MARCHELLO LEWIS v. THE STATE OF TEXAS (2011)

MEMORANDUM OPINION

Opinion By Justice Moseley

Appellant Marchello Lewis pleaded guilty to the murder of Everick Hearn, and the jury sentenced him to thirty-eight years' imprisonment.   In a single issue, appellant contends the evidence is insufficient to support the jury's failure to find that he acted under the influence of sudden passion.   The background of the case and the evidence adduced at trial are well known to the parties, and therefore we limit recitation of the facts.   We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled.   See Tex.R.App. P. 47.4. We affirm.

Applicable Law

During the punishment phase of a murder trial, a defendant may argue that he caused the death while under the immediate influence of sudden passion arising from an adequate cause.   See McKinney v. State, 179 S.W.3d 565, 569 (Tex.Crim.App.2005).  “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. Penal Code Ann. § 19.02(a)(2) (West 2011).  “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.”   Id. § 19.02(a)(1).

Sudden passion is a mitigating circumstance that, if found by the jury to have been proven by a preponderance of the evidence by the defendant, reduces the offense from a first degree felony to a second degree felony.   Id. § 19.02(c), (d);  see McKinney, 179 S.W.3d at 569.

Standard of Review

When an appellant seeks review of a jury's failure to make a finding on which he had the burden of proof at trial by a preponderance of the evidence, such as an affirmative defense, the correct standard of review is whether, after considering all the evidence relevant to that issue, the judgment is so against the great weight and preponderance of the evidence as to be manifestly unjust.   Ex parte Schuessler, 846 S.W.2d 850, 852 (Tex.Crim.App.1993) (citing Meraz v. State, 785 S.W.2d 146, 155 (Tex.Crim.App.1990));  Naasz v. State, 974 S.W.2d 418, 421 (Tex.App.—Dallas 1998, pet. ref'd) (same sufficiency standard for mitigating issue as in affirmative defense).¹  The jury determines the credibility of the witnesses and the weight of the evidence.  Cain v. State, 958 S.W.2d 404, 408–09 (Tex.Crim.App.1997).

Discussion

Detarius Howard testified that, within a week of his living with Rodney Denmark's children and their mother, Denmark made several phone calls to Howard threatening to kill him and his family and then appeared at Howard's apartment;  Howard “didn't feel safe about it.”   The next day, Howard and four friends, including the victim Hearn, were outside Howard's apartment when they saw Denmark's truck with five occupants drive by them “real quick” inside the apartment complex and then make a quick U-turn.   Howard retrieved two three-foot-long machetes from his apartment.   He was hitting them together, but not pointing them towards anyone, as the truck stopped in front of Howard and his companions.   Howard saw Denmark get out, go to the back of the truck, and “start to grab something.”   Howard ran into his apartment and then heard multiple gunshots.   Hearn had been shot in the back and died from the wound.

Elbert Jones ² testified that, on the day of the murder, he and appellant were in the bed of Denmark's truck.   A gun was resting between Jones's legs.   Jones saw Howard with knives, standing on the sidewalk with his group, but Jones did not see any other knives or guns.   When the truck stopped in the parking lot, Howard started walking towards it with the knives in his hands, but he was not doing anything with them.   Howard did not walk up to the truck;  he never left the sidewalk.   Jones was asked, “And at any point did he ever come close enough to you where you thought that you were going to get cut by one of those knives?”   Jones replied, “No, ma‘am, I didn't feel threatened at all.”   He elaborated, “[T]hey were still on the sidewalk.   It's still a good walking distance from the truck, so I had no reason to feel threatened.   He wasn't close enough.”

Jones said that Denmark walked toward Howard, said something to him, and then turned back to the truck and reached for the gun.   Howard and the others turned around and started running away.   Appellant “grabbed the gun, turned around, and start[ed] shooting.”

In a video-taped statement to the police, appellant said Howard “came at” him with two big machetes.   Appellant said he had his back to Howard, was scared, and “just shot” to protect himself;  he was “not even thinking” and “not even aiming.”

Although appellant testified he thought Howard was coming at him with the machetes, both Howard and Jones testified that Howard never left the sidewalk or approached the truck in the parking lot.   Howard said he did not point the machetes at anyone.   Jones, who was sitting next to appellant in the bed of the truck, testified that he never felt threatened by the knives.   Thus, there is conflicting evidence on the issue of adequate cause.   The jury determines the credibility of the witnesses and the weight of the evidence.   See id.   After reviewing the evidence of sudden passion and adequate cause under the appropriate standards, we conclude the jury's failure to find appellant acted under sudden passion was not so against the great weight and preponderance of the evidence as to be manifestly unjust.   See Ex parte Schuessler, 846 S.W.2d at 852;  Meraz, 785 S.W.2d at 155;  Naasz, 974 S.W.2d at 421.   We resolve appellant's single issue against him.

We affirm the trial court's judgment.

FOOTNOTES

FN1. In his issue statement and brief, appellant asserts the evidence is legally insufficient to support the jury's rejection of sudden passion.   However, in Johnson v. State, No.05–09–00133–CR, 2010 WL 5142392, at *6–7 (Tex.App.—Dallas Dec. 20, 2010, pet. ref'd) (not designated for publication), this Court concluded that Meraz remains the proper standard of review for affirmative defenses on which the defendant had the burden of proof following the decision in Brooks v. State, 323 S.W.3d 893, 924 (Cochran, J., concurring).   Accordingly, we follow Johnson..  FN1. In his issue statement and brief, appellant asserts the evidence is legally insufficient to support the jury's rejection of sudden passion.   However, in Johnson v. State, No.05–09–00133–CR, 2010 WL 5142392, at *6–7 (Tex.App.—Dallas Dec. 20, 2010, pet. ref'd) (not designated for publication), this Court concluded that Meraz remains the proper standard of review for affirmative defenses on which the defendant had the burden of proof following the decision in Brooks v. State, 323 S.W.3d 893, 924 (Cochran, J., concurring).   Accordingly, we follow Johnson.

FN2. Jones was charged with murder in the case and was testifying without a plea bargain..  FN2. Jones was charged with murder in the case and was testifying without a plea bargain.

JIM MOSELEY JUSTICE