Sebring, Steven James

PD-0921-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 8/26/2015 5:07:07 PM
Accepted 8/28/2015 11:54:35 AM
PD-0921-15 ABEL ACOSTA
CLERK

IN THE TEXAS COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

STEVEN JAMES SEBRING
Defendant - Appellant

vs.
THE STATE OF TEXAS
Plaintiff - Appellee

Appellant's Petition for Discretionary Review
On Petition for Discretionary Review from the Fourteenth Court of Appeals
No: 14-13-01046-CR

337th District Court
Cause Number: 1323534

... .
THOMAS M. HENDERSON
Texas Bar No: 09432000
4615 Southwest Freeway, Suite 600
Houston, Texas 77027
Tel: (713) 552-1940 Fax: (713) 626-0182
th end 12 83 (a),aol. com

Oral argument is not requested

August 28, 2015
 '..
,1;(
'' IDENTITY OF PARTIES AND COUNSEL
4I
Steven James Sebring - Defendant/Appellant

Attorneys for the State at Trial
Sarah Mickelson
SBOT: 24064244
Adam Muldrow
SBOT: 24060307
1201 Franklin, Ste. 600
Houston, Texas 77002

Attorneys for Appellant at Trial
Te' Iva Bell
SBOT: 24048575
Tanya L. Terry
SBOT: 24073249
Harris County Public Defender's Office
1201 Franklin, 13th Floor
Houston, Texas 77002

Appellate Attorneys

Harris County District Attorney's Office
Appellate Division
1201 Franklin, Suite 600 ·
Houston, Texas 77002

Thomas M. Henderson
4615 Southwest Freeway, Suite 600
Houston, Texas 77027
Attorney for Appellant

Trial Judge

Honorable Renee Magee
337th District Court
Harris County Criminal Justice Center
1201 Franklin Street, 17th Floor
Houston, Texas 77002
1
 TABLE OF CONTENTS

Identity of Parties and Counsel I

Table of Contents 11

Index of Authorities Ill

Statement Regarding Oral Argument IV

Statement of the Case IV

Statement of Procedural History IV

Reasons for Granting Review v

Appellant's First Proposed Issue for Review 1

Appellant's Secon~ Proposed Issue for Review 9

Prayer for Relief 12

Certificate of Service 13

Word Count Compliance 13

Appendix - Opinion from Fourteenth Court of Appeals

11
 INDEX OF AUTHORITIES

Fourth Amendment 7,8

Texas Penal Code 19.02(2)(d) 10

Tex. Code Crim. Proc. 14.05 4,6

Becknell v. State 4,5
Brigham City v. Stuaii 7
Cleveland v. State 11
Correa v. State 8
Davis v. State 11
Gutierrez v. State 4
Hernandez v. State 10
llinois v. Rodriguez 3
Illinois v. Wardlow 8
Kentucky v. Ki:µg_,
; U
,I,. i. ~
6
McGee v. State 6
McKinney v. State 10,12
McNairy v. State 4
Metaz v. State 11
Tunubiate v. State 4
United States v. Munoz-Guerra 7
Zuniga v. State 11

::..>'
J j

111
 STATEMENT REGARDING ORAL ARGUMENT

Oral argument is not requested.

STATEMENT OF THE CASE

Appellant was tried for murder in the shooting death of Joshua Durrance during

a drug (marijuana) transaction. Several hours after having Appellant's home under

surveillance (after the shooting) police entered Appellant's home without a warrant,

broke through Appellant's locked bedroom door, and arrested him. A handgun was

recovered under Appellant's pillow. The trial court ovenuled Appellant's pre-trial

motion to suppress this evidence. The jury found Appellant guilty of murder as

alleged in the indictment. The jury found Appellant guilty of murder and set his

punishment at sixty (60) years in prison.

STATEMENT OF PROCEDURAL HISTORY

Appellant appealed to the Fomieenth Court of Appeals. On June 25, 2015,

the Fourteenth Court of Appeals issued its Opinion affirming Appellant's conviction

A copy ofthe Opinion is attached as Appendix "A"

This Court granted Appellant's Motion for Extension of Time to File Petition

for Discretionary Review until August 26, 2015.

IV
 REASONS FOR GRANTING REVIEW

1. The court of appeals decision conflicts with the decision of another court

of appeals on ,the, ,same issue.

2. The court of appeals has decided an important question of state or federal

law in a way that conflicts with the applicable decisions of the Court of Criminal

Appeals or the Supreme Court of the United States.

3. The court of appeals has so far departed from the accepted and usual

course of judicial proceedings, or so far sanctioned such a departure by a lower
.r:=i •..,.

court, as to call for an exercise of the Court of Criminal Appeals' power of

supervision.

In affirming Appellant's conviction, the Fourteenth Comi ofAppeals conceded

that even if an officer is justified in making a waITantless aITest, he may not enter a

residence to make an arrest unless:

(1) a person who resides in the residence consents to the entry; or

(2) exigent circumstances require that the officer making the aITest enter the

residence without the consent of a resident or without a warrant. (Opinion@ 10)

In affirming Appellant's conviction, the Fomieenth Comi of Appeals rejected

Appellant's Point of Error regarding "Sudden Passion" finding that the jury's finding

was not so agalnst the great weight and preponderance of the evidence as to be

manifestly unjust. (Opinion @ 19)

v
 APPELLANT'S FIRST PROPOSED ISSUE FOR REVIEW

Was law enforcement officer's warrantless entry into a private residence,
followed by .tlu~;nn-consensual and forced entry into a locked bedroom occupied
by a co-tenant of the home, resulting in a subsequent search and seizure, legally
justified where no exigent circumstances were articulated by law enforcement
officers who had ample time to secure a warrant?

SUPPORT OF APPELLANT'S CLAIM FOR REVIEW

Police did not have any warrant at all when they made entry into Appellant's home.

Harris County Constable Gregory Thomason was dispatched to an address on Crescent

Moon Drive on October 14, 2012. (R-III-5) This deputy, along with four others, setup across

the street from the location at Crescent Moon Drive. They waited there for a couple of hours

until they were instructed to try and make contact at the front door to see if anybody would

answer the door. (R-III-6) When this deputy knocked on the front door, he was met by

Appellant's mother. (R-III-7) Appellant's mother indicated that Appellant was upstairs asleep

in his bedroom. (R-III-7) The deputies proceeded upstairs. (R-III-8) After knocking on the

bedroom door and receiving no response, Corporal Garza forced the door open. (R-III-8)

Appellant was face-down on his bed. The Deputy found a firearm under the pillow right next

to Appellant. (R-III-8) Thomason said that he knew there had been a fatality prior to going to

the location on Crescent ivfoon Drive.(R-III-9) When Thomason was going to the Crescent

Moon location he had the impression that it was a possible suspect location. (R-III-9)

Thomason went :there because he was requested to do so by members of the Harris County

Sheriffs Office. (R-III-9) When asked whether the witness was concerned that Appellant

would destroy evidence or impair the availability of evidence, he responded "That's always

1
 a possibility." (R-III-9) He testified that depending on the circumstances permission has to be

obtained from a Corporal to enter a residence. (R-III-10) Thomason stated thathe believed the

Corporal had received permission from a Sergeant to enter with force. (R-III-10) He believed

the mother had the ability to consent to the search of the residence. (R-III-10)

Thomason admitted that he was not certain that it was a suspect location-only that it was

a possible suspect at that time. (R-III-12) Thomason acknowledged that officers waited

across from the house for approximately two hours before entering the location. (R-III-

12) Thomason c:o_ul~c;i not recall whether he asked Appellant's mother for a key to unlock the

door. (R-III-13) He also said it was certainly possible that the mother told officers that it was

Appellant's room and she didn't have a key for the door and that it was his space. (R-III-13)

Thomason admitted that Appellant's mother did not unlock the door with a key and that at no

time did Appellant come and unlock the door for officers before forced entry was made. (R-III-

14) The deputies did n,ot have a search waiTant for the residence. (R-III-14) As soon as

Appellant was talwp.offthe bed, he was in custody. The officer acknowledged that there was

no one else in the room at that time. (R-III-14) He reiterated that prior to making entry into

the home and kicking in the door to Appellant's room, he did not have a recollection that there

was a warrant. (R-III-15) Thomason said he observed a black handgun under the pillow when

Appellant was arrested. He attempted to claim that this was not a result of a search even

though the handgun was under the pillow. (R-III-16)

Roxanne Sebfing woke up at about 4: 15 in the morning to a very light tapping on her

door frame. (R-III-)8) Sebring went downstairs to her front door and saw what appeared to

be a SWAT officer in full combat gear. (R-III-18) After retrieving her keys, Sebring opened

2
 the front door just a little bit, and the officer stated he was there to talk to her son "Michael."

[not Steven] She stated that the officer pretty much pushed past her and went up the stairs.

When he asked her which room was her son's, she stated the bedroom to the far side of the

house. (R-III-18) The officer went upstairs and came back, stating that the door was locked.

(R-III-19) Sebring told the officer that she did not have a key to her 19 year old son's room -

that it was his room. (R-III-19) The officer then kicked in the door to Appellant's bedroom.

(R-UI-19) Sebring did not remember giving permission to the officer to enter Steven's room.

She certainly communicated to them that she had no way of getting into the room. (R-III-19)

Sebring testified that she had placed a lock on her bedroom door and that her son had

placed a lock on his bedroom door as well. (R-III-20) Sebring testified that she never went

into her son's room without getting his permission first. (R-III-21, 22) Sebring reiterated that

it was Steven's space and that he was responsible for cleaning it and she did not otherwise go

inside. (R-III-22) The information provided to police by Ms. Sebring created an ambiguous

circumstance which cast.doubt on the effectiveness of the consent claimed by the police. At

that point, with no warrant, the police were required to stop and make fmiher inquiries as to

the continued effe_ctiveness of the purpmied consent they relied upon. Illinois v. Rodriguez,

497 U.S. 177 (1990)

Appellant submits that this Court's holding in Becknell v. State, 720 SW2d 525 (Tex.

Crim. App. 1986) is the c01Tect legal standard and thus controlling authority by which this

case should have been decided. In ruling as it did, the Court of Appeals applied the wrong legal

standard to the facts in the case.

Appellant's mother specifically told the officers that she did not have a key and there

3
 was no way to get.in and it was Appellant's separate area that the officer ultimately broke into.

(R-III-36) Appellant's trial counsel pointed out that there were no exigent circumstances,

because the officers waited outside for approximately two hours before entering the home. (R-

III-36) Appellant's counsel pointed out two hours was more than enough time for them to

obtain a warrant had they sought to do so. (R-III-36) Appellant's counsel asked that the Court

suppress the evidence citing the Court to Becknell (R-III-37)

No warr~p;1t:was issued for law enforcement to enter Appellant's house in the instant

case (R-IV-14). Pursuant to Tex. Code Crim. Proc. Art.14.05, in the absence ofa warrant,

in order to properly enter a residence, law enforcement must either have consent to enter, or

exigent circumstances must exist to justify a warrantless entry. A warrantless ent1y into a

residence is presumptively umeasonable. Turrubiate v. State, 399S.W.3d147 (Tex. Crim .

. App. 2013) citing Gutierrez v. State, 221 S. W.3d 680, 685 (Tex. Crim. App. 2007). When

an Appellant m~qves. to suppress evidence based on a warrantless search, the State has the

burden of showing that exigent circumstances requiring immediate entry made obtaining a

warrant impracticable. McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991).

In the instant case, Roxanne Sebring, Appellant's mother, testified regarding how entry

was made of her residence by the police (R-III-17-19). Ms. Sebring testified that she heard a

light tapping on her door at 4:15am, approximately fifteen minutes before she usually woke

up, and that sh~~a;w~a "SWAT officer in full combat gear at [her] front door" (R-III-18). She

then opened the front door 'just a little" while wearing only "at-shirt and a pair ofpanties" (R-

III-18). Upon informing the officer that she believed Appellant to be home, the officer "pretty

much pushed past her" on his way to locate Appellant (R-III-18). When the officer asked if

4
 she had a key to Appellant's room, Ms. Sebring stated, "No, sir, I don't, it's my 19-year-old

son and I don't have a key to his room" (R-III-19). In fact, Appellant put the lock on his own

door and Ms .. Sepring never entered his room without his pe1mission (R-III-20-22). The

officer then kicked in Appellant's door (R-III-19). It appears quite clear that Ms. Sebring in

no way consented to a search of her house or of Appellant's room, which ultimately resulted

in the arrest of Appellant.

The Court of Appeals interpreted Roxanne Sebring's actions as consent to search her

house and Appellant's room. This Court resolved a situation similar to Appellant's in

Becknell v. Stat~,"7+0 S. W.2d 526 (Tex. Crim. App. 1986). In Becknell, police relied upon

the consent of a parent to open a locked bedroom door of that parent's adult progeny living in

the house. Id. at 528. Because the adult progeny had the only key to the lock and because no

other family members were allowed in his room, this Court reasoned that a search of his room

based on such consent was improper. Id.

While Becknell was reversed pursuant to a harmless error analysis, it is clear that this

Court determine~ ,a warrantless search of a locked bedroom (occupied by adult progeny of the

homeowner, when the bedroom was clearly intended to be exclusively used and controlled by

said adult progeny) would be improper. Becknell, 720 S.W.2d at 528.

Without a warrant, and without proper consent, the only permissible way for officers

to enter Appellant's room to search or to conduct a lawful arrest would be due to exigent

circumstances. Tex. Code Crim. Proc. Art. 14.05 (2). In the absence of a warrant, it is the

State's burden to demonstrate that the search was consensual or due to exigent circumstances .
. .,, .··

McGee v. State, 105 S. W.3d 609, 615 (Tex. Crim. App. 2003). "Situations creating exigent

5
 circumstances usually include factors pointing to some danger to the officer or victims, an

increased likelihood of apprehending a suspect, or the possible destruction of evidence."

McNairy v. State, 835S.W.2d101, 107 (Tex. Crim. App. 1991). And police cannot justify

a warrantless search on the basis of exigent circumstances of their own making. Kentucky v.

King, 131S.Ct.1849 (2011).

It is apparent that exigent circumstances did not exist to enter Appellant's room without

a warrant in the instant case (R-III-3-49). The fact that officers maintained their positions "for

a long time - possibly a couple hours" before attempting to knock on the front door

demonstrates bqth that there was no immediate necessity to enter the residence, and that ample

time existed to obtain a warrant (R-III-6). Clearly, the concept of exigent circumstances

would have authorized immediate and forceful action by the officers, not the casual approac~

reflected in the record in this case. Upon entering the residence, officers were informed that

Appellant was sleeping (R-III-7). Prior to kicking in Appellant's door, officers never even

knocked (R-II-15). In fact, upon making entry into Appellant's room, Appellant remained

asleep (R-V-15~). ,if is impossible to demonstrate danger to the officer or to the victims when

neither were in the same residence as Appellant, pursuant to McNairy. Furthermore, with

multiple officers surrounding the residence, there is no indication that their likelihood of

apprehending Appellant would be in some way diminished had they not entered the residence

at that time. Most imp01iantly, when there is a complete lack of aiiiculable facts, such as

sounds consistent with Appellant moving within his bedroom, which would indicate any

attempt to dest~oy ~vidence, it is clear that exigent circumstances did not exist to enter the

residence or Appellant's locked bedroom. Had such evidence existed, however, it clearly

6
 would have been due to exigent circumstances created by the actions of the police. The State

failed to present evidence objectively indicating that anyone was in some form of physical
. . .... ~· ' .

distress. The entry was made in violation of the Fourth Amendment. Brigham City v.

Stuart, 547 U.S. 398 (2006)

In United States v. Munoz-Guerra, police had surrounded a house after receiving a

tip that Munoz-Guerra possessed and sold cocaine and marijuana out of said house. United

States v. Munoz-Guerra, 788 F.2d 295 (5th Cir. 1986). The police knocked on the locked

front door and Mu~oz-Guerra answered, stating that he would have to go to another room to

retrieve the key. Id. at 297. Believing that he might destroy evidence instead, the police

kicked in the door, without a warrant, and discovered drugs inside the house. Id. In reasoning

that the police created their own exigent circumstances and that their search was unreasonable,

the Court pointed out that the house had been surrounded and that escape by Munoz-Guerra

would be highly unlikely in light of the police positioning. Id. at 298. The court further

pointed out that p_olice positions could have been held while obtaining a wan-ant. Id.

Likewise, in the instant case, the police had surrounded Appellant's house and had

remained outside for approximately 2 hours before attempting to knock on the front door

(R-III- 6). The State was unable to articulate that obtaining a warrant in the instant case would

in some way compromise the ability of the police to arrest Appellant, to conduct a search, or

that to do so would result in the destruction of evidence. As such, police entry in the instant

case to search and to effectuate the arrest of Appellant was illegal and any such evidence

recovered or statements made by Appellant subsequent to his illegal arrest are tainted and

inadmissible. The totality of the circumstances present in the instant appeal shows that the

7
 forced entry by police was umeasonable pursuant to Fourth Amendment standards. Illinois

v. Wardlow,-528 u:s. 119 (2000) The record does not provide a justification for abandoning
the warrant requirement in this case. In this regard, the Court of Appeals misapplied the law

to the actual facts developed in the trial court below when it upheld the trial court's ruling on

the motion to suppress. Corea v. State, 52 SW3d 311 (Hou. [1st Dist.] 2001)

To dispel the notion that exigent circumstances existed in this case, this Court need look

no further than officer Thomason's testimony when he said that deputies waited there for a

couple hours lll).~ilJhcy were instructed to try and make contact at the front door to see if

anybody would answer the door. (R-III-6)

APPELLANT'S SECOND PROPOSED ISSUE FOR REVIEW

Can a negative finding made by a jury on the issue of sudden passion be upheld
on appeal where the reviewing court limits its analysis to the lack of fear expressed by
the Appellant and does not consider all factors constituting sudden passion arising from
an adequate?

SUPPORT FOR APPELLANT'S CLAIM FOR REVIEW

The trial court instructed the jury on the issue of "sudden passion." (CR-I-72)

Appellant walked out the front door of his home and toward a car occupied by Joshua

Durrance, Durrance's cousin - Benjamin Vasquez, and Drew Wiese.

Appellant thought he was going to conduct a small marihuana sale. The terms of the

"deal" had already been agreed upon, or so Appellant thought.

Appellant produced the marihuana for DmTance's inspection. (R-VI-81)

Durrance weighed the marihuana, then unilaterally broke the amount into a smaller

quantity and told Appellant he was going to pay less for that amount. (R-VI-81, 86)

8
 When Appellant said he would have to buy the amount agreed upon or just cancel the

deal, DmTance became aggressive towards Appellant.

Durrance said: "Well, I didn't come It ere for not/ting. I'm going to get my weed." (R-

VI-85)

Durrance told Appellant: "Well, me and my homies here, we can-we can squabble

this out right now." (R-VI-85) Durrance also challenged a back seat passenger to fight.

DmTance was treating Appellant like a "little bitch". (R-IV-42)

DmTance' s own cousin (Vasquez) was so concerned that he would be carrying a weapon

that he asked DmTance if he was "clean" before he entered the car. (R-V-7)

Durrance appeared "barred-out" on Xanex as he argued with Appellant. (R-V-81)

Vasquez tried to calm Durrance down and pleaded with him to pay Appellant so they

could leave. (R-V-36; SX # 4)

Dmrance then said "Pistola" to his cousin, Vasquez. (R-VI-87,89)

Durrance then slouched down over his seat with his seatbelt off and reached under his

seat. (R-VI-91)

At this point, Appellant believed that Durrance was reaching for a gun. (R-VI-91)

Due to the way Vasquez had parked his car in front of Appellant's home, Appellant was

out in the street with the car blocking his safe return to his home. After Durrance initiated the

provocation, Appellant began to shoot as events rapidly unfolded and without time to cooly

reflect.

Section 19.02(2)(d) of the Texas Penal Code states that at the punishment stage of a

trial, the defendant may raise the issue as to whether he caused the death under the immediate

9
 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.

Appellant bears the burden at the punishment phase of trial to prove the issue of sudden

passion by a preponderance of the evidence. Hernandez v. State 127 SW3d 206 (Tex. App. -

Hou. [1st Dist.] 2003, pet. ref' d)

Dqri11g the punishment phase of 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. A defendant is entitled to rely upon sudden

passion where there is an adequate provocation that a passion or an emotion such as fear,

terror, anger, rage, or resentment existed, that the homicide occuned while the passion still
. ' "~i

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 SW3d 565 (Tex. Crim. App. 2005) Sudden passion is proper when the sudden

passion was directly caused by and arose out of provocation by the deceased.

In the instant case the circumstances which Appellant confronted were all a result of

actions initiated and pursued by Joshua Durrance. Dunance escalated the situation by

confronting Appellant and demanding different terms to a simple, small marihuana sale. He

further aggravated the situation by challenging Appellant to a fight with him and his "homies"

as well as threatening him in tones that were suggestive of his own mental state maned by

10
 what one witness claimed was being "baITed out" on Xanax. Everything happened so quickly

and when DuITance leaned over and said the word "pistola" coupled with his actions in going

to below his seat, Appellant was unable to coolly reflect upon what he had just experienced and

what he facing at that moment.

The factual sufficiency standard announced in Meraz v. State, 785 SW2d 146 (Tex.

Crim. App. 1990) is appropriate for review of issues, such as affinnative defenses, on which

the defendant has the burden of proof by a preponderance of the evidence. Zuniga v. State,

144 SW3d 477 (Tex. Crim. App. 2004), holding that Meraz eITor was suitable for sufficiency

reviews regarding affirmative defenses because the burden of proof on defendant is

preponderance of the evidence. Accordingly, the Meraz standard of review applies to the

review of negative answer on sudden passion. Cleveland v. State, 177 SW3d 374 (Tex. App.

- Hou. [1st Dist.] 2005, pet. ref' d). The Court considers whether the judgment is so against

the great weight and preponderance of the evidence as to be manifestly unjust. Davis v. State,

2011WL5026403 (Hou. [l st Dist.] 2011, pet. ref'd) not designated for publication.

Appellant submits that the Court of Appeals performed an incorrect legal analysis in

affirming Appellant's conviction and the jury's rejection of "sudden passion" during the

punishment phase of the trial. The Court of Appeals analysis of this point focused on the lack

of fear expressed by Appellant to the exclusion of the other factors which warrant a finding of

sudden passion~ Factors such as fear, terror, anger, rage, or resentment are all considered

to be adequate cause if the homicide occurred while the passion still existed and there was a

causal connection between the provocation, the passion and the homicide. McKinney v. State,

179 SW3d 565 (Tex. Crim. App. 2005) A careful review of the factual record from the trial

11
 court supports Appellant's claim that the Court of Appeals erred in holding that the evidence
., .
was not so against·the great weight and preponderance of the evidence as to be manifestly

unjust. Appellant, a first-offender, was given a sixty (60) year prison sentence by the jury - it

cannot be said that this outcome was not manifestly unjust.

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Appellant prays that the Honorable

Comi considet the issues raised herein and grant discretionary review, or such other

relief, includin~ :remand to the Comi of Appeals for consideration of issues as this

Comi deems appropriate. Respectfully submitted

Thomas M. Henderson
SBOT: 09432000
4615 Southwest Freeway, Suite 600
Houston, Texas 77027
Tel: (713) 552-1940
Fax: (713) 626-0182
tend1283 @aol.com
Attorney for Steven Sebring

12
 CERTIFICATE OF SERVICE & WORD COUNT COMPLIANCE

I hereby certify that a true and con-ect copy of this Petition for Discretionary

Review will be served on all interested pmiies.

This Petition complies with Rule 9. 4 of the Texas Rules of Appellate Procedure

containing 3 772 words based on the computer generated program used to prepare this

document.

~~
Thomas M. Henderson

I
I
I

.·
13
Affirmed and Memorandum Opinion filed June 25, 2015.

In The

1J1nuri££nilf QI:nurt nf j\pp£aln
\

NO. 14-13-01046-CR

STEVEN JAMES SEBRING, Appellant

v.
THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause No.1323534

MEMORANDUM OPINION

In five issues, appellant, Steven James Sebring, appeals his murder
conviction, contending: the trial court erred by admitting certain evidence; the
evi9.:ence is legally insufficient to support the conviction and the finding against
appellant on self-defense; and the evidence is factually insufficient to support the
finding that appellant did not act under the influence of sudden passion. We
affirm.
 I. BACKGROUND

In the early morning hours of October 14, 2011, Joshua Durrance, Benjamin
Vasquez, and Drew Wiese were driving in Vasquez's car looking to buy
marijuana. They encountered Chase Laird at a fast-food restaurant, and Durrance
asked Laird if he knew anybody from whom Durrance could purchase marijuana.
Laird said he knew somebody who would probably make the sale. The parties
exchanged telephone numbers and left.

Laird called appellant, who agreed to sell Durrance "an eighth" of
marijuana, or 3.5 grams, for $55. Laird then called Durrance, and Durrance's
group picked up Laird, who directed them to appellant's house. Vasquez parked
his car in front of appellant's house, and Laird walked up to the house to meet
appellant. Durrance, Vasquez, and Weise remained in the car.

Before he went outside, appellant tucked a .380-caliber pistol into the
waistband of his pants. Laird told appellant that Durrance wanted to weigh the
marijuana, so appellant and Laird walked out to the car. Appellant went to the
front passenger side of the vehicle where Durrance was sitting and passed
Durrance the 3.5 grams of marijuana through the open window.

Durrance weighed the marijuana on a scale he had brought. Durrance asked
appellant how much the marijuana cost, and appellant reiterated that it was $55 for
3.5 grams. Durrance then broke apart the marijuana, weighed out 2 grams, and
said, "This is 2 grams. Give this to me for $30." At the same time, Durrance
handed 1.5 grams of marijuana back to appellant along with $30. Appellant
angrily responded "I can't do that" and insisted that Durrance either pay $55 for
the full 3.5 grams or return all of the marijuana and keep his money.

2
 There is dispute over the exact exchange that followed, but the jury heard
testimony that Durrance replied, "Well, what the fuck are you going to do about
it?" and that appellant then asked Durrance, "Are you serious?" and "Are you sure
you want it that way?" several times. Appellant and Laird testified that Durrance
then said "pistola" ("pistol" in Spanish) to Vasquez and leaned over to reach under
the seat. In contrast, Vasquez testified that he never heard Durrance say "pistola,"
and Wiese testified that Durrance never said anything in the car about a gun or
spoke to anybody in the car in Spanish. Moreover, neither appellant nor any other
witness testified that they ever saw a handgun, and no handgun was ever recovered
other than the handgun used by appellant.

In any event, appellant then undisputedly stepped back from the vehicle,
drew his pistol, worked the action to chamber a round, and fired into the open
window at close range several times. As appellant ran around the front of the car
toward his house, he fired two more times into the windshield.

Durrance was shot four times, and Vasquez was shot once. Vasquez
managed to drive the car to a nearby hospital 1 where Durrance was pronounced
dead. Vasquez was admitted to the hospital for treatment and survived his single
gunshot wound to the chest.

Upon returning to his house, appellant proceeded upstairs to his room and
smoked marijuana. Approximately an hour after the shooting, appellant took some
Seroquel prescription medication and got into his bed. At no point did appellant
wake his mother-who owned the house and was home asleep--or call the police.

1
When the shooting began, Laird ran away from the vehicle and hid behind a
neighboring house. Vasquez drove away in the vehicle with Durrance and Weise and left Laird
at the scene.

3
 Upon learning of the shooting, several police officers assembled around
appellant's house to secure the location. The officers maintained a perimeter at the
scene for approximately two hours until they were instructed by their commanding
officers around 4:15 a.m to attempt contact with someone in the house. The
officers knocked on the front door. According to the officers, appellant's mother
answered, gave them permission to enter, and directed them to appellant's room.

The police proceeded upstairs to appellant's room, which was locked. The
officers knocked on the door, received no response, and kicked in the door. The
officers found appellant lying in his bed. In the process of arresting appellant, they
found appellant's pistol under his pillow.

The officers took appellant to the police station and conducted a recorded
interview, wherein appellant confessed to shooting Durrance multiple times.
Appellant was subsequently charged with murder.

Appellant filed a pre-trial motion to suppress certain evidence. A hearing
was held on the motion. The trial court denied the motion relative to the firearm
found in appellant's bedroom and his confession. After considering the testimony
of several witnesses and independently reviewing appellant's videotaped
confession, the trial court found:

I'm going to fmd that there were exigent circumstances to go into the
house, along with the consent of the mom to enter the house to speak
with the son where they found him. And I fmd that they had the right
to go into the room and they did have the information to question him.
And I'm going to allow his statement. After reviewing his
statement, I find that 38.23 [sic]2 was complied with. And that after
reviewing the statement, I ·also find that [appellant] appeared very

2
We presume the trial court meant article 38.22 of the Texas Code of Criminal
Procedure, which pertains to the admissibility of statements made by the accused. See Tex. Code
Crim. Proc. Ann. art. 38.22 (West, Westlaw through 2015 R.S.).

4
 cohesive [sic] and appeared to be awake. He didn't have any
problems with responding to any of the officers' questions. He did
mention that he had taken Seroquel. And the jury can give that
whatever weight they want to, but I do not find that he appeared to be
unable to comprehend what was going on or unable to answer any of
the questions, and that he did so voluntar[ily] after being advised of
his warnings. So, I will allow in the statement that he provided that
evening.
After trial, the trial court reiterated its ruling in findings of fact, conclusions
of law, and an order regarding the voluntariness of appellant's statement, as
follows:

In light of the totality of the circumstances, including the testimony
and arguments proffered by the State and the Defense on the issue of
Defendant's intoxication, and this Court's independent assessment of
State's Exhibit 1, [the interrogating officer]'s recorded interview with
Defendant, this Court concurs with [the interrogating officer] and
concludes that if Defendant was still under the influence of the
Seroquel that Defendant reported ingesting at 3 :00 AM,
approximately three hours before the interview, Defendant was not so
intoxicated at the time of his statement that he could not understand
his Miranda and statutory rights; make an independent, informed, and
volitional decision to waive his rights; and make a free and voluntary
decision to provide a statement to [the interrogating officer].
The trial court allowed admission of the handgun on the ground that it was in plain
view when the officers arrested appellant. The trial court granted appellant's
motion to suppress as to all other evidence found in appellant's room after
appellant was secured, concluding that the police had not obtained a warrant to
seize such items and there were no longer any exigent circumstances justifying
seizure once appellant was in custody.

A jury found appellant guilty and assessed punishment at 60 years
imprisonment.

5
 II. SUFFICIENCY OF THE EVIDENCE

We first address appellant's third and fourth issues, contending that the
evidence is insufficient to support his conviction and the jury's finding against
appellant on the issue of self-defense.

A. Standard of review

When reviewing sufficiency of the evidence, we view all evidence in the
light most favorable to the verdict and determine, based on that evidence and any
reasonable inferences therefrom, whether any rational fact finder could have found
the elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d
743, 746 (Tex. Crim. App. 2011). We do not sit as the thirteenthjuror and may not
substitute our judgment for that of the fact finder by re-evaluating weight and
credibility of evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
2010). We defer to the jury's responsibility to fairly resolve conflicts in testimony,
weigh the evidence, and draw all reasonable inferences from basic facts to ultimate
facts. Id Our duty as the reviewing court is to ensure the evidence presented
actually supports a conclusion that the defendant committed the crime. Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

B. Sufficiency of the evidence supporting conviction

As charged in the present case, a person commits murder if he "intentionally
or knowingly causes the death of an individual" or "intends to cause serious bodily
injury and commits an act clearly dangerous to human life that causes the death of
an individual." Tex. Penal Code Ann. § 19.02(b)(l), (2) (West, Westlaw through
2015 R.S.). The offense is a felony of the first degree. Id § 19.02(c) (West,
Westlaw through 2015 R.S.).

6
 Appellant contends the evidence is insufficient to establish that appellant
intentionally and knowingly caused Durrance's death, or that appellant intended to
cause serious bodily injury to Durrance and caused his death by intentionally and
knowingly committing an act clearly dangerous to human life.

The jury heard testimony that appellant and Durrance were argmng,
appellant asked Durrance "Are you sure you want it that way?" three or four times,
and appellant then took several steps back, drew his pistol, and started firing. The
jury viewed appellant's videotaped statement, in which he admitted that the pistol
did not have a round in the chamber and he had to work the action on the pistol to
chamber a round before he shot Durrance. The jury also heard testimony that
appellant continued to fire into the windshield as he ran around the front of the car.

Viewing the evidence in the light most favorable to the verdict, we conclude
any rational fact finder could have found appellant guilty of murder beyond a
reasonable doubt under either section 19.02(b)(l) or 19.02(b)(2) of the Penal Code.
See id. § 19.02(b)(l), (2); see also Cavazos v. State, 382 S.W.3d 377, 384 (Tex.
Crim. App. 2012) (recognizing that specific intent to kill may be inferred from
defendant shooting victim with a deadly weapon); Forest v. State, 989 S.W.2d 365,
368 (Tex. Crim. App. 1999) ("[F]iring a gun in the direction of an individual is an
act clearly dangerous to human life."); Womble v. State, 618 S.W.2d 59, 64 (Tex.
Crim. App. 1981) ("[W]here a deadly weapon is fired at close range and death
results the law presumes an intent to kill."); Draper v. State, 335 S.W.3d 412, 415
(Tex. App.-Houston [14th Dist.] 2011, pet. ref d) (holding jury was entitled to
infer intent to kill from defendant using a deadly weapon-a firearm-at close
range to shoot and kill the victim). We overrule appellant's third issue.

7
C. Sufficiency of evidence that appellant did not act in self-defense

The jury was instructed on the law of self-defense as it applies to a
defendant's use of deadly force against another. See Tex. Penal Code Ann. §§
9.31, 9.32 (West, Westlaw through 2015 R.S.). 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 of the Texas Penal Code, and (2) when and to the degree
he reasonably believes the deadly force is immediately necessary to protect himself
against the other's use or attempted use of unlawful deadly force. Id. § 9.32(a)(l),
(a)(2)(A). Section 9.31 of the Penal Code identifies certain circumstances when
the use of force is not permitted, including that the use of force is not justified in
response to verbal provocation alone. Id. § 9 .31 (b)(1 ).

Once a defendant produces some evidence of self-defense, the burden shifts
to the State to disprove the defense. Saxton v. State, 804 S.W.2d 910, 913-14
(Tex. Crim. App. 1991). The State is not required to produce evidence to refute
the self-defense claim, but rather is only required to prove its case beyond a
reasonable doubt. Id. Whether a defendant acted in self-defense is an issue of fact
to be determined by the jury. Id. at 914. A jury verdict of guilty is an implicit
finding rejecting the defendant's self-defense theory. Id.

Much of the same evidence that supports the jury's finding that appellant
was guilty of murder also supports the finding against appellant on the issue of
self-defense. The jury viewed appellant's videotaped statement. In the statement,
when asked if appellant was scared or intimidated by Durrance, appellant
responded that he was not scared because he had his gun with him, and later
reiterated "I'm never scared when I have my pistol on me." Appellant also stated
that he did not see that anybody in the car had a gun before he started shooting.
Likewise, no witnesses ever saw any weapon in the car. Moreover, witness

8
 testimony established-and appellant's statement confirmed-that Durrance never
opened his car door or made any motion to get out of the car.

The jury was free to reject-and by its guilty finding, implicitly did reject-
the conflicting evidence that Durrance threatened to fight appellant and that
Durrance said "pistola" to Vasquez and allegedly then reached under the seat. See
id. Accordingly, viewing the evidence in the light most favorable to the jury's
verdict, we conclude that a rational jury could have rejected appellant's claim of
self-defense. We overrule appellant's fourth issue.

III. MOTION TO SUPPRESS

In his first and second issues, appellant contends that the trial court erred by
denying his motion to suppress the firearm used by appellant to commit the murder
and appellant's videotaped confession.

We review a trial court's ruling on a motion to suppress under a bifurcated
standard. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). First,
we afford almost total deference to the trial court's determination of historical
facts. Id. The trial court is the sole factfinder and judge of the credibility of the
witnesses and the weight to be given their testimony. Id Regardless of whether
we are reviewing the trial court's express or implied findings, we must view the
evidence in the light most favorable to the trial court's ruling to determine whether
the evidence supports these findings. See id

Second, we review de nova a trial court's application of the law to the facts.
Id. We will sustain the trial court's ruling if it is reasonably supported by the
record and is correct on any theory of law applicable to the case. Id. at 44 7--48. A
trial court does not abuse its discretion by denying a motion to suppress unless that

9
 decision lies outside the "zone of reasonable disagreement." Martinez v. State, 358
S.W.3d 919, 922 (Tex. Crim. App. 2011).

A. Admissibility of the firearm

Appellant contends that the trial court erred by admitting appellant's firearm
because it was obtained as a result of a warrantless illegal search.

1. Searches and seizures pursuant to a valid, warrantless arrest
Article 14.03(a) of the Texas Code of Criminal Procedure provides that a
police officer may arrest, without warrant, "persons found in suspicious places and
under circumstances which reasonably show that such persons have been guilty of
some felony .... " Tex. Code Crim. Proc. Ann. art. 14.03(a)(l) (West, Westlaw
through 2015 R.S.). An officer justified in making a warrantless arrest under
article 14.03(a)(l) "is justified in adopting all the measures which he might adopt
in cases of arrest under warrant, except that an officer making an arrest without a
warrant may not enter a residence to make an arrest unless: (1) a person who
resides in the residence consents to the entry; or (2) exigent circumstances require
that the officer making the arrest enter the residence without the consent of a
resident or without a warrant." Id. art. 14.05 (West, Westlaw through 2015 R.S.).
Accordingly, in order to justify a warrantless arrest inside a person's residence
under these statutes, the State must show that the police had probable cause to
arrest the suspect, that the residence was a "suspicious place," and that the police
either had consent to enter the residence or that exigent circumstances existed
justifying the entry. See id. art. 14. 03 (a)( 1), 14.0 5; see also Banda v. State, 317
S.W.3d 903, 912 (Tex. App.-Houston [14th Dist.] 2010, no pet.) ("For a
warrantless arrest to be justified under article 14.03(a)(l), the totality of the
circumstances must show (1) the existence of probable cause that the defendant
committed a crime and (2) the defendant must be found in a suspicious place.").

10
 Moreover, under the Fourth Amendment, police officers may search an
arrestee incident to a lawful arrest in order to prevent the arrestee from accessing
or using a weapon to assault the officers or to effect an escape. Chime! v.
California, 395 U.S. 752, 763 (1969); State v. Granville, 423 S.W.3d 399, 410
(Tex. Crim. App. 2014). A search incident to arrest must be "substantially
contemporaneous" with the arrest and is limited to a search of the arrestee's person
and the area within his immediate reach or control. Chime!, 395 U.S. at 763;
Granville, 423 S.W.3d at 410.

2. Probable cause

Probable cause for a warrantless arrest exists where, at that moment, the
facts and circumstances within the knowledge of the arresting officer and of which
he has reasonably trustworthy information would warrant a reasonable and prudent
man in believing that a particular person has committed or is committing a crime.
State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002).

Here, police received 911 calls from appellant's neighbors reporting the
shooting outside of appellant's residence, and Vasquez and Wiese gave statements
to the police while at the hospital describing the events of the shooting. Reviewing
the evidence in the light most favorable to the trial court's ruling, we conclude that
probable cause existed for appellant's warrantless arrest.

3. "Suspicious place"

Few places, if any, are inherently suspicious. Dyar v. State, 125 S.W.3d
460, 464-65 (Tex. Crim. App. 2003). The determination of whether a place is
suspicious requires a highly fact-specific analysis. Id at 468. Any place may
become a "suspicious place" when an individual at the location and the
accompanying circumstances raise a reasonable belief that the individual

11
 committed a cnme and exigent circumstances call for immediate action or
detention by the police. Swain v. State, 181 S.W.3d 359, 366 (Tex. Crim. App.
2005); see also Gallups v. State, 151 S.W.3d 196, 202 (Tex. Crim. App. 2004)
(holding that defendant's home became a "suspicious place" after defendant
wrecked his vehicle while intoxicated and walked back to his home); Goldberg v.
State, 95 S.W.3d 345, 363 (Tex. App.-Houston [1st Dist.] 2002, pet. ref d) ("A
place can be suspicious because: (1) an eyewitness or police officer connected the
place to the crime; (2) a crime occurred there or the police reasonably believed a
crime occurred there; (3) specific evidence directly connected the defendant or the
place with the crime; or (4) appellant's behavior was a factor in determining
whether a place was suspicious.").

In this case, witness statements to the police identified the address as the
scene of a crime. Witness statements connected appellant with the address and
suggested he retreated into the residence after the shooting. Moreover, upon ·
arriving at the scene, police found two .380 shell casings on the street in front of
the house. Reviewing the totality of the circumstances, we conclude that
appellant's residence was a "suspicious place" for purposes of article 14.03(a)(l ).

4. Consent/Exigent circumstances

As stated above, an officer making an arrest without a warrant may not enter
a residence to make an arrest unless: (1) a person who resides in the residence
consents to the entry; or (2) exigent circumstances require that the officer making
the arrest enter the residence without the consent of a resident or without a
warrant." Tex. Code Crim. Proc. Ann. art. 14.05. Exigent circumstances that
justify a warrantless intrusion by police officers include: (1) providing aid or
assistance to persons whom law enforcement reasonably believes are in need of
assistance; (2) protecting police officers from persons whom they reasonably

12
believe to be present, armed, and dangerous; and (3) preventing the destruction of
evidence or contraband. Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App.
2007).

The trial court heard testimony from one of the arresting officers that
appellant's mother gave the officers permission to enter the home and speak with
appellant. The trial court heard contradictory testimony from appellant's mother
that the officers pushed past her to enter the home after she told them she believed
appellant was upstairs. Viewing the evidence in the light most favorable to the
trial court's ruling, the trial court did not abuse its discretion by determining that
appellant's mother-a resident of the home-consented to the police officers'
entry to the home.

Moreover, even if the mother had not consented, we would still conclude, as
the trial court did, that exigent circumstances existed which justified the officers'
entry into the home to arrest appellant. The police believed that appellant had very
recently shot and killed Durrance and retreated into his residence-likely with his
firearm. Thus, the police could have reasonably believed it necessary to enter the
home and secure appellant so as to protect the officers on scene, appellant's
neighbors, and anyone else in the home, as well as to prevent appellant from
destroying any evidence. See, e.g., Waddy v. State, 880 S.W.2d 458, 460 (Tex.
App.-Houston [14th Dist.] 1994, pet. ref d) (noting that "[a]nytime a person has
possession of a firearm, the threat to the public safety remains, regardless of
whether the possessor has sought shelter or, in other words, won the footrace to the
protection of a building."). Accordingly, we conclude that both consent and
exigent circumstances justified the officers' entry into appellant's residence and
bedroom.

13
 5. Appellant's firearm was properly seized

As discussed above, we have concluded that the officers had probable cause
to enter appellant's home and both consent and exigent circumstances justified
their entry. Therefore, the officer's warrantless arrest of appellant was valid. See
Tex. Code Crim. Proc. Ann. arts. 14.03(a)(l), 14.05. Because the arrest was valid,
the officers were justified in searching appellant and the area within his immediate
reach or control in order to prevent appellant from accessing or using a weapon to
assault the officers or to affect an escape. See Chime!, 395 U.S. at 763; Granville,
423 S.W.3d at 410.

At the suppression hearing, the trial court heard testimony that when the
officers entered appellant's room, appellant was lying on his bed. During the
course of taking appellant into custody, one of the officers noticed the pistol
''under the pillow right next to [appellant]." Viewing the evidence in the light most
favorable to the trial court's findings, we conclude that appellant's handgun was
properly seized pursuant to a search incident to a valid warrantless arrest. See
Chime!, 395 U.S. at 763 ("A gun on a table or in a drawer in front of one who is
arrested can be as dangerous to the arresting officer as one concealed in the
clothing of the person arrested. There is ample justification, therefore, for a search
of the arrestee's person and the area 'within his immediate control'--construing
that phrase to mean the area from within which he might gain possession of a
weapon or destructible evidence."); Granville, 423 S.W.3d at 410.

Accordingly, the trial court did not err by denying appellant's motion to
suppress the handgun. See Valtierra, 310 S.W.3d at 447-48. We overrule
appellant's first issue.

14
B. Admissibility of appellant's videotaped confession

In his second issue, appellant contends that the trial court erred by admitting
appellant's videotaped confession because he was under the influence of "sleep
medication" during his interrogation and thus, the statement was involuntary.

1. Voluntariness of a statement

Under Article 38.21 of the Texas Code of Criminal Procedure, "A statement
of an accused may be used in evidence against him if it appears that the same was
freely and voluntarily made without compulsion or persuasion[.]" Tex. Code
Crim. Proc. Ann. art. 38.21 (West, Westlaw through 2015 R.S.). Whether a
statement is voluntarily is a mixed question of law and fact, but because it turns on
an evaluation of credibility and demeanor, we afford almost total deference to the
trial court's ruling. Garcia v. State, 15 S.W.3d 533, 535 (Tex. Crim. App. 2000).
The trial court is the "sole and exclusive trier of fact and judge of the credibility of
the witnesses," particularly when the voluntariness of a confession is at issue.
Delao v. State, 231 S.W.3d 235, 238 (Tex. (Tex. Crim. App. 2007). We accord
great deferent to the trial court's decision to admit or exclude evidence. Id.

The fact that a suspect was on medication at the time of his statement can
raise a claim of involuntariness regarding his statement. Oursbourn v. State, 259
S.W.3d 159, 172 (Tex. Crim. App. 2008). The effect of a defendant's intoxication
on the voluntariness of his statement provides an analogous situation.
"[I]ntoxication, while relevant, does not render a confession involuntary per se."
Jones v. State, 944 S.W.2d 642, 651 (Tex. Crim. App. 1996); Gregory v. State, 56
S.W.3d 164, 175 (Tex. App.-Houston [14th Dist.] 2001, pet. dism'd) (same).
Instead, the question is whether the defendant's intoxication rendered him
incapable of making an independent, informed decision to confess. Jones, 944
S.W.2d at 651; Gregory, 56 S.W.3d at 175.
15
 2. Appellant's statement was voluntary

Pursuant to Article 38.22, Section 6, the trial court held a pretrial hearing
outside the presence of the jury to assess the voluntariness of appellant's
confession. See Tex. Code Crim. Proc. Ann. art. 38.22 § 6 (West, Westlaw
through 2015 R.S.). At the hearing, appellant argued that his statement was
involuntary because he was under the influence of Seroquel, a prescribed sleep
medication, which he ingested after the shooting.

The officer who took appellant's statement testified that appellant was
"quiet, coherent, alert, and he spoke as a matter of fact." The officer testified that
appellant said he had taken some sleeping medication. However, the officer
testified that, based on his observation, the medication "was not affecting
[appellant's] reasoning because he was very, like I say, clear and alert and he
answered the questions that I [asked]." The officer based his conclusion on his
experience as a police officer and on having conducted hundreds of interviews
with suspects, including some who were under the influence. The officer testified
that appellant "did not seem in any way impaired," and he appeared to have the
normal use of his mental and physical faculties, and the officer believed appellant's
confession was voluntary.

We conclude the evidence supports the trial court's finding that appellant's
use of sleep medication did not render his statement involuntary. See, e.g., Jones,
944 S.W.2d at 651 (holding that, where appellant's statement to arresting officer
that he "was too drunk to understand" was countered by testimony of two officers
that appellant did not appear to be intoxicated, the trial court did not err in denying
motion to suppress).

Therefore, we hold that the trial court did not err by denying appellant's
motion to suppress his confession. We overrule appellant's second issue.
16
 IV. SUDDEN PASSION

In his fifth issue, appellant challenges the factual sufficiency of the evidence
supporting the jury's negative fmding on the special issue regarding sudden
pass10n.

A. Standard of review

At the punishment stage of a murder 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." Tex. Penal Code Ann. § 19.02(d) (West,
Westlaw through 2015 R.S.). "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) (West, Westlaw through 2015
R.S.). "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)(l) (West, Westlaw
through 2015 R.S.). If the defendant proves the issue by a preponderance of the
evidence, the offense is reduced to a second degree felony. Id § 19.02(d).

In the factual-sufficiency review of a rejected affirmative defense or similar
plea which the defendant must prove by a preponderance of the evidence, we view
the entirety of the evidence in a neutral light, but we may not usurp the function of
the jury by substituting our judgment in place of the jury's assessment of the
weight and credibility of the witnesses' testimony. Matlock v. State, 392 S.W.3d
662, 671 (Tex. Crim. App. 2013). We consider all the evidence relevant to the
issue and determine whether the fmding is so against the great weight and
preponderance of the evidence so as to be manifestly unjust. See Meraz v. State,
785 S.W.2d 146, 155 (Tex. Crim. App. 1990).

17
 The Court of Criminal Appeals and this court have applied this standard in
reviewing the factual sufficiency of findings on punishment issues that the
defendant must prove by a preponderance of the evidence. See Neal v. State, 256
S.W.3d 264, 273 (Tex. Crim. App. 2008) (applying Meraz standard in reviewing
factual sufficiency of jury's punishment-phase negative finding on special issue of
defendant's mental retardation); Bernard v. State, 401 S.W.3d 145, 147-50 (Tex.
App.-Houston [14th Dist.] 2011, pet. refd) (applying Meraz standard in
reviewing factual sufficiency of jury's punishment-phase fmding that defendant
did not act under the immediate influence of sudden passion). Accordingly, we
will review the evidence under the Meraz standard.

B. Sufficiency of evidence that appellant did not act under the influence of
sudden passion.
Appellant contends that Durrance's actions provoked appellant to shoot
Durrance. Specifically, appellant argues that Durrance initiated the conflict by
refusing to pay appellant's asking price for the marijuana once Durrance had it in
hand and instead demanding different terms. Appellant contends that Durrance
then aggravated the situation by threatening appellant and challenging appellant to
fight. Appellant contends that when Durrance allegedly said the word "pistola"
and reached under the seat, appellant was unable to coolly reflect upon the
situation and acted under the immediate influence of sudden passion when he shot
Durrance.

The jury heard testimony ·supporting appellant's argument, as detailed
above, and testimony that when appellant and Durrance were arguing, appellant
became mad and started yelling at Durrance. However, the jury also heard
evidence contradicting that appellant acted under the influence of sudden passion.
The jury heard testimony that Durrance and appellant were arguing over the
marijuana deal, but that no threats were made and Durrance never said anything
18
about fighting appellant. The jury viewed appellant's videotaped statement in
which he stated that he was not scared. The jury also heard testimony that
Durrance never said "pistola," never told appellant that he had a gun or showed
appellant a gun, and never moved to exit the vehicle.

The jury is the sole judge of the weight and credibility of the witnesses'
testimony on a defensive issue. Bernard, 401 S.W.3d at 149. The jury here found
that appellant did not prove by a preponderance of the evidence that he caused
Durrance's death under the immediate influence of sudden passion arising from an
adequate cause. After considering all the evidence relevant to this issue in a
neutral light, we cannot conclude that the jury's finding is so against the great
weight and preponderance of the evidence as to be manifestly unjust. We overrule
appellant's fifth issue.

Having rejected all of appellant's issues, we affirm the trial court's
judgment.

Isl John Donovan
Justice

Panel consists of Justices Christopher, Donovan, and Wise.
Do Not Publish-Tex. R. App. P. 47.2(b)

19