JUAN CASAS RUIZ, Appellant v. STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed January 29, 2007.
 
 
 
In The
Court of Appeals
                
Fifth District of Texas at Dallas
............................
No. 05-06-00415-CR
............................
JUAN CASAS RUIZ, Appellant
V.
STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 199th Judicial District Court
Collin County, Texas
Trial Court Cause No. 199-81823-04
.............................................................
OPINION
Before Justices Wright, O'Neill, and Lang-Miers
Opinion By Justice Lang-Miers
                                                                                                  
        A Collin County jury convicted appellant Juan Casas Ruiz of murder and sentenced him to ninety-nine years' confinement. On appeal, he argues that the trial court erred by failing to instruct the jury on self-defense and sudden passion and that appellant suffered constitutional error when the jury considered parole. We affirm.
BACKGROUND
 
        Appellant invited victim Jose Juan Fernandez to his apartment. They drank alcohol, and Fernandez flirted with appellant's sister. Fernandez claimed that he was better than appellant because he was born in Mexico and appellant was born in the United States. Appellant felt insulted in his own home. Appellant pushed Fernandez to the patio floor and told him to leave. Fernandez got up and pushed appellant back, but appellant said, “He didn't do nothing. . . . I'm bigger than he is.” Appellant then went to the kitchen, with Fernandez following, and got a knife. Fernandez backed away and tried to run for the door. Appellant chased him, testifying that “it was too late,” and stabbed Fernandez six times. They fell on the day bed together, the knife dropped, and they both fell to the floor. Appellant hit him twice in the face with his fists, and “that was it.”
JURY INSTRUCTIONS
 
a.
 
Self-defense
 
        In his first point of error, appellant complains the trial court erred in failing to instruct the jury on self-defense. He argues that his own testimony and the testimony of Collin County Medical Examiner Dr. William Rohr support the instruction. The State responds that because the evidence showed that appellant initiated the use of force after only a verbal argument with Fernandez and that appellant continued to chase Fernandez even after Fernandez attempted to flee, the trial court did not err in refusing to instruct the jury on self-defense. We agree.
        1.
 
Standard of review
 
        Relying on the legislative intent of Article 36.19 of the code of criminal procedure, the Texas Court of Criminal Appeals has outlined the appropriate method for analyzing errors in jury charges. Tex. Code Crim. Proc. Ann. art. 36.19; Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998); Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex. Crim. App. 1994). First, the reviewing court must determine whether the jury charge contains error. Mann, 964 S.W.2d at 641; Abdnor, 871 S.W.2d at 731-32. Second, the court must determine whether sufficient harm resulted from the error to require reversal. Mann, 964 S.W.2d at 641; Abdnor, 871 S.W.2d at 731-32. In Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex. Crim. App. 1994), the court of criminal appeals explained:
The standard to determine whether sufficient harm resulted from the charging error to require reversal depends upon whether appellant objected. Where there has been a timely objection made at trial, an appellate court will search for only “some harm.” By contrast, where the error is urged for the first time on appeal, a reviewing court will search for “egregious harm.”
        
         2.
 
Applicable law
 
        
Section 9.31 of the Texas Penal Code states, in pertinent part:
 
(a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force.
 
(b) The use of force against another is not justified:
 
(1) in response to verbal provocation alone[.]
 
Tex. Pen. Code Ann. § 9.31. And section 9.32 states, in pertinent part:
 
(a) A person is justified in using deadly force against another:
 
(1) if he would be justified in using force against the other under Section 9.31;
 
(2) if a reasonable person in the actor's situation would not have retreated; and
 
(3) when and to the degree he reasonably believes the deadly force is immediately necessary:
 
(A) to protect himself against the other's use or attempted use of unlawful deadly force[.]
 
Id. § 9.32.
 
        If evidence raises the issue of self-defense, the defendant is entitled to have it submitted to the jury, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may or may not think about the credibility of the defense. Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996); Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984). The defendant's testimony alone may be sufficient to raise the defensive theory requiring that the court submit a charge on that defense. Hayes v. State, 728 S.W.2d 804, 807 (Tex. Crim. App. 1987); Dyson, 672 S.W.2d at 463; Warren v. State, 565 S.W.2d 931, 934 (Tex. Crim. App. 1978). In determining whether the testimony of a defendant raises an issue of self-defense, the truth or credibility of the defendant's testimony is not at issue. Rodriquez v. State, 544 S.W.2d 382, 383 (Tex. Crim. App. 1976); Halbert v. State, 881 S.W.2d 121, 124 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd). A reviewing court must view the evidence or testimony in a light most favorable to the appellant. Dyson, 672 S.W.2d at 463. If the testimony or other evidence viewed in that favorable light does not establish a case of self-defense, an instruction is not required. Id.
        Because appellant actually used deadly force, there must be some evidence to satisfy the requirements of sections 9.31 and 9.32 of the Texas Penal Code before the trial court instructs the jury on self-defense. Id. Thus, there must be some evidence to show that appellant reasonably believed that use of deadly force was immediately necessary to protect himself against the use of unlawful deadly force by Fernandez and that a reasonable person in appellant's position would not have retreated. Id.; Starks v. State, 127 S.W.3d 127, 132 (Tex. App.-Houston [1st Dist.] 2003, pet. dism'd). Without evidence that Fernandez used or attempted to use deadly force, the section 9.32 defense is not available. See Preston v. State, 756 S.W.2d 22, 25 (Tex. App.-Houston [14th Dist.] 1988, pet. ref'd). However, the jury does not have to find that Fernandez was actually using or attempting to use unlawful deadly force against appellant for appellant's right of self-defense to exist. Hamel, 916 S.W.2d at 493. A person has the right to defend himself from apparent danger to the same extent as he would if the danger were real. Id. The term “reasonably believes” in section 9.32 encompasses the traditional holding that a suspect is justified in defending against danger as he reasonably apprehends it. Id. (citing Semaire v. State, 612 S.W.2d 528, 530 (Tex. Crim. App. 1980)).
        “Deadly force” means force that the actor intends or knows to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury. Tex. Pen. Code Ann. § 9.01(3). “Serious bodily injury” means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Id. § 1.07(a)(46).
        3.
 
Analysis        
 
        Appellant lists several pieces of evidence in support of his claim: 1) his own statement that he was defending himself and his sister; 2) his statement that Fernandez “came at” him; 3) his statement that Fernandez “scared the hell out of” appellant; 4) his statement that even after appellant had stabbed Fernandez six times, Fernandez got on top of appellant; 5) Rohr's testimony that it was possible for a person like Fernandez, who had been stabbed six times but was high on street drugs, to get on top of appellant; and 6) Rohr's statement that “although one can't predict what's going to happen, with a certain level of cocaine, there are certain reports in literature of people being under the influence of some amount of cocaine when they have some sort of excited delirium state or something like that where they're very difficult to control. So I see no reason why that couldn't happen.”
        But nothing in the record indicates appellant reasonably believed the use of deadly force was immediately necessary to protect himself. Of the evidence he cites in support of his issue, only the evidence that Fernandez “came at” or pushed him could warrant the use of self-defense. In this case, though, the record does not support it. According to appellant's own testimony, Fernandez pushed appellant in response to appellant pushing him to the patio floor. Appellant also testified that he did not feel threatened because he was bigger than Fernandez. Appellant testified that he did not see a weapon, and the record does not otherwise indicate that Fernandez was carrying a weapon. The record also does not show that appellant could not have retreated. Cf. Guilbeau v. State, 193 S.W.3d 156, 161 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd) (holding that there was some evidence of the inability to retreat when defendant testified that victim was coming at him “fast,” and defendant could not get to his car in time to shut the door and therefore drew his gun). And once appellant drew a knife from the kitchen, Fernandez ran from appellant. Appellant thereafter chased him down and stabbed him six times. Whether Fernandez “got on top of” appellant after appellant had stabbed him six times does not bear on whether the trial court erred in denying an instruction on self-defense. At that point, appellant had already used deadly force. Because a reasonable person would not have believed that the use of deadly force was immediately necessary to protect himself in this case, we overrule appellant's first issue.
b.
 
Sudden passion
 
        In his second issue, appellant argues that the “unwanted amorous advances of Mr. Fernandez toward [appellant's] sister, was the adequate cause that set in motion a series of emotions in [appellant], including fear, anger, rage, and resentment, and, ultimately the killing of Mr. Fernandez by [appellant], which 'occurred while the passion still existed and before there was reasonable opportunity for the passion to cool.'” [Citation omitted]. The State responds that any passion did not arise out of adequate cause; appellant's response to the provocation was not that of an ordinary, reasonable person. The State also argues that evidence did not show that appellant was under the immediate influence of sudden passion “because he was not in a heightened emotional state, was reacting to past provocation, and was not under the immediate influence of any passion.”
         1.
 
Applicable law
 
        During the punishment phase of the trial, a defendant may argue that he caused the death while under the immediate influence of sudden passion arising from an adequate cause. “Sudden passion” is “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 Ann. § 19.02(a)(2). “Adequate cause” 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. Pen. Code Ann. § 19.02(a)(1).
        Sudden passion is a mitigating circumstance. If the jury finds that the defendant has proven it by a preponderance of the evidence, the offense is reduced from a first degree felony to a second degree felony. Tex. Pen. Code Ann. § 19.02(c) and (d). Thus, before the trial court may give an instruction on sudden passion, the defendant must prove that there was an adequate provocation; that a 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. McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005). A jury should receive a sudden passion charge if the evidence raises it, even if that evidence is weak, impeached, contradicted, or unbelievable. Trevino v. State, 100 S.W.3d 232, 238 (Tex. Crim. App. 2003). However, the evidence cannot be so weak, contested, or incredible that it could not support such a finding by a rational jury. Id. Evidence must show both that the passion arose out of adequate cause and that the defendant was acting under the influence of sudden passion. Merchant v. State, 810 S.W.2d 305, 309-10 (Tex. App.-Dallas 1991, pet. ref'd).
         2.
 
Analysis
 
        Appellant lists several pieces of evidence in support of his claim: 1) that Fernandez “had disrespected [appellant] and his sister, Petra Ruiz, and the Ruiz's home, by hugging and kissing Petra without her approval;” 2) that appellant had asked Fernandez to leave the Ruiz home, but he would not; 3) that “[a]n altercation ensued between Mr. Fernandez and [appellant] on the patio, after which Mr. Fernandez followed [appellant] into the apartment kitchen. . . . the aggressive actions of Mr. Fernandez further inflamed, surprised and frightened [appellant] . . . , particularly given the fact that [appellant] knew that Mr. Fernandez's family had a history of violence. Mr. Fernandez's brother had stabbed someone else only several months before;” 4) that as a direct result of the actions of Fernandez, appellant “got angry” and “pissed off;” 5) that the struggle between appellant and Fernandez happened quickly; and 6) that the frenzied manner of the killing reflects that appellant was acting in an agitated and excited state of mind.         
        But appellant has failed to show that any passion arose out of adequate cause. Any argument stemming from Fernandez's flirtation with Petra or his refusal to leave would not have provoked a person of ordinary temper to commit murder. See Escobedo v. State, 202 S.W.3d 844, 847 (Tex. App.-Waco 2006, pet. ref'd) (holding that victim's refusal to leave at appellant's request would not provoke a man of ordinary temper to commit murder); Saldivar v. State, 980 S.W.2d 475, 506 (Tex. App.-Houston [14th Dist.] 1998, pet. ref'd) (upholding trial court's refusal to instruct the jury on sudden passion when, following an argument, defendant shot victim in back after she tried to walk toward the door); Naasz v. State, 974 S.W.2d 418, 423 (Tex. App.-Dallas 1998, pet. ref'd) (noting that ordinary anger or causes of a defendant's own making are not legally adequate causes). And the only physical action Fernandez took against appellant was to push him after appellant pushed Fernandez. Even assuming Fernandez intended the push to be violent, appellant said he was not physically threatened by Fernandez because appellant was bigger. Fernandez further offered appellant the opportunity to calm down by attempting to flee from appellant once he drew the knife. Because the evidence does not show that appellant's actions arose from 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, the trial court did not err in denying appellant's requested instruction. We overrule appellant's second issue.        
CLAIM OF JURY MISCONDUCT
 
        In his final issue, appellant complains that the jury improperly considered parole when they sent a note to the judge with four questions:
How does life differ from 99 years
Is life longer than 99 years
At 99 years when is he eligable [sic] for parole
At life when is he eligable [sic] for parole
 
The trial court responded, “This is not a matter that the law allows me to answer. Please refer to the written instructions I have already given you, and continue with your deliberations.” Appellant did not object to this exchange at trial or in a motion for new trial and now claims that because the error is constitutional, he was not required to object. The State argues that he failed to preserve error for review and that under Saldano v. State, 70 S.W.3d 873, 886-87 (Tex. Crim. App. 2002), a party may fail to preserve even constitutional error. We agree. Tex. R. App. P. 33.1; see Resnick v. State, 574 S.W.2d 558, 560 (Tex. Crim. App. 1978) (holding that appellant failed to preserve error when he did not raise in motion for new trial claim that a note from the jury indicated that the jurors engaged in misconduct by considering punishment during their deliberations on guilt or innocence); Moreno v. State, 961 S.W.2d 512, 515 (Tex. App.-San Antonio 1997, pet. ref'd) (holding that appellant failed to preserve error when he did not object to or raise in motion for new trial claim that the jury improperly considered parole law during deliberations and, therefore, committed reversible error). We overrule appellant's third issue.
 
 
 
 
CONCLUSION
 
        We conclude that the trial court did not err in refusing to instruct the jury on self-defense or
sudden passion and that appellant failed to preserve error for review on his claim of jury misconduct. We affirm the judgment of the trial court. Tex. R. App. P. 43.2(a).
                                                                                                                                                             
                                                          ELIZABETH LANG-MIERS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
060415f.u05