Herrera v. State

676 S.W.3d 896

Don Del Real HERRERA, Appellant

v.The STATE of Texas, Appellee

No. 11-22-00101-CR

Court of Appeals of Texas, Eastland.

Opinion filed September 29, 2023

Robert Sirianni Jr., Brownstone, P.A., PO Box 2047, Winter Park, FL 32790-2047, for appellant.

Laura Nodolf, District Attorney, Eric Kalenak, Assistant, 500 North Loraine St., Suite 200, Midland, TX 79701, for appellee.

Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.

OPINION

W. BRUCE WILLIAMS, JUSTICE

Appellant, Don Del Real Herrera, was indicted for capital murder and murder. Pursuant to an agreement between the State and Appellant, the State abandoned the capital murder charge and Appellant pleaded guilty to murder. See TEX. PENAL CODE ANN. § 19.02(b) (West 2019). Appellant elected to have a jury assess his punishment following his plea of guilty. The jury assessed Appellant's punishment at life imprisonment in the Institutional Division of the Texas Department of Criminal Justice, and the trial court sentenced Appellant in accordance with the jury's verdict. See PENAL §§ 12.32(a), 19.02(c).

Appellant asserts three issues on appeal. First, he argues that the trial court's instructions to the jury incorrectly assigned him the burden of proof regarding the issue of sudden passion. Second, he argues that the State misstated the law on sudden passion during closing argument and that it made improper comments regarding Appellant's unadjudicated offenses. Third, he argues that the trial court should have "issued" a mistrial after the State "mishandled" evidence, Appellant's cell phone, which violated his due process rights. We affirm.

Factual and Procedural History

On April 13, 2018, Appellant left work around 5:30 p.m. He texted Francisca Ybarra (Francis), his romantic partner of twelve years, regarding dinner plans, but Francis responded that she was working late.¹ After Appellant sent a series of text messages accusing Francis of being with another man, she told Appellant to not pick her up after her shift ended. Around 1:00 a.m., Francis sent Appellant three texts in quick succession: "Come get me," "Ya or nah," and "Never Mind." According to Appellant, he called Francis and told her that he would come by and pick her up. When Appellant arrived at Detour Bar where Francis worked, he went inside to get Francis. One of the bar patrons, Vincent Sandoval (Vince), told Appellant that Francis had left with a man, and that the two had gone to Vince's house.

Appellant drove to Vince's house and walked in on Francis and Steven Ramos naked on the bed. Steven testified that Appellant kicked in the door and began to approach Francis. Francis told Steven to leave, and he hurriedly left for his brother's house across the street from which 9-1-1 was called. When police arrived at Vince's house, they saw Appellant on the front lawn, covered in blood, standing over Francis's body.² Police observed that Appellant held a knife in his hand. When police approached, they observed multiple wounds on Francis's body, including a severe neck laceration. An officer noted that despite her injuries, Francis was still breathing; she was later pronounced dead at the scene.

I. Sudden Passion - the trial court's charge included an appropriate instruction that was consistent with Texas law

In Appellant's first issue, he argues that the trial court gave erroneous instructions on the law of sudden passion because it improperly shifted the burden of proof to Appellant.

1. Standard of Review

Appellate review of alleged charge error is a two-step process. Kirsch v. State , 357 S.W.3d 645, 649 (Tex. Crim. App. 2012) (citing Abdnor v. State , 871 S.W.2d 726, 731 (Tex. Crim. App. 1994) ). First, we must determine whether charge error exists. Cortez v. State , 469 S.W.3d 593, 598 (Tex. Crim. App. 2015) (citing Kirsch , 357 S.W.3d at 649 ). Second, if error does exist, we must then conduct a harm analysis to determine whether the error resulted in sufficient harm to require reversal. Id. ; Phillips v. State , 463 S.W.3d 59, 64–65 (Tex. Crim. App. 2015) ; Ngo v. State , 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005) ; Ybarra v. State , 621 S.W.3d 371, 384 (Tex. App.—Eastland 2021, pet. ref'd).

The trial court has the responsibility to provide the jury with "a written charge distinctly setting forth the law applicable to the case." TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). Charge error may stem from the denial of a defendant's right to have the trial court provide the jury with instructions that correctly set forth the "law applicable to the case." Bell v. State , 635 S.W.3d 641, 645 (Tex. Crim. App. 2021) (quoting CRIM. PROC. art. 36.14 ). Therefore, because the trial court is obligated to correctly instruct the jury on the law applicable to the case, it is ultimately responsible for the accuracy of its charge and the accompanying instructions. Mendez v. State , 545 S.W.3d 548, 552 (Tex. Crim. App. 2018) (citing Delgado v. State , 235 S.W.3d 244, 249 (Tex. Crim. App. 2007) ). As such, when the charge is inaccurate, the trial court errs, and the error is subject to a harm analysis. See Bell , 635 S.W.3d at 645.

2. Analysis

The punishment charge correctly described the burden of proof. In relevant part, the charge read: "The burden is on the defendant to prove by a preponderance of the evidence that he acted under the influence of sudden passion." Through Section 19.02(d) of the Penal Code, the legislature placed the burden of proof squarely on the defendant, stating:

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.

PENAL § 19.02(d) ; see Wooten v. State , 400 S.W.3d 601, 605 (Tex. Crim. App. 2013) ("The defendant has the burden of production and persuasion with respect to the issue of sudden passion.").³ Because the punishment charge was correct, the trial court did not err.

In his reply brief, Appellant argues for the first time on appeal that "Texas's voluntary manslaughter scheme," is unconstitutional.⁴ Appellant contends that, when the Texas Legislature amended Sections 19.02 and 19.04 thirty years ago to include "sudden passion" in the murder statute, it "unconstitutionally shifted the burden of proof and persuasion for voluntary manslaughter onto defendants." See Act of June 19, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3613–14 (codified at PENAL §§ 19.02(a), (d), 19.04(a) ). He argues that "such burden flies in the face of analogous federal law and is contrary to traditional notions of fairness, justice[,] and due process." As Appellant describes the issue, he attempts to present a complaint that Section 19.02(d) is facially unconstitutional. A complaint that a statute is facially unconstitutional may be forfeited if appellate review is not properly preserved. Karenev v. State , 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (holding that "a defendant may not raise for the first time on appeal a facial challenge to the constitutionality of a statute"); Williams v. State , 305 S.W.3d 886, 893 (Tex. App.—Texarkana 2010, no pet.) (citing Curry v. State , 910 S.W.2d 490, 496 (Tex. Crim. App. 1995) ).

Even if his argument were properly presented for our review, we note that—nearly fifty years ago—the Supreme Court declined to adopt a constitutional imperative that a State must disprove beyond a reasonable doubt every fact that constitutes any and all affirmative defenses relating to the culpability of the accused. Patterson v. New York , 432 U.S. 197, 210, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). As the source of authority for his proposition, Appellant relies on a Supreme Court case that was discussed and distinguished by the court in Patterson for the same reason it is distinguishable today.

Specifically, Appellant relies upon Mullaney v. Wilbur , 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). In Wilbur , the statute at issue included an element of the offense , malice, that was presumed and could only be rebutted by a defendant "proving by a preponderance of the evidence that he acted with heat of passion upon sudden provocation." See Patterson , 432 U.S. at 216, 97 S.Ct. 2319. In contrast, the murder statute at issue in Patterson , as it does in this case, did not "presume" or "imply" any fact against a defendant that he or she needed to disprove "in order to constitute the crime." Id. at 205–06, 216, 97 S.Ct. 2319. Instead, the murder statute in Patterson required three elements: (1) death, (2) intent to kill, and (3) causation. Id. at 205, 97 S.Ct. 2319. The statute also provided an affirmative defense that could reduce the offense to manslaughter if the defendant proved that he acted "under the influence of extreme emotional disturbance for which there was a reasonable explanation." Id. at 206, 97 S.Ct. 2319.

Section 19.02(d) equally does not require defendants to disprove any elements of the offense of murder. Instead, it provides a defendant with the opportunity to present mitigating circumstances during the punishment phase of trial that, if proved, would reduce a convicted murder defendant's range of punishment to a second-degree range. PENAL § 19.02(d) ; Beltran v. State , 472 S.W.3d 283, 293 (Tex. Crim. App. 2015) ("Sudden passion is a mitigating circumstance that is relevant to determining the appropriate punishment of a defendant."); Barron v. State , 630 S.W.3d 392, 402 (Tex. App.—Eastland 2021, pet. ref'd) (a "sudden passion" finding, when the defendant is convicted of murder, reduces the punishment for the convicted offense to a second-degree punishment range); see Dwelle v. State , No. 11-20-00237-CR, 2022 WL 2720445, at *3 (Tex. App—Eastland July 14, 2022, no pet.) (mem. op., not designated for publication) (the issue of sudden passion is akin to an affirmative defense);...