Andrew Martinez v. the State of Texas ( 2023 )

Opinion issued April 6, 2023.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00288-CR
———————————
ANDREW MARTINEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 22nd District Court
Hays County, Texas1
Trial Court Case No. CR-16-0994-A
1
The Texas Supreme Court transferred this appeal to this Court from the Court of
Appeals for the Third District of Texas, pursuant to its docket-equalization
authority. See TEX. GOV’T CODE § 73.001 (“The supreme court may order cases
transferred from one court of appeals to another at any time that, in the opinion of
the supreme court, there is good cause for the transfer.”). We are unaware of any
conflict between the precedent of the Court of Appeals for the Third District and
that of this Court on any relevant issue. See TEX. R. APP. P. 41.3.
MEMORANDUM OPINION
A jury found Appellant Andrew Martinez guilty of the first-degree felony
offense of murder and assessed his punishment at forty-five years’ imprisonment.
In a single issue, Appellant argues that the evidence supporting the jury’s finding
during the punishment phase of trial that he did not act under the influence of sudden
passion is legally and factually insufficient. We affirm the trial court’s judgment.
Background
On September 14, 2016, Appellant Andrew Martinez (“Appellant”) shot and
killed Jacob Lambert (“Lambert”) in Kyle, Texas. Appellant was charged with first-
degree murder. Appellant’s first trial resulted in a hung jury. At his second trial,
Appellant pleaded “not guilty” to the charge by reason of self-defense.2 This time,
the jury rejected Appellant’s claim of self-defense and found him guilty of
first-degree murder. During the punishment phase of his second trial, Appellant
argued that the jury should assess his punishment for a second-degree felony, as
opposed to a first-degree felony, because he had proven by a preponderance of the
evidence that “he caused the death [of Lambert] under the immediate influence of
2
Appellant appeals from the final judgment in the second trial. All references to trial
testimony and arguments raised concern the second trial, unless otherwise noted.
2
sudden passion arising from an adequate cause.”3 See TEX. PENAL CODE § 19.02(d).4
The jury rejected Appellant’s assertion of sudden passion and assessed his
punishment for a first-degree felony offense. On appeal, Appellant challenges only
the jury’s rejection of his claim of sudden passion. Although sudden passion is
relevant only with respect to punishment, we consider all evidence adduced at trial
when evaluating the sufficiency of the evidence with respect to this issue. See
generally Atkinson v. State, 404 S.W.3d 567, 572 (Tex. App.—Houston [1st Dist.]
2010, pet. ref’d) (“By operation of law, the evidence admitted during the guilt-
innocence phase of the trial is also before the jury at the penalty phase, and the jury
may consider all the evidence adduced at the guilt-innocence phase in assessing a
defendant’s punishment.”).
A. State’s Witnesses5
The State called Brandon Corey Tyner, Ebony Esquivel, Aimee Johnson, and
Victoria Gonzalez to testify during the guilt-innocence phase of Appellant’s trial.
3
The punishment range for first degree felony is life or a term not more than ninety-
nine years or less than five years. TEX. PENAL CODE § 12.32(a). The punishment
range for second degree felony is not more than twenty years or less than two years.
TEX. PENAL CODE § 12.33(a).
4
Texas Penal Code §19.02(d) provides that at “the punishment stage of a 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 cause. If the defendant proves
the issue in the affirmative by a preponderance of the evidence, the offense is a
felony of the second degree.” TEX. PENAL CODE §19.02(d).
5
The State called thirty-one witnesses during the guilt-innocence phase of
Appellant’s second trial, but only four of them witnessed the shooting: Victoria
3
1. Brandon Corey Tyner
Brandon Corey Tyner (“Tyner”), Lambert’s friend, testified at trial. Tyner
testified he knew Bradley Wood (“Wood”) and that he would provide him with
marijuana and cocaine. Wood would then sell the drugs and return the proceeds to
Tyner.
On September 14, 2016, Tyner, Lambert, and Tyner’s cousin, Blake Ladd
(“Ladd”), drove to a gas station in Lambert’s white Impala where Tyner fronted
Wood $50 worth of cocaine. Wood was driving a blue Mustang. Tyner testified
that as he walked up to the Mustang to give Wood the cocaine, he saw Appellant
sitting in the front passenger seat. After leaving the gas station, Tyner, Lambert, and
Ladd drove to Ladd’s home at 120 Myrtle Street in Kyle, Texas. Myrtle Street runs
approximately north to south and dead ends at Tower Drive. Ladd’s home is the
second home from Tower Drive on the left. At trial, the State introduced Exhibit
No. 1 depicting Myrtle Street at the intersection of Tower Drive:6
Gonzalez, Brandon Corey Tyner, Ebony Esquivel, and Aimee Johnson. Appellant,
who testified in his own defense, called an expert witness to testify on his behalf.
With respect to the punishment phase of trial, the State called twelve witnesses, but
none of them witnessed the shooting, and Appellant did not call any witnesses. We
thus limit our analysis to testimony provided during the guilt-innocence phase by
Victoria Gonzalez, Brandon Corey Tyner, Ebony Esquivel, Aimee Johnson, and
Appellant.
6
State’s Exhibit 1 does not depict the intersection, the location of Wood’s Mustang,
or the location of Lambert’s Impala on the day of the shooting.
4
State’s Exhibit 1.
Tyner and Wood arranged to meet later that evening a few houses down the
street from 120 Myrtle so that Wood could give Tyner the proceeds from the drug
sales. When Wood arrived at Myrtle Street that evening, he parked his Mustang
facing Tower Drive on the left side of Myrtle Street between 130 Myrtle Street and
140 Myrtle Street. Wood was in the driver’s seat and Appellant was in the front
passenger seat. Tyner did not notice if anyone was in the backseat.
Tyner exited Ladd’s house to meet Wood outside. According to Tyner,
Lambert was either with him when he walked out of the house or close behind.
Tyner testified that he and Lambert approached Wood’s Mustang and stood together
at the driver’s side window and were leaning in slightly. Tyner denied that Lambert
hid behind anything when he approached the Mustang. According to Tyner,
Appellant and Lambert began arguing and both men “sounded angry, and they were
5
yelling at each other and cursing at each other.” Tyner did not recall who started the
argument. According to Tyner, Appellant and Lambert were gesturing with their
hands as they argued, and the two men appeared to be “equally mad.” Tyner testified
that neither he nor Lambert had any kind of gun with them that day and Tyner had
never seen Lambert with a gun. He also denied that Lambert was “holding anything
up, either out of his clothing or in his clothing, with either of his hands” during the
argument. Tyner, who had a good view of Lambert’s waistband, testified he did not
see anything sticking out of Lambert’s waistband or “anything on his person that
could have been a weapon, like, a lump or something in his pocket.” Lambert also
did not have “any kind of, like, backpack or hiding place when he came out of the
house and approached the car with you where he could have hid[den] a weapon.”
Tyner testified that Lambert told Appellant that “he wanted to fight him” but
Lambert did not threaten to use a weapon against Appellant and Lambert never
mentioned a gun, knife, or club. According to Tyner, Lambert was only proposing
a fistfight. Tyner testified that Appellant appeared angry and upset during the
argument, but he never appeared to be afraid of Lambert and he did not say he was
afraid of Lambert.
Tyner testified that based on his observations of Appellant’s and Lambert’s
interaction, he did not see a reason other than the proposed fistfight for Appellant to
fear Lambert, fear for his life, or fear Lambert would use deadly force. According
6
to Tyner, the argument ended when Wood drove away in his Mustang towards
Tower Drive. He testified that although Lambert swore at the Mustang, he did not
try to stop it from leaving. When the Mustang drove off, Tyner and Lambert started
walking back towards Ladd’s house on 120 Myrtle. Lambert, who was walking in
front of Tyner, was “throwing up middle fingers” in the Mustang’s direction.
According to Tyner, when the Mustang reached the intersection of Myrtle Street and
Tower Drive, the Mustang made a U-turn and drove back down the street in Tyner’s
and Lambert’s direction. Tyner testified that the Mustang slowed down and he then
heard four or six shots and saw “flashes” coming from the Mustang’s passenger side,
and Lambert was shot. According to Tyner, Lambert was “just holding up a middle
finger” right before he was shot. Tyner testified that Lambert was swearing but he
was not reaching in his pocket or towards his waistband or doing or saying anything
threatening before the shots were fired. Tyner testified that based on his
observations, Lambert was not doing anything when the shooting occurred that
“would justify another person being in fear for their life.” After the shooting, the
Mustang sped up and drove away.
2. Bradley Wood
Wood testified that he delivered drugs for Tyner in exchange for gas money
or drugs. On September 14, 2016, Wood drove to Myrtle Street in his Mustang to
meet with Tyner because he needed to give Tyner the proceeds from a drug delivery
7
he had completed earlier that day. Appellant was sitting in the front passenger seat
of the Mustang and Ebony Esquivel (“Esquivel”) and Aimee Johnson (“Johnson”)
were sitting in the backseat. When they arrived at Myrtle Street, Wood parked his
Mustang next to the curb on the left side of Myrtle Street, facing Tower Drive. Tyner
exited Ladd’s house and walked up to the driver’s side window of the Mustang,
where he and Wood completed their transaction. According to Wood, he and Tyner
spoke for about a minute before Lambert walked up to the driver’s side window of
the Mustang, at which point Lambert got into an argument with Appellant.
According to Wood, Lambert did not hide behind anything as he approached the
Mustang. Wood, who did not know what Lambert and Appellant were arguing
about, did not recall what Lambert or Appellant said during their argument.
According to Wood, Lambert and Appellant were both upset and angry and the
argument lasted about a minute.
Wood testified that Lambert never put his body inside the Mustang. He also
did not see Lambert with a gun or see anything suspicious in Lambert’s pockets or
waistband. He did not recall hearing Lambert threaten Appellant with a firearm and
Appellant did not appear to be scared of Lambert. According to Wood, Appellant
never told him he was scared of Lambert. Wood testified that he did not “observe
anything that would lead you to believe [Appellant] had some reason to be afraid
that [Lambert] was going to seriously harm him.”
8
The argument ended when Appellant told Wood to leave, and Wood drove
away in the Mustang down Myrtle Street toward Tower Drive. Wood denied that
Lambert was hanging on to the Mustang yelling “Come back here, you pussies,”
when he drove away. Wood, who did not know the neighborhood very well, testified
that he could have turned left on Tower Drive to leave the neighborhood, but he was
unaware of that possibility the night of the shooting. Instead of turning onto Tower
Drive, Wood made a wide U-turn at Tower Drive and drove back down Myrtle Street
so that he could take the same route out of the neighborhood. Wood denied hearing
Appellant telling him to turn left on Tower Drive.
After making the U-turn and as he was driving back down Myrtle Street,
Wood saw Lambert and Tyner walking towards Tower Drive and towards the
Mustang. Wood then heard Appellant, who was sitting in the front passenger seat,
fire several shots out the passenger side window. Wood did not recall Appellant
saying anything before the shooting and believed the Mustang had already driven by
Tyner and Lambert when the shooting occurred.
Wood testified that Lambert and Tyner were not doing “anything threatening”
as they walked towards Tower Drive and the Mustang, and he did not “perceive any
reason that [Appellant] would have to be fearful” of either Tyner or Lambert.
According to Wood, Lambert was not holding anything, making threatening
9
gestures, or reaching into his pockets when Appellant fired the shots. Wood agreed
that Appellant “would have been just fine” if he had not shot Lambert.
After the shooting, the Mustang fled the scene. Appellant began giving Wood
directions and telling him where to drive. Wood testified that he was scared and just
followed Appellant’s instructions. At some point, Appellant threw the gun out the
window. The police stopped the Mustang shortly after and detained Wood,
Appellant, Esquivel, and Johnson.
3. Ebony Esquivel
Esquivel, who was sitting in the backseat of the Mustang when the shooting
occurred, testified that Wood and Appellant picked her up at her home on September
14, 2016, and then they picked up Esquivel’s friend, Johnson. According to
Esquivel, Wood was driving his Mustang, Appellant was sitting in the front
passenger seat, she was sitting behind Wood, and Johnson was sitting behind
Appellant. After making a few stops, the group drove to Myrtle Street where
Esquivel believed Wood was going to meet a friend.
Esquivel testified that when they arrived at Myrtle Street, Tyner walked up to
the Mustang’s driver’s side window and started talking to Wood. Esquivel, who was
talking to Johnson in the backseat, was not paying attention to Tyner’s and Wood’s
conversation. At some point, Lambert walked up to the driver’s side window.
According to Esquivel, Lambert leaned in the car and said hello to her and Johnson
10
before he started talking to Appellant. She described Appellant’s and Lambert’s
conversation as “aggressive” and she testified that Lambert, who initiated the
conversation, was “just kind of angry” and his voice was raised. Esquivel testified
that Appellant told her earlier that night that he did not like Lambert because
Lambert had robbed his brother. Lambert and Appellant were “equally upset” and
they were swearing and threatening one another. When asked what threats Lambert
was making, Esquivel testified, “Like, that he’ll mess [Appellant] up, or something
like that.” Appellant retorted that “he wasn’t scared.” When asked what she thought
Lambert meant when he said he wanted to mess Appellant up, Esquivel testified that
she thought Lambert was referring to a fistfight.
On cross-examination, Esquivel testified that Lambert called Appellant “a
bitch” and threatened him, saying, “This is not my first time. I can fuck you up.”
Esquivel agreed that “it seemed like [Lambert] wanted to get [Appellant] out of the
car.” When asked if she thought Lambert was “trying to scare” Appellant, Esquivel
testified that Lambert was “just trying to, like, fight him, like, fistfight him.”
According to Esquivel, Lambert never mentioned a gun or a firearm of any
kind or threatened deadly force against Appellant. When asked if it appeared to her
that Lambert was “holding anything up or securing anything in his clothing with his
hands,” Esquivel testified that he was not, and she never saw Lambert with a gun
11
that night. She also never feared for Appellant’s life or was “afraid that [Lambert]
was going to use any kind of deadly force against him.”
According to Esquivel, the argument ended when she told Wood that it was
time to go, and Wood drove away on Myrtle Street towards Tower Drive. Esquivel
testified that Lambert tried unsuccessfully to hang on to the Mustang to stop them
from leaving. Wood made a U-turn at Tower Drive and drove back down Myrtle
Street. Esquivel testified that Appellant did not say anything to anyone when Wood
made the U-turn. Esquivel saw Lambert standing in the driveway of 120 Myrtle
after the Mustang turned around and Lambert had “his hands up, like, stretched out.”
When asked how she interpreted Lambert’s gesture, Esquivel testified, “He wanted
to know why we left, I guess.” Esquivel also did not see Lambert “reach for his
waistband” or “point anything at the car.” She also did not “see any gestures that
someone could have interpreted as reaching for a weapon.” When asked if she
thought Lambert was “threatening any kind of force against [her] or any other person
in the car,” Esquivel answered, “No.” According to Esquivel, Lambert “just had his
hands up in the air.” Esquivel testified that if Lambert “had pulled a gun out at that
moment,” she would have seen it “because she was “looking at him when we were
driving down the street.”
Esquivel testified that, as the Mustang drove back down Myrtle Street,
Appellant “pulled out a gun out of his backpack and fired several shots out the
12
passenger side window.” As the Mustang drove by Lambert on its way out of the
neighborhood, Esquivel did not fear for her personal safety or the personal safety of
Wood, Johnson, or Appellant. She also did not perceive any reason why Appellant
would have been fearful of Lambert when he shot him. She testified that Lambert
did nothing that evening to lead her to believe Appellant was “in fear for his life”
when he shot Lambert.
When asked if Appellant said anything “either before or immediately after the
shooting,” Esquivel testified that after he shot Lambert, Appellant stated that
Lambert “deserved it.”
4. Aimee Johnson
Johnson testified that Wood, Appellant, and Esquivel picked her up in Wood’s
Mustang on September 14, 2016. According to Johnson, Wood was driving,
Appellant was sitting in the front passenger seat, Esquivel was seated in the backseat
behind Wood, and she sat behind Appellant. Johnson testified that they stopped at
Sonic for slushies and then drove to Myrtle Street where Johnson believed they were
going to pick up another passenger. After the Mustang parked on the left side of
Myrtle Street next to the curb, Tyner walked out of one of the homes and approached
the Mustang’s driver’s side window. According to Johnson, Tyner spoke to Wood
for “a minute or two” before Lambert approached the car. Johnson did not see
Lambert until Tyner moved to the side and made room for him beside the driver’s
13
side window. Lambert placed his arms on the window’s ledge and leaned into the
Mustang slightly to see who was in the car. Lambert, who knew Esquivel and
Johnson, said hello to the two women and then Lambert noticed Appellant. Johnson
testified that she could feel the tension in the air when Lambert saw Appellant sitting
in the front passenger seat. According to Johnson, Lambert’s “face kind of dropped”
and he seemed surprised to see Appellant. Lambert began arguing with Appellant.
According to Johnson, Lambert “said something about there [being] some drama
with his brother, and then [Appellant] [] said something else about the drama with
his brother.” Johnson did not otherwise know what the men were arguing about.
Both Appellant and Lambert were “upset,” “hostile,” and “angry,” and although their
voices were “elevated, they were not shouting.” At some point during the argument,
Lambert stood up, but he still had his hand on the driver’s side windowsill.
Johnson testified that she did not see Lambert with “any kind of gun” or a
weapon that night or see Lambert “make any movements like he was reaching for a
weapon.” Johnson could see Lambert’s waistband when he stood up and if Lambert
had anything in his waistband, she would have been able to see it. She also did not
recall seeing “any suspicious lumps or items in the waistband that would lead [her]
to believe or anyone to believe that [Lambert] had a weapon on him.” According to
Johnson, Lambert did not “threaten to harm the [Appellant] with a gun” during their
argument or make any specific threats against Appellant. Johnson testified that
14
Lambert did not mention a gun or tell Appellant to do anything, and she denied
hearing Lambert call Appellant “a bitch,” or telling Appellant, “This isn’t my first
time. I can fuck you up.” Johnson, who was seated behind Appellant, testified that
Appellant did not sound fearful during the argument, just upset, and he never
mentioned anything about being afraid of Lambert. Based on her observations,
Johnson did not think there was “any reason for the [Appellant] to be in fear from
[Lambert].”
Johnson testified that the argument ended when Wood drove away in the
Mustang. According to Johnson, Lambert “tried to wrap his arm into the window
onto the door as the car was taking off.” Lambert hung on for no more than ten
seconds and Johnson assumed he fell. Johnson denied hearing Lambert yell, “Don’t
leave, you pussies.”
Johnson also testified that she did not hear anyone in the Mustang say
anything before Wood made a U-turn at Tower Drive. On cross-examination,
however, Johnson acknowledged that she told the police the night of the shooting
that she heard Appellant tell Wood to “[t]urn left” as the Mustang approached Tower
Drive.
As the Mustang drove back down Myrtle Street in Lambert’s and Tyner’s
direction, Johnson heard Wood say, “Get him.” Appellant then “pulled out his gun”
and said, “You better not say shit.” Appellant pointed the gun out the passenger side
15
window and fired several shots and, as the Mustang was driving away, Appellant
“pointed [the gun] into the sky and shot a couple more times.” When Appellant
started shooting out the window, Johnson did not feel in danger or feel that Appellant
was in any danger. Johnson, who did not see Lambert after the Mustang made the
U-turn, did not believe that Appellant was “justified in doing what he did.”
Johnson testified that she and Esquivel were terrified after the Mustang left
the scene, and Wood “was kind of freaking out” and “[h]e kept telling everyone to
shut up.” According to Johnson, Wood was “just driving” and he did not seem to
have a destination in mind. Johnson testified that at some point, while they were
still driving, Appellant “eventually ends up saying, ‘It was me. It was me.’ Like,
‘It’s fine.’” She testified Appellant also stated that he “need[ed] to find water to
throw the gun.” When asked if Appellant said anything about Lambert, Johnson
testified that Appellant said, “Fucking Lambert. Fucking Lambert” and “That’s
what he gets for messing with my family.”
5. Victoria Gonzalez [3 RR 64]
Victoria Gonzalez (“Gonzalez”) lived at 111 Myrtle Street in Kyle, Texas,
which is located at the corner of Myrtle Street and Tower Drive. Gonzalez’s home
is catty-corner from the home at 120 Myrtle Street, where the shooting occurred.
On September 14, 2016, Gonzalez was returning home from the store at 10:00
p.m. when she heard people arguing across the street. Gonzalez looked out her front
16
window and saw a Mustang make a U-turn at the intersection of Myrtle Street and
Tower Drive, and she saw Lambert standing in the driveway of 120 Myrtle Street.
As the Mustang drove back down Myrtle Street, Gonzalez heard six gunshots and
saw muzzle flashes coming from the car’s passenger side. Although she could not
recall if Lambert was doing anything with his hands before he was shot, Gonzalez
testified that she probably would have noticed if Lambert had been doing “something
unusual or threatening with [his] hands.” Gonzalez testified that to the best of her
recollection, Lambert was not “doing anything threatening.” Gonzalez testified that
Lambert was not pointing anything at the Mustang when it drove by and the shots
were fired.
B. Appellant’s Witnesses
Appellant testified in his own defense. Appellant, a small-time drug dealer,
did not have a car when the shooting occurred. On September 14, 2016, he texted
Wood and asked him to pick him up so that Appellant could give Wood gas money
for helping Appellant deliver marijuana. After Wood picked him up, they made one
delivery and then drove to Taco Bell where Wood bought $20 of cocaine from Tyner.
Appellant noticed that Tyner was driving Lambert’s white Impala and Lambert, who
was in the car, shot Appellant the middle finger. Appellant and Wood met up with
Tyner later at Gregg-Clarke Park because Wood wanted Tyner to front him more
cocaine. Wood planned to sell the cocaine and later to return the proceeds to Tyner.
17
After Tyner gave Wood the cocaine, Appellant noticed that Lambert was at the park
as well and Lambert shot Appellant the middle finger. Appellant testified that this
time, he “shot the finger at [Lambert], and I just kind of, like, brushed him off, you
know.” Later that day, Wood and Appellant picked up Esquivel and Johnson and
they went to Sonic for slushies. While they were at Sonic, Wood received a phone
call and they then drove to Myrtle Street.
According to Appellant, Wood parked the Mustang on the left side of the
street between 130 Myrtle and 140 Myrtle. Wood, who was already outside,
approached the parked Mustang first and Lambert joined Tyner a short time later.
Although the interaction was initially friendly, things took an “unsettling” turn when
Appellant saw a door at 120 Myrtle open and close. Appellant testified that out of
the corner of his left eye, he saw someone sneaking around a vehicle parked in the
driveway of 130 Myrtle and approaching the Mustang. Appellant testified that he
became scared when he realized it was Lambert because Lambert was “acting
sneaky” and “being weird.” According to Appellant, Lambert pushed Tyner aside
and stuck his head through the Mustang’s driver’s side window. Lambert noticed
Esquivel and Johnson in the back seat first and then he noticed Appellant in the
passenger seat and locked eyes with him.
According to Appellant, Lambert immediately threatened Appellant stating,
“You’re the punk ass motherfucker that tried to check me at the convenience store.”
18
Appellant testified that this made him feel “scared” and “nervous” and he tried to
tell Lambert he did not want to fight him, he had only wanted Lambert to fight his
brother when they met up at the corner store. According to Appellant, Lambert
responded, “Fuck that. Get your bitch ass out of the car. I’m gonna get you right
now.” Appellant testified that as Lambert was making his threat, Lambert was
“pointing to me and he’s - - when he does that, he shows me a handle of what I
believed to be at the time a sawed-off shotgun. It looked like a - - the handle that
I’ve seen before on - - in a photo of him.” Appellant testified that he told Wood to
drive away when he thought he saw the shotgun’s handle. At that point, Lambert
said something to Tyner, and Tyner walked away. Lambert, who had begun pacing
outside the driver’s side window, stuck his head in the window and stated, “This is
not the first time -- this is not my first time. I’ve done this before.” According to
Appellant, he told Wood they needed to “get out of here before something bad
happens to us.”
According to Appellant, Wood drove away quickly as Lambert briefly hung
on to the side of the Mustang’s window in an unsuccessful attempt to keep the car
from leaving. As they were driving away in the Mustang, Appellant pulled out his
cell phone to get the address for the next marijuana delivery. Appellant testified
that, as they approached the intersection of Myrtle Street and Tower Drive, Wood
stated that Lambert had “called us some fucking pussies,” and announced, “Man,
19
fuck that. I’m turning around.” Appellant’s “stomach turn[ed]” and his “heart
drop[ped]” when he realized Wood was going to make a U-turn at Tower Drive to
head back down Myrtle Street, and Appellant, who knew the way out the
neighborhood, testified that he told Wood, “No. Go left. Go left.”
As the Mustang made the U-turn, Appellant claims he saw Lambert waving
his hands in the air and “[a]cting erratically.” Appellant retrieved a loaded, and
cocked handgun from his backpack on his lap. After he saw Lambert “real quickly
reach for his waistband with his right hand,” Appellant “just start[ed] shooting”
because he believed Lambert was reaching for the sawed-off shotgun he had flashed
earlier at Appellant. Appellant testified that he was “just trying to neutralize”
Lambert and “make him just stop what he was doing.” Appellant testified that he
shot once or twice and as the Mustang passed Lambert. He testified he saw Lambert
“pulling something out” and “fumbling for something” that Appellant believed was
the shotgun, so he continued shooting. Appellant admitted, however, that he never
actually saw Lambert with a gun before shooting. Appellant denied saying, “Y’all
better not say shit,” right before he shot Lambert.
As the Mustang fled that scene, Appellant, Wood, Esquivel, and Johnson were
“scared” and “panicking.” Appellant testified that he tried to calm everyone down
and told them, “It’s going to be okay. I didn’t shoot him for no reason. He deserved
it.” Appellant explained that Lambert “deserved it” because he “reached for his
20
waistband.” Although he admitted that he said, “Fucking Lambert,” Appellant
denied saying, “You messed with the wrong family.” Appellant testified that while
they were driving around after the shooting, the Mustang passed a Hays County
Deputy who turned around and ultimately stopped the car. The Deputy detained
Appellant, Wood, Esquivel, and Johnson. Appellant testified he threw the gun out
the window after he saw the deputy turn his car around to follow the Mustang.
On cross-examination, the State questioned Appellant about discrepancies
between his current testimony and the testimony he gave during his first trial.
Appellant acknowledged that although he had just testified that Lambert showed him
the handle of what Appellant thought was a sawed-off shotgun, Appellant testified
at his first trial that he had not seen a firearm. When asked about Lambert’s reference
to an incident that had happened earlier at the corner store, Appellant testified that
he, his brother, and some friends encountered Lambert and others at a Shell
convenience store. Appellant approached Lambert and tried to arrange for Lambert
to fight Appellant’s brother at a nearby park. At some point, a man Lambert had
been talking to pulled out a knife and Appellant responded by brandishing his
handgun.
C. Punishment
The jury rejected Appellant’s self-defense claim and found Appellant guilty
of first-degree murder. During the punishment phase of trial, Appellant argued that
21
the jury should access his punishment for a second-degree felony, as opposed to a
first-degree felony, because he had proven by a preponderance of the evidence that
“he caused the death [of Lambert] under the immediate influence of sudden passion
arising from an adequate cause.” See TEX. PENAL CODE § 19.02(d).
The State called twelve witnesses, none of whom witnessed the shooting.
Appellant did not call any witnesses to testify on his behalf. In the jury charge, the
trial court instructed the jury about the mitigating circumstance of sudden passion:
The defendant contends he committed the murder under the immediate
influence of sudden passion arising from an adequate cause. Before
you assess punishment, you must first determine whether the defendant
has proven this contention.
A defendant convicted of murder may raise the issue of whether he
caused the death under immediate influence of sudden passion arising
from an adequate cause. This is called the doctrine of sudden passion.
If the defendant proves that he acted under the influence of sudden
passion, this offense is punishable by a term of imprisonment for no
fewer than 2 years and no more than 20 years and a fine of no more
than $10,000.7
If the defendant does not prove he acted under the influence of sudden
passion, this offense is punishable by a term of imprisonment for no
less than 5 years and no more than 99 years or for life and a fine of no
more than $10,000.8
7
This is the punishment range for a second-degree felony. TEX. PENAL CODE
§ 12.33(a) (stating punishment range for second degree felony is not more than
twenty years or less than two years).
8
This is the punishment range for a first-degree felony. TEX. PENAL CODE § 12.32(a)
(stating punishment range for first degree felony is life or term not more than ninety-
nine years or less than five years).
22
You must all agree on whether the defendant has proved that he acted
under the influence of sudden passion.
The burden is on the defendant to prove, by a preponderance of
evidence, that he acted under the influence of sudden passion.
Sudden passion means passion directly caused by or -- and arising out
of provocation by the individual killed or another acting with the person
killed, which passion arises at the time of the offense and is not solely
the result of former provocation.
Adequate cause means cause that would commonly produce a degree
of danger -- excuse me -- anger, rage, resentment, or terror in a person
of ordinary temper sufficient to render the mind incapable of cool
reflection.
The term preponderance of evidence means the greater weight of the
degree -- and degree of the credible evidence.
You must determine whether the evidence has -- excuse me -- the
defendant has proved, beyond a preponderance of evidence, that he
acted under the immediate influence of sudden passion arising from an
adequate cause.
You must also agree on whether the defendant has proved sudden
passion before you may assess punishment.
Your resolution of the special issue will determine which of the verdict
forms you will use.
The jury rejected Appellant’s assertion of sudden passion and assessed his
punishment at forty-five years’ imprisonment for a first-degree felony offense.
Sudden Passion
In his sole issue, Appellant argues that the evidence supporting the jury’s
negative finding on his claim of sudden passion is legally and factually insufficient.
Appellant argues that “the evidence given at trial unequivocally establishes that his
23
actions were directly caused by and arose out of provocation by Jacob Lambert; and
that the Appellant did not have the opportunity to even attempt to engage in a cool
reflection.” Appellant further contends that “the provocation giving rise to sudden
passion was entirely what happened after the Appellant pulled out his phone” to get
directions for the next marijuana delivery.
A. Applicable Law
At the punishment phase of a murder trial, a defendant may reduce a murder
charge from a first-degree felony to a second-degree felony by establishing he
committed the murder under the immediate influence of sudden passion. Pursuant
to Texas Penal Code section 19.02(d), a “defendant may raise the issue as to whether
he caused the death under the immediate influence of sudden passion arising from
an adequate cause. If the defendant proves the issue in the affirmative by a
preponderance of the evidence, the offense is a felony of the second degree.” See
TEX. PENAL CODE § 19.02(d); see generally McKinney v. State, 179 S.W.3d 565, 569
(Tex. Crim. App. 2005) (stating “[s]udden passion is a mitigating circumstance” that
can be raised during punishment phase).
“Sudden passion” is defined as “passion directly caused by and arising out of
provocation by the individual killed or another acting with the person killed which
passion arises at the time of the offense and is not solely the result of former
provocation.” TEX. PENAL CODE § 19.02(a)(2). “Adequate cause” is defined as
24
“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. § 19.02(a)(1); see also McKinney, 179 S.W.3d at 569 (stating sudden
passion requires proof of adequate provocation, that “passion or an emotion such as
fear, terror, anger, rage, or resentment existed[;] that 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”).
Ordinary anger or fear alone does not rise to the level 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 Gonzales v. State, 717 S.W.2d 355,
357 (Tex. Crim. App. 1986) (“For a claim of fear to rise to the level of sudden
passion, the defendant’s mind must be rendered incapable of cool reflection.”).
“Anticipation of an event and preparation of a response indicates a defendant had
time to deliberate over an action and did not act under the immediate influence of
sudden passion.” Moncivais, 425 S.W.3d at 407; see also Nance v. State, 807
S.W.2d 855, 863 (Tex. App.—Corpus Christi 1991, pet. ref’d) (stating evidence of
premeditation is sufficient to support finding of no sudden passion). Although
sudden passion must arise at the time of the offense and cannot result solely from
former provocation, the “victim’s past conduct . . . can help place in context the
25
victim’s provocation at the time of the offense.” Romine v. State, No. 03-03-00330-
CR, 2006 WL 903730, at *4 (Tex. App.—Austin Apr. 6, 2006, pet. ref’d) (mem. op.,
not designated for publication).
B. Legal Sufficiency
1. Standard of Review
In Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010), the Court of
Criminal Appeals held that the Jackson v. Virginia, 443 U.S. 307 (1979) standard of
review is the only standard a court may apply to determine whether the evidence is
sufficient to support each element of a criminal offense on which the State bears the
burden of proof beyond a reasonable doubt. Brooks, 323 S.W.3d at 895 (citing
Jackson, 443 U.S. at 319). When as here, however, the defendant bears the burden
of proof by a preponderance of the evidence, we use a different standard and apply
the civil legal sufficiency standard. See Rankin v. State, 617 S.W.3d 169, 184–85
(Tex. App.—Houston [1st Dist.] 2020, pet. ref’d) (applying civil standard to legal
sufficiency review of jury’s rejection of sudden passion claim). “Although the issue
of sudden passion is a punishment issue, it is analogous to an affirmative defense
because the defendant has the burden of proof by a preponderance of the evidence.”
Gaona v. State, 498 S.W.3d 706, 710 (Tex. App.—Dallas 2016, pet. ref’d).
The civil legal sufficiency standard involves a two-step analysis. See Rankin,
617 S.W.3d at 185; Moncivais, 425 S.W.3d at 407. First, we review the record for
26
any evidence that supports the jury’s negative finding while ignoring all evidence to
the contrary. Rankin, 617 S.W.3d at 185. Second, if no evidence supports the
negative finding, then we examine the entire record to determine whether the
evidence establishes the affirmative defense. Id. We defer to the fact finder’s
determination of the weight and credibility to give the testimony and the evidence at
trial. Id.
2. Briefing Waiver
To assert an issue on appeal, an appellant’s brief “must contain a clear and
concise argument for the contentions made, with appropriate citations to authorities
and to the record.” TEX. R. APP. P. 38.1(i). An appellant waives an issue on appeal
if he does not provide supporting arguments, substantive analysis, and appropriate
citations to authorities and to the record. See id.; Cardenas v. State, 30 S.W.3d 384,
393 (Tex. Crim. App. 2000). An appellate court has no obligation to construct and
compose issues, facts, and arguments with appropriate citations to authorities and
the record for the appellant. See Wolfe v. State, 509 S.W.3d 325, 343 (Tex. Crim.
App. 2017). A brief that does not apply the law to the facts does not comply with
Texas Rule of Appellate Procedure 38.1 and presents nothing for our review. See
Swearingen v. State, 101 S.W.3d 89, 100 (Tex. Crim. App. 2003).
Although Appellant states in the “Issues Presented” section of his brief that
the evidence is legally and factually insufficient to support the jury’s negative
27
finding on his claim of sudden passion, his brief focuses exclusively on his argument
that the evidence is factually insufficient to support the jury’s finding. Appellant
does not identify the standard of review for a challenge to the legal sufficiency of
the evidence with respect to sudden passion or attempt to apply the law to the facts
of this case. We thus hold that to the extent Appellant seeks to raise a legal
sufficiency challenge, he waived the issue and presented nothing for our review. See
TEX. R. APP. P. 38.1(i); Swearingen, 101 S.W.3d at 100.
3. Analysis
Even if Appellant had preserved his legal sufficiency challenge, he still would
not prevail. The holding in Gaona v. State, 498 S.W.3d 706 (Tex. App.—Dallas
2016, pet. ref’d), where the court held there was legally sufficient evidence
supporting the jury’s negative finding on the defendant’s claim of sudden passion,
is instructive. Id. at 711. In that case, an eyewitness testified that the angry victim
approached the defendant’s car and insisted the defendant get out and fight him. Id.
at 707. When the defendant refused, the victim called the defendant a “chicken,”
slapped the defendant’s windshield, and cursed as he walked away. Id. The
defendant got out of his car brandishing a pistol, walked towards the victim, and shot
him seven times. Id. at 708. A second eyewitness corroborated the first witness’
testimony. Id. Both witnesses testified that the victim’s hands were empty when he
was shot and neither witness heard the victim threaten to kill the defendant. Id.28
At trial, the defendant testified that after he refused to fight the victim, the
victim threatened to kill him and “reached for his hip pocket as if to grab a gun, but
nothing was there.” Id. The victim then turned away and as he was walking towards
the house, he stopped at a parked car and tried to open the door, but it was locked.
Id. The victim then looked back at the defendant and threatened to kill him. Id. The
defendant testified that he knew the victim owned a gun because he had seen it
months before. Id. After concluding there was no way to leave, the defendant
grabbed his gun and got out of his car. One of the eyewitnesses tried to take the gun
from the defendant and when the victim “stepped forward” towards the defendant,
the defendant shot him. Id. The defendant testified that “he did not know whether
[the victim] had a gun because [the victim] was unable to get into the car, but he shot
[the victim] because he saw [the victim] was coming towards him and ‘feared’ what
[the victim] would do.” Id.In analyzing the legal sufficiency of the evidence supporting the jury’s
negative finding on the defendant’s claim of sudden passion, the appellate court
relied on the eyewitnesses’ testimony that the victim demanded to fight the
defendant and walked away cursing after the defendant refused. Id. at 711. At that
point, the defendant got out of his car, approached the victim, and shot him seven
times. Id. at 711. Neither eyewitness saw the victim with a gun nor heard him
threaten to kill the defendant. The appellate court held that the undisputed evidence
29
that the victim “yelled at, argued with, cursed at, and demanded to fight” the
defendant did not amount to an adequate cause to support a finding of sudden
passion. Id.; see McKinney, 179 S.W.3d at 570 (concluding victim’s yelling at and
pushing of defendant did not “rise to the level of adequate cause”). Based on the
eyewitnesses’ testimony, the appellate court held there was legally sufficient
evidence supporting the jury’s negative finding on the claim of sudden passion.
Gaona, 498 S.W.3d at 711.
We hold the same is true here. Wood testified that he saw Lambert and Tyner
as he drove back down Myrtle Street after making a U-turn, and Lambert was not
holding up anything, making threatening gestures, or reaching into his pockets.
According to Wood, neither Lambert nor Tyner did anything Wood would perceive
as threatening, and Wood did not see any reason why Appellant would have to be
fearful of either man.
Esquivel testified that after the Mustang made a U-turn at Tower Drive, she
saw Lambert standing in a driveway with “his hands up, like, stretched out.” When
asked how she interpreted Lambert’s gesture, Esquivel testified, “He wanted to
know why we left, I guess.” Esquivel testified that she did not see Lambert “reach
for his waistband,” “point anything at the car,” or make “any gestures that someone
could have interpreted as reaching for a weapon.” Esquivel testified that after he
shot Lambert, Appellant stated that Lambert “deserved it.” Like Wood, Esquivel
30
did not perceive any reason why Appellant would have been fearful of Lambert when
he shot him, and Lambert did not do anything that evening that led her to believe
Appellant was “in fear for his life” when he shot Lambert.
Tyner testified that Lambert was cursing and “just holding up a middle finger”
right before he was shot. According to Tyner, Lambert was not reaching in his
pocket or towards his waistband or doing or saying anything threatening. Tyner
testified that based on his observations, Lambert was not doing anything when the
shooting occurred that “would justify another person being in fear for their life.”
Gonzalez, who witnessed the events from across the street, testified that she
saw Lambert standing in the driveway of 120 Myrtle when the Mustang turned
around. She testified that Lambert was not doing anything unusual or threatening
with his hands.
Wood, Esquivel, Gonzalez, and Tyner—the four eyewitnesses who saw
Lambert immediately before he was shot—testified that Lambert was not holding
anything in his hands, reaching into his pockets or waistband, or making threatening
gestures that someone could have interpreted as reaching for a weapon. It is
undisputed that no weapon was ever found on Lambert, and, as Appellant
acknowledges on appeal, Lambert was unarmed when the shooting occurred. At
most, the evidence reflects that Lambert was just cursing and “holding up a middle
finger” before he was shot. This is insufficient to establish adequate cause. See
31
Gaona, 498 S.W.3d at 711 (holding victim’s yelling at, arguing with, cursing at, and
demanding to fight defendant did not “amount to an adequate cause to support a
finding of sudden passion”); see also McKinney, 179 S.W.3d at 570 (concluding
victim’s yelling at and pushing of defendant did not “rise to the level of adequate
cause”). The trial testimony from Wood, Esquivel, Gonzalez, and Tyner concerning
Lambert’s conduct immediately prior to the shooting is some evidence that
Appellant was not acting in response to adequate provocation when he shot Lambert.
See id. at 569 (stating sudden passion requires proof of adequate provocation).
Wood, Esquivel, and Tyner also agreed that Lambert did nothing after the
Mustang made a U-turn at Tower Drive to give Appellant or anyone else in the
Mustang a reason to fear for their life when the shooting occurred.9 This testimony,
which reflects that an ordinary person would not have perceived Lambert’s conduct
as threatening, is further evidence that Appellant was not acting in response to
adequate provocation when he shot Lambert. See id. (stating sudden passion
requires proof of adequate provocation); see also TEX. PENAL CODE § 19.02(a)(1)
(defining “adequate cause” with respect to “a person of ordinary temper”).
9
Although Appellant contends that any testimony concerning his thoughts and
feelings with respect to the shooting “should be ignored or treated as speculation,”
Appellant either did not object to such testimony at trial, or, if he objected, he is not
challenging the overruling of such an objection on appeal. Therefore, we can
consider such testimony for purposes of our sufficiency analysis.
32
Johnson, who did not see Lambert after the Mustang made a U-turn, testified
that as the Mustang drove back down Myrtle Street in Lambert’s direction, Johnson
heard Wood say, “Get him.” Appellant then took his already cocked handgun from
his backpack and warned the other occupants that they “better not say shit.”
Johnson’s testimony indicates that Appellant made a deliberate decision to shoot
Lambert, and Appellant had sufficient forethought to anticipate the consequences of
his actions by warning Wood, Esquivel, and Johnson not to talk to the police. See
Moncivais, 425 S.W.3d at 407 (“Anticipation of an event and preparation of a
response indicates a defendant had time to deliberate over an action and did not act
under the immediate influence of sudden passion.”). Esquivel also testified that
Appellant told her earlier in the evening that he disliked Lambert because Lambert
had robbed Appellant’s brother, and after he shot Lambert, Appellant exclaimed
Lambert “deserved it.” Johnson also testified that after the Mustang fled the scene,
Appellant said, “Fucking Lambert,” and “That’s what he gets for messing with my
family.” The jury could have reasonably inferred from Johnson’s and Esquivel’s
testimony that Lambert’s shooting was the result of a premeditated murder
motivated by the ongoing animus between Appellant and Lambert, and not an act of
sudden passion. See Nance, 807 S.W.2d at 863 (stating evidence of premeditation
is sufficient to support finding of no sudden passion); see also Hernandez v. State,
127 S.W.3d 206, 213 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (“Sudden
33
passion must arise at the time of the offense and cannot result solely from former
provocation.”).
Although disputed, the testimony from Wood, Esquivel, Gonzalez, Johnson,
and Tyner is some evidence that, if believed, supports the jury’s negative finding on
the issue of sudden passion. As sole judge of the weight and credibility of the
witness testimony, the jury was entitled to credit the testimony of Wood, Esquivel,
Gonzalez, Johnson, and Tyner over Appellant’s testimony, and, in doing so,
reasonably conclude that Appellant was not acting under the immediate influence of
sudden passion when he shot Lambert. See Rankin, 617 S.W.3d at 185 (stating
courts defer to fact finder’s determination of weight and credibility of testimony and
evidence).
We hold that the evidence is thus legally sufficient to support the jury’s
negative finding of the issue sudden passion. See id. (stating first prong of legal
sufficiency review requires court to review record for any evidence supporting jury’s
negative finding while ignoring all contrary evidence).
C. Factual Sufficiency
1. Standard of Review
Although the Court of Criminal Appeals “abolished factual-sufficiency
review as it applies to criminal convictions” on issues on which the State bears the
burden of proof beyond a reasonable doubt, a fact finder’s negative finding on an
34
issue on which the defendant bears the burden of proof by a preponderance of the
evidence, such as sudden passion, may still be reviewed for factual sufficiency. See
Butcher v. State, 454 S.W.3d 13, 20 (Tex. Crim. App. 2015) (upholding court of
appeals’ application of factual sufficiency standard of review to issue defendant bore
burden to prove by preponderance of evidence); Matlock v. State, 392 S.W.3d 662,
671 (Tex. Crim. App. 2013) (stating civil standards of factual-sufficiency review
apply to issues for which burden of proof is that of “preponderance of the evidence,”
because “preponderance of the evidence” is “same burden as in civil proceedings”);
see also Rankin, 617 S.W.3d at 185–86 (“In reviewing an issue on which the
defendant has the burden of proof by a preponderance of the evidence, we apply the
factual-sufficiency standard in Meraz v. State, 785 S.W.2d 146, 154–55 (Tex. Crim.
App. 1990) (en banc).”).
In Meraz v. State, 785 S.W.2d 146 (Tex. Crim. App. 1990), the Court of
Criminal Appeals held that in criminal cases in which a defendant challenges the
factual sufficiency of the evidence to support a jury’s negative finding on an issue
on which the defendant bears the burden of proof, the standard of review is the same
as the one used in civil cases. Id. at 154–55. We review all of the evidence in a
neutral light to determine whether the verdict is so against the great weight and
preponderance of the evidence as to be “manifestly unjust, conscience-shocking, or
clearly biased.” Matlock, 392 S.W.3d at 671. We must defer to the fact finder’s
35
determination of the weight and credibility to give the testimony and the evidence at
trial. See Rankin, 617 S.W.3d at 185; see also Moncivais, 425 S.W.3d at 409 (“We
may not, however, intrude on the fact finder’s role as the sole judge of the weight
and credibility of the witnesses’ testimony.”).
2. Analysis
Relying exclusively upon his own trial testimony, Appellant argues that the
evidence establishes he believed Lambert, who had just “curse[d] [at] him,
threaten[ed] him [with] bodily harm, and attempt[ed] to stop a moving car,” was in
possession of a sawed-off shotgun, and “acting erratic and motioning his arms” as
the Mustang drove towards Lambert. Appellant further contends that although he
initially thought “he was out of danger and that they were leaving” when Wood
drove away towards Tower Drive, that changed when Wood made a U-turn at Tower
Drive, causing Appellant to “immediately [be] thrust back into a state of fear and
confronted with an individual he knew wanted to physically hurt him and who he
believed both had and was going for a sawed-off shotgun.” According to Appellant,
he “never had an opportunity for cool reflection” because it was only a matter of
seconds between the time the Mustang made the U-turn and the shooting. “Having
been thrust back into the path of the deceased, through no fault of his own, the
Appellant formed the erroneous belief that Jacob Lambert was attempting to shoot
him with a sawed-off shotgun. With only seconds to act and no opportunity to reflect
36
or contemplate the danger he perceived, the Appellant under the immediate influence
of sudden passion shot and killed the deceased.”
Appellant testified that he took out his cell phone to get the address for their
next drug delivery after Wood drove away towards Tower Drive. As the Mustang
approached the intersection, Wood said he was going to turn the car around because
Lambert had called them “pussies.” Appellant testified that his “stomach turn[ed]”
and his “heart drop[ped]” when he realized Wood was going to make a U-turn
because that meant they were “going back into a situation [he] just tried to avoid
with a man -- a dude that’s just acting very, very hazardous, very erratic.” Although
Appellant told Wood to take a left at the intersection, Wood made a U-turn and drove
back towards Lambert. Appellant claims he saw Lambert waving his hands in the
air and “[a]cting erratically” as the car was making the U-turn.
Appellant, who retrieved a loaded and cocked handgun from his backpack on
his lap, claimed that he only had a moment to think after he saw Lambert “real
quickly reach for his waistband with his right hand.” Appellant testified that he “just
start[ed] shooting” because he believed Lambert was reaching for the sawed-off
shotgun. Appellant testified that he was “just trying to neutralize” Lambert and
“make him just stop what he was doing.” According to Appellant, he continued to
shoot because he saw Lambert “pulling something out” and “fumbling for
something” that Appellant believed was the shotgun. Appellant admitted, however,
37
that he never actually saw Lambert with a gun that night. Appellant also denied
saying, “Y’all better not say shit,” right before he shot Lambert.
Appellant testified that he was “scared” and “panicking” after the shooting
and he tried to calm everyone down by telling them, “It’s going to be okay. I didn’t
shoot him for no reason. He deserved it.” Appellant explained that Lambert
“deserved it” because he “reached for his waistband.” Although he admitted that he
said, “Fucking Lambert,” Appellant denied saying, “You messed with the wrong
family.”
As previously discussed, Wood, Esquivel, Gonzalez, and Tyner testified that
Lambert, who was unarmed, was not holding anything in his hands, reaching into
his pockets or waistband, or making threatening gestures that someone could have
interpreted as reaching for a weapon. According to Tyner, Lambert was just cursing
and “just holding up a middle finger” before he was shot. Wood, Esquivel, and
Tyner also agreed that Lambert did nothing after the Mustang turned around at
Tower Drive that would give Appellant or anyone else in the Mustang a reason to
fear for their life when the shooting occurred. Thus, the jury heard two conflicting
versions of events surrounding the shooting: Appellant’s version and everyone
else’s version. As sole judge of the weight and credibility of the witness testimony,
the jury was entitled to credit the testimony of Wood, Esquivel, Gonzalez, Johnson,
and Tyner over Appellant’s testimony. See Trevino v. State, 157 S.W.3d 818, 822
38
(Tex. App.—Fort Worth 2005, no pet.) (“The jury was free to make its own
determination of appellant’s credibility and reject appellant’s version of events if it
did not believe he was telling the truth”). We must defer to the jury’s resolution of
these issues. See Rankin, 617 S.W.3d at 185 (stating courts defer to fact finder’s
determination of weight and credibility of testimony and evidence).
Viewing all of the evidence in a neutral light and deferring to the jury’s
determination of the weight and credibility of the testimony and evidence, we cannot
say that the jury’s negative finding on the issue of sudden passion is so weak as to
be “manifestly unjust, conscience-shocking, or clearly biased” or against the great
weight and preponderance of the evidence. See Matlock, 392 S.W.3d at 671; Rankin,
617 S.W.3d at 187.
Conclusion
We affirm the trial court’s judgment.
Veronica Rivas-Molloy
Justice
Panel consists of Chief Justice Adams and Justices Countiss and Rivas-Molloy.
Do Not Publish. TEX. R. APP. P. 47.2(b).
39