Campos, Aurelio v. The State of Texas--Appeal from 338th District Court of Harris County

Opinion issued December 27, 2002

In The

Court of Appeals

For The

First District of Texas

NO. 01-02-00040-CR

____________

AURELIO CAMPOS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause No. 871,015

O P I N I O N

A jury found appellant, Aurelio Campos, guilty of murder and assessed his punishment at confinement for 47 years. In his sole point of error, appellant contends that the trial court erred in denying his request to instruct the jury on the issue of sudden passion in the punishment phase of trial. We affirm.

Facts and Procedural Background

On the evening of March 4, 2001, Roy Anthony Farias was at his apartment with his friend, Javier Quato, and Jose Huerta. Farias testified that he and Quato were smoking marijuana and popping pills, and Huerta was drinking beer. At approximately 2:30 a.m., appellant came to Farias apartment, telling the men that someone had jumped him. Fernando Campos ( Nano ), appellant s brother, was visiting a neighbor downstairs and came up to Farias apartment to talk with appellant. Appellant privately told Nano and Farias that he had not been jumped. Instead, the complainant, Francisco Javier Luna-Jamie, a transvestite, had picked him up. After having anal intercourse with the complainant, appellant saw the complainant s genitals and realized that the complainant was, in fact, a man. Subsequently, the complainant drove appellant to Farias apartment.

Farias testified that appellant was kind of mad and that he wanted to go fuck the motherfucker up. Farias tried to convince appellant that they should only beat up the complainant. Appellant and Farias formulated a plan to lure the complainant out of his house by offering to sell him narcotics. Farias and Huerta drove appellant to the complainant s house and then waited 20 minutes for appellant to come out with the complainant. When appellant and the complainant entered the complainant s car, Farias and Huerta then left to pick up Nano. After picking up Nano, who was carrying appellant s 9 millimeter pistol and Huerta s rifle, the men drove to the parking lot of a store to meet appellant and the complainant in the complainant s car. After Huerta parked his Jeep across the street, Farias and Nano got out of the Jeep with the two guns. Farias stated that he saw appellant and Francisco inside the car and they seemed to be talking.

Appellant then called out to Nano and Farias to bring him the narcotics, but neither of the men moved. Appellant walked over to the Jeep and told Farias to go shoot the complainant. When Farias refused, the men argued for five minutes about who would shoot the complainant. Finally, Farias told appellant if you want to shoot him so fucking bad, go shoot him yourself. Nano gave appellant the pistol, and as appellant began to walk back toward the complainant, Farias accidently pulled the trigger on the rifle, barely missing appellant. Alarmed, the complainant asked appellant what was happening. Appellant replied there ain t nothing happening and then shot the complainant 19 times with the pistol. Farias testified that appellant then ran back to the Jeep and told everyone to keep quiet or the same shit is going to happen to you. Huerta drove appellant and Farias to Farias apartment, and they hid the guns underneath the apartment. Farias subsequently dumped the guns in a bayou, and they were never recovered.

Appellant s written statement to the police was admitted into evidence in the guilt phase of trial. In it, appellant stated that the complainant forced him to take pills at gunpoint, he passed out, and he then woke up while having anal intercourse with the complainant. Appellant further stated that when he saw the complainant later that night, he panicked. The complainant then forced appellant into the car at gunpoint. After a struggle, appellant grabbed the complainant s gun and shot the complainant in self-defense.

During the punishment phase of trial, appellant requested a jury charge on the issue of sudden passion. The trial court denied the request, noting that there was no evidence in the record raising a sudden passion issue. The trial court allowed appellant to reopen his defense for appellant to testify. Appellant then testified that after the sexual assault, he cried, his pride was hurt, and he was drinking alcohol to ease his mind. Appellant further testified that, as part of a plan, he went to the complainant s house to rob him. Appellant enticed the complainant to leave his home for a narcotics deal. The complainant drove appellant to a store parking lot to complete the narcotics deal. When they arrived at the parking lot, appellant got out of the complainant s car and retrieved a gun from the back seat of Huerta s Jeep, which was parked across the street. Appellant then returned to the complainant s car and shot the complainant. After hearing appellant s testimony, the trial court again denied appellant s request for a sudden passion instruction, stating the record had zero evidence that shows that [appellant] was acting with any kind of passion at the time of the killing. Sudden Passion

In his sole point of error, appellant argues that the trial court erred in refusing to instruct the jury on whether appellant caused the complainant s death under the immediate influence of sudden passion arising from an adequate cause. In considering whether any evidence is raised on this punishment issue, we review the record from both the guilt-innocence and punishment phases of the trial. See Buchanan v. State, 911 S.W.2d 11, 14-15 (Tex. Crim. App. 1995).

During the punishment stage, a defendant may raise the issue as to whether he caused the death of an individual under the immediate influence of sudden passion arising from adequate cause. Tex. Pen. Code Ann. 19.02(d) (Vernon 1994). If the defendant can prove the issue of sudden passion by a preponderance of the evidence, the offense is a felony of the second degree rather than of the first degree. Id.

Sudden passion is defined as a 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 soley the result of former provocation. Tex. Pen. Code Ann. 19.02(a)(2) (Vernon 1994). Adequate cause is defined as cause that would 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) (Vernon 1994).

If a defendant presents evidence of sudden passion, he is entitled to an instruction on this mitigating circumstance regardless of whether the evidence raising such an issue is strong, contradicted, weak, unimpeached or unbelievable. See Benavides v. State, 992 S.W.2d 511, 526 (Tex. App. Houston [1st Dist.] 1999, pet. ref d). The evidence may not, however, be so weak, contested, or incredible that it could not support such a finding by a rational jury. Id. The question is whether there was any evidence from which a rational jury could infer such passion. See Moore v. State, 969 S.W.2d 4, 11 (Tex. Crim. App. 1998). We review evidence offered in support of a defensive issue in the light most favorable to the defense. Benavides, 992 S.W.2d at 526.

Appellant directs us to his written statement, in which he stated that he was in a panic when he saw the complainant the second time and thought [the complainant] was going to mess with me. Appellant argues that he was scared and feared Francisco because of the prior alleged sexual assault. However, a mere claim of fear does not establish sudden passion. Crunk v. State, 934 S.W.2d 788, 795 (Tex. App. Houston [14th Dist.] 1996, pet. ref d). It has been noted that, an actor who fears for his life may coolly and deliberately dispatch his assailant without panic or hysteria. Fry v. State, 915 S.W.2d 554, 559 (Tex. App. Houston [14th Dist.] 1995, no pet.). For a defendant to obtain a sudden passion instruction, the evidence must show that his mental state rose beyond a bare claim of fear or was so strong and overpowering that it rendered him incapable of rational thought and collected action. Jones v. State, 963 S.W.2d 177, 180 (Tex. App. Fort Worth 1998, pet. ref d).

Appellant contends that the sexual assault provided the provocation and fear for him to be in a sudden passion when he later shot the complainant. However, if that was the passion influencing appellant, it cannot be reasonably said to be sudden, arising at the time of the murder. As noted by the trial court, during appellant s testimony at the punishment phase of trial, appellant s counsel tried several times to lead appellant to testify that his blood was boiling or that he was incensed when he subsequently saw the complainant. However, appellant responded that he was drunk and that he kept drinking liquor because his mind wasn t all there.

In his written statement, appellant claimed he panicked and shot the complainant in self-defense. In his subsequent trial testimony, he stated he left the complainant s car, retrieved a gun from Huerta s Jeep, and then returned to the complainant s car and shot the complainant. We conclude that the trial court was not presented any evidence that appellant s fear rendered him incapable of rational thought. Nor does the record support appellant s claim that he was acting with any kind of passion arising at the time of the offense. Thus, we hold the trial court did not err in denying appellant s request to instruct the jury on the issue of sudden passion in the punishment phase of the trial.

We overrule appellant s sole issue.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Justices Nuchia, Jennings, and Radack.

Do not publish. Tex. R. App. P. 47.