Full Opinion (html_with_citations)

AFFIRMED and Opinion Filed December 15, 2023




                                    S  In The
                            Court of Appeals
                     Fifth District of Texas at Dallas
                               No. 05-22-00786-CR

                     JOSHUA CALEB POTTER, Appellant
                                  V.
                      THE STATE OF TEXAS, Appellee

               On Appeal from the Criminal District Court No. 6
                            Dallas County, Texas
                    Trial Court Cause No. F-1812453-X

                        MEMORANDUM OPINION
               Before Justices Partida-Kipness, Reichek, and Garcia
                             Opinion by Justice Garcia
      Appellant fired his pistol at his girlfriend eleven times. The first shot was to

her head, and he continued pulling the trigger until the gun was empty. He was

convicted of murder and the jury assessed punishment at life in prison.

       In his sole issue on appeal, appellant argues the evidence is legally

insufficient to support the jury’s negative finding on the issue of sudden passion. As

discussed below, we affirm the trial court’s judgment.

                                 I. BACKGROUND

      On the night in question, appellant called 911 and told the operator that he

“snapped” and shot his girlfriend after he caught her cheating on him. When police
and paramedics arrived, appellant was waiting for them on the front porch. Angelica

Talbot’s body was found lying on the bed in appellant’s bedroom. She had eleven

gunshot wounds, including a gunshot wound to her forehead, eight to the left side of

her chest, one to her left forearm, and one to the second finger of her left hand.

      Appellant told Officer Victoria Grayson, one of the officers at the scene, that

he shot his girlfriend after he discovered she was cheating on him. Appellant was

calm, and told Officer Grayson that Talbot was hitting and pushing him, and he just

“snapped.” He claimed that when he pointed his gun at her, she said, “‘shoot me,

shoot me,” and he blacked out and shot her. Appellant said he shot Talbot with his

“Glock 26,” which he placed in his safe after the shooting. The ten-round magazine

inside the Glock was empty when the police retrieved it from the safe.

      Detectives Jeremy Chevalier and Lauryl Duncan interviewed appellant after

the offense. During the videotaped interview, appellant admitted he shot Talbot.

Appellant told the detectives that he began a sexual relationship with Talbot

approximately two months before the shooting when Talbot separated from her

husband. After the relationship began, appellant spent approximately five days in

jail. During that time, Talbot went through his cell phone and discovered text

messages between appellant and other women. After making this discovery, Talbot

ended their relationship and went back to her husband.

      Appellant and Talbot later reconciled. Appellant deleted all his social media

and blocked the women he was messaging to make Talbot feel better.

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        On the night of the offense, appellant noticed that Talbot was acting weird.

Instead of paying attention to the movie they were watching, she was on her cell

phone, and she would not let appellant see the phone. Appellant initially thought she

was mocking him, but then he discovered “she was doing the same thing I was doing,

she was talking to some guy.” Appellant called the man and told him to stop calling

and texting Talbot. Talbot began crying and hit appellant a few times.

        When appellant asked Talbot where their relationship went from there, she

told him they could just be “f– buddies.” Appellant thought she was being very cold

about their relationship. Talbot told him, “At least I don’t have all my stuff here, it’ll

be easy to leave.” Appellant then walked to his side of the bed, sat down, and just

looked at Talbot. Next, appellant picked his gun up off the floor and loaded it by

“chambering the round.” Appellant did not keep a round in the chamber because he

liked the time it gave him to think about the situation.

        Appellant pointed the gun at Talbot and said, “Tell me why I shouldn’t shoot

you right now.” According to appellant, Talbot responded, “I don’t care, just shoot

me.” Appellant claimed he blacked out, shot Talbot in the head, and when she fell

over, kept shooting until the magazine was empty. Appellant remembered his

shooting stance and how fast he pulled the trigger. He was approximately three to

four feet away from her when he shot her. Appellant told the detectives he then put

the gun in his safe because he did not want anything else to happen, or to hurt anyone

else.

                                          –3–
      Appellant did not testify at the guilt phase of his trial. The jury was charged

on the lesser-included offense of manslaughter, but the jury convicted appellant of

murder.

                                   II. ANALYSIS

      Appellant’s sole issue argues the evidence is legally insufficient to support the

jury’s rejection of his sudden passion defense. We disagree.

      The Texas Penal Code addresses both (1) murders and (2) murders committed

under the influence of sudden passion. TEX. PENAL CODE ANN. § 19.02. It provides

that a person commits first-degree murder if he “intends to cause serious bodily

injury and commits an act clearly dangerous to human life that causes the death of

an individual.” Id. § 19.02(b)(2). But if the accused caused the death “under the

immediate influence of sudden passion arising from an adequate cause,” the offense

is second-degree murder. Id. § 19.02(d). Specifically, §19.02(d) provides:

      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.

Id. “Adequate cause” means 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” 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

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offense and is not solely the result of former provocation.” Id. § 19.02(a)(2). The

defendant has the burden of production and persuasion to prove sudden passion.

Wooten v. State,
400 S.W.3d 601, 605
 (Tex. Crim. App. 2013). A defendant must

prove sudden passion “in the affirmative by a preponderance of the evidence.” TEX.

PENAL CODE ANN. § 19.02(d).

       Because the defendant has the burden of proof by a preponderance of the

evidence, sudden passion is akin to an affirmative defense. See Matlock v. State,
392 S.W.3d 662
, 667 n.14, 671 (Tex. Crim. App. 2013). And, as a defense with a

preponderance-of-the-evidence burden of proof, sudden passion may be evaluated

for both legal and factual sufficiency. See Butcher v. State,
454 S.W.3d 13, 20
 (Tex.

Crim. App. 2015); Matlock,
392 S.W.3d at 667
, 669–72.

       Here, appellant challenges only the legal sufficiency of the evidence. When a

factfinder rejects a sudden passion finding, we review the evidentiary sufficiency by

searching the record for a scintilla of evidence favorable to the factfinder’s refusal

to make that finding and by disregarding all evidence to the contrary unless a

reasonable factfinder could not. Butcher,
454 S.W.3d at 20
 (citing Matlock, 392

S.W.3d at 669–70). The failure to make the finding should not be overturned on legal

sufficiency grounds unless the appealing party establishes that the evidence

conclusively proves his sudden-passion defense, and no reasonable factfinder was

free to think differently.
Id.



                                         –5–
      Appellant testified in support of his sudden passion theory during the

punishment phase of trial. He said that he and Talbot were watching a movie in his

bedroom on the night of the offense. When he noticed she was on her phone instead

of watching the movie, he asked to see her phone. Initially, she would not give him

the phone, but eventually threw it on the floor. Appellant picked it up and saw that

she was texting another man. Appellant called the man, whose name was Frank, and

told him to stop calling Talbot because she was his girlfriend.

      Talbot became very upset; she cried and threw things at appellant and told

him she could never trust him again. Appellant did not understand why she was upset

with him, because she was the one who was caught cheating, and he felt defeated.

Appellant claimed Talbot made him feel like he was nobody; telling him, “It’s going

to be easy for me to leave you. I don’t have any of my things here.” She also told

him all they would only ever be “f– buddies.” Appellant was hurt because he really

loved her and wanted more. The thought of losing Talbot again devastated him.

      Appellant testified that he walked to the other side of the bed and looked at

Talbot. He put his head down and saw his gun on the floor. It was in a gun holster

in his pants. Appellant took the gun out of the holster and chambered a round. He

told Talbot to stop attacking him and telling him how easy it would be to leave.

Appellant claimed he could not remember if he closed his eyes, but it became dark,

and when he opened his eyes, he was shooting her. Appellant did not know where

he shot Talbot.

                                        –6–
      On cross-examination, the State asked appellant about his prior relationship

with a woman named Brittany. Appellant admitted to sending her “a bunch” of

harassing text messages, and when she angered him, he said “You think I’m crazy;

you don’t know crazy.” Days after sending that message, he tried to buy a gun.

      When asked about the night he shot Talbot, appellant said he picked the gun

up off the floor and pointed it down while he loaded it. When he shot Talbot in the

head, she fell back on the bed. Appellant admitted he had to pull the trigger each

time he shot.

      Appellant maintains that the “adequate cause” producing his sudden passion

arose from his discovery that Talbot was unfaithful. The alleged proof of infidelity

consisted of the text messages on Talbot’s phone, which appellant described as

“cheating, in a sense.” But even if the jury concluded the text messages evinced

infidelity, they could nonetheless have concluded this would not produce a degree

of anger or rage sufficient to render the mind incapable of cool reflection. See

Bradshaw v. State,
244 S.W.3d 490, 503
 (Tex. App.—Texarkana 2007, pet. ref’d)

(even taking defendant’s claim that he was overwhelmed by learning of his estranged

wife’s infidelity as true, the jury could have concluded that such an event was not an

adequate cause giving rise to sudden passion).

      Moreover, appellant’s discovery of the text messages did not immediately

precede the shooting. Appellant called the phone number Talbot was texting and told

the man who answered not to contact Talbot anymore. A rational jury could have

                                         –7–
concluded this gave appellant adequate time for cool reflection. See Herrera v. State,
513 S.W.3d 223, 228
 (Tex. App.—San Antonio 2016, no pet.) (“Sudden passion

requires the circumstances be such as to give rise to an immediate influence of

sudden passion.”); see also Perez v. State,
323 S.W.3d 298, 306
 (Tex. App.—

Amarillo 2010, pet. ref’d) (factfinder may choose to believe all, some, or none of the

testimony presented).

      Indeed, appellant did not retrieve his firearm until Talbot told him she no

longer wished to date him. Verbal taunts and terminating a relationship, however,

are generally not sufficient causes to arouse sudden passion. See McKinney v. State,
179 S.W.3d 565, 570
 (Tex. Crim. App. 2005) (“yell[ing]” and “verbal taunting and

physical pushing” insufficient to constitute adequate cause justifying the issuance of

a jury instruction on sudden passion); McClinton v. State, No. 01-20-00779-CR,
2021 WL 4156012
, at *4 (Tex. App.—Houston [1st Dist.] Sept. 14, 2021, no pet.)

(mem. op., not designated for publication) (“A verbal confrontation, without more,

cannot support a finding of sudden passion because insulting language does not rise

to the level of adequate cause.”); Gaston v. State,
930 S.W.2d 222, 226
 (Tex. App.—

Austin 1996, no writ) (a wife’s “nagging, taunting, and promising a divorce and

property squabble” not adequate causes giving rise to sudden passion).

      Appellant’s actions also do not show that he was emotionally aroused to the

point he would be incapable of cool reflection. See Gonzales, 717 S.W.2d at 357.

Although he claims he blacked out, he was calm when the police arrived. He was

                                         –8–
also capable of remembering the words spoken by each party before the shooting,

where each person was in the room, how he loaded the gun, aimed, and fired the

gun, and what he did with immediately after the shooting.

      Appellant said he never kept his gun loaded because he liked to have time to

think before using it. The jury could reasonably have concluded that he had time to

think here where he picked the gun up off the floor, loaded it, pointed it at Talbot

and said, “Tell me why I shouldn’t shoot you right now.” If it appears that a

defendant acted “purposefully to achieve his stated intention,” his conduct does not

satisfy the definition of sudden passion. Drousche v. State, No. 03-96-00442-CR,
1997 WL 759638
, at *3 (Tex. App.—Austin Dec. 11, 1997, pet. ref’d) (mem. op.,

not designated for publication).

      Under these circumstances, we conclude that the record contains some

evidence to support the jury’s negative finding on sudden passion. See Moncivais v.

State,
425 S.W.3d 403, 407
 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). We

need not address whether appellant proved sudden passion as a matter of law,

because that part of the analysis only applies in the absence of any evidence to

support the jury’s negative finding.
Id. at 408
. We hold that legally sufficient

evidence supports the jury’s negative finding on sudden passion and resolve

appellant’s sole issue against him.




                                        –9–
      The trial court’s judgment is affirmed.




                                          /Dennise Garcia/
                                          DENNISE GARCIA
                                          JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
220786F.U05




                                       –10–
                                   S
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                 JUDGMENT

JOSHUA CALEB POTTER,                          On Appeal from the Criminal District
Appellant                                     Court No. 6, Dallas County, Texas
                                              Trial Court Cause No. F-1812453-X.
No. 05-22-00786-CR          V.                Opinion delivered by Justice Garcia.
                                              Justices Partida-Kipness and Reichek
THE STATE OF TEXAS, Appellee                  participating.

    Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.


Judgment entered December 15, 2023




                                       –11–