PD

- 1076

- 14
I N THE T EXAS C OURT OF C RIMINAL A PPEALS

_________________________________________________ 

## R ICARDO 

## B ELTRAN P

ETITIONER

- A PPELLANT

vs. 

## T HE 

## S TATE OF 

## T EXAS R ESPONDENT

- A PPELLEE

_________________________________________________ O N D ISCRETION ARY R EVIEW F ROM THE F IFTH C OURT OF A PPEALS

C A U SE N O

. 05

- 12

- 0 1647

- CR
A PPEAL FROM THE 194 TH J UDICIAL D ISTRICT C OURT OF D ALLAS C OUNTY , T EXAS , C AUSE N O

. F

- 1056077

- M

_________________________________________________ 

## P ETITIONER 

## ’ S 

## B RIEF ON THE 

## M ERITS

________ _________________________________________ R OBERT N. U DASHEN , P.C. State Bar No

. 20369600
rnu @sualaw.com
B RETT O RDIWAY State Bar No. 24079086 bordiway@sualaw.com S ORRELS , U DASHEN & A NTON 2311 Cedar Springs, Suite 250 Dallas, Texa s 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 CLERK2 Identity of Parties and Counsel For Appellant Ricardo Beltran:
J OHN M. H ELMS Trial and direct appeal counsel H ELMS , R OBERTS & D IAZ LLP 6060 N. Central Expressway, Suite 560 Dallas, Texas 75206
R OBE RT N. U DASHEN B RETT O RDIWAY Petition for discretionary review counsel S ORRELS , U DASHEN & A NTON 2311 Cedar Springs Suite 250 Dallas, Texas 75201 For Appellee the State of Texas:
S TEPHANIE F ARGO G LEN F ITZMARTIN Trial counsel of record D ALLAS C OUNTY D IS TRICT A TTORNEY ’ S O FFICE 133 N. Riverfront Blvd., LB 19 Dallas, Texas 75207
B RAD C LEMENTS Appellate counsel D ALLAS C OUNTY D ISTRICT A TTORNEY ’ S O FFICE
Trial judge :
T HE H ONORABLE E RNEST W HITE T HE 194 TH J UDICIAL D ISTRICT C OURT OF D ALLAS C OUNTY3 T able of Contents Identity of Parties and Counsel

................................ ................................ . 2
I ndex 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 instru c tion on sudden passion, some evidence that he acted in self

- defense does not n e gate all evidence that he acted in sudden passi on.
................................ ................................ ................................ .. 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

................................ ................................ ......... 224 I ndex 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. Cri m. 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 T

hompson 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

Statutes5 T EX

. P EN

. C ODE § 9.31(a)

................................ ................................ .......... 15 T EX

. P EN

. C ODE § 19.02

................................ ................................ .............. 6 T EX

. P EN

. C ODE § 19.02(a)(2)

................................ ................................ 6, 12 T EX

. P EN

. C ODE § 19.02(d)

................................ ................................ ........ 12 T EX

. P EN

. C ODE § 19.03(a)(2)

................................ ................................ ...... 66 Statement of the Case and Procedural History It is undisputed that Beltran and Victor Ramos killed the co mplainant . The only question i n this case i s 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 T EX

. P E N

. C ODE § 19.03(a)(2)

. He pleaded not guilty, and the jury i ndeed rejected the State ’ s contention that Beltran murdered the co mplainant 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. S ee T EX

. P EN

. C ODE § 19.02

. When it came time to assess to
Beltran ’ s punishment, though, the court refused to submit to the jury
an instru c tion on sudden passion . (CR: 54

- 59); see T EX

. P EN

. C ODE § 19.02(a)(2)

. Left with no guidance, the jury then sentenced Beltran to 70

years ’ i m prisonment. (CR: 59).7 Beltran appealed to the Fifth Court of Appeals at Dallas, arguing only that the trial court erred in refus ing to submit such an instruction.
Beltran , 2014 WL 3587367. The Court overruled his co m plaint and a ffirmed his conviction on July 22, 2014. Id. No motion for rehearing wa s 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 S tatement 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 apar tment searching for more. (RR7: 78

- 82, 91

- 92). Once there, they snorted “cheese,” which, at trial, Beltran explained was heroin mixed with T ylenol PM. (RR7: 66, 93

- 94). After doing so, the complainant made a “gayish” comment, stroked Beltran’s face, and said “P retty 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 “pani cked,” in response to which the co mplainant “jumped on top of [him].” (RR7: 104). The complainant was a large man, standing six feet tall and weighing approximately two hu n-10 dred eighty pounds, in contrast to Beltran’s 160

- pound stature. (RR4: 85). Beltran r emained “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 co mplainant turned his attention to Ramos, at which point Beltran gr abbed him. (RR7: 107). As Beltran attempted to restrain the complainant, Ramos stabbed him to death. (RR7: 107

- 109). Thereafter, Beltran co ntinue to be “panicking,” “totally shocked,” “freak[ed] out,” and “scared.” (RR7: 111

- 112).11 S ummary of the Argument Beltran “panicked” when he was awoken by the complainant lic king his anus. He remained “panicking” as the complainant then a ttempted 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
C ourt focused on

— that Beltran acted in self

- defense

— also necessitated
reversal. Indeed, s elf

- defense and sudden passion are intricately inte rtwined, and except in rare instances, facts that give rise to a self

defense issue also give rise to a sudden

- passio n issue.12 Argument For purposes of determining whether an appe llant 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.

w w w
I. The court of app eals’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 infe rence 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. T EX

. P EN

. C ODE § 19.02(d) . Sudden passion is “pa ssion 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 ter ror in a person of ordinary temper, sufficient to render the mind incapable of cool refle ction.” Id. at 19.02(a)(1). The defendant has the burden of pr o duction 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 provoc ation would commonly produce such a passion in a person o f ordinary temper; 3) he committed the murder before regaining his capacity for cool reflection; and 4) a causal connection existed “between the provocation, pa ssion, and homicide.” McKinney v. State , 179 S.W.3d 565, 569 (Tex. Crim. App. 2005)

. “ In ot her words, sudden passion is ‘ an excited and agitated mind at the time of the killing caused by an act of the deceas ed. ’ ” 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 ev i dence supporting the submission of a su dden passion instruc tion is weak, i m peached, contradicted, or unbeliev able. Id .; Trev i no , 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 pro duction and , if the defendant requests the i nstruction, 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 h ere, Beltran’s r epeated testimony that he acted while panicked certainly sa t-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 dictio nary definiti ons of “panic” and then holding “the concl u sion is inescap able that when appellant testified, ‘ I panicked, ’ he was testifying in shorthand form, ‘ I exper i enced a sudden terror of such d e gree that it overwhelmed my mind. ’ ”); Trevino , 100 S.W.3d at 239 ( conside r ing a ppellant’s demeanor after murder as su p portive evidence to justify su dden

- passion instruction, and holding that some evidence of sudden pa ssion consisted of the d e fendant “ freaking out,” “scared and pa n icked,” “crying and shaking,” “pacing,” “consisten t ly upset and crying,” “soun ded distressed,” and “looked past” the inve s tig a tor ); Moore v. State , 969 S.W.2d 4, 15 (Tex. Crim. App. 1998) (Keller, J., concurring and dissen ting ) (“sudden passion can also be i n ferred fro m the conduct and appea rance of the defendant. Some exa m ples could be: running, striking ina nimate objects without any apparent rational purpose, shouting, screa m-

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 defen dant’s testimony alone is suff i cient 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 Be ltran’s testimony, the complainant’s DNA was found on the inside of Beltran’s u nderwear. (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., di s senting) (“ Magic words, such as ‘ sudden pa s sio n’ are unnecessary, so long as the circumstances give rise to the i n ference that the defendant acted under ‘sudden passion.’”)

. I n deed, the court of appeals repeatedly acknow ledged Beltran panicked. Be l tran , 2014 WL 3587367 at *1

- 3 (“Beltran screamed in panic and moved”; “‘Panicking’ and ‘shocked,’ Beltran asked Ramos if they should call the police”; “[Be l tran] said his reaction to finding McKnight assaulting him was to mov e and scream in panic.”). Yet, the court of a ppeals held that the evidence did not even “mi nimally support” an inference that Ramos acted out of sudden pas sion
because the evidence also showed “Beltran was consciously aware of the
dan ger [the complainant] posed ” and tried “to protect Ramos and hi mself” and “ to get control of the si tuation .” Id. at *3 (ci ting Moore , 969
S.W.2d at 15 (Keller, J., concurr ing 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 self

defense. See T EX

. P EN

. C ODE § 9.31(a) (“a person is justified in using force against another when and to the degree the actor reasonably b e-16 lieves the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful for ce.”).
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 self

defense were mutually exclusive concepts , this Court in it s seminal opinion on the is sue of sudden

- passion jury instruc tions forbid that e xact parsing analysis: The problem with the State ’ s argument is that it addresses solely the evidence against sudden passion. While the ev idence the State mentions was presented at trial, an appe llate co urt ’ 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 i nstruction as to sudden passion

. And, sure enough, those cases to which the Dallas Court of A ppeals 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 of17 sudden passion .” Moore , 969 S.W.2d at 15 (Keller, J., concurring and dissenting). Moreover , as noted above, in that opi n ion Judge Keller pointed to s creaming 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 42 7

- 2 8. Only a lternatively did it address whether the defen d ant acted out of sudden passion, and even then it held simply that ev i dence he was worried the victim was reaching f or a knife did not itself constitute evidence of su dden 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

- p assion 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 suff i cient 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 volu ntary manslaughter test.”); Thomps on v. State , 02

- 12

- 00351

- CR, 2013 WL 5303631 (Tex. App.

— Fort Worth 2013, pet. ref ’ d) (an unprovoked,
violent a t tack with a box cutter is sufficient provocation to induce the requisite emotional state in a person of ordinary temperament to justify

a su d den

- passion instruction); Moore , 969 S.W.2d at 11 (holding ev idence that murder occurred during violent fight, inclu d ing victim ’ s a ttempt to run appellant over with a car, sufficient to raise sudden pa ssion )

. This Court has repeatedly and recently recognized as much, no ting that a jury’s treatment of one is informative as to the ot h er. Villa rreal 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 (T ex. Crim. App. 2013) )

. Only when capable of cool reflection do facts that give rise to a self

- defense instruc tion not also give rise to a sudden

passion instruction , and again, in this case , Beltran repeatedly testified19 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 w hat [he] did.”); Pierce v.
State , No. 08

- 12

- 00150

- CR, 2 014 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 r eflection at the time she shot Mr. Pierce. To the contrary , Appellant sta ted 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. Pier ce to walk toward the bathroom.”) ; Milliff v . State , No. 14

- 13

- 00052

- CR, 20 14 WL 1713897, at *7 (Tex. App.

— Houston [14th Dist.] 2014 , no pet. ) (a ppellant not ent itled to sudden passion instruction where he “ declared his intention was
to kill [the complainant] be cause he pulled a gun on him: ‘ someone pulls

a gun on you , you're go ing 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. ”)

. F ar from precluding Beltran’s entitl e ment to a sudden passion instruction, then, that he recognized the da n ger the complai n-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 inc apable of reflection.
III. C onclusion 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 e v idence” Beltran acted “under the immediate influence of sudden pa s sion,” and he was therefore not entitled to a jury instruction on the i s sue. 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 R OBERT N. U DASHEN , P.C. Bar Card No. 01274700 rnu@sualaw.com

/s/ Brett Ordiway B RETT O RDIWAY Bar Card No. 24079086 bordiway@s ualaw.com
S ORRELS , U DASHEN & A NTON 2311 Cedar Springs Road Suite 250 Dallas, Texas 75201 (214)

- 468

- 8100 (office) (214)

- 468

- 8104 ( fax ) Attorneys for Appellant22 Certificate of Servi ce I, the undersigned, hereby certify that a true and correct copy of the foregoing Appellant ’ s Petition for Discretionary Review was ele ctronically served to the Dallas County District Attorney ’ s Office and the State Prosecuting Attorney on February 25 , 2015

. /s/ Robert N. Udashen R OBERT N. U DASHEN , P.C.

Certificate of Compliance
Pursuant to T EX

. R. A PP

. P . 9.4(i)(3) , undersigned counsel certifies that this brief complies with :
1. the type

- volume limitation of T EX

. R. A PP

. P. 9.4 (i) (2) ( B ) because this petition contains 2, 5 41 words, excluding the parts of the brief exempted by T EX

. R. A PP

. P. 9.4(i)(1 ).
2. the typeface requirements of T EX

. R. A PP

. P. 9.4(e) and the type style requirements of T EX

. R. A PP

. 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 R OBERT N. U DASHEN , P.C.