LARNARL DONNELL ANDERSON v. THE STATE OF TEXAS--Appeal from Criminal District Court 5 of Dallas County of Dallas County

NUMBER 13-00-176-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

LARNARL DONNELL ANDERSON , Appellant,
v.

THE STATE OF TEXAS , Appellee.

On appeal from the Criminal District Court 5

of Dallas County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Dorsey and Hill (1)

Opinion by Justice Hill

Larnarl Anderson appeals his conviction by a jury of the offense of murder. The jury assessed his punishment at thirty years' confinement in the Texas Department of Criminal Justice, Institutional Division. He contends in a single issue that the trial court erred in failing to include an issue of sudden passion in the court's charge during the punishment phase of the trial. We reverse the judgment and remand for a new hearing on punishment.

Sudden passion arising from an adequate cause is a mitigating circumstance at the punishment phase of a murder trial. Tex. Penal Code Ann. 19.02(d); Perez v. State, 940 S.W.2d 820, 821 (Tex. App.--Waco 1997, no writ). Any evidence that the accused acted under the immediate influence of sudden passion arising from an adequate cause requires the court to submit an issue on this mitigating circumstance. Id. at 822.

"Adequate cause" means 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. Pen. Code Ann. 19.02(a)(1). "Sudden passion" means 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. Pen. Code 19.02 (a)(2). The testimony of the accused alone can raise the issue. Id. Where an issue of self-defense is raised, it is a rare instance when issues of self-defense do not also raise issues of sudden passion. Benavides v. State, 992 S.W.2d 511, 525 (Tex. App.--Houston [1st Dist.] 1999, pet. ref'd).

We examine the record for evidence of: (1) a legally adequate cause that would produce an emotional state sufficient to render an ordinary person incapable of cool reflection and (2) the accused's agitated state of mind arising from direct provocation at the hands of the victim at the time of the killing. Id.

On December 4, 1999, Anderson, accompanied by several friends, pulled into a tire shop. An employee asked them if they needed help. When the employee asked them what they wanted, Anderson replied, "Why don't you fucking come down here and see?" Then he said, "We spending money. Why don't you just come see? We spending money. I'm a customer."

No one went directly to help Anderson, although there was some evidence that other cars were being served. Some twenty to forty minutes later the deceased, Ziad Hindi, the shop's manager, went and had a conversation with Anderson. Hindi then came over to where another car was being worked on and told the employee who was working on that car to help Anderson and those accompanying him when he got through.

At that point Anderson walked up and said to the customer, "I don't want this mother-fucker working on my car. When he get through with yours, I want him to do it." Hindi then said, " I already told him to go down there when he get through." He told Anderson he was going to have to stop all the cursing. Anderson replied by saying, "You don't fucking tell me what to say. I can say any fucking thing I want to. Fuck you."

In a statement, Anderson related that Hindi said, "Don't say anything to me or I'll cut your ass right now." Shortly thereafter, Hindi grabbed Anderson by his neck with one hand. When Anderson got loose from the neck hold, Hindi held him in a body hug. Anderson asked to be let go. Hindi kept struggling with Anderson and holding him. Hindi told him that if he let him go he would not get any service and that he needed to leave. He then slung Anderson away from him. After spinning around, Anderson shot Hindi with a gun four times.

More than one witness called by the defense testified that Hindi started the cursing by saying something like, "Man, what the fuck you-all want?" One witness also recalled that Hindi had called Anderson a "punto," [sic] which the witness described as a Spanish curse word meaning, "Bitch or something."

A witness testified that when Hindi let Anderson go Anderson was breathing really hard, his eyes were red, and he had tears coming down his eyes. The witness indicated that Anderson had markings on his neck. Anderson testified that he was scared for his life while he was being choked. We hold that there is some evidence that Anderson acted under the immediate influence of sudden passion arising from an adequate cause, thereby requiring the trial court to submit the requested instruction on sudden passion.

The State insists that evidence of the accused's fear alone does not present the evidence necessary to submit an issue on sudden passion. It relies upon the opinion in Gonzales v. State, 717 S.W.2d 355, 357 (Tex. Crim. App. 1986) for its assertion that an attack on the accused, coupled with fear, is insufficient to require a charge or instruction on sudden passion. The State fails to mention that in Moore v. State, 969 S.W.2d 4, 11 (Tex. Crim. App. 1998), the court characterized Gonzales as "an opinion for a plurality of the Court, and it was convincingly criticized in the dissenting opinion as being unfaithful to our prior decisions. It should not be relied on." Consequently, we decline to rely on Gonzales.

There are other cases that hold that fear alone is insufficient to support an instruction on the issue of sudden passion. See Daniels v. State, 645 S.W.2d 459, 460 (Tex. Crim. App. 1983). However, in Moore, the court held that the issue is whether there was any evidence from which a rational jury could infer sudden passion. Moore, 969 S.W.2d at 11. In this case, not only is there a showing of fear; there is also evidence that Hindi provoked a confrontation by cursing, insulting Anderson, refusing service, threatening to cut Anderson with a knife, then choking him. The Texas Court of Criminal Appeals, in discussing the issue, has said that in those cases where the court has held the evidence sufficient to warrant such a charge, a distinguishing factor tends to be that the deceased and the appellant had engaged in some sort of altercation or argument that immediately escalated into a killing. Nobles v. State, 843 S.W.2d 503, 511 (Tex. Crim. App. 1992).

The State also appears to suggest that direct evidence is necessary concerning the accused's mental state at the time of the murder in order for the accused to be entitled to the charge on sudden passion. However, direct evidence is not necessary; the accused's mental state may be inferred from the surrounding facts and circumstances. Moore, 969 S.W.2d at 10.

The State argues that Anderson was not entitled to the charge because he provoked the confrontation. An accused may not rely on a cause of his or her own making, such as precipitating a confrontation. Naasz v. State, 974 S.W.2d 418, 423 (Tex. App.--Dallas 1998, pet. ref'd). While there is some evidence in the case at bar that Anderson precipitated the confrontation by his cursing, there is also evidence that Hindi began the cursing when Anderson first arrived at the store, served other customers besides Anderson while Anderson waited, insulted Anderson in Spanish, threatened to cut Anderson with a knife, then began choking Anderson. From that evidence, the jury could have determined that Hindi precipitated the confrontation.

The State also suggests that even if Anderson were entitled to the charge, the trial court's refusal to give the charge was harmless. As the State notes, because Anderson requested the charge, he need only show some harm. See Benavides v. State, 992 S.W.2d 511, 527 (Tex. App.--Houston [1st Dist.] 1999, pet. ref'd). Anderson suffered the harm of not having the possibility that his punishment might be mitigated due to a jury finding of sudden passion.

The State relies on Benavides in arguing there is no showing that Anderson suffered any actual harm. We find that case to be distinguishable. Benavides was tried under prior law in which voluntary manslaughter was considered as a lesser included offense of murder. Benavides, 992 S.W.2d at 527. The primary basis of the court finding a lack of harm was that under the charge as given, the jury, in order to find Benavides guilty of murder, was required to find beyond a reasonable doubt that Benavides was not acting under sudden passion. Id. at 527-28. In the case at bar, the jury was not required to find beyond a reasonable doubt that Anderson was not acting under sudden passion before killing Hindi.

Finally, the State suggests that the error was harmless because the jury rejected Anderson's claim of self-defense and would therefore likely reject his claim of sudden passion as well. Where warranted by the facts, an accused is entitled to both a charge on self-defense as well as a charge on sudden passion. See Medlock v. State, 591 S.W.2d 485, 487 (Tex. Crim. App. 1979); Perez v. State, 940 S.W.2d 800, 821 (Tex. App.--Waco 1997, no pet.). This shows that the two issues are not identical. In order to be entitled to acquittal based upon self-defense, Anderson was required to establish, among other things, that it reasonably appeared to him that his life or person was in danger and that there was created in his mind a reasonable expectation or fear of death or serious bodily injury from the use of unlawful deadly force at the hands of Hindi and that he reasonably believed that his use of deadly force was immediately necessary to protect himself against Hindi's use or attempted use of unlawful deadly force. He was also required to establish that a reasonable person in his situation would not have retreated. See Tex. Pen. Code Ann. 9.32(a). The jury could have found that there was no reasonable basis for Anderson to believe that he was in fear of his life or serious bodily injury at the hands of Hindi, or that a reasonable person would have retreated, and still have determined that Hindi's attack on Anderson constituted an adequate cause giving rise to sudden passion. The State's unstated assumption that the issues are the same as between the instruction on self-defense and the instruction on sudden passion is incorrect. We sustain Anderson's sole issue on appeal.

We reverse the judgment and remand for a new hearing on punishment.

JOHN HILL

Retired Justice

Do not publish .

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 28th day of March, 2002.

1. Retired Justice John Hill assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. 74.003 (Vernon 1998).