PD-1076-14

IN THE TEXAS COURT OF CRIMINAL APPEALS

_________________________________________________

RICARDO BELTRAN

PETITIONER-APPELLANT

vs.

THE STATE OF TEXAS

RESPONDENT-APPELLEE

_________________________________________________

ON DISCRETIONARY REVIEW FROM 

THE FIFTH COURT OF APPEALS

CAUSE NO. 05-12-01647-CR

APPEAL FROM THE 194TH JUDICIAL DISTRICT COURT

OF DALLAS COUNTY, TEXAS, CAUSE NO. F-1056077-M

_________________________________________________

PETITIONER’S BRIEF ON THE MERITS

_________________________________________________

ROBERT N. UDASHEN, P.C.

State Bar No. 20369600

rnu@sualaw.com

BRETT ORDIWAY

State Bar No. 24079086

bordiway@sualaw.com

SORRELS, UDASHEN & ANTON

2311 Cedar Springs, Suite 250

Dallas, Texas 75201

214-468-8100 (office)

214-468-8104 (fax)

Counsel for Appellant

PD-1076-14

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 2/25/2015 2:47:34 PM

Accepted 2/25/2015 2:55:48 PM

ABEL ACOSTA

CLERK
2

Identity of Parties and Counsel

For Appellant Ricardo Beltran:

JOHN M. HELMS 

Trial and direct appeal counsel

HELMS, ROBERTS & DIAZ LLP

6060 N. Central Expressway, Suite 560

Dallas, Texas 75206

ROBERT N. UDASHEN

BRETT ORDIWAY

Petition for discretionary review counsel

SORRELS, UDASHEN & ANTON

2311 Cedar Springs Suite 250

Dallas, Texas 75201

For Appellee the State of Texas:

STEPHANIE FARGO

GLEN FITZMARTIN

Trial counsel of record

DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE

133 N. Riverfront Blvd., LB 19

Dallas, Texas 75207

BRAD CLEMENTS

Appellate counsel

DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE

Trial judge:

THE HONORABLE ERNEST WHITE 

THE 194TH JUDICIAL DISTRICT COURT OF DALLAS COUNTY
3

Table of Contents

Identity of Parties and Counsel................................................................. 2

Index of Authorities.................................................................................... 4

Statement of the Case and Procedural History ........................................ 6

Issue Presented........................................................................................... 8

Statement of Facts...................................................................................... 9

Summary of the Argument ...................................................................... 11

Argument.................................................................................................. 12

For purposes of determining whether an appellant was entitled to a 

jury instruction on sudden passion, some evidence that he acted in 

self-defense does not negate all evidence that he acted in sudden 

passion. .................................................................................................. 12

I. The court of appeals’s fatally flawed holding ............................. 12

II. Evidence that Beltran acted in self-defense doesn’t negate 

evidence he acted in sudden passion................................................ 16

III. Conclusion ................................................................................... 20

Prayer........................................................................................................ 20

Certificate of Service ................................................................................ 22

Certificate of Compliance......................................................................... 22
4

Index of Authorities

Cases

Beltran v. State, 05-12-01647-CR, 2014 WL 3587367 (Tex. App.—Dallas 

2014) .............................................................................................. passim

Brunson v. State, 764 S.W.2d 888, 895 (Tex. App.—Austin 1989, pet. 

ref’d)................................................................................................. 14, 18

Chavez v. State, 6 S.W.3d 56, 65 (Tex. App.—San Antonio 1999, pet. 

ref’d)....................................................................................................... 18

Daniels v. State, 645 S.W.2d 459, 460 (Tex. Crim. App. 1983) .............. 19

Golden v. State, 851 S.W.2d 291, 295 (Tex. Crim. App. 1993) ............... 14

Hayes v. State, 728 S.W.2d 804, 807 (Tex. Crim. App. 1987)................. 14

Hobson v. State, 644 S.W.2d 473, 478 n. 10 (Tex. Crim. App. 1983) ..... 13

Jones v. State, 687 S.W.2d 425, 430 (Tex. App.—Dallas 1985, pet. ref’d)

......................................................................................................... 15, 17

McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005) .......... 13

Merchant v. State, 810 S.W.2d 305, 309–10 (Tex. App.—Dallas 1991, 

pet. ref’d)................................................................................................ 15

Milliff v. State, No. 14-13-00052-CR, 2014 WL 1713897, at *7 (Tex. 

App.—Houston [14th Dist.] 2014, no pet.)........................................... 19

Moore v. State, 969 S.W.2d 4, 15 (Tex. Crim. App. 1998) (Keller, J., 

concurring and dissenting)................................................. 14, 15, 17, 18

Pierce v. State, No. 08-12-00150-CR, 2014 WL 1633028, at *5 (Tex. 

App.—El Paso 2014, pet. ref’d)............................................................. 19

Rayme v. State, 178 S.W.3d 21, 28 (Tex. App.—Houston [1st Dist.] 2005, 

pet. ref’d)................................................................................................ 13

Thompson v. State, 02-12-00351-CR, 2013 WL 5303631 (Tex. App.—

Fort Worth 2013, pet. ref’d).................................................................. 18

Villarreal v. State, ---S.W.3d ---, No. PD-0332-13, 2015 WL 458146, *11 

(Tex. Crim. App. Feb. 4, 2015) ............................................................. 18

Wooten v. State, 378 S.W.3d 652, 657 (Tex. App.-Houston [14th Dist.] 

2012, pet. granted)................................................................................ 17

Wooten v. State, 400 S.W.3d 601, 608–09 (Tex. Crim. App. 2013)......... 18

Statutes
5

TEX. PEN. CODE § 9.31(a) .......................................................................... 15

TEX. PEN. CODE § 19.02 .............................................................................. 6

TEX. PEN. CODE § 19.02(a)(2)................................................................ 6, 12

TEX. PEN. CODE § 19.02(d)........................................................................ 12

TEX. PEN. CODE § 19.03(a)(2)...................................................................... 6
6

Statement of the Case and Procedural History

It is undisputed that Beltran and Victor Ramos killed the complainant. The only question in this case is whether Beltran murdered 

the complainant in the course of a robbery, as the State alleged, or

whether, as Beltran maintained, he killed the complainant under the 

immediate influence of sudden passion, or killed him in self-defense.

Beltran v. State, 05-12-01647-CR, 2014 WL 3587367 (Tex. App.—Dallas 

2014).

Beltran was charged with the former—capital murder. (CR: 13); 

see TEX. PEN. CODE § 19.03(a)(2). He pleaded not guilty, and the jury indeed rejected the State’s contention that Beltran murdered the complainant in the course of robbing him. (CR: 59). Instead, consistent with 

Beltran’s contention that he acted under the immediate influence of 

sudden passion, the jury found him guilty of the lesser-included offense 

of murder. See TEX. PEN. CODE § 19.02. When it came time to assess to 

Beltran’s punishment, though, the court refused to submit to the jury 

an instruction on sudden passion. (CR: 54-59); see TEX. PEN. CODE § 

19.02(a)(2). Left with no guidance, the jury then sentenced Beltran to 70 

years’ imprisonment. (CR: 59).
7

Beltran appealed to the Fifth Court of Appeals at Dallas, arguing 

only that the trial court erred in refusing to submit such an instruction. 

Beltran, 2014 WL 3587367. The Court overruled his complaint and affirmed his conviction on July 22, 2014. Id. No motion for rehearing was 

filed.
8

Issue Presented

Whether, for purposes of determining whether an 

appellant was entitled to a jury instruction on 

sudden passion, some evidence that he acted in 

self-defense negates all evidence that he acted in 

sudden passion.
9

Statement of Facts

The sole witness to testify as to the circumstances surrounding 

the complainant’s death was Beltran. He testified that, after a night of 

heavy drug use, he and Victor Ramos went to the complainant’s apartment searching for more. (RR7: 78-82, 91-92). Once there, they snorted 

“cheese,” which, at trial, Beltran explained was heroin mixed with Tylenol PM. (RR7: 66, 93-94). After doing so, the complainant made a 

“gayish” comment, stroked Beltran’s face, and said “Pretty little thing.” 

(RR7: 95). Beltran was uncomfortable and, in Spanish, told Ramos he 

wished to leave, but Ramos assured Beltran that the complainant was 

heterosexual (RR7: 95). 

He was not. After Beltran and Ramos then ingested more 

“cheese,” and then Xanax, Beltran passed out. (RR7: 98-102). He awoke 

when he discovered the complainant—who Beltran initially believed to 

be naked, but was in fact clad in women’s lingerie—licking his anus. 

(RR4: 200-201; RR5: 164; RR7: 102-103). 

Beltran screamed and “panicked,” in response to which the complainant “jumped on top of [him].” (RR7: 104). The complainant was a 

large man, standing six feet tall and weighing approximately two hun-
10

dred eighty pounds, in contrast to Beltran’s 160-pound stature. (RR4: 

85). Beltran remained “panicking” as the complainant then attempted 

to smother his breathing with a pillow. (RR7: 105-106). “[S]udden[ly],” 

then, Ramos appeared and hit the complainant. (RR7: 106). The complainant turned his attention to Ramos, at which point Beltran grabbed 

him. (RR7: 107). As Beltran attempted to restrain the complainant, 

Ramos stabbed him to death. (RR7: 107-109). Thereafter, Beltran continue to be “panicking,” “totally shocked,” “freak[ed] out,” and “scared.” 

(RR7: 111-112). 
11

Summary of the Argument

Beltran “panicked” when he was awoken by the complainant licking his anus. He remained “panicking” as the complainant then attempted to smother his breathing with a pillow. And, upon assisting in 

the complainant’s killing immediately thereafter, Beltran continued to 

“panic,” and be “totally shocked,” “freak[ed] out,” and “scared.” 

In determining whether the trial court erred in denying Beltran’s 

request for a sudden passion instruction, though, the Dallas Court of 

Appeals ignored this evidence in an effort to point to other evidence that 

he did not act out of sudden passion. That, itself, is directly contrary to 

this Court’s precedent and demands reversal. Even more demanding, 

though, is that, ironically, that evidence which the blinders-donning 

Court focused on—that Beltran acted in self-defense—also necessitated 

reversal. Indeed, self-defense and sudden passion are intricately intertwined, and except in rare instances, facts that give rise to a selfdefense issue also give rise to a sudden-passion issue.
12

Argument

For purposes of determining whether an appellant was entitled to a jury instruction on sudden 

passion, some evidence that he acted in selfdefense does not negate all evidence that he acted 

in sudden passion.

w w w

I. The court of appeals’s fatally flawed holding

On appeal to the Dallas Court of Appeals, Beltran pleaded that, in 

light of all the evidence, the trial court erred in denying his request for 

a punishment jury instruction on sudden passion.1 Beltran v. State, 05-

12-01647-CR, 2014 WL 3587367, *1 (Tex. App.—Dallas 2014). To justify 

such an instruction, the record must only minimally support an inference that: 

1) the defendant in fact acted under the immediate influence of 

a passion such as terror, anger, rage, or resentment; 

 

1 A murder committed under the “immediate influence of sudden passion arising 

from an adequate cause” is a second-degree felony carrying a maximum punishment 

of twenty years’ imprisonment. TEX. PEN. CODE § 19.02(d). Sudden passion is “passion directly caused by and arising out of provocation by the individual killed” 

which arises at the time of the murder. Id. at 19.02(a)(2). Adequate cause is a 

“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 19.02(a)(1). The defendant has the burden of production and persuasion 

with respect to the issue of sudden passion. Id. at 19.02(d).
13

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.” 

McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005). “In other words, sudden passion is ‘an excited and agitated mind at the time of 

the killing caused by an act of the deceased.’” Rayme v. State, 178 

S.W.3d 21, 28 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (quoting 

Hobson v. State, 644 S.W.2d 473, 478 n. 10 (Tex. Crim. App. 1983)). It 

does not matter that the evidence supporting the submission of a sudden passion instruction is weak, impeached, contradicted, or unbelievable. Id.; Trevino, 100 S.W.3d at 238-39. If the evidence raises the issue 

from any source, during either phase of trial, then the defendant has 

satisfied his burden of production and, if the defendant requests the instruction, the trial court must submit the issue in the jury charge. 

McKinney, 179 S.W.3d at 569; Trevino, 100 S.W.3d at 238–39. And here, 

Beltran’s repeated testimony that he acted while panicked certainly sat-
14

isfies that minimal standard. 2 See, e.g., Brunson v. State, 764 S.W.2d 

888, 895 (Tex. App.—Austin 1989, pet. ref’d) (quoting multiple dictionary definitions of “panic” and then holding “the conclusion is inescapable that when appellant testified, ‘I panicked,’ he was testifying in 

shorthand form, ‘I experienced a sudden terror of such degree that it 

overwhelmed my mind.’”); Trevino, 100 S.W.3d at 239 (considering appellant’s demeanor after murder as supportive evidence to justify sudden-passion instruction, and holding that some evidence of sudden passion consisted of the defendant “freaking out,” “scared and panicked,” 

“crying and shaking,” “pacing,” “consistently upset and crying,” “sounded distressed,” and “looked past” the investigator); Moore v. State, 969 

S.W.2d 4, 15 (Tex. Crim. App. 1998) (Keller, J., concurring and dissenting) (“sudden passion can also be inferred from the conduct and appearance of the defendant. Some examples could be: running, striking inanimate objects without any apparent rational purpose, shouting, scream-

 

2 It is immaterial that the evidence came solely from Beltran. See, e.g., Golden v. 

State, 851 S.W.2d 291, 295 (Tex. Crim. App. 1993) (“It is well-settled that a defendant’s testimony alone is sufficient to raise a defensive issue requiring an instruction 

in the jury charge.”); Hayes v. State, 728 S.W.2d 804, 807 (Tex. Crim. App. 1987). 

Moreover, one of the State’s expert witnesses confirmed that, consistent with Beltran’s testimony, the complainant’s DNA was found on the inside of Beltran’s underwear. (RR7: 55-57).
15

ing, crying, and facial expressions.”); see also Jones v. State, 687 S.W.2d 

425, 430 (Tex. App.—Dallas 1985, pet. ref’d) (Stephens, J., dissenting)

(“Magic words, such as ‘sudden passion’ are unnecessary, so long as the 

circumstances give rise to the inference that the defendant acted under 

‘sudden passion.’”). Indeed, the court of appeals repeatedly acknowledged Beltran panicked. Beltran, 2014 WL 3587367 at *1-3 (“Beltran 

screamed in panic and moved”; “‘Panicking’ and ‘shocked,’ Beltran 

asked Ramos if they should call the police”; “[Beltran] said his reaction 

to finding McKnight assaulting him was to move and scream in panic.”).

Yet, the court of appeals held that the evidence did not even “minimally support” an inference that Ramos acted out of sudden passion 

because the evidence also showed “Beltran was consciously aware of the 

danger [the complainant] posed” and tried “to protect Ramos and himself” and “to get control of the situation.” Id. at *3 (citing Moore, 969 

S.W.2d at 15 (Keller, J., concurring and dissenting) (quoting Merchant

v. State, 810 S.W.2d 305, 309–10 (Tex. App.—Dallas 1991, pet. ref’d)); 

Jones, 687 S.W.2d at 428). In other words: that Beltran acted in selfdefense. See TEX. PEN. CODE § 9.31(a) (“a person is justified in using 

force against another when and to the degree the actor reasonably be-
16

lieves the force is immediately necessary to protect the actor against the 

other’s use or attempted use of unlawful force.”).

II. Evidence that Beltran acted in self-defense doesn’t negate 

evidence he acted in sudden passion

This was plainly incorrect. First, even if sudden passion and selfdefense were mutually exclusive concepts, this Court in its seminal 

opinion on the issue of sudden-passion jury instructions forbid that exact parsing analysis:

The problem with the State’s argument is that it addresses 

solely the evidence against sudden passion. While the evidence the State mentions was presented at trial, an appellate court’s duty is to look at the evidence supporting that 

charge, not on the evidence refuting it.

Trevino, 100 S.W.3d at 238-39. Thus, even if the concepts were wholly 

distinct, that evidence of both was present in no way precludes an instruction as to sudden passion. 

And, sure enough, those cases to which the Dallas Court of Appeals cited as support for its contrary holding contained no additional

evidence to that which indicated the defendant did not act out of sudden 

passion. Actually, the Moore opinion isn’t supportive at all—its a hybrid 

concurrence/dissent, pointed to only for the undisputed proposition that 

“[e]vidence of adequate cause does not automatically raise the issue of 
17

sudden passion.” Moore, 969 S.W.2d at 15 (Keller, J., concurring and 

dissenting). Moreover, as noted above, in that opinion Judge Keller 

pointed to screaming and crying—as Beltran did—as evidence of sudden 

passion. Id. And Jones rejected a claim of sudden passion because it 

found the defendant initiated the provocation that lead to the killing by 

burglarizing the victim’s home. Jones, 687 S.W.2d at 427-28. Only alternatively did it address whether the defendant acted out of sudden 

passion, and even then it held simply that evidence he was worried the 

victim was reaching for a knife did not itself constitute evidence of sudden passion. There was no evidence in that case that he panicked. Id. at 

429.

More significant, though, is that self-defense and sudden passion 

are not mutually exclusive concepts; that Beltran’s acted to prevent the 

complainant from harming him does not weigh against sudden passion. 

Indeed, “[s]elf-defense and sudden passion are intricately intertwined, 

and except in rare instances, facts that give rise to a self-defense issue 

also give rise to a sudden-passion issue.” Wooten v. State, 378 S.W.3d 

652, 657 (Tex. App.-Houston [14th Dist.] 2012, pet. granted) (citing 

Chavez v. State, 6 S.W.3d 56, 65 (Tex. App.—San Antonio 1999, pet. 
18

ref’d), rev’d on other grounds 400 S.W .3d 601, 606–07 (Tex. Crim. App. 

2013); see also Brunson, 764 S.W.2d at 894-95 (“It is difficult for this 

Court to imagine a situation in which the evidence would be sufficient 

to raise the issue of the use of deadly force in self-defense, and yet 

would not be sufficient to satisfy the adequate cause prong of the voluntary manslaughter test.”); Thompson v. State, 02-12-00351-CR, 2013 

WL 5303631 (Tex. App.—Fort Worth 2013, pet. ref’d) (an unprovoked, 

violent attack with a box cutter is sufficient provocation to induce the 

requisite emotional state in a person of ordinary temperament to justify 

a sudden-passion instruction); Moore, 969 S.W.2d at 11 (holding evidence that murder occurred during violent fight, including victim’s attempt to run appellant over with a car, sufficient to raise sudden passion). This Court has repeatedly and recently recognized as much, noting that a jury’s treatment of one is informative as to the other. Villarreal v. State, ---S.W.3d ---, No. PD-0332-13, 2015 WL 458146, *11 (Tex. 

Crim. App. Feb. 4, 2015) (citing Wooten v. State, 400 S.W.3d 601, 608–

09 (Tex. Crim. App. 2013)). Only when capable of cool reflection do facts 

that give rise to a self-defense instruction not also give rise to a suddenpassion instruction, and again, in this case, Beltran repeatedly testified 
19

he was panicked during the entirety of the rapid sequence. Cf. Daniels 

v. State, 645 S.W.2d 459, 460 (Tex. Crim. App. 1983) (no evidence of 

sudden passion in self-defense case where defendant testified that he 

was “in full control” and “knew [he] had to do what [he] did.”); Pierce v. 

State, No. 08-12-00150-CR, 2014 WL 1633028, at *5 (Tex. App.—El 

Paso 2014, pet. ref’d) (“There is no evidence, however, that her fear rose 

to the level of terror such that it rendered her mind incapable of cool reflection at the time she shot Mr. Pierce. To the contrary, Appellant stated that she did not want to shoot him, but she knew if she did not do it, 

he would kill her. Appellant also had time to retrieve her gun from her 

purse, go into the bathroom, and wait for Mr. Pierce to walk toward the 

bathroom.”); Milliff v. State, No. 14-13-00052-CR, 2014 WL 1713897, at 

*7 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (appellant not entitled to sudden passion instruction where he “declared his intention was 

to kill [the complainant] because he pulled a gun on him: ‘someone pulls 

a gun on you, you're going to kill [him].’ Appellant's own appraisal of his 

situation reveals that he had reflected on it, knew what he had to do, 

and did it.”). Far from precluding Beltran’s entitlement to a sudden 

passion instruction, then, that he recognized the danger the complain-
20

ant posed and tried to suppress it supports his right to the instruction.

And, in fact, the recognition of the danger posed by the complainant led 

directly to Beltran’s agitated state of mind and caused him to be incapable of reflection.

III. Conclusion

There was ample evidence in this case that Beltran acted out of 

sudden passion. Certainly, there was not “no evidence.” Beltran, 2014 

WL 3587367 at *3. Because the evidence also indicated Beltran acted in 

self-defense, though, the court of appeals held there was “no evidence” 

Beltran acted “under the immediate influence of sudden passion,” and 

he was therefore not entitled to a jury instruction on the issue. This was 

incorrect, for multiple reasons. 

Prayer

Accordingly, Beltran respectfully requests this Court to reverse 

the judgment of the Dallas Court of Appeals and remand this case to 

that court for an analysis of whether Beltran was harmed by the trial 

court’s error.

Respectfully submitted,
21

/s/ Robert N. Udashen

ROBERT N. UDASHEN, P.C.

Bar Card No. 01274700

rnu@sualaw.com

/s/ Brett Ordiway

BRETT ORDIWAY

Bar Card No. 24079086

bordiway@sualaw.com

SORRELS, UDASHEN & ANTON

2311 Cedar Springs Road

Suite 250

Dallas, Texas 75201

(214)-468-8100 (office)

(214)-468-8104 (fax)

Attorneys for Appellant
22

Certificate of Service

I, the undersigned, hereby certify that a true and correct copy of 

the foregoing Appellant’s Petition for Discretionary Review was electronically served to the Dallas County District Attorney’s Office and the 

State Prosecuting Attorney on February 25, 2015.

/s/ Robert N. Udashen

ROBERT N. UDASHEN, P.C.

Certificate of Compliance

Pursuant to TEX. R. APP. P. 9.4(i)(3), undersigned counsel certifies 

that this brief complies with:

1. the type-volume limitation of TEX. R. APP. P. 9.4(i)(2)(B) because 

this petition contains 2,541 words, excluding the parts of the brief 

exempted by TEX. R. APP. P. 9.4(i)(1).

2. the typeface requirements of TEX. R. APP. P. 9.4(e) and the type 

style requirements of TEX. R. APP. P. 9.4(e) because this brief has

been prepared in a proportionally spaced typeface using Microsoft 

Word 2011 in 14-point Century Schoolbook.

/s/ Robert N. Udashen

ROBERT N. UDASHEN, P.C.