Jacob Nathan Ross v. State ( 2019 )


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  • MODIFY and AFFIRM; and Opinion Filed August 5, 2019.
    In The
    Court of Appeals
    Fifth District of Texas at Dallas
    No. 05-18-00262-CR
    JACOB NATHAN ROSS, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 292nd Judicial District Court
    Dallas County, Texas
    Trial Court Cause No. F-1611734-V
    MEMORANDUM OPINION
    Before Justices Myers, Osborne, and Nowell
    Opinion by Justice Osborne
    Appellant, Jacob Nathan Ross, was convicted of murder and sentenced to forty-five years’
    imprisonment. Appellant raises five issues on appeal: whether the evidence is sufficient to show
    intent, knowledge, or recklessness, whether the trial court’s jury charge authorized a non-
    unanimous verdict on sudden passion, whether the evidence is legally and/or factually sufficient
    to support the jury’s negative finding on the sudden passion special issue, and whether the trial
    court’s jury charge erroneously informed the jury about parole and good conduct time. In a single
    cross-point, the State argues that the judgment should be reformed to add a deadly weapon finding.
    We modify the judgment to add a deadly weapon finding and affirm as modified.
    Background
    In the early morning hours of January 21, 2016, Michael Gyger was found shot to death in
    a nice, new apartment in Carrollton, Texas. Gyger’s body was seated on the loveseat of his leather
    living room set; he was holding a bottle of alcohol in his lap, the television remote control was at
    his side, and a piece of his skull was on the floor behind the loveseat. There was “blowback” of
    blood and skull fragments as far as the kitchen area of the apartment. Gyger’s hands were crossed,
    one over the other, and he looked “relaxed.” There was no physical evidence of any struggle in the
    apartment. The cause of Gyger’s death was determined to be a gunshot wound to the back of his
    head and the manner of his death was a homicide.
    Appellant, who was Gyger’s occasional lover and who had been staying in the apartment,
    shot Gyger with a pistol belonging to Gyger’s roommate, Tony Seghetti. Appellant then returned
    the gun to its proper place, gathered his belongings and his dog, and fled the apartment in Gyger’s
    Cadillac, intending to drive to Chicago.
    On his way out of town, appellant stopped in Argyle, Texas to see Natalee Clontz, his ex-
    fiancée. Natalee, who had broken off her engagement with appellant some weeks earlier in
    December of 2015, lived with Kyle Clontz,1 her ex-husband, Zachary Dakota Owens, and Zack
    Culver. Appellant seemed “frantic” and was calling for Natalee’s help. Appellant said he had shot
    Gyger and taken his car. Kyle called the police. When appellant saw Kyle making this call, he
    drove off with “spinning tires,” leaving a burn mark on the driveway.
    Armed with descriptions of both appellant and Gyger’s Cadillac, George Mundo, a Denton
    County Deputy Sheriff, was en route to Argyle when he saw the Cadillac pass his patrol car at a
    1
    The Clontzs will be referred to by their first names, Kyle and Natalee, to avoid any confusion.
    –2–
    high rate of speed. Mundo gave chase and radioed ahead to the city of Justin to request assistance
    in stopping the vehicle. Appellant stopped the Cadillac on his own after Justin officers got behind
    him.
    Appellant was handcuffed and searched for weapons. Bags were put over his hands to
    preserve evidence and he was placed in a squad car. However, officers had missed a Zippo lighter
    in appellant’s pocket during the search; appellant managed to get to it and set fire to the bags on
    his hands. Officers pulled appellant out of the vehicle, put out the fire, and had him checked over
    by “EMS to make sure he was okay.” Mundo then re-bagged appellant’s hands. Mundo recalled
    that during the course of their interaction appellant said he shot and killed a man in Carrollton who
    was trying to rape him.
    Appellant was taken to the Carrollton police station where he was interviewed at length.
    Upon the detectives first entry into the room, appellant immediately told them he had shot Gyger.
    Appellant explained to the detectives that Natalee had broken off their engagement,
    partially because appellant and Gyger were sexually involved. Since then, Gyger had been
    allowing appellant to stay with him because he didn’t want appellant and his dog sleeping in the
    streets while it was cold outside. Gyger gave appellant $100 a week because appellant needed
    money; there were no “strings” attached to the money Gyger gave appellant as Gyger was just
    helping him out.
    Appellant explained that Gyger hated women because he thought “they’ve all done him
    wrong.” On the night of the shooting, appellant became upset when Gyger “kept saying shit” about
    Natalee and called her a “whore.” Appellant did not share Gyger’s hatred of women and was sad
    about the breakup with Natalee, for which he blamed Gyger.
    Over the course of the interview, appellant’s story branched into various and sometimes
    confusing possible reasons for why he had pulled the trigger.
    –3–
    Appellant initially said that Gyger had been trying to rape him and described Gyger
    propositioning him for oral sex and pulling his pants down. Appellant said he pulled his pants back
    up, pushed Gyger, and ran into Seghetti’s bedroom with Gyger following behind. Yet when he
    was asked if there was a struggle, appellant said no.
    Appellant told detectives that he had “a bunch of bottled up anger” because of what had
    been going on between he and Gyger. According to a Facebook message from Natalee, appellant
    would get drunk and fellate Gyger, and had occasionally “give[n] him anal” sex in exchange for
    money. In the past, appellant had woken up to Gyger fellating him. Appellant had masturbated for
    Gyger “a lot,” and Gyger would lick appellant’s ejaculate off his hand afterward. Additionally,
    Gyger had paid Natalee for sexual contact after appellant introduced them.
    The night of the shooting, appellant and Gyger had a conversation about appellant not
    needing Gyger’s money, but Gyger would “not stop trying to do stuff.” As appellant told the
    detectives, “it was just fucking weird,” and he “just couldn’t take it no more.”
    At certain times during the interview, appellant said that Gyger had fellated him
    immediately before the murder. But in another version of the story, Gyger had asked appellant to
    shoot him after appellant spurned his advances and refused to have any sort of sexual relations. In
    this version, appellant put the gun to Gyger’s head and Gyger depressed appellant’s finger while
    it was on the trigger, causing the gun to fire. In a similar re-telling in which he claimed he lacked
    the intent to pull the trigger, appellant said that he was holding the gun against Gyger’s head, and
    Gyger reached up to bat the gun away, but it went off.
    In still another version of his story to the detectives, the only sexual contact between
    appellant and Gyger that day had occurred hours earlier, with appellant ejaculating into his hand
    and allowing Gyger to lick the ejaculate off his hand as usual. After that, appellant got into an
    argument with Gyger and packed his bags. Appellant threatened to leave the apartment after Gyger
    –4–
    had pulled his own pants down and requested that appellant “suck his dick.” Gyger talked appellant
    into coming back in the apartment.
    Appellant told the detectives that he walked into Seghetti’s bathroom and got the gun
    because Gyger kept “bickering and saying stuff.” Appellant said he considered shooting himself
    but “for some reason” pointed the gun at Gyger instead. Appellant also told the detectives he
    intended to shoot himself after shooting Gyger but then his dog grabbed his arm, kept him from
    doing it, and thereafter led him to Gyger’s Cadillac.
    Because the police officers processing the scene at Gyger’s apartment had not yet located
    the gun, appellant told the detectives where to find it, i.e., on the floor of a linen closet in Seghetti’s
    bathroom where Seghetti stored it. According to appellant, Gyger had previously shown appellant
    where Seghetti’s gun was kept after “the other men” in Natalee’s life had threatened both appellant
    and Gyger. Appellant told the detective that he had previously “played” with the gun.
    Appellant maintained throughout the interview that he did not know the gun was loaded.
    Contrary to that statement, appellant also told the detectives he found the pistol in a holster within
    a case, grabbed a “clip of bullets” from the case, and put the clip in the pistol. When asked if he
    chambered a round, appellant said he did but he “did it twice” to “pull the round out,” and mimed
    pulling back the slide of a semi-automatic pistol. He said that after he had pulled the slide back
    twice, he “forgot to pull it again” and thought it was “empty.” He also claimed that he took the
    clip back out of the pistol after pulling the slide back twice, and put it back in the case before
    putting the gun to Gyger’s head. Appellant acknowledged that, though he had never owned a gun,
    he was familiar with guns and had shot all kinds of guns in the past.
    Appellant was subsequently charged with Gyger’s murder and indicted under two
    alternative theories:
    –5–
    That JACOB NATHAN ROSS, hereinafter called Defendant, on or about
    the 21st day of January, 2016 in the County of Dallas, State of Texas, did
    unlawfully then and there intentionally and knowingly cause the death of
    WILLIAM MICHAEL GYGER, an individual, hereinafter called deceased, by
    SHOOTING DECEASED WITH A FIREARM, a deadly weapon,
    And further did unlawfully then and there intend to cause serious bodily
    injury to WILLIAM MICHAEL GYGER, hereinafter called deceased, and did then
    and there commit an act clearly dangerous to human life, to-wit: by SHOOTING
    DECEASED WITH A FIREARM, a deadly weapon, and did thereby cause the
    death of WILLIAM MICHAEL GYGER, an individual.
    See TEX. PENAL CODE ANN. § 19.02(b)(1), (2).
    At trial, appellant’s identity as the shooter was uncontested. To establish appellant’s guilt,
    the State relied on 1) appellant’s statements to the police and the detectives, 2) surveillance footage
    showing him leaving Gyger’s apartment, 3) evidence of gunshot residue on his hands, and 4) the
    results of DNA testing performed on the gun, which revealed a mixture of DNA to which appellant
    was the primary contributor.
    Appellant called no witnesses at the guilt/innocence phase and presented no defense to his
    act of shooting Gyger.2 Rather, the primary issue centered on appellant’s mental state when he
    pointed the gun at Gyger and pulled the trigger. Appellant argued that he lacked the intent or
    knowledge necessary to commit murder and that, “at worst,” his act of pulling the trigger was
    merely negligent. According to the defense, Gyger and appellant had a symbiotic relationship and
    the financial support Gyger provided appellant meant that appellant could not have intended to kill
    Gyger. Appellant’s attorney told the jury it would have to make a credibility determination about
    appellant’s statement to the police and attributed the inconsistencies in those statements to the
    detectives’ objectives in questioning appellant. It was argued that appellant’s assertion during his
    2
    Defense counsel did highlight a bruise on Gyger’s lip, which the medical examiner conceded could be evidence
    of an altercation, and markings on Gyger’s knuckles, which a crime scene investigator interpreted as postmortem
    lividity.
    –6–
    interview that he thought the gun was not loaded was credible, thus making the shooting “a terrible
    accident” and warranting a conviction for criminally negligent homicide as opposed to murder.
    The State’s theory at trial, however, was that Gyger’s death was an “intentional, cold-
    blooded killing.”
    The State offered evidence showing that appellant had to know that the gun was loaded.
    Tony Seghetti, Gyger’s roommate and the owner of the murder weapon, testified that he never
    kept a loaded gun. Seghetti testified that he had attended “a lot of gun safety courses” and knew
    how to store a gun: “in the case, clip out.” It was Seghetti’s habit to clean the gun personally after
    firing it at the gun range, ensure the chamber was clear, and secure it with “ambidextrous safeties”
    which had to be released to fire it. Additionally, Seghetti stored the gun in a “military style” holster
    that prevented the slide from cocking back and chambering a round while the gun was holstered.
    He stored the holstered gun in a gun case, with the magazine stored separately within the case.
    Seghetti kept the gun case in a “range bag,” along with boxes of ammunition and his protective
    equipment which were hidden in the bottom of his linen closet.
    In addition to the various motives detailed in appellant’s statements to detectives,
    Seghetti’s testimony introduced another possible motive for the murder: that appellant was about
    to be evicted from the apartment. Seghetti testified that he and Gyger were old friends who
    generally stayed out of each other’s personal business and did not question each other’s choice of
    guests. However, in the days before the shooting, Seghetti noticed that appellant and his dog were
    spending an inordinate amount of time at the apartment. Seghetti testified that he talked to Gyger
    about this situation and demanded that it be rectified: the apartment was starting to “smell like
    dog,” and, having not paid a pet deposit, they were violating their lease. Seghetti told Gyger that
    they had to “get [appellant] and the dog out of here.” Gyger agreed to ask appellant to leave by the
    following Monday. Monday came and went, but appellant and the dog were still in the apartment.
    –7–
    Seghetti confronted Gyger on Tuesday morning, and gave him the day to show appellant the door.
    Appellant shot Gyger either Wednesday night or in the early morning hours of Thursday.3
    Natalee also testified that she told the police that she thought appellant was using Gyger
    for money. She believed they might be exchanging sex for money. In a Facebook posting, Natalee
    wrote that Gyger had paid appellant $500 for a specific sexual act. She agreed that it would be fair
    to say that appellant was getting the money he wanted and Gyger was getting the sex he wanted.
    The jury convicted appellant of an intentional and knowing murder. Following a
    punishment hearing, the jury rejected appellant’s defense of sudden passion and sentenced him to
    forty-five years’ imprisonment.
    Sufficiency of the Evidence
    In his first issue, appellant claims that the evidence is insufficient to support his conviction
    for murder because the evidence reflects only negligence as opposed to intent, knowledge or
    recklessness. Appellant does not dispute that he shot and killed Gyger; his only challenge is to the
    culpable mental state with which he acted.4 The State responds that the evidence is sufficient for
    the jury to have found either that appellant acted with intent or knowledge or that appellant knew
    Gyger’s death was a reasonably certain result of his conduct. We agree with the State.
    Standard of Review
    A challenge to the sufficiency of the evidence is evaluated under the standards established
    in Jackson v. Virginia 
    443 U.S. 307
    , 316 (1979); see also Brooks v. State, 
    323 S.W.3d 893
    , 895
    (Tex. Crim. App. 2010). We review the evidence in the light most favorable to the verdict and
    3Seghetti spent the night of the murder at his girlfriend’s residence. He learned of Gyger’s death the following
    morning. It was only after Gyger’s death that Seghetti learned Gyger was living a gay lifestyle.
    4
    While appellant made some statements to the Carrollton detectives which could indicate an accidental shooting,
    appellant did not request a charge on voluntariness-of-conduct, nor does he raise an issue on appeal that the shooting
    was not a voluntary act. TEX. PENAL CODE ANN. § 6.01(a).
    –8–
    determine whether a rational jury could have found all the elements of the offense beyond a
    reasonable doubt. 
    Jackson, 443 U.S. at 319
    ; 
    Brooks, 323 S.W.3d at 894
    –95. This standard of
    review for legal sufficiency is the same for both direct and circumstantial evidence. Wise v. State,
    
    364 S.W.3d 900
    , 903 (Tex. Crim. App. 2012); Hooper v. State, 
    214 S.W.3d 9
    , 13 (Tex. Crim. App.
    2007); Burden v. State, 
    55 S.W.3d 608
    , 613 (Tex. Crim. App. 2001). Indeed, circumstantial
    evidence is considered as probative as direct evidence and is sufficient, standing alone, to establish
    a defendant’s guilt. Guevara v. State, 
    152 S.W.3d 45
    , 49 (Tex. Crim. App. 2004).
    We defer to the trier of fact’s resolution of any conflicting inferences that are raised in the
    evidence and presume that the trier of fact, in this case the jury, resolved such conflicts in favor of
    the prosecution. 
    Jackson, 443 U.S. at 318
    ; 
    Brooks, 323 S.W.3d at 894
    ; Sennett v. State, 
    406 S.W.3d 661
    , 666 (Tex. App.—Eastland 2013, no pet.). We will uphold the verdict unless a rational fact
    finder must have had reasonable doubt with respect to any essential element of the
    offense. 
    Jackson, 443 U.S. at 319
    ; 
    Brooks, 323 S.W.3d at 899
    . The State need not disprove all
    reasonable alternative hypotheses that are inconsistent with appellant’s guilt. 
    Wise, 364 S.W.3d at 903
    . Rather, we consider only whether the inferences necessary to establish guilt are reasonable
    based upon the cumulative force of all the evidence when considered in the light most favorable
    to the verdict. 
    Hooper, 214 S.W.3d at 13
    .
    A culpable mental state must generally be inferred from the circumstances surrounding the
    crime. Nisbett v. State, 
    552 S.W.3d 244
    , 267 (Tex. Crim. App. 2018). A reviewing court cannot
    read a defendant’s mind and, absent a confession, we must infer his mental state from his “acts,
    words and conduct.” 
    Id. The culpable
    mental state for murder can be inferred from a defendant’s
    motive, his attempts to conceal the body, implausible explanations to the police, and the extent of
    the victim’s injuries. 
    Id. –9– The
    Jury Charge
    The jury charge authorized a conviction for murder on either theory alleged in the
    indictment:
    Now, if you find from the evidence beyond a reasonable doubt that on or
    about January 21st, 2016, in Dallas County, Texas, the defendant Jacob Nathan
    Ross, did unlawfully then and there intentionally or knowingly cause the death of
    William Michael Gyger, an individual, by shooting him with a firearm, a deadly
    weapon, then you will find the Defendant guilty of murder.
    OR
    If you find from the evidence beyond a reasonable doubt that on or about
    January 21st, 2016, in Dallas County, Texas, the defendant Jacob Nathan Ross, did
    unlawfully then and there intend to cause serious bodily injury to William Michael
    Gyger, an individual, and did then and there commit an act clearly dangerous to
    human life, to-wit: by shooting William Michael Gyger with a firearm, a deadly
    weapon, and did thereby cause the death of William Michael Gyger, then you will
    find the Defendant guilty of murder.
    Where, as here, the trial court’s charge authorizes the jury to convict on more than one
    theory, the verdict of guilty will be upheld if the evidence is sufficient on any one of the theories.
    
    Guevara, 152 S.W.3d at 49
    .
    The jury was also charged that, if they found that appellant was not guilty of murder, they
    could consider the lesser included offenses of manslaughter or criminally negligent homicide:
    Now, if you unanimously find from the evidence beyond a reasonable doubt
    that on or about the 21st day of January, 2016, in Dallas County, Texas, the
    Defendant, Jacob Nathan Ross, did recklessly cause the death of William Michael
    Gyger, by shooting William Michael Gyger with a firearm, a deadly weapon, then
    you will find the defendant guilty of the offense of manslaughter.
    If you do not so believe, or if you have a reasonable doubt, or if you cannot
    unanimously agree, then you will next consider whether the defendant is guilty of
    the lesser included offense of criminally negligent homicide.
    *
    Now, if you unanimously find from the evidence beyond a reasonable doubt
    that on or about the 21st day of January, 2016, in Dallas County, Texas, the
    Defendant, Jacob Nathan Ross, with criminal negligence did cause the death of
    –10–
    William Michael Gyger, by shooting William Michael Gyger with a firearm, a
    deadly weapon, then you will find the defendant guilty of the offense of criminally
    negligent homicide.
    Unless you find beyond a reasonable doubt, or if you have a reasonable
    doubt thereof, you will acquit the Defendant and say by your verdict “Not Guilty.”
    The jury was further charged on the proper statutory definitions of intent, knowledge,
    recklessness and criminal negligence:
    A person acts intentionally, or with intent, with respect to the result of his
    conduct when it is his conscious objective or desire to cause the result.
    A person acts knowingly, or with knowledge, with respect to a result of his
    conduct when he is aware that his conduct is reasonably certain to cause the result.
    A person acts recklessly, or is reckless, with respect to the circumstances
    surrounding his conduct or the result of his conduct when he is aware of but
    consciously disregards a substantial and unjustifiable risk that the circumstances
    exist or the result will occur. The risk must be of such a nature and degree that its
    disregard constitutes a gross deviation from the standard of care that an ordinary
    person would exercise under all circumstances as viewed from the actor’s
    standpoint.
    A person acts with criminal negligence or is criminally negligent, with
    respect to the circumstances surrounding his conduct or the result of his conduct
    when he ought to be aware of a substantial and unjustifiable risk that the
    circumstances exist or the result will occur. The risk must be of such a nature and
    degree that the failure to perceive it constitutes a gross deviation from the standard
    of care that an ordinary person would exercise under all the circumstances as
    viewed from the actor’s standpoint.
    See PENAL § 6.03.
    Analysis
    In his brief to this Court, appellant avers that the shooting was preceded by a drunken
    argument with Gyger during which appellant told Gyger he was leaving the apartment and Gyger
    begged him to stay. When Appellant continued his preparations to leave, Gyger said “you might
    as well just shoot me” or words to that effect. Appellant knew where Seghetti hid his gun; he
    retrieved the gun, which he believed to be unloaded, pointed it at Gyger’s head, and pulled the
    –11–
    trigger. Appellant avers in his brief that, while he was “extremely negligent” for not checking the
    gun to see if it was loaded, he acted neither intentionally, knowingly, or recklessly.
    Based on the evidence in this case, viewed in the light most favorable to the verdict, we
    conclude it was reasonable for the jury to find beyond a reasonable doubt that appellant shot Gyger
    intentionally or knowingly.
    Appellant’s Statements to the Police
    Appellant was interviewed multiple times by the police and there were many
    inconsistencies in his statements, all of which the jury could have resolved against appellant.
    The one consistency throughout appellant’s police interviews was appellant’s confession
    that he shot and killed Gyger. Specifically, appellant told the police that he 1) retrieved Seghetti’s
    gun, 2) held the gun to Gyger’s head, and 3) pulled the trigger. Appellant admitted all three of
    those actions and did not deny that he was responsible for shooting and killing Gyger. While
    appellant claimed that he thought the gun was unloaded, the jury could have discounted those
    statements made during his police interviews in favor of the statements he also made that he loaded
    the gun before the shooting.
    Additionally, appellant’s statements to the police, rather than excusing his actions, also
    provided motive, which is a significant circumstance indicating guilt. 
    Guevara, 152 S.W.3d at 50
    .
    Appellant told officers at various times that Gyger tried to rape5 him, that Gyger was sexually
    aggressive, and that Gyger made repeated, unwanted sexual advances which appellant spurned.
    Appellant told the police that he was not gay, that Gyger would “not stop trying to do stuff,” “it
    was just fucking weird,” and he “just couldn’t take it no more.”
    5
    Appellant did not claim self-defense at trial.
    –12–
    Additionally, Seghetti testified he told Gyger that appellant and his dog needed to move
    out. A rational juror could infer that Gyger had told appellant he needed to leave. As the prosecutor
    argued to the jury, this would have meant that appellant’s “gravy train was about to stop,”
    providing yet another motive for the shooting.
    Even the defense theory that Gyger had asked appellant to shoot him if they were not going
    to engage in sexual activities supports an inference that a rational jury could have drawn that
    appellant intended to shoot Gyger with a loaded gun.
    Use of a Deadly Weapon
    A firearm is a deadly weapon per se. PENAL § 1.07(a)(17). Use of a deadly weapon raises
    an inference of intent. Cavazos v. State, 
    382 S.W.3d 377
    , 384 (Tex. Crim. App. 2012) (specific
    intent to kill may be inferred from use of deadly weapon). Because the weapon appellant used to
    kill Gyger is a deadly weapon per se, it can be inferred that he had the intent to cause Gyger’s
    death. 
    Id. The distance
    from which the gun was fired – one to three feet, according to the medical
    examiner – also supports an inference of a specific intent to kill. Ervin v. State, 
    333 S.W.3d 187
    ,
    200 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (holding that when a person discharges a
    firearm at close range and death results, the law presumes it was his intent to kill). The location of
    the wound – a gaping gunshot wound to the right side of Gyger’s head – would also support an
    inference of a specific intent to kill. See Hemphill v. State, 
    505 S.W.2d 560
    , 562 (Tex. Crim. App.
    1974) (noting that a defendant’s intent may be ascertained or inferred from the means used and the
    wounds inflicted).
    Flight
    The evidence is undisputed that, after shooting Gyger, appellant fled the scene. Appellant
    did not call the police or an ambulance for Gyger.
    –13–
    Surveillance cameras at the apartment complex recorded that appellant left the apartment
    between 12:45 a.m. and 1:04 a.m. He had bags, clothing, and his dog with him. Appellant told the
    police that he left the apartment and drove Gyger’s Cadillac to Argyle, Texas, to see Natalee. He
    told Natalee, as well as the men with her, that he had shot Gyger. When appellant noticed Kyle
    calling the police, he drove away. He was stopped traveling at a high rate of speed. In an interview
    with Carrollton detectives, appellant stated that he was planning on driving to Chicago even though
    he had spoken by telephone with his father who had urged him to call the police.6
    Flight reflects consciousness of guilt. Clayton v. State, 
    235 S.W.3d 772
    , 780 (Tex. Crim.
    App. 2007) (noting that a “fact finder may draw an inference of guilt from the circumstance of
    flight”); see also Kirk v. State, 
    421 S.W.3d 772
    , 781 (Tex. App.—Fort Worth 2014, pet. ref’d)
    (referencing flight from the scene of a crime as evidence a jury could consider in rejecting a self-
    defense claim). Flight is also a circumstance from which an intent to kill can be inferred. See
    Wilkerson v. State, 
    881 S.W.2d 321
    , 324 (Tex. Crim. App. 1994) (a finding of intent to kill may
    be inferred from evidence of flight from the scene).
    Concealment and Attempted Destruction of Evidence
    A jury may consider a defendant’s attempt to destroy or conceal evidence as evidence of
    the culpable mental state for murder. See 
    Nisbett, 552 S.W.3d at 267
    (concealing the body).
    Appellant was able to tell the police exactly where the gun was located and described in
    great detail how the gun was stored. The police found Seghetti’s gun exactly where appellant said
    it would be: at the bottom of a linen closet in the bathroom of Gyger’s apartment, unloaded, closed
    6
    Appellant also told the police that when he talked with his father he was told to get out of the apartment.
    –14–
    up and in its case. The fact that appellant took the time to store the gun reflects that appellant did
    not flee the scene in a panic, but spent time concealing the murder weapon.
    After his arrest, when his hands had been bagged to preserve evidence, appellant set the
    bags on fire. While gunshot residue was found on appellant’s left hand, the fire could have
    destroyed other gunshot residue.
    Conclusion
    We presume that the jury, as the fact finder, resolved the conflicts in the evidence,
    particularly in appellant’s statements to the police, in favor of the prosecution and defer to that
    determination. After reviewing the evidence in the light most favorable to the verdict, we conclude
    that the evidence is legally sufficient to prove that appellant either intentionally or knowingly
    murdered Gyger or that he committed an act clearly dangerous to human life by shooting Gyger
    with a gun. We overrule appellant’s first issue.
    Unanimous Verdict on Sudden Passion
    Appellant claims that the jury charge at the punishment phase authorized a non-unanimous
    verdict which resulted in egregious error. Specifically, appellant claims that the jury charge
    regarding sudden passion did not explicitly instruct the jury that it must unanimously agree that
    the defendant either did or did not act with sudden passion when he shot Gyger. The State responds
    that the jury charge required unanimity and, even if it did not, egregious harm is not shown.
    Appellant did not object to the charge on the basis he now urges on appeal. Consequently,
    appellant must first establish that there is error in the charge and second, if error is present, that he
    suffered egregious harm as a result of that error. Middleton v. State, 
    125 S.W.3d 450
    , 453 (Tex.
    Crim. App. 2003); Almanza v. State, 
    686 S.W.2d 157
    , 172 (Tex. Crim. App. 1985).
    At the punishment stage of a murder trial, the defendant may raise the issue as to whether
    he caused the death “under the immediate influence of sudden passion arising from an adequate
    –15–
    cause.” PENAL § 19.02(d) (stating that if the defendant proves the sudden passion issue in the
    affirmative by a preponderance of the evidence, the offense is a second degree felony); Beltran v.
    State, 
    472 S.W.3d 283
    , 289 (Tex. Crim. App. 2015); Wooten v. State, 
    400 S.W.3d 601
    , 605 (Tex.
    Crim. App. 2013). The jury’s finding on a sudden passion special issue must be unanimous, i.e.,
    the jurors must agree that the defendant either did or did not act under the immediate influence of
    sudden passion arising from an adequate cause. Sanchez v. State, 
    23 S.W.3d 30
    , 33-4 (Tex. Crim.
    App. 2000); London v. State, 
    325 S.W.3d 197
    , 208 (Tex. App.—Dallas 2008, pet. ref’d); TEX.
    CODE CRIM. PROC. ANN. art 37.07 §3(c).
    The trial court’s punishment charge instructed the jury, in part, as follows:
    Now, bearing in mind the forgoing instructions, if you believe the defendant
    proved by a preponderance of the evidence that the defendant, having committed
    the offense of murder, that he caused the death of William Michael Gyger under
    the immediate influence of sudden passion arising from an adequate cause, you
    must make an affirmative finding as to the special issue.
    If you do not believe the defendant proved by a preponderance of the
    evidence that the defendant, having committed the offense of murder, cause the
    death of William Michael Gyger under the immediate influence of sudden passion
    arising from an adequate cause, you must make a negative finding as to the negative
    as to the special issue.
    The Jury will answer either, “We do” or “We do not.” You are instructed to
    answer the special issue before considering what punishment is appropriate for the
    Defendant.
    In its concluding instructions, the trial court charged the jury that its verdict must be
    unanimous: “Your verdict must be unanimous and shall be arrived at by due deliberation and not
    by majority vote or by any method of chance.”
    As part of the charge, the jury was provided with the following verdict forms:
    Verdict Forms (Choose One)
    We, the jury, having found the defendant, Jacob Nathan Ross, guilty of
    murder, as charged in the indictment, and having found by a preponderance of the
    evidence that the defendant did not act with sudden passion by answering the
    –16–
    Special Issue “We Do Not”, assess his punishment at confinement in the
    Institutional Division of the Texas Department of Criminal Justice for ________
    (Life, or any term of years of not less than 5 or more than 99) and assess _________
    (no fine or up to $10,000).
    OR
    We, the jury, having found the defendant, Jacob Ross, guilty of murder, as
    charged in the indictment, and having found by a preponderance of the evidence
    that the defendant did act with sudden passion by answering the Special Issue “We
    Do”, and assess his punishment at confinement in the Institutional Division of the
    Texas Department of Criminal Justice for _________ (any term of years of not less
    than 2 or more than 20) and assess ___________ (no fine or up to $10,000).
    The jury selected the first form, thereby making a negative finding on the special issue of sudden
    passion.
    This Court has held that it is not error for a court to wait until the end of a jury charge to
    inform the jury that its entire verdict must be unanimous; it is not necessary for the trial court to
    also specifically recite that the verdict on the issue of sudden passion must be unanimous. See Fino
    v. State, 05-17-00169-CR, 
    2018 WL 3829781
    , at *3 (Tex. App.—Dallas Aug. 13, 2018, pet. ref’d)
    (mem. op., not designated for publication); Campa v. State, No. 05–07–01210–CR, 
    2009 WL 1887123
    , *8 (Tex. App.—Dallas July 2, 2009, pet. ref’d) (mem. op., not designated for
    publication). Other courts of appeal have reached similar conclusions. See Barfield v. State, 
    202 S.W.3d 912
    , 918 (Tex. App.—Texarkana, 2006, pet. ref d); Cartier v. State, 
    58 S.W.3d 756
    , 760
    (Tex. App.—Amarillo 2001, pet. ref’d); Shannon v. State, No. 08-13-00320-CR, 
    2015 WL 6394922
    , at *14 (Tex. App.—El Paso Oct. 21, 2015, no pet.) (not designated for
    publication); Latham v. State, No. 12-05-00146-CR, 
    2006 WL 2065334
    , at *8 (Tex. App.—Tyler
    July 26, 2006, no pet.) (mem. op., not designated for publication).
    –17–
    We conclude that the trial court’s jury charge was not erroneous. Because the charge was
    not erroneous, no harm is attendant in the verdict. We overrule appellant’s second issue.
    Sudden Passion
    In his third and fourth issues appellant challenges the legal and factual sufficiency of the
    evidence to support the jury’s negative finding on the sudden passion special issue. The State
    responds that appellant’s legal sufficiency argument fails because the jury had at least a scintilla
    of evidence from which it could conclude that appellant did not shoot Gyger under the immediate
    influence of sudden passion. The State further responds that appellant’s factual sufficiency
    argument also fails because the jury’s verdict is not so against the great weight of the evidence as
    to be manifestly unjust.
    The Law of Sudden Passion
    A defendant found guilty of murder may raise, at the punishment phase of the trial, the
    issue of whether he caused the death of the complainant under the immediate influence of sudden
    passion arising from an adequate cause. PENAL § 19.02(d). If the defendant proves the issue in
    the affirmative by a preponderance of the evidence, the available range of punishment is reduced
    from that of a first degree felony to that of a second degree felony.7 
    Id. A defendant
    acts with
    sudden passion if he acts with “passion directly caused by and arising out of provocation by the
    individual killed.” 
    Id. § 19.02(a)(2).
    The passion must arise at the time of the offense and not be
    solely the result of former provocation. 
    Id. “Adequate cause”
    is defined to mean cause that would
    7
    The punishment range for a first degree felony is imprisonment for life or for a term of not more than 99 years
    or less than 5 years with an optional fine not to exceed $10,000.00, while the punishment range for a second degree
    felony is imprisonment for a term of not more than twenty years or less than two years with an optional fine not to
    exceed $10,000.00. PENAL §§ 12.32, 12.33.
    –18–
    “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. § 19.02(a)(1).
    To be entitled to an affirmative finding on sudden passion, a defendant must demonstrate
    that “there was an adequate provocation, that a passion or an emotion such as fear, terror, anger,
    rage, or resentment existed, the homicide occurred while the passion still existed and before there
    was reasonable opportunity for the passion to cool; and that there was a causal connection between
    the provocation, the passion, and the homicide.” McKinney v. State, 
    179 S.W.3d 565
    , 569 (Tex.
    Crim. App. 2005); Cornett v. State, 
    405 S.W.3d 752
    , 757 (Tex. App.—Houston [1st Dist.] 2013,
    pet. ref’d). Neither ordinary anger nor fear alone raises an issue of sudden passion arising from
    adequate cause. Moncivais v. State, 
    425 S.W.3d 403
    , 407 (Tex. App.—Houston [1st Dist.] 2011,
    pet. ref’d); see also Naasz v. State, 
    974 S.W.2d 418
    , 425 (Tex. App.—Dallas 1998, pet. ref’d)
    (holding that a defendant’s testimony of being upset and angry over the culmination of events that
    had been ongoing for some time did not rise to level of adequate cause). Nor may sudden passion
    be the result of former provocation; the passion must arise at the time of the offense. 
    Moncivais, 425 S.W.3d at 407
    .
    Jury Charge
    The jury was charged at the punishment phase of the trial with a special issue on sudden
    passion:
    Special Issue
    Additionally, you must determine by a preponderance of the evidence
    whether or not the defendant caused the death of William Michael Gyger under the
    immediate influence of sudden passion arising from an adequate cause.
    “Adequate cause” means 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.
    –19–
    “Sudden passion” means passion directly caused by and arising out of
    provocation by the individual killed, or another acting with the individual killed,
    which passion arises at the time of the offense and is not solely the result of former
    provocation.
    The burden of proof is by a preponderance of the evidence, and that burden
    rests on the defendant. The term “preponderance of the evidence” means the greater
    weight of the credible evidence.
    Now, bearing in mind the forgoing instructions, if you believe the defendant
    proved by a preponderance of the evidence that the defendant, having committed
    the offense of murder, that he caused the death of William Michael Gyger under
    the immediate influence of sudden passion arising from an adequate cause, you
    must make an affirmative finding as to the special issue.
    If you do not believe the defendant proved by a preponderance of the
    evidence that the defendant, having committed the offense of murder, cause the
    death of William Michael Gyger under the immediate influence of sudden passion
    arising from an adequate cause, you must make a negative finding as to the negative
    as to the special issue.
    The Jury will answer either, “We do” or “We do not.” You are instructed to
    answer the special issue before considering what punishment is appropriate for the
    Defendant.
    The jury answered this special issue “We do not” and assessed punishment at forty-five
    years’ imprisonment.
    The issue of sudden passion, although a punishment issue, it is analogous to an affirmative
    defense because the defendant has the burden of proof by a preponderance of the
    evidence. See Matlock v. State, 
    392 S.W.3d 662
    , 667 & n. 14 (Tex. Crim. App. 2013); Gaona v.
    State, 
    498 S.W.3d 706
    , 710–11 (Tex. App.—Dallas 2016, pet. ref’d). A finding on sudden passion
    may be evaluated for both legal and factual sufficiency. 
    Gaona, 498 S.W.3d at 710
    –11.
    When reviewing a legal sufficiency challenge to a negative finding on a sudden passion
    special issue, this Court must first review the record for a scintilla of evidence to support the jury’s
    negative finding on sudden passion and disregard all evidence to the contrary unless a reasonable
    fact finder could not. 
    Id. at 711.
    If we find no evidence that supports the jury’s finding, we must
    –20–
    determine whether the contrary proposition was established as a matter of law. 
    Id. We defer
    to the
    fact finder’s determination of the credibility of the testimony and weight to give the evidence. 
    Id. When reviewing
    a factual sufficiency challenge to the jury’s negative finding on a sudden
    passion special issue, this Court considers all the evidence in a neutral light, bearing in mind that
    the jury, as the trier of fact, assesses the weight of the evidence and the credibility of the witnesses’
    testimony. 
    Matlock, 392 S.W.3d at 671
    ; see also Butcher v. State, 
    454 S.W.3d 13
    , 20 (Tex. Crim.
    App. 2015). We will sustain a defendant’s factual sufficiency claim only if the verdict is so against
    the great weight of the evidence as to be manifestly unjust, conscience-shocking, or clearly biased.
    
    Butcher, 454 S.W.3d at 20
    ; 
    Matlock, 392 S.W.3d at 671
    ; see also Ruiz v. State, 05-17-00669-CR,
    
    2018 WL 6261502
    , at *4 (Tex. App.—Dallas Nov. 30, 2018, no pet.). We may not, however,
    intrude on the fact finder’s role as the sole judge of the weight and credibility of the witnesses’
    testimony. See 
    Matlock, 392 S.W.3d at 671
    ; Ojukwu v. State, 05-07-01436-CR, 
    2008 WL 3307111
    ,
    at *3 (Tex. App.—Dallas July 31, 2008, pet. ref’d) (mem. op. not designated for publication).
    Punishment Evidence and Arguments of Counsel
    At punishment, the State offered evidence of three prior bad acts committed by appellant.
    Appellant was arrested by a Carrollton police officer in 2010 for assaulting his mother’s boyfriend.
    In 2015, he broke a beer bottle over Dakota Owens’ head because Owens had hugged Natalee, his
    ex-fiancé. Natalee witnessed this attack and testified to it, as did Owens. Natalee also testified that
    appellant was violent to her and she believed him to be a violent person.8
    Appellant’s evidence at the punishment phase consisted of the testimony of his father,
    James Ross. Ross confirmed that appellant also had an arrest from 2009 for an assault on his sister.
    8
    Natalee testified as to appellant’s violent acts against her as follows: “He used to choke me and punch me in the
    face. He broke my jaw and I had stitches from him. He would throw me down the stairs, throw me outside, push me
    up against the wall. He punched me in the face several times.”
    –21–
    Ross testified that he met Gyger and Seghetti several years before the murder when they
    were living in the same apartment complex. Ross and appellant would socialize with Gyger and
    Seghetti and Ross allowed appellant, who was a minor at the time, to sample alcoholic beverages
    in their company. At some point when appellant was having difficulty, as he did throughout his
    youth and young adulthood, Gyger offered to help Ross out with appellant, to mentor him, and
    “get him to be a little bit smarter.”
    Ross testified that at some point he had seen a text on appellant’s phone from Gyger which
    concerned him. The two men spoke and Gyger “pooh-poohed” any love talk between himself and
    appellant with Gyger telling Ross “I’m just trying to help Jake.” Several years later Ross had
    another discussion with Gyger about appellant when he saw pictures of appellant on Gyger’s
    phone:
    I wanted to see his phone. He refused to show it to me. I got really angry
    with him. I started yelling at him. At that particular time, I told him I didn’t ever
    want him coming around my family again. I didn’t want to have anything to do
    with him anymore, and that I thought he was disgusting.
    Ross soon moved from the apartment complex and told appellant not to have anything to do with
    Gyger again.
    Ross received several telephone calls from appellant, usually late at night, while appellant
    was in jail. According to Ross, appellant was frustrated by his incarceration. He admitted that in
    one such call appellant told him that he might take the stand and “make some bullshit up.”9
    Ross also testified that appellant was not a bad person but needed more help than
    incarceration would provide if he was to have a future as a productive citizen.
    Appellant did not testify at the punishment phase.
    9
    The content of this telephone call was admitted as an exhibit at trial.
    –22–
    In jury arguments, the State argued that sudden passion was not applicable under the facts
    of the case as appellant’s act of shooting Gyger was a “cold-blooded murder:”
    [R]emember what he did. He went to the closet. He opened a bag. He
    removed the gun from a holster. He put a clip in the gun. He slid the rack. He
    prepared himself for the murder. There’s no evidence of immediate influence going
    on here. So he negates his own plea for mercy in his own statement.
    Adequate cause is something that a person of ordinary temper, they would
    be rendered incapable of cool reflection, unable to comprehend the consequences
    of one’s act. We don’t have any evidence of that here at all. And remember, it’s the
    person of ordinary temper.
    Defense counsel did not argue sudden passion. Indeed, defense counsel only mentioned
    appellant’s relationship with Gyger in passing: “This relationship was a disaster from the
    beginning. And in the end it ended in a disaster.” The defense argument focused on testimony from
    appellant’s father that appellant could be a contributing member of society if given a chance.
    Basically, the defense’s argument was a plea for leniency that never referred to any evidence which
    might have supported a sudden passion finding.
    In responding to defense counsel’s argument, the prosecutor said “I believe the Defense
    has conceded that this is not a sudden passion situation.”
    Legal Sufficiency to Reject Sudden Passion
    In his brief to this Court, appellant claims that there are three pieces of evidence which
    establish sudden passion: 1) his statements to the police, 2) his handling of the gun after the
    shooting, and 3) his statement to third parties immediately after the shooting. Appellant also claims
    that adequate cause was provided by Gyger whose “unwanted homosexual advances” caused
    appellant to “snap.”
    Statements to the Police
    Appellant claims that his statements to the police establish sudden passion because those
    statements demonstrate that when appellant tried to leave Gyger’s apartment Gyger became
    –23–
    “sexually aggressive” which was “his usual practice.” Indeed, appellant told one arresting officer
    that Gyger tried to rape him. Appellant claims in his brief that he “acted with rage” because Gyger
    wouldn’t leave him alone and that there is “no evidence to the contrary.”
    These statements, even if believed, do not establish sudden passion. While appellant denied
    being gay to the police, there was other evidence, particularly from Natalee, which would have
    allowed the jury to conclude that appellant and Gyger had a long standing physical relationship
    and had been exchanging sex for money. As Natalee testified, appellant was getting the money he
    wanted and Gyger was getting the sex he wanted. The jury was entitled to believe that appellant
    had not been truthful about his relationship with Gyger in his police interviews
    Appellant also claims that he was upset about Gyger’s repeated sexual advances. As he
    told the police, Gyger would “not stop trying to do stuff,” “it was just fucking weird,” and he “just
    couldn’t take it no more.” The jury could have concluded that, if anything, these statements reflect
    nothing more than former provocation which does not justify a finding of sudden passion.
    Additionally, appellant’s statements to the police reveal that appellant was angry because
    he blamed Gyger for his recent breakup with Natalee. Gyger had been saying things to disparage
    Natalee including calling her a “whore.” These statements, even if made by Gyger, would not
    support a finding of sudden passion because Gyger’s statements do not rise to the level of adequate
    cause. See Mallard v. State, No. 05-05-00434-CR, 
    2006 WL 2408490
    , at *6–7 (Tex. App.—Dallas
    Aug. 22, 2006, pet. ref’d) (mem. op., not designated for publication) (holding that there was
    inadequate cause to support a jury instruction on sudden passion where the victim called the
    defendant’s wife a “bitch” and a “shyster ass ho”). Other evidence also showed that Gyger may
    have been in the process of evicting appellant from his apartment. The jury could well have
    believed that appellant was angry because he was losing a place to stay with his dog.
    –24–
    Handling of the Gun After the Shooting
    After the shooting, appellant put the gun back in its usual hiding place. When asked during
    one of his interviews where the gun was, appellant told the police exactly where to find the gun.
    While this evidence could persuade the jury that appellant was not trying to hide the murder
    weapon, there is nothing in this evidence from which the jury could have concluded that appellant
    acted in sudden passion when he shot Gyger. This evidence could equally have persuaded the jury
    that appellant was attempting to hide the murder weapon hoping that if he stored the gun as it had
    been before the shooting his use of the gun might not be discovered until he had time to flee.
    Statement to Third Parties After the Shooting
    Appellant emphasizes three sets of statements he made which he claims shows that he acted
    in sudden passion.
    In his statements to the police, appellant claimed that he called his father after the shooting.
    In one version, his father told appellant to get out of the apartment while in another version his
    father told him to call the police. Appellant insinuates in his brief to the Court that he called his
    father because he had acted in a rage and was “at a loss” as to how to proceed.
    Appellant points to evidence which shows that when left the apartment, taking his clothes10
    and his dog with him in Gyger’s Cadillac, he went to the Clontz residence in Argyle, Texas, where
    he “confessed” to Natalee and her companions that he had shot Gyger and taken his car. Appellant
    drove off when he saw Kyle calling the police.
    10
    Appellant gave inconsistent statements to the police regarding his packing to leave the apartment. In one
    interview he told the police that his bags were already packed when he quarreled with Gyger. In another, he says that
    he packed after the shooting.
    –25–
    Appellant also emphasizes that when he was stopped by the police he “confessed” at the
    side of the road and later cooperated with the police by admitting his conduct, explaining his state
    of mind, and providing a “large amount of background contextual evidence.”
    Appellant fails to explain in his brief to this Court how any of this evidence establishes that
    he acted in the heat of sudden passion when he shot Gyger. To the contrary, in evaluating this
    evidence the jury could have concluded that appellant called his father to inform him that he was
    fleeing and/or seeking advise on how to flee the scene, that appellant contacted Natalee in an effort
    to obtain her help with that flight, and that his statements to the police and his conduct
    accompanying those statements were made in an effort to minimize his culpability and establish
    the foundation for a future defense at trial.
    Adequate Cause: Unwanted Sexual Advances
    There was no evidence, other than appellant’s self-serving statements to the police, that
    Gyger was actually trying to have unwanted sexual contact with appellant at the time of shooting.
    Both the crime scene photos of Gyger’s body and testimony from the responding officers reflect
    that Gyger was sitting on the couch with a bottle of alcohol in his lap and the remote control at his
    side; he looked “relaxed” to one officer. There was no physical evidence of a struggle apart from
    the shooting. The jury could reasonably conclude that Gyger did not pose any immediate threat to
    appellant at the time appellant shot him because he was obviously not, as the State so colorfully
    asserts in its brief to this Court, “chasing [a]ppellant around the apartment with his pants down.”
    Appellant, in his statements to the police, consistently stated that he retrieved Seghetti’s
    gun, held the gun to Gyger’s head, and pulled the trigger. The act of stopping to retrieve the gun,
    which was hidden from public view in another room from where Gyger was sitting, removes any
    “immediacy” from the shooting. See 
    McKinney, 179 S.W.3d at 569-70
    (holding evidence that
    defendant went home, sat at his desk for some time, and then retrieved his gun in preparation for
    –26–
    a fight showed deliberation and not sudden passion). The plain language of the statute mandates
    that the influence of the passion must be immediate, and the passion itself cannot be solely the
    result of former provocation. PENAL § 19.02(a)(2), (d). From appellant’s statements to the police
    the jury could reasonably conclude that appellant’s anger at Gyger, if any, arose either from former
    provocation or after a period of time for reflection.
    There is more than a scintilla of evidence to support the jury’s negative finding on the
    sudden passion special issue. We overrule appellant’s third issue.
    Factual Sufficiency to Reject Sudden Passion
    Appellant argues in his brief to this Court that the shooting was the “culmination of conduct
    that had been started by Gyger preying on [a]ppellant and resulting in [a]ppellant acting in sudden
    passion arising from Gyger’s never ending insistence that [a]ppellant perform homosexual acts
    upon him.” Appellant claims that the jury’s negative finding on sudden passion is so against the
    weight of the evidence as to be “obviously wrong.”
    As noted above, when this Court reviews an issue on which a defendant has the burden of
    proof by a preponderance of the evidence, we consider all the evidence neutrally to determine if
    the judgment is so against the great weight and preponderance of the evidence as to be manifestly
    unjust. 
    Moncivais, 425 S.W.3d at 408
    . We may not, however, intrude on the fact finder’s role as
    the sole judge of the weight and credibility of the witnesses’ testimony. 
    Id. at 409.
    As the sole
    judge of the weight and credibility of any witnesses’ testimony, the jury was entitled to believe or
    disbelieve any witness.
    From the evidence presented at trial, the jury could have reasonably believed that appellant
    was an aggressive and violent individual. Given the many inconsistencies that were in appellant’s
    statements to the police, the jury could also have reasonably disbelieved much of appellant’s
    version of the events that he recounted in his police interviews.
    –27–
    After reviewing all the evidence relevant to sudden passion in a neutral light, we cannot
    conclude the jury’s rejection of appellant’s claim of sudden passion arising from an adequate cause
    “is so much 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
    . We overrule appellant’s fourth issue.
    Parole and Good Conduct Time
    Appellant claims that the trial court’s charge erroneously informed the jury about parole
    and good conduct time because he was precluded by statute from receiving any good conduct time
    credit. TEX. GOV’T CODE ANN. § 508.149 (a) (2). The State agrees that appellant is ineligible for
    good conduct time credit, but argues the charge was proper.
    The jury charge on punishment included the following instructions:
    Under the law applicable in this case, the defendant, if sentenced to a term
    of imprisonment, may earn time off the period of incarceration imposed through
    the award of good conduct time. Prison authorities may award good conduct time
    to a prisoner who exhibits good behavior, diligence in carrying out prison work
    assignments, and attempts at rehabilitation. If a prisoner engages in misconduct,
    prison authorities may also take away all or part of any good conduct time earned
    by the prisoner.
    It is also possible that the length of time for which the defendant will be
    imprisoned might be reduced by the award of parole.
    Under the law applicable in this case, if the defendant is sentenced to a term
    of imprisonment, he will not become eligible for parole until the actual time served
    equals one-half of the sentence imposed or 30 years, whichever is less, without
    consideration of any good conduct time he may earn. Eligibility for parole does not
    guarantee that parole will be granted.
    It cannot be accurately predicted how the parole law and good conduct time
    might be applied to this defendant if he is sentenced to a term of imprisonment,
    because the application of these laws will depend on decisions made by prison and
    parole authorities.
    You may consider the existence of the parole law and good conduct time.
    However, you are not to consider the extent to which good conduct time may be
    awarded to or forfeited by this particular defendant. You are not to consider the
    manner in which the parole law may be applied to this particular defendant.
    –28–
    These instructions are mandated by statute and the trial court’s jury charge tracked the
    language of that statute. CRIM. PROC. art. 37.07 § 4(a). While appellant does not dispute that these
    instructions tracked the appropriate statute, he argues that, because he is ineligible to receive good
    conduct time, the charge was misleading.
    Both the Court of Criminal Appeals and this Court have rejected the exact arguments that
    appellant makes in this appeal. See Luquis v. State, 
    72 S.W.3d 355
    , 363 (Tex. Crim. App. 2002);
    Backusy v. State, 05-17-01288-CR, 
    2018 WL 5730166
    , at *3 (Tex. App.—Dallas Nov. 2, 2018,
    pet. ref’d) (mem. op., not designated for publication); Walker v. State, 05-14-01229-CR, 
    2016 WL 259577
    , at *6 (Tex. App.—Dallas Jan. 21, 2016, pet. ref’d) (mem. op., not designated for
    publication); Anderson v. State, No. 05–13–00253–CR, 
    2013 WL 6870013
    , at *4 (Tex. App.—
    Dallas Dec. 31, 2013, no pet.) (mem. op., not designated for publication). We overrule appellant’s
    fifth issue.
    Modification of Judgment
    In its cross-point, the State asks this Court to modify the judgment to reflect a deadly
    weapon finding.
    The indictment alleged that appellant caused the death of Gyger “by shooting deceased
    with a firearm, a deadly weapon.” The jury found appellant guilty of murder “as charged in the
    indictment.” Therefore, the jury made an affirmative deadly weapon finding. See Polk v. State,
    
    693 S.W.2d 391
    , 394 (Tex. Crim. App. 1985); Roots v. State, 
    419 S.W.3d 719
    , 724 (Tex. App.—
    Fort Worth 2013, pet. ref’d); PENAL § 1.07(a)(17)(A) (providing that a firearm is a deadly weapon).
    The judgment, however, contains the entry “N/A” in the “Findings on Deadly Weapon” field.
    We have the authority to modify an incorrect judgment when the evidence necessary to
    correct that judgment appears in the record. TEX. R. APP. P. 43.2(b); Bigley v. State, 
    865 S.W.2d 26
    , 27–28 (Tex. Crim. App. 1993); Asberry v. State, 
    813 S.W.2d 526
    , 529–30 (Tex. App.—Dallas
    –29–
    1991, pet. ref’d). Accordingly, we sustain the State’s cross-point and modify the trial court’s
    judgment to read “Yes, a Firearm” in the “Findings on Deadly Weapon” field of the judgment.
    Conclusion
    As modified, we affirm the trial court’s judgment.
    /Leslie Osborne/
    LESLIE OSBORNE
    JUSTICE
    DO NOT PUBLISH
    TEX. R. APP. P. 47.2(b)
    180262F.U05
    –30–
    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    JACOB NATHAN ROSS, Appellant                       On Appeal from the 292nd Judicial District
    Court, Dallas County, Texas
    No. 05-18-00262-CR         V.                      Trial Court Cause No. F-1611734-V.
    Opinion delivered by Justice Osborne.
    THE STATE OF TEXAS, Appellee                       Justices Myers and Nowell participating.
    Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as
    follows: add a deadly weapon finding.
    As REFORMED, the judgment is AFFIRMED.
    Judgment entered this 5th day of August, 2019.
    –31–