Edmundo Cisneroz v. the State of Texas ( 2022 )

Affirmed and Memorandum Opinion filed January 6, 2022.
In The
Fourteenth Court of Appeals
NO. 14-20-00363-CR
EDMUNDO CISNEROZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 147th District Court
Travis County, Texas
Trial Court Cause No. D-1-DC-18-203683
MEMORANDUM OPINION
Appellant Edmundo Cisneroz pleaded guilty to first-degree murder without a
plea agreement, and the jury assessed punishment at 30-years imprisonment in
2020. Tex. Penal Code Ann. §§ 19.02(b) (murder); 12.32 (first-degree felony
punishment). In his sole issue on appeal, appellant challenges his sentence, arguing
the evidence is legally and factually insufficient to support the jury’s negative
finding on the issue of whether appellant acted in sudden passion. We affirm.1
I. BACKGROUND
Appellant and his girlfriend, Rosa Hernandez, lived together, along with five
of Rosa’s children and the boyfriend of Rosa’s adult daughter. One morning in
May 2018, Rosa’s daughter, Terri, found her mother in a strange position in bed,
not breathing. Appellant was not at the house and had left in Terri’s vehicle. Terri
called for an ambulance and discovered foam in her mother’s throat and mouth.
Rosa’s death was determined to have been caused by manual strangulation.
At trial in January 2020, appellant pleaded guilty to the charge of murder
and testified about his interactions with Rosa leading up to her death. Several days
before the murder, appellant discovered text messages between Rosa and another
man. Though he testified he cried and asked Rosa to block the number, appellant
remained suspicious.
On the evening of the murder, Rosa went to her mother’s home along with
several of her young children. Though Rosa told appellant that she was spending
time with her mother and siblings, text messages introduced in evidence reflect that
appellant was suspicious regarding the length of her visit. Appellant and Rosa
exchanged text messages consistently throughout the evening, with Rosa
repeatedly using insulting language and asking appellant to leave her alone. While
Rosa was gone, appellant was drinking beers alone. He testified that he drank more
than 20 beers, without eating, waiting for Rosa to come home. Text messages, as
1
The Supreme Court of Texas ordered the Court of Appeals for the Third District of
Texas to transfer this appeal (No. 03-20-00257-CR) to this court. Misc. Docket No. 20-9048
(Tex. March 31, 2020); see Tex. Gov’t Code Ann. §§ 73.001, .002. Because of the transfer, we
decide the case in accordance with the precedent of the transferor court under principles of stare
decisis if our decision otherwise would have been inconsistent with the transferor court’s
precedent. See Tex. R. App. 41.3.
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well as Rosa’s autopsy, reflect that Rosa had also been drinking that evening.
When she arrived home, appellant testified that Rosa changed into her
sleeping clothes. She then sat outside with appellant and drank beer with him. At
trial, appellant testified that he remembered fighting with Rosa. He remembered
little of the night after Rosa returned home but did recall that once inside the house
Rosa became increasingly angry and hit him in the stomach. Rosa then told him
that she had been unfaithful to him and he recalled grabbing her neck. He did not
remember any of the details thereafter and described himself as “unconscious.”
There were no witnesses to the altercation between appellant and Rosa, and the
argument between the two did not wake any of Rosa’s children sleeping nearby.
Appellant testified that he left the house immediately after the incident. He
testified that he “came to” driving sometime later. Appellant drove to a nearby club
where he met some other young men, continued to drink, and took lines of cocaine.
Police located appellant by tracing Terri’s vehicle which had a vehicle location
system installed.
Following his guilty plea, appellant had a trial on his punishment. The jury
received an instruction on sudden passion but returned a negative finding and
assessed punishment at 30-years imprisonment.
II. ANALYSIS
In his sole issue on appeal, appellant argues that the jury’s negative finding
on the issue of sudden passion is not supported by legally- or factually-sufficient
evidence.
A. Applicable law
During the punishment phase of a murder trial, a defendant may argue that
he caused the death while under the immediate influence of a sudden passion
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arising from an adequate cause. Tex. Penal Code Ann. § 19.02(d). “If the
defendant proves the issue in the affirmative by a preponderance of the evidence,
the offense is a felony of the second degree.” Id. A felony of the second degree is
punishable by imprisonment from two to twenty years. See Tex. Penal Code Ann.
§ 12.33(a). In contrast, when the jury rejected appellant’s sudden-passion defense,
it was instructed that the offense of murder, as a felony of the first degree, is
otherwise punishable by imprisonment from five years to life. See Tex. Penal Code
Ann. §§ 12.32(a), 19.02(c).
“Sudden passion” is defined by statute 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 Ann. § 19.02(a)(2). The “adequate cause”
giving rise to sudden passion for these purposes is a cause “that would commonly
produce a degree of anger, rage, resentment, or terror in a person of ordinary
temper, sufficient to render the mind incapable of cool reflection.” Tex. Penal
Code Ann. § 19.02(a)(1); see also Beltran v. State, 472 S.W.3d 283, 294 (Tex.
Crim. App. 2015) (requiring causal connection between complainant’s
provocation, defendant’s passion, and homicide).
B. Legal Sufficiency
1. Standard of review
In Brooks v. State, the court of criminal appeals held that the Jackson v.
Virginia standard is the only standard that a reviewing court should apply in
determining whether the evidence can support each element of a criminal offense
that the State must prove beyond a reasonable doubt. 323 S.W.3d 893, 895 (Tex.
Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). However,
for a challenge to the legal sufficiency of the evidence when the issue is one in
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which the defendant had the burden of proof by a preponderance of the evidence,
like sudden passion, we utilize the legal-sufficiency standard employed in civil
cases. Matlock v. State, 392 S.W.3d 662, 669 (Tex. Crim. App. 2013) (adopting
civil legal-sufficiency test from City of Keller v. Wilson, 168 S.W.3d 802 (Tex.
2005)). The civil legal-sufficiency standard requires a two-step analysis. Id. at
669–70. First, we examine the record for evidence that supports the jury’s negative
finding while disregarding all evidence to the contrary unless a reasonable fact
finder could not. See Matlock, 392 S.W.3d at 669. Second, if no evidence supports
the negative finding, then we examine the entire record to determine whether the
evidence establishes the affirmative defense as a matter of law. Id. at 669–70. “If
the record reveals evidence supporting the defendant’s position . . . but that
evidence was subject to a credibility assessment and was evidence that a
reasonable jury was entitled to disbelieve, we will not consider that evidence in our
matter-of-law assessment.” Id. at 670.
2. Legally-sufficient evidence supports the jury’s finding
Appellant argues there is “no evidence that the Appellant did not act in
response to his alcohol, the provocation of the victim, and the devastating
revelation that she had slept with someone else.” Here, the critical piece of
appellant’s argument is that appellant claimed he learned for the first time that
Rosa was cheating on him with another man just before he strangled her. He also
argues that the amount of alcohol he consumed contributed to his lack of capacity
for rational thought and collected action.
The State argues in response that precedent “suggests” that Rosa’s
admission of infidelity, alone, would not constitute adequate cause “in a person of
ordinary temper, to render the mind incapable of cool reflection.” Tex. Penal Code
Ann. § 19.02(a)(1). While the mere fact that a defendant acts in response to the
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provocation of another is not sufficient to support a finding of sudden passion, the
State has not identified any precedent in which there was a holding that an
admission of infidelity is insufficient as a matter of law to constitute adequate
cause for sudden passion. See Trevino v. State, 100 S.W.3d 232, 241 (Tex. Crim.
App. 2003) (per curiam) (merely responding to provocation not sufficient to
establish adequate cause). The State also relies on a Third Court of Appeals case in
which the defendant killed his estranged wife after ongoing arguments about her
infidelity during his deployments. See Swearingen v. State, 270 S.W.3d 804, 820
(Tex. App.—Austin 2008, pet. ref’d). However, in Swearingen, the court’s holding
was driven by its conclusion that the defendant’s actions did not reflect a loss of
control or capacity for rational thought, not the specific topic of the defendant’s
provocation. Id. We disagree with the State that precedent exists supporting the
proposition that an admission of a romantic partner that they had been with another
can never cause a person of ordinary temper to react in a sudden passion.
Though appellant claims that his testimony about learning of Rosa’s
infidelity was uncontradicted, the record does not support this assertion.
Appellant’s statements to police the day after the murder support the jury’s
negative finding. Because appellant’s prior statements do not reflect any revelation
of infidelity on the night of the murder, they do not establish adequate cause for
appellant’s claim of sudden passion.2 See McKinney v. State, 179 S.W.3d 565, 570
(Tex. Crim. App. 2005) (holding victim pushing and yelling at defendant just
2
The State also argues on appeal that appellant’s claim of sudden passion in response to
Rosa’s alleged revelation of infidelity on the night of the murder could not constitute adequate
cause because appellant knew of the victim’s infidelity several days before the murder. The State
argues that appellant’s knowledge of communications between Rosa and her ex-boyfriend
provided appellant with knowledge that Rosa was “cheating” or engaging in a physical
relationship with another man. Though appellant admitted that he learned Rosa was texting with
another man two days before the murder, we disagree with the State that appellant’s knowledge
of text messages between Rosa and another man can be equated to knowledge of a physical
relationship between Rosa and another man.
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before defendant shot victim was not adequate cause to give rise to immediate
influence of sudden passion); Gaston v. State, 930 S.W.2d 222, 226 (Tex. App.—
Austin 1996, no pet.) (stating “taunting” and “nagging” and threats of divorce may
be “unpleasant” but do not equate to adequate cause).
Appellant’s statements to police describe an argument between Rosa and
appellant that began with appellant receiving insults from Rosa over his attempts to
control Rosa’s drinking and behavior over text message and ultimately escalated
into a physical altercation at the end of the night. Appellant described Rosa
returning home from her mother’s house very angry. He told police that she
wanted to fight with him and hit him. In order to calm her down, appellant
recounted that he grabbed Rosa by the neck for a minute and that she fainted from
her anger. During his interview with police, appellant specifically discussed the
fact that he found text messages between Rosa and her ex-boyfriend on her phone.
He told the police that he thought she was only texting with her ex-boyfriend, and
not engaging in a relationship with that person. On cross-examination at trial,
appellant could not explain why he did not tell police about Rosa’s alleged
admission of infidelity. Appellant’s pre-trial description of the evening constitutes
mere provocation on Rosa’s part and lacks support for an adequate cause justifying
sudden passion. Trevino, 100 S.W.3d at 241.
The jury also heard testimony from the medical examiner that appellant had
to apply pressure to Rosa’s neck for approximately two to five minutes in order to
cause her death. A rational jury could have concluded that appellant’s actions in
applying pressure to Rosa’s neck for that length of time continued long after any
“sudden passion” would have subsided in a person of ordinary temper, and
therefore appellant did not cause the complainant’s death while under the
“immediate” influence of any sudden passion. See, e.g., Johnson v. State, 815
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S.W.2d 707, 712 (Tex. Crim. App. 1991) (even if jury believed wife’s taunts were
sufficient to provoke appellant initially, rational factfinder could determine that
appellant continued to inflict injuries leading to his wife’s death long after “sudden
passion” would have subsided in person of ordinary temper).
In examining the record under the first prong of the civil legal-sufficiency
standard, we conclude that some evidence supports the jury’s negative finding on
sudden passion. Therefore, we need not address the second prong of the civil
legal-sufficiency standard. See Matlock, 392 S.W.3d at 670.
C. Factual Sufficiency
1. Standard of review
For appellant’s factual sufficiency challenge, we apply the standard
announced in Meraz v. State, 785 S.W.2d 146, 154–55 (Tex. Crim. App. 1990), to
review an issue on which the defendant had the burden of proof by a
preponderance of the evidence. Matlock v. State, 392 S.W.3d 662, 670–71 (Tex.
Crim. App. 2013); see also Cleveland v. State, 177 S.W.3d 374, 387, 390–91 (Tex.
App.—Houston [1st Dist.] 2005, pet. ref’d) (applying Meraz standard to review
factual sufficiency of jury’s negative sudden passion finding and cited with
approval in Matlock, 392 S.W.3d at 671 n.32). Under Meraz, we consider all the
evidence neutrally to determine if the jury’s finding is so against the great weight
and preponderance of the evidence as to be manifestly unjust. See Matlock, 392
S.W.3d at 671; Meraz, 785 S.W.2d at 154–55. We may not, however, intrude on
the factfinder’s role as the sole judge of the weight and credibility of the witnesses’
testimony. See Matlock, 392 S.W.3d at 671.
2. Factually-sufficient evidence supports the jury’s finding
Appellant argues that the jury’s negative finding was against the greater
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weight of the evidence presented because it would be against the “uncontradicted
testimony of Appellant.” In response, the State argues that considering the
inconsistencies in appellant’s testimony, the jury’s finding was not against the
great weight and preponderance of the evidence. We agree.
The evidence contrary to the jury’s negative finding on sudden passion
consists solely of appellant’s testimony that he was very drunk and reacted in
sudden passion to Rosa’s admission of infidelity. As discussed above, appellant’s
testimony at trial differed significantly from his account of the evening given to
police the day after the murder. Appellant’s testimony at trial did not greatly
outweigh his other statements regarding his interactions with Rosa, because the
jury was entitled to determine the weight and credibility of appellant’s various
accounts.
The jury was presented with inconsistences in appellant’s description of the
night at trial and before trial. As discussed above, appellant testified that he was
provoked into a sudden passion after Rosa revealed she had been unfaithful. This
was inconsistent with his statements before trial in which he never mentioned
Rosa’s revelation of infidelity. Additionally, at trial appellant testified he was
extremely drunk though he told police the day after the murder that he was sober.
The jury heard in pre-trial statements that he put his arms on Rosa’s neck to calm
her, and she fainted from anger. This description differs from appellant’s testimony
at trial, in which he admits to putting his arms on Rosa’s neck but does not recall
strangling her. Finally, the jury heard evidence that Terri called the police several
months before Rosa’s death because of a violent dispute between appellant and
Rosa—a dispute in which appellant put his hands on Rosa’s neck and tried to
choke her.
The jury was free to disbelieve the appellant’s testimony as a matter of
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witness credibility or because he changed his story. See Trevino v. State, 157
S.W.3d 818, 822 (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”); Hernandez v. State, 127
S.W.3d 206, 214 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (“the jury could
have disbelieved appellant’s testimony that Cruz incited him to more than ordinary
anger” when decedent allegedly argued with defendant, challenged his masculinity,
and threatened to leave him for another man). Given that all the evidence of sudden
passion depends on appellant’s credibility, we defer to the jury’s determinations
about the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1, 8
(Tex. Crim. App. 2000). To hold otherwise is to substitute our judgment for that of
the jury.
Concluding the jury’s rejection of sudden passion is not so against the great
weight and preponderance of the evidence as to be manifestly unjust or clearly
wrong, we overrule appellant’s sole issue on appeal.
III. CONCLUSION
We affirm the judgment of the trial court as challenged on appeal.
/s/ Charles A. Spain
Justice
Panel consists of Justices Jewell, Spain, and Wilson.
Do Not Publish—Tex. R. App. P. 47.2(b).
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