r id g e , h e “ w o u ld

h a v e p le a d ed g uilty .” Appe llant stated that in the letters he did not talk about pleading g uilty but that he talked about a “ deal” that had bee n broug ht to him. Appellant stated that he did not say that he had pushe d the victim over the br idge

. Ap pe lla nt s ta te d th a t he wa s th e pe rs on wh o wa s ang ry wi th the vic tim , not B os we ll. B os we ll ha d tr ie d to sto p h im f

ro m c on fr on tin g the vic tim

. On cr oss-examination, appellant testified that he and Boswe ll had bee n in fig hts toge ther on many occa sions a

nd that “they cover ed eac h other’s back.” Appellant stated that he had ne ver ha d to help Boswe ll out because Bo s we l l al wa y s “took ca re of his own.” Appe llant stated that Detec tive Rider “had an attit ude toward [hi m] ” and that he had told Detec tive Rider that he ha d been at home all nig ht making love to his girlfr iend to g et the dete ctive “of f” his bac k. The jur y , a s th e f

in d e r o f f a c t, w a s th e s o le ju d g e o f th e w e ig h t a

n d c r e d ib il it

y o f the witnesses’ testimony . T EX
. C ODE C R IM . P R OC . ANN
. art. 36.13 (Ve rnon 2007), art. 38.04 (V ernon 19 79 ). Th e a

pp e llate c ourt

re vie ws the fa c tf

ind e r’ s w e ig hin g of

the e vid e nc e and

c ann ot s ub sti tut e its judgme nt for that of t he factfinder

. Cai n , 9 58 S.W. 2d a t 40 7; Cle wis , 922 S.W .2d at 133. Due defe renc e must be g iven to the fa ctfinder ’s deter mination, p ar t i cular ly

conce rning the weig ht and

cre dibilit y of the e vidence

. Johnson , 2 3 S. W.3 d at 9; J on es v . S tat e , 9 44 S.W. 2d

64 2 ( Te x. Cr im.8

App. 1996). This cour

t ha s the authority to disa g ree with the fac tfinder’ s deter mination “only

when the re cord c lear ly

indicates such a

step is nece ssary

to arr est the occurre nce of a manifest injust ice.” Johnson , 2 3 S. W.3 d at 9. We a lso no te that c ir c ums tanti a l e vid e nc e of int e nt mus t be re vie we d w ith the same sc rutiny

as any other e lement of the of

fense

. Laster , 275 S.W .3d at 519-20. Whe n v ie we d in the lig ht mos t fa vo ra ble to t he ve rd ic t, t

he e vid e nc e is l e g a lly

su ff ic ie nt t o support the jury ’s deter

mination that appellant committed the offe nse alleg ed. A rational fac tfinder could have rea sonably

conclude d that appellant cause d the victim’s de ath. L ikewise, whe n viewed in a neutr al l i g ht, we find that the e vidence is factua lly sufficie nt to support the verdict. As the fac tfinder, the jur

y observe d the demea

nor of eac h witness and could a cce pt or reje ct any or all of

a wi tne ss’ s te sti mony
. Ar tic le s 36 .1 3, 38 .0 4; see Ma rsh all v . S tat e , 2 1 0 S. W. 3 d

6 1 8 , 6 2 5 ( T e x. Crim. A p p
. 2 0 0 6 )

. T h e ju

r y c o u ld h a v e r e a s o n a

b ly r e je c te d a p p e ll an t’ s te s ti mo n y th a t h e did not know what ha

ppened a nd acc epted the te stimony that appellant wa s seen on the br idge holding the victim by his shoulders. Fr om the testimony descr ibing the position of the victim on hi s back on the interstate hig hway

below an d over a

bout a foot fr om the footprints on the bridg e above and the testimony of the confrontation between appellant and the victim, the jury could have conclude d that

a pp e lla nt c a us e d th e vic tim ’s de a th a s all e g e d in the ind ic tme nt. Whil e the ve rd ic t is a ff or de d le ss defe renc e under

a fa ctual suff

iciency revie w, the appe llate cour t is not free to ove rride the verdic t simply beca use the a ppellate c ourt may

or may not ag ree with it. Laster , 2 7 5 S.W .3d 520. The evidenc e is not so weak that the verdic t is clearly wrongand manife stly

unjust, and the verdic t is not ag ainst the gre at weight and preponde ranc e of the conf licting e vidence . The sec ond and third issues

are overr uled. J

oin t Tri al o

f A pp e lla nt a nd

De nn is B os we ll As stated above , both appellant and Boswe ll we re indicted for the murder of the victim. Each indictment contained e nhance ment alleg ations. On appe al, appe llant argues that, since both men ha d prior convic tions, “the issue is one of pre judice to [appe llant’s] ca se.” A ppellant contends that he

never asked B oswell to help and that his contac t with th e v i ct i m cea sed bef ore B oswell’s conta ct beg an. The ref

ore, the denial of the sever ance preve nted the jury from conside ring these sce narios

s e p ar a t e l y.9

I n hi s m otion to sever, appe llant only argued that B oswell’s prior c onviction would be pr e jud ic ia l and that a joi nt tr ia l w ou ld c a us e “ anta g on ist ic de fe ns e s. ” Ap pe lla nt d id n ot p re se nt h is argument that his conduct and B oswell’s conduct wer e in f act two separ ate c riminal episodes that could not be joined under T EX
. P EN A L C ODE ANN
. § 3.02 (Ve rnon 2003). There fore , appellant ha s failed to pre serve this complaint for appe llate re view. T EX
. R. A PP
. P. 33. The rec ord does not support appellant’ s complaints that the j oinder resulted in prejudice to him. Appellant testified as to h is p ri or

c on vic tio ns . App e lla

nt h a s n ot e sta

bli sh e d th a t th e tr ial cou rt e rr e d. Th e fi rs t is su e is

overr uled. Cha rg e to t heJ ur y A. Boswell’s Plea of Guilty. The jury beg an deliber ations at 12:17 p.m. At 4:30 p.m., t he j u ry s ent t he following note: “We have made a

decisio n o n o ne of the defe ndants. We remain in deliber ation of the sec ond, possibly deadloc k.” The trial court responded, “Thank y ou for y our update. Please c ontinue y our deliberations.” At 5:15 p.m., Boswe ll’s attorney informed the trial court that Boswell had e ntere d into a plea ba

rg ain ag ree ment. Boswe ll ag ree d to plead g uilty to the offe nse of mansla

ug hter, a nd the S tate recommende d incar cer ation for ten y ear s. The trial c ourt proce eded to discuss the situation with Boswe ll and to admonish him. The trial court then acc epted Boswell’s plea, convicted him of

mans la ug hte r, and

imp os e d th e re c omm e nd e d p un ish me nt o f c on fi ne me nt f or te n y e ars
. The trial c ourt then announc ed that it was sending a note to the j ury stating, “You ar e her eby ins tr uc te d th a t y ou

sh ou ld i mme diate ly

te rm inate y our del iber a tio ns a s to the De fe nd ant D e nn is Boswe ll. I f y ou have r eac hed a verdic t a s to the Def endant Ramon Cisneros, y ou should notify the bailiff and the n return into cour t with y our verdict. Otherw ise, please continue y our deliber ations.” Appellant objec ted on the g rounds that that would send a mes s age t o the jury

that the State had dismiss ed the c harg es ag ainst Boswe ll. After some discussion, the trial court proposed bring ing the jur y int o th e c ourt

ro om t o a sk

if the jur y wa s st ill in a g re e me nt a s to on e de fe nd ant a nd, if so , a sk as to which de fenda

nt the jury

was in ag ree ment

. I f t he jury answe red that appellant wa s the defe ndant about whom it ag ree d, then the trial court would instruct the jury to go ba ck into the jury

ro om a nd ind icate to t

he ba ili ff tha t a ve rd ic t ha d b e e n r e a c he d. Th e tr ia l c ourt a sk e d a pp e lla nt i f there was “ [a] ny

problem with that.” Appe llant stated, “None .”10

Th e jur y e nte re d the c ourt

ro om at 5:5 5 p.m. , an d the tr ia l court a sk e d the pr e sid ingjur or if th e ju r y w a s s ti ll in c o n c u r

r e n c e o n it s d e c is io n a s to o n e o f th e d e f e n d an ts

. T h e p residing juror

answe red y es. The tr ial court a sked if the jury was still in a deadloc k as to the other defe ndant. The pre s i ding jur or answe red y es. When the trial cour t asked whic h defe ndant the jury had re ache d a decision upon, the presiding juror answ ere d that it was appe llant. The trial cour t then instructed the jury to r eturn to the jury room and, if it ha d not a lrea dy done so, to prepa

re its ver dict. The trial c ourt fu rt he r ins tr uc te d the jur

y to kn oc k on

the do or wh e n it wa s f ini sh e d, and

a t th a t ti me , th e jur

y wo uld be br ou g ht back in to the c ourt ro om s o th a t th e tr ia l c ourt c ou ld r e c e ive the jur

y ’s ve rd ic t a s to

a pp e lla nt. Ap pe lla nt n owc omp la ins of

the ve ry pr oc e dure to w hic h h e ha d a g re e d. Ap pe lla nt’ s f if th issue prese nts nothing for appellate revie w. Rule 33. The f ifth issue is overruled. B. Lesse r I

nc lud e d O ffe ns es. Appellant complains that the tria l court erred in failing to include his reque sted submission on the lesser

included offenses of ag g ravated assault and criminal neg lige nt homicide. We disag ree
. I n deter mining whe ther the jury should be cha rg ed on a le sser include d offe nse, a two- step analy sis is applied. Se

gu nd o v. Sta te , 2 70 S.W. 3d

79 , 9 0- 91 (T e x. Cr im. Ap p. 20 08 ); Ha ll v . S tat e , 22 5 S. W.3 d 5 24 , 5 25 (T e x. Cr im. Ap p. 20 07 ). Th e a pp e llate c ourt fi rs t con sid e rs the a lle g a tio n in the indictment to decide if the offense is a lesser included off ense of the cha rg ed off ense a nd then examines the rec o rd for evidence from which a rational jury

could ac quit the defe ndant of the char g ed offense while convicting him of t he lesser included off ense. Segundo , 270 S.W .3d at 90-91. As alleg ed in the indictment, both ag g ravated assault and c riminal neg lige nt homicide are lesser inc luded offe nses of murde r. Howe ver, the re is no evide nce in the r ecor d up o n whi ch a ration al jury

might have acquitted a

ppellant of murde r while c onvicting him of e ither ag g ravated assault or c riminal neg lige nt homicide

. Appellant’s testimony was that he intended to only threaten the victim, that the victim was the ag g ressor who put a headlock on him forc ing him to the g round on all fours a

nd on his butt, and that Boswe ll had to pu l l h i m u p o ff t he g round. The r equeste d char g es we re not supporte d by the evidenc e. The ref

ore, t h e t ri al cour

t did not err. The six th and seventh issues ar e over

ruled.11

C. Sudden Passion. I n his fourth issue, appe llant contends that the trial c ourt err ed by denying his reque st at the punishment phase for

an instruction on the def

ense of sudden passion. We disag ree
. T EX
. P EN A L C ODE ANN . § 19.02 (Ve rnon 2003) def ines the off

ense of murder a nd provides in r e le va nt p art : (d ) A t th e punis hme nt s ta g e of a tr ia l, the de fe nd ant may ra ise the iss ue a s to whether he caused the death under the immediate influe nce of sudden passion ar ising f r o m a na d e q u a t e c a u s e
. If t h e d e f e n d an tp r o v e s t h e i s s u e i nt h e a f f i r m a t i v e b y a preponde ranc e of the evidenc e, the of fense is a felony

of the sec ond deg ree
. Section 19.02(a) define s adequate ca use as th at cause that would commonly produce a “de g ree of ang er, r ag e, re sentment, or ter ror in a pe rson of ordina ry temper, s u ff

i ci ent to rende r the mind incapa ble of c ool refle ction.” Section 19.02(a )(2) define s sudde n p a ssion as “passion direc tly cause d by and ar ising out of pr ovocation b y t h e i n d i vidual killed or another actingwith the person killed which passion ar ises at the time of the of fense and is not solely

the re sult of former

provocation.” Appellant did not sustain his burden of e stablishing th at the victim provoked a deg ree of

re sp on se tha

t a pe rs on of or din ary te mpe r w ou ld h a ve a c te d a s h e did . H e did no t a ff ir ma tiv e ly establish either a dequate cause or sudden passion as defined by Section 19.02. He did esta blish that he int e nd e d to thr e a te n the vic tim be c a us e the vic tim ha d thre a te ne d Jennif e r at so me tim e in t

he pa st. There fore , the trial cour

t did not err. McKin ney v . S tat e , 179 S.W .3d 565, 569 (Tex. Crim. App. 2005). The f

ourth issue is overrule d. Holding The judg ment of the trial c ourt is affir med.

RI CK STRANGE

JUSTI CE Aug ust 28, 2009 Do not publish. See T EX
. R. A PP
. P. 47.2(b). Panel consists of: Wright, C.J ., M c C a l l , J. , an d

S t r an g e , J.