Hernandez v. State

• Decision Date: 30 October 2003
• Docket Number: No. 01-02-01031-CR.,01-02-01031-CR.
• Citation: 127 S.W.3d 206
• Parties: Jason Michael HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

127 S.W.3d 206

Jason Michael HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.

No. 01-02-01031-CR.

Court of Appeals of Texas, Houston (1st Dist.).

October 30, 2003.

Discretionary Review Refused April 21, 2004.

Jason Michael Hernandez, Huntsville, Kurt B. Wentz, Houston, TX, for Appellant.

Charles A. Rosenthal, Jr., District Attorney—Harris County, Eric Kugler, Assistant District Attorney of Harris County, William J. Delmore, III, Chief Prosecutor, Appellate Division, Houston, TX, for Appellee.

Panel consists of Justices TAFT, JENNINGS, and HANKS.

OPINION

TIM TAFT, Justice.

A jury convicted appellant, Jason Michael Hernandez, of murder and assessed his punishment at 60 years in prison. See Tex. Pen.Code Ann. § 19.02(b)(1), (2) (Vernon 2003). We determine (1) whether the evidence supporting the jury's negative finding on a sudden-passion special issue at punishment was factually sufficient, (2) whether appellant carried his burden of showing that his counsel was ineffective at the guilt phase, and (3) whether the trial court committed reversible error in preventing appellant's psychologist from giving expert-opinion testimony relating to the sudden-passion issue. We affirm.

Background

Appellant and Cynthia Cruz, the complainant, had been dating for several months. To celebrate having moved into a new apartment together, they had a party. Late that night, appellant, his uncle, and his cousin got into a fight at the party. Someone called for an ambulance when the cousin got out of control. Cruz accompanied the cousin to the emergency room in the ambulance. Appellant appeared somewhat intoxicated, angry, and belligerent, but he became "really ... angry" and "very upset" when Cruz went with his cousin in the ambulance, so much so that an officer had to tell him to calm down.

Appellant called the police again around five o'clock the next morning. When investigating officers arrived at appellant's apartment, they found Cruz's corpse against the bathtub. She had been stabbed or cut 21 times and had evidence of blunt-force trauma to her head. Appellant had soaked her body in so much bleach that the odor permeated the apartment.

Factual Sufficiency

In issue one, appellant raises a factual-sufficiency challenge to the jury's negative answer to the sudden-passion special issue in the punishment charge.

Murder is a first-degree felony. See Tex. Pen.Code Ann. § 19.02(c). However, "at the punishment stage of a trial the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree."¹ See id. § 19.02(d) (Vernon 2003). "`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." Id. § 19.02(a)(2) (Vernon 2003). "`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." Id. § 19.02(a)(1) (Vernon 2003). Ordinary anger or causes of a defendant's own making are not legally adequate causes. Naasz v. State, 974 S.W.2d 418, 423 (Tex.App.-Dallas 1998, pet. ref'd).

Both parties assert that we may conduct a factual-sufficiency review of the evidence underlying the jury's negative finding on sudden passion. Neither this Court nor the Court of Criminal Appeals has yet determined whether factual-sufficiency review is available for this particular punishment issue. However, some of our sister courts of appeals have generally held that such review lies.² We agree with the courts that have so held for the reasons that they have expressed:

• The sudden-passion punishment finding concerns issues of historical fact, rather than issues that are more subjective or that constitute a prediction.

• Factual-sufficiency review lies to challenge the rejection of an affirmative defense, and the rejection of a sudden-passion mitigation issue at punishment is analogous to the rejection of an affirmative defense at the guilt phase because the burden of proof for both issues rests on the defendant by a preponderance of the evidence.

See Smith v. State, 2000 WL 108136 at *5-6 (Tex.App.-Texarkana Feb. 1, 2000, pet. ref'd) (not designated for publication); Naasz, 974 S.W.2d at 421, 423; see also Wilson v. State, 15 S.W.3d 544, 549 n. 4 (Tex.App.-Dallas 1999, pet. ref'd) (dictum).

Moreover, the Court of Criminal Appeals has recently held that factual-sufficiency review lies over the "deliberateness" punishment issue³ in capital cases for offenses committed before September 1, 1991 because that issue involves "an assessment of events that have already occurred" and requires "a finding of historical fact that is either right or wrong at the time of trial." See Wardrip v. State, 56 S.W.3d 588, 590-91 (Tex.Crim.App. 2001). Compare McGinn v. State, 961 S.W.2d 161, 168-69 (Tex.Crim.App.1998) (holding that future-dangerousness punishment issue in capital case is not subject to factual-sufficiency review because, among other reasons, that issue is one of prediction, not historical fact, and is thus highly subjective). And this Court has recently held that the rejection of a similar punishment mitigation issue, on which the defendant also has the burden of proof by a preponderance of the evidence, is reviewable for factual sufficiency. See Patterson v. State, Nos. 01-00-01148-CR, 01-00-01149-CR, 121 S.W.3d 22, 24 (Tex.App.-Houston [1st Dist.] June 19, 2003, no pet. h.) (op. on remand; designated for publication) (reviewing for factual sufficiency jury's negative finding on punishment mitigation issue, which would have reduced offense to second-degree felony under Tex. Pen.Code Ann. § 20.04(d) (Vernon 2003), asking whether defendant had voluntarily released kidnaping victim in safe place). Accordingly, we hold that we may conduct a factual-sufficiency review of the evidence relevant to the sudden-passion mitigation finding.

When determining the factual sufficiency of the evidence, we review all of the evidence neutrally. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000). The defendant bears the burden of proving both a sudden-passion issue at punishment and an affirmative-defense issue at guilt by a preponderance of the evidence. See Tex. Pen.Code Ann. § 2.04(d) (Vernon 2003) (affirmative-defense burden); id. § 19.02(d) (sudden-passion burden). Because the defendant's burden is the same for both issues, we apply to appellant's challenge of the sudden-passion finding the same standard of review that we would apply to a challenge of the rejection of an affirmative defense. See Naasz, 974 S.W.2d at 421. That standard requires us to determine whether the negative finding is so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. See id. at 421-22; see also Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim.App.2003) (designating same standard of review for factfinder's rejection of affirmative defense at guilt phase). The factfinder is the sole judge of the weight and credibility of witnesses' testimony. Johnson, 23 S.W.3d at 7.

Appellant relies on the following evidence for his factual-sufficiency challenge. Appellant's evidence showed that, in general, Cruz suffered from depression and bipolarism; that she sometimes did not take her medication for these disorders or mixed that medication with alcohol; that she had been hospitalized for depression and drug-related illness; that she "had a lot of problems with her past and her children"; and that she lied to, argued with, and "used" appellant and his family. Relevant to the attack, appellant testified that he felt like he was "in a nightmare" during the attack, that he passed out right after the stabbing, and that he didn't remember stabbing her so many times or dousing her in bleach. Appellant further testified that, right before the murder, Cruz woke him by kicking and slapping him, that he and Cruz argued, that she challenged his masculinity, that she criticized the size of his penis, and that she said that she would leave him for another man—all of which made appellant "even more angry" and "very hurt" and which caused "something just [to come] out of me." Appellant's mother testified that Cruz seemed depressed and angry on the morning of the murder.

Some of the testimony on which appellant relies concerned his past experiences with Cruz, and the State produced ample contrary evidence, some from appellant himself, that he acted on past provocation.⁴ Sudden passion must arise at the time of the offense and cannot result solely from former provocation.⁵ See Tex. Pen. Code Ann. § 19.02(a)(2). Appellant further testified that, when he killed Cruz, he was also thinking about how other people had disrespected or abused him in the past. Provocation by people other than the victim or one acting with her does not meet the definition of sudden passion. See id. To the extent that appellant's testimony concerned his mental state at the time of the stabbing, there was ample evidence that, if believed, would support the jury's finding that appellant did not act under sudden passion.⁶ Moreover, causes that would not render the ordinary person's mind incapable of cool reflection do not constitute adequate cause. See id. at § 19.02(a)(1). In this vein, appellant acknowledged that couples sometimes break up because one partner wishes to date someone else and that that is normal and is not a reason to kill. Additionally, given appellant's changing story about the circumstances of the killing,⁷ the jury could have disbelieved appellant's testimony that Cruz had incited him to more than ordinary anger. See Naasz, 974 S.W.2d at...