Rose Marie Garcia v. the State of Texas ( 2023 )

NUMBER 13-22-00597-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ROSE MARIE GARCIA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of Victoria County, Texas.
MEMORANDUM OPINION
Before Justices Tijerina, Silva, and Peña
Memorandum Opinion by Justice Peña
Appellant Rose Marie Garcia appeals her conviction for murder, a first-degree
felony. 1 See TEX. PENAL CODE ANN. § 19.02(c). Appellant pleaded guilty, and after a
1 Appellant does not appeal her conviction for tampering with physical evidence, a second-degree
felony, for which she received a concurrent fifteen-year sentence. See TEX. PENAL CODE ANN. § 37.09(c).
punishment trial, the jury assessed a sentence of thirty-eight years’ imprisonment. In one
issue, appellant argues that the evidence is legally insufficient to support the jury’s
rejection of her sudden passion defense, which would have reduced the offense to a
second-degree felony. We affirm.
I. BACKGROUND
A grand jury returned an indictment charging appellant with the murder of Mario
Alonzo Garcia Sr., her husband of forty years. Appellant pleaded guilty to the charge, and
the case proceeded to a jury trial on punishment, during which the following evidence was
adduced.
Appellant reported to the Victoria County Sheriff’s Office that her husband Mario 2
was missing. She stated that she last saw Mario eight days prior when he left with a
neighbor to travel to Louisiana for work. However, the next day, appellant turned herself
in to the Edna Police Department stating that she had killed Mario by shooting him with a
shotgun nine days prior in their home in Victoria, Texas. The trial court admitted a
recording of her conversation with an Edna police officer into evidence. Appellant tells the
officer, “I shot my husband.” When asked what provoked her, appellant stated she asked
Mario why he could not love her, and Mario responded that he likes to be with other
women. 3 After a brief discussion, appellant waited at the Edna Police Department for
further questioning by Victoria County Sheriff’s deputy Greg Kouba, who was leading the
2 We refer to the deceased by his first name as he shares a surname with appellant and several
witnesses.
3 According to appellant, Mario used more explicit language to make this point, saying “I like to eat
pussy, different ones.”
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investigation into Mario’s disappearance.
In her statement to Deputy Kouba, appellant first explained that Mario had
engaged in extra-marital affairs throughout their marriage. She stated that a few years
ago, she slept with her supervisor at work to get revenge. Regarding the murder, appellant
explained that they were in their bedroom around 1:00 or 2:00 a.m., when Mario brought
up her prior infidelity. After the two argued for a while, appellant recalled asking Mario
why he could not love her like she wanted Mario to love her. Mario replied that he enjoyed
being with different women. Appellant stated at that point she picked up a shotgun from
the hallway just outside the bedroom, and as Mario turned to face her, she shot him in
the face. Mario died instantly. Appellant put a garbage bag over Mario’s head to contain
the blood. She then dragged his body outside on a blanket to an area covered with brush.
Appellant concealed the body with a piece of plywood. Three days later, appellant poured
gasoline and carpet freshener near the body to hide the smell of decomposition. When
asked if she could explain why she killed Mario, appellant said, “No. I’m not sure.”
The day before appellant turned herself in, Mario’s son Jaime Garcia called the
Victoria County Sheriff’s Department and requested that they perform a welfare check on
his father. Jaime became suspicious of appellant after he was unable to reach Mario on
Father’s Day and then receiving conflicting stories from appellant as to Mario’s
whereabouts. Appellant told Jaime that Mario traveled to Louisiana for work but that he
did not bring a phone with him, and she later alleged that he was trafficking cocaine.
According to Jaime, Mario was never associated with drugs. Jaime was also concerned
because Mario previously told Jaime that appellant threatened to kill Mario and chop off
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his head. After making the report to law enforcement, Jaime traveled from his home in
Odessa to his parents’ home to look for his father. He arrived at the property around the
time that appellant was speaking to law enforcement. Jaime walked the fence line of the
property, eventually seeing Mario’s leg emerging from a pile of debris. He called 9-1-1 to
report the discovery. Law enforcement officers discovered a shotgun in a nearby shed.
An autopsy confirmed that Mario died from a shotgun wound to the head.
Jaime and brothers Tony and Mario Jr., appellant’s adult sons, each described her
temperament. All three stated that appellant would beat them when they were children.
Jaime said that appellant threatened Mario’s life on multiple occasions. Jaime recalled an
instance in 2015 when appellant threatened Mario with a handgun. Tony stated that
appellant punched him in the face as a child and that she would belittle him. Tony spoke
with Mario shortly before his death, and Mario reported that appellant threatened to kill
him and chop off his head. Mario Jr. said that appellant has a short fuse. Conversely,
Tony described Mario as a quiet, mild-mannered person.
Appellant testified that Mario physically and emotionally abused her throughout
their marriage. She maintained that on the morning of the murder, Mario dragged her out
of bed by her foot and began complaining about appellant’s extra-marital affair years
earlier. Appellant recalled that Mario pushed her back onto the bed and began hitting her
back and legs with a cell phone cord. She estimated that the incident lasted twenty to
thirty minutes. Similar to her law enforcement statements, she recalled asking Mario why
he could not love her the way she loved him. She again stated that he responded that he
liked to be with different women. Appellant said at that moment she told Mario she was
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going to the bathroom, but she intended to leave the house through the back door. While
leaving, she saw the shotgun in the hallway, picked it up, and shot Mario in the bedroom.
Appellant’s testimony of how she disposed of the body was consistent with her statements
to law enforcement. On cross-examination, she conceded that she never disclosed to law
enforcement that Mario physically abused her that night.
The jury found that appellant did not prove by a preponderance of the evidence
that she was under the immediate influence of sudden passion arising from adequate
cause when she caused Mario’s death. It assessed punishment at thirty-eight years’
imprisonment. This appeal followed.
II. STANDARD OF REVIEW & APPLICABLE LAW
At the punishment phase of a murder trial, the defendant may raise whether she
caused the death of a person under the immediate influence of sudden passion arising
from an adequate cause. Id. § 19.02(d); Beltran v. State, 472 S.W.3d 283, 293 (Tex. Crim.
App. 2015) (“Sudden passion is a mitigating circumstance that is relevant to determining
the appropriate punishment of a defendant.”). If the defendant proves this issue “in the
affirmative by a preponderance of the evidence,” the offense is reduced from a first-
degree felony to a second-degree felony. TEX. PENAL CODE ANN. § 19.02(d).
“Sudden passion” means “passion directly caused by and arising out of
provocation by the individual killed . . . which passion arises at the time of the offense and
is not solely the result of former provocation.” Id. § 19.02(a)(2). “Adequate cause” is
“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.
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§ 19.02(a)(1). Neither ordinary anger nor fear alone raises an issue of sudden passion.
Moncivais v. State, 425 S.W.3d 403, 407 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d)
(citing Hernandez v. State, 127 S.W.3d 206, 213–14 (Tex. App.—Houston [1st Dist.]
2003, pet. ref’d)). A defendant may not rely on a cause of her own making to support to
support a sudden passion defense. Smith v. State, 355 S.W.3d 138, 149 (Tex. App.—
Houston [1st Dist.] 2011, pet. ref’d) (citing Naasz v. State, 974 S.W.2d 418, 420 (Tex.
App.—Dallas 1998, pet. ref’d)).
A defendant must prove that the killing occurred “while the passion still existed and
before there was reasonable opportunity for the passion to cool.” Moncivais, 425 S.W.3d
at 407 (citing McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005)); see
Herrera v. State, 513 S.W.3d 223, 228 (Tex. App.—San Antonio 2016, no pet.) (“Sudden
passion requires the circumstances be such as to give rise to an immediate influence of
sudden passion.”) (internal quotations omitted). “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. The
“core concept” of the sudden passion defense is that “a person’s mental state has
rendered him incapable of rational thought and collected action.” Swearingen v. State,
270 S.W.3d 804, 820 (Tex. App.—Austin 2008, pet. ref’d).
Because sudden passion is an issue on which the defendant bears the burden of
proof by a preponderance of the evidence, in reviewing the jury’s negative finding on this
issue, we apply the legal sufficiency standard of review used in civil cases. 4 Matlock v.
4 An appellant may also raise a factual sufficiency challenge to the rejection of a sudden passion
defense. See Moncivais v. State, 425 S.W.3d 403, 408 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d).
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State, 392 S.W.3d 662, 669 (Tex. Crim. App. 2013). We first examine the record for any
evidence that supports the jury’s negative finding on sudden passion and ignore all
evidence to the contrary. Id. If no evidence supports the negative finding, we then
examine the entire record to determine whether the evidence establishes the sudden
passion issue as a matter of law. Id. at 669–70. “If the record reveals evidence supporting
the [defense], 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. The defendant must establish that the evidence
“conclusively proves his affirmative defense and ‘that no reasonable jury was free to think
otherwise.’” Id. (quoting Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d 828, 830
(Tex. 2009)).
III. DISCUSSION
Under the first step of our legal sufficiency analysis, we observe that there was
evidence supporting the jury’s finding that appellant was not acting under the immediate
influence of sudden passion arising from an adequate cause. See id. at 669. In appellant’s
statements to law enforcement, she stated that she was provoked only by Mario’s
statement that he liked to be with multiple women. The jury could have reasonably
disregarded her contradictory trial testimony that Mario had physically and emotionally
abused her for years and had physically assaulted her in the moments preceding the
murder. See id. at 670. This credibility determination is further supported by testimony
that appellant was ill-tempered, abused her children, and had previously threatened to kill
Appellant does not bring such a challenge in this case.
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Mario with a firearm and by chopping off his head. See id.; see also Alvarado v. State,
No. 05-21-01026-CR, 2023 WL 4446338, at *4 (Tex. App.—Dallas July 11, 2023, no pet.
h.) (mem. op., not designated for publication) (“[T]he jury could have . . . reasonably
believed Alvarado was an aggressive and violent individual and could have reasonably
disbelieved much of Alvarado’s version of the events.”).
Further, however crass, Mario’s statement that he liked to be with other women is
not an adequate cause for a sudden passion defense, especially in light of appellant’s
testimony that she was aware of Mario’s infidelities throughout their forty-year marriage.
See TEX. PENAL CODE ANN. § 19.02(a)(2); Nance v. State, 807 S.W.2d 855, 861 (Tex.
App.—Corpus Christi–Edinburg 1991, pet. ref’d) (“Passion solely the result of former
provocation is insufficient.”); see also Castellano v. State, No. 01-14-00486-CR, 2015 WL
3981807, at *3 (Tex. App.—Houston [1st Dist.] June 30, 2015, no pet.) (mem. op., not
designated for publication) (concluding that legally sufficient evidence supported the jury’s
rejection of sudden passion where the defendant had past arguments with the victim, had
previously been assaulted by the victim, and “lost it” in an argument that led to the
defendant killing the victim).
Because we have concluded that some evidence supports the jury’s rejection of
appellant’s sudden passion defense, we need not determine whether the evidence
establishes the sudden passion issue as a matter of law. See Matlock, 392 S.W.3d at
670. We conclude the jury’s negative finding is supported by legally sufficient evidence.
See id. at 669. We overrule appellant’s sole issue.
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IV. CONCLUSION
We affirm the trial court’s judgment.
L. ARON PEÑA JR.
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
28th day of August, 2023.
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