COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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MELVIN LOUIS, ) No. 08-04-00130-CR
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Appellant, ) Appeal from
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v. ) 205th District Court
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THE STATE OF TEXAS, ) of El Paso County, Texas
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Appellee. ) (TC# 20020D06261)
O P I N I O N
Melvin Louis appeals his murder conviction. A jury found Appellant guilty and assessed his punishment at life imprisonment. The trial court included in the judgment an affirmative deadly weapon finding. We affirm.
FACTUAL SUMMARY
In 1993, Appellant and Nalini Hanooman-Singh (also known as Nalina Singh or Sasha Singh) met in Korea while they were in the United States Army. They married in 1996 and decided to have a child after moving to Germany. Singh gave birth to a daughter, Briana, in 1998. When Singh was transferred to Fort Bliss, the family moved to El Paso in January 2001. On September 25, 2002, Singh filed an application for a protective order based on evidence that Appellant had assaulted her on August 14, September 1, and September 23 of 2002 and had caused injuries to her. The temporary ex parte protective order issued on September 27, 2002 prohibited Appellant from going within 200 yards of Briana’s daycare center or removing Briana from Singh’s possession. Singh hired an attorney and filed for divorce in early October of 2002. Appellant had not been served with the protective order, but he was aware of its existence. Appellant resigned his job and moved to Atlanta, Georgia to live with his sister, but he returned to El Paso on a few occasions. He purchased a handgun on October 12.
Late one evening in mid-October, approximately two weeks after Singh filed for divorce, Singh called Sergeant Eric David Knutzen, and told him that Appellant was knocking on all of her doors and windows and asking her to let him in the house. Sgt. Knutzen went to Singh’s home but when he arrived, Appellant was no longer there. When Singh opened the door for Sgt. Knutzen, she was talking on the telephone to Appellant. Singh appeared upset and scared, so Sgt. Knutzen recommended that she stay with a friend that evening. While Singh packed, Appellant called several times. Sgt. Knutzen listened to one of the calls and heard Appellant tell Singh that he did not want the divorce. He also threatened to kill himself. Sgt. Knutzen followed Singh while she drove to a friend’s home.
Appellant returned to El Paso on October 29 and purchased ammunition for the handgun. The following day at approximately 8 a.m., two witnesses saw Appellant sitting in a parked car near Little Red Apple Daycare. Frederick Nelson, an employee of Mountain Park Automotive, asked Appellant if he needed help, and Appellant replied that he thought it was a convenience store. Nelson told Appellant that the convenience store was next door but it was not open. At around 9:15 a.m., Singh arrived at Little Red Apple Daycare with Briana. Briana went into her classroom while Singh signed her in at the front desk. Singh then asked to speak to the daycare owner, Wendell Bellamy. Since he was not there, Singh spoke with Mrs. Bellamy in the kitchen. Appellant walked into the daycare and Briana ran over to him. Singh returned to the front desk and asked Briana to return to her classroom. Speaking in a low voice, Singh asked Appellant what he was doing and told him that he was not supposed to be there. Appellant told Singh that he only wanted to talk to her. The daycare owner’s daughter, Veronica Palma, knew that a protective order prohibited Appellant from being at the daycare and she telephoned the police. About the time Palma hung up the phone, Mr. Bellamy returned. Mrs. Bellamy alerted him that Appellant was there and that they had telephoned the police.
Mr. Bellamy walked over to where Appellant and Singh were talking. Singh appeared “on the edge,” so Mr. Bellamy sat down at the desk and began a casual conversation with Appellant about the weather and other topics in order to keep him engaged until the police arrived. Mr. Bellamy heard Singh refuse Appellant’s request to take Briana out for a pizza or hamburger. The conversation continued for about ten minutes. At one point, Appellant asked Mr. Bellamy for a pencil and paper so that he could get Singh’s address and phone number, but Singh would not give him that information. Mr. Bellamy did not hear Singh or Appellant raise their voices and there were no violent movements. Just as a police car pulled into the parking lot and stopped near the door of the daycare, Appellant looked at Mr. Bellamy and said, “I am sorry, Mr. Bellamy.” He pulled out a handgun and shot Singh twice in the chest before turning the gun on himself. Singh died of her injuries but Appellant survived the wound to his head.
Appellant testified at trial about his relationship with Singh and the events surrounding the shooting. During the separation, Appellant sometimes picked up Briana from the daycare center in order to visit her. On one occasion, he picked her up around noon. Singh had agreed that he could visit with Briana during the afternoon as long as he returned her to the daycare by 6 p.m. They ate lunch together, went to a park, and then to a toy store. As they were returning to the daycare center, Briana became upset about her parents’ separation and said she did not want to go back to the daycare center. After Appellant and Briana arrived at the daycare center at 5 p.m., he called Singh to ask whether he could extend his visit. Singh “went ballistic” and told him no. Appellant argued with Singh, telling her that because there was no custody agreement, he could take Briana. He told her that he would return Briana later that night. Singh apparently called the police because both the El Paso police and military police quickly arrived at the daycare. When Appellant exited the building, the officers had their weapons drawn. They frisked Appellant and handcuffed him. Singh arrived approximately five minutes later. After some conversation with Appellant and Singh, the police released Appellant and did not file charges. Appellant did not return to the daycare center until the day of the shooting.
Appellant flew to El Paso on October 29. He called Singh several times and finally spoke with her on the morning of October 30. Singh told him that she was going to take Briana to daycare that morning at about 8 o’clock but she did not tell him that he could not visit Briana there. Appellant took the loaded handgun to the daycare center in order to take his own life. He could remember numerous details of the morning both prior to and after the shooting, but he did not remember actually shooting her.
The jury found Appellant guilty of murder as alleged in the indictment and further found that he used a deadly weapon in the commission of the offense. During the punishment phase, Appellant introduced the testimony of a psychologist, Dr. Karen Gold. Based on testing completed in July of 2003, Dr. Gold concluded that Appellant was acutely ill with severe depression and she diagnosed him with schizo-affective disorder. According to Dr. Gold, Appellant’s depression became so severe that he was out of touch with reality to the point that he was not aware of where he was or what he was doing. Dr. Gold could not state that Appellant had schizo-affective disorder at the time of the shooting.
The State countered Dr. Gold’s testimony with that of a psychiatrist, Arthur Ramirez, M.D., who concluded that Appellant did not exhibit the signs of schizo-affective disorder. Dr. Ramirez did not find evidence of a triggering event that may have caused Appellant to murder Singh in a state of agitation or emotional upheaval. Dr. Ramirez examined Appellant and diagnosed him with a major depressive disorder that existed at the time of the murder and thereafter.
The trial court refused to submit an instruction pursuant to Section 19.02(d) of the Penal Code because there was no evidence that Appellant caused Singh’s death under the immediate influence of sudden passion arising from an adequate cause. The jury assessed Appellant’s punishment at life imprisonment.
CONSTITUTIONALITY OF SECTION 19.02(D)
In Issue One, Appellant contends that Section 19.02(d) of the Penal Code violates due process because it places the burden on him to prove, during the punishment phase, mitigating circumstances in order to reduce the applicable range of punishment. Section 19.02(d) does not lessen the State’s burden to prove beyond a reasonable doubt all elements of the statutorily-defined offense of murder at the guilt-innocence phase of the trial. Gipson v. State, 82 S.W.3d 715, 724 (Tex.App.--Waco 2002, no pet.); Jones v. State, 955 S.W.2d 438, 440 (Tex.App.--Fort Worth 1997, pet. ref'd). After those elements have been established and an accused has been convicted of murder, Section 19.02(d) allows the accused to prove the mitigating defense of sudden passion at the punishment phase. Gipson, 82 S.W.3d at 724. Numerous intermediate appellate courts have considered this same issue and have held that Section 19.02(d) does not unconstitutionally shift the burden of proof in murder trials from the State to the accused, nor does it violate a defendant’s right to due process of the law. Gipson, 82 S.W.3d at 724; Vasquez v. State, 2 S.W.3d 355, 361 (Tex.App.--San Antonio 1999, pet. ref’d); Green v. State, 971 S.W.2d 639, 643 (Tex.App.--Houston [14th Dist.] 1998, pet. ref’d); Fleming v. State, 956 S.W.2d 620, 622 (Tex.App.--Eastland 1997, pet. ref’d); Jones, 955 S.W.2d at 440; Robinson v. State, 945 S.W.2d 336, 342 (Tex.App.--Austin 1997, pet. ref’d); Kreyssig v. State, 935 S.W.2d 886, 891 (Tex.App.--Texarkana 1996, pet. ref’d). Because we agree with these decisions, we overrule Issue One.
FAILURE TO SUBMIT SUDDEN PASSION INSTRUCTION
In Issue Two, Appellant complains that the trial court erred by failing to submit a sudden passion instruction in the punishment charge. Pursuant to Section 19.02(d), the defendant may raise an issue at the punishment phase as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. Tex.Penal Code Ann. § 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. Tex.Penal Code Ann. § 19.02(a)(2). The Penal Code defines “adequate cause” as 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.Penal Code Ann. § 19.02(a)(1). A sudden passion charge should be given if there is some evidence to support it, even if that evidence is weak, impeached, contradicted, or unbelievable. Trevino v. State, 100 S.W.3d 232, 238 (Tex.Crim.App. 2003). The question is whether there is any evidence from which the jury could infer sudden passion arising from an adequate cause. See Moore v. State, 969 S.W.2d 4, 11 (Tex.Crim.App. 1998). In considering whether the issue is raised by the evidence, we will consider the evidence adduced at both the guilt-innocence and punishment phases of the trial. See Trevino, 100 S.W.3d at 238.
Appellant asserts that the evidence showing he had been previously detained and harassed by the police at the daycare, when combined with evidence that he saw the police arrive at the daycare just prior to the shooting, raised the issue of sudden passion. Appellant claims that he had a reasonable belief that he was entitled to be at the daycare since he had not been served with the protective order, and he argues that his sudden passion arose from an adequate cause, namely, that Singh had unjustifiably manipulated the police to have him arrested. The evidence does not support his contentions.
There is no evidence in the record that Appellant shot Singh in a rage because he believed she had unjustifiably manipulated the police to arrest him. Appellant did not testify this was his state of mind and there is no objective evidence showing that the arrival of the police produced a degree of anger, rage, resentment, or terror in Appellant that rendered his mind incapable of cool reflection. Cf. Trevino, 100 S.W.3d at 239 (evidence of defendant’s emotional reactions, such as the defendant being “extremely upset,” “scared and panicked” or the defendant “freaking out” and “crying and shaking,” raised the issue of sudden passion). By all accounts, Appellant remained calm throughout the incident and he even apologized to Mr. Bellamy immediately prior to shooting Singh twice and then himself. In the absence of any evidence that Appellant experienced sudden passion, the trial court did not err by refusing to give the jury the requested instruction. Issue Two is overruled. Having overruled both issues raised on appeal, we affirm the judgment of the trial court.
August 16, 2005
ANN CRAWFORD McCLURE, Justice
Before Barajas, C.J., McClure, and Chew, JJ.
(Do Not Publish)