Anthony Authorlee v. the State of Texas ( 2022 )

Affirmed in Part and Reversed and Remanded in Part and Memorandum
Opinion filed January 25, 2022.
In The
Fourteenth Court of Appeals
NO. 14-20-00821-CR
ANTHONY AUTHORLEE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 1597720
MEMORANDUM OPINION
Appellant Anthony Authorlee appeals his conviction for murder. In two issues
appellant contends (1) the evidence is factually sufficient to support a finding of the
affirmative defense of sudden passion; and (2) the court costs associated with the
judgment were improperly calculated. Concluding that the evidence was sufficient
to support the trial court’s rejection of appellant’s sudden passion defense, and the
court costs were improperly assessed, we affirm the judgment of conviction and
assessment of punishment, reverse a portion of the assessment of court costs, and
remand for proceedings consistent with this opinion.
BACKGROUND
Appellant entered an open plea of guilty to the offense of murder. The trial
court deferred a finding of guilt to permit preparation of a presentence investigation
report (PSI), which was prepared and admitted as an exhibit at appellant’s sentencing
hearing.
According to the PSI appellant entered the Houston Police Department’s
Northeast Command Station and told the officers working the front desk, “I need an
attorney, I just shot and killed my wife.” In the meantime other officers had been
dispatched to The Medallion Assisted Living facility in response to “a person down.”
This person was later identified as appellant’s wife, the complainant, and was
transported to a hospital where she was pronounced dead. Appellant told an officer
that he was angry with his wife because she began living in an apartment with the
couple’s adult son. Appellant spoke with his wife about 1:00 a.m. on the morning of
July 12, 2018, when appellant’s wife told him, “she needed some space and time to
think.” Appellant reported becoming depressed and considering suicide. Later the
same morning appellant drove to the assisted living facility where his wife worked
and reported that he “freaked out.” Appellant shot his wife with a shotgun and drove
home before he surrendered to officers at the police station. Appellant reported that
he waited in the parking lot until his wife arrived at work. After appellant shot his
wife, he threw the shotgun in a bayou or ditch. At that time appellant asserted the
shooting was an accident.
Surveillance video from the assisted living facility revealed that appellant
waited in the parking lot approximately one hour before he shot his wife. The
complainant was shot within four minutes of arriving at the facility. A family friend
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was interviewed and told officers that appellant had threatened to kill the
complainant and her son a week earlier. The friend also reported that the complainant
was afraid of appellant because he had been abusive in the past.
Intellectual testing revealed that appellant had an IQ of 67, which was
considered in the intellectual disability range. A clinician assessed appellant and
diagnosed severe depression, anxiety, post-traumatic stress disorder, and mild
intellectual disability.
At the sentencing hearing, Sergeant Matthew Brady of the Houston Police
Department testified that he spoke with appellant on the day of the offense. Brady
read Miranda warnings to appellant and appellant invoked his right to an attorney.
Brady discontinued the interview and started to leave the room when appellant asked
how his wife was doing. Brady told appellant his wife had died. Appellant told Brady
that, within a week or two of the shooting, his son had been “out of control
threatening to kill him.” As a result of this threat appellant and his wife moved their
son out of their home into a motel and eventually an apartment. Appellant’s wife
stayed with their son in the apartment. Appellant expressed frustration with his wife
because he believed she “was picking his son over him.”
Brady testified that on the day of the offense appellant spoke with his wife at
around 1:00 in the morning and did not speak to her again before driving to her place
of employment. Appellant arrived at his wife’s workplace about one hour before she
arrived and waited for her. When appellant’s wife arrived at work, appellant
retrieved a gun from the back of his pickup truck where it was concealed in a plastic
bag. Video evidence indicated that from the time appellant’s wife arrived to the time
he drove away after shooting her, approximately four minutes elapsed. Brady
testified, “it looked like it was a premeditated situation.”
Appellant told Brady he knew his wife worked from 7 a.m. to 7 p.m. and he
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drove to her work to talk. When appellant saw his wife, he “freaked out” and shot
her three times. Appellant told Brady that he threw the gun into a ditch or bayou
after leaving the scene.
The trial court found appellant did not meet his burden with respect to sudden
passion, and sentenced appellant to 31 years in the Institutional Division of the Texas
Department of Criminal Justice. This appeal followed.
ANALYSIS
In two issues appellant challenges the trial court’s finding that he did not meet
his burden on sudden passion and the assessment of court costs.
I. Standard of Review and Applicable Law
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 § 19.02(d). If the defendant proves
the issue in the affirmative by a preponderance of the evidence, the murder offense
is reduced from a first-degree felony to a second-degree felony. Id. § 19.02(d).
“‘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)(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 offense
and is not solely the result of former provocation.” Id. § 19.02(a)(2). To be entitled
to an affirmative finding on the issue of sudden passion, the defendant must
demonstrate that there was an adequate cause or provocation; “that a passion or an
emotion such as fear, terror, anger, rage, or resentment existed;” “that the homicide
occurred while the passion still existed and before there was reasonable opportunity
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for the passion to cool; and that there was a causal connection between the
provocation, the passion, and the homicide.” McKinney v. State, 179 S.W.3d 565,
569 (Tex. Crim. App. 2005). Fear or anger alone is insufficient to establish sudden
passion unless “the cause of the fear could produce fear that rises to a level of terror
which makes a person of ordinary temper incapable of cool reflection.” De Leon v.
State, 373 S.W.3d 644, 650 (Tex. App.—San Antonio 2012, pet. ref’d). “[A]
defendant may not rely on a cause of his own making to support a claim of sudden
passion.” Id.When the defendant raises a factual sufficiency challenge to an adverse
finding on sudden passion, we apply a factual sufficiency standard of review and
determine whether the finding was against the great weight and preponderance of
the evidence. Matlock v. State, 392 S.W.3d 662, 667 n. 14, 671 (Tex. Crim. App.
2013); See Bernard v. State, 401 S.W.3d 145, 147 (Tex. App.—Houston [14th Dist.]
2011, pet. ref’d) (holding standard applies to factual sufficiency review of finding
on claim of sudden passion). We review all the evidence in a neutral light, and we
may not usurp the factfinder’s function of assessing the weight and credibility of the
witnesses’ testimony by substituting our judgment for the factfinder’s. Matlock, 392
S.W.3d at 671. We may sustain the challenge only if the evidence contrary to the
finding greatly outweighs the evidence supporting it and the finding “is so much
against the great weight of the evidence as to be manifestly unjust, conscience-
shocking, or clearly biased.” Id.
II. The evidence was factually sufficient to support the trial court’s negative
finding on the sudden passion issue.
Appellant did not testify at the sentencing hearing, but was examined by a
clinical psychologist for the PSI report. Appellant reported the following to the
examining psychologist:
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• Appellant spoke with his wife at 1:00 a.m. then went to her
workplace to talk with her, and “snapped” or “freaked out.”
• Appellant had a gun because he always kept it in his truck.
• Appellant left his home early in the morning and sat in the
parking lot waiting for his wife to arrive.
• When appellant confronted his wife, he asked if she was leaving
him. Appellant’s wife said she was not leaving appellant, and
“Before you knew it, I pulled the trigger.”
• Appellant did not know why he pulled the trigger; he “snapped.”
• Appellant did not go to his wife’s workplace to intentionally kill
her.
Brady’s testimony at the sentencing hearing did not significantly differ from
appellant’s description to the psychologist. Appellant spoke with his wife at 1:00 in
the morning, drove to her workplace about five hours later, waited in the parking lot
for her to arrive and shot her. The record reflects that appellant’s wife, the
complainant, did not verbally or physically threaten appellant at the time of the
murder. Appellant was upset after a 1:00 phone call and thought his wife was
planning to leave him. Appellant waited several hours after the phone call to drive
to his wife’s workplace and waited another hour in the parking lot to confront her.
When appellant confronted his wife, she told him she did not plan to leave the
marriage.
To constitute “sudden passion,” the passion must be directly caused by and
arise out of provocation by the person killed or another acting with that person, and
the passion must arise at the time of the murder. See Tex. Penal Code § 19.02(a)(2).
The sudden passion must arise from a cause that commonly would produce a degree
of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to
render the mind incapable of cool reflection. See id. § 19.02(a)(1). The trial court
found that appellant did not prove by a preponderance of the evidence that he caused
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his wife’s death under the immediate influence of sudden passion arising from an
adequate cause. After considering all the evidence relevant to this issue, we conclude
that the trial court’s finding is not so against the great weight and preponderance of
the evidence so as to be manifestly unjust. See Bernard v. State, 401 S.W.3d 145,
149–50 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). We overrule appellant’s
first issue.1
III. The trial court erred in assessing a Local Consolidated Court Cost.
In appellant’s second issue he asserts the trial court erred in assessing court
costs not authorized by statute. Specifically, appellant contends that the trial court
erroneously assessed $105 in “Consolidated Court Costs–Local.”
The Local Consolidated Fee on Conviction of Felony only applies to
defendants who are convicted of offenses committed on or after January 1, 2020.
Tex. Loc. Gov’t Code § 134.101. Section 134.101 assesses an additional $105 fee
for persons convicted of felonies. Id. § 134.101(a). That $105 fee is to be allocated
to the following specific accounts and funds: the clerk of the court account, the
county records management and preservation fund, the county jury fund, the
courthouse security fund, the county and district court technology fund, and the
county specialty court account. Id. § 134.101(b).
It is undisputed that appellant committed this offense on July 12, 2018, which
was prior to the legislative change to section 134.101. The State concedes the trial
court erred in assessing the Local Consolidated Court Cost Fee because the statute
does not authorize consolidated costs for offenses committed before January 1, 2020.
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Appellant argues that the trial court and this court should adopt a “common-law”
definition of sudden passion under the Model Penal Code. As an intermediate appellate court we
are bound to follow precedent issued by the Texas Court of Criminal Appeals in this matter. See
Ex parte Robles, 612 S.W.3d 142, 149 (Tex. App.—Houston [14th Dist.] 2020, no pet.).
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The bill of costs in the record assesses the Local Consolidated Court Cost Fee, but
does not assess fees enumerated in section 134.101, i.e., the clerk of the court
account, the county records management and preservation fund, the county jury
fund, the courthouse security fund, the county and district court technology fund,
and the county specialty court account.
Because the record does not reflect the court costs that should have been
assessed under previous legislation, we sustain appellant’s second issue, reverse that
portion of the court’s judgment that improperly assessed the Local Consolidated
Court Cost Fee of $105, and remand to the trial court for proper calculation of court
costs.
In a single sentence at the end of the argument section for appellant’s second
issue, appellant contends that he “requests this court remand for an ability to pay
inquiry or for the recalculation of the appropriate costs.”
Article 42.15(a-1) of the Code of Criminal Procedure requires that “during or
immediately after imposing a sentence in a case” the trial court “shall inquire on the
record whether the defendant has sufficient resources or income to immediately pay
all or part of the fine and costs.” Tex. Code Crim. Proc. art. 42.15(a-1). The recitals
in the judgment of conviction reflect that the trial court ordered appellant to pay
court costs “after having conducted an inquiry into Defendant’s ability to pay.”
Recitals contained in a judgment create a presumption of regularity and
truthfulness, absent an affirmative showing to the contrary. Breazeale v. State, 683
S.W.2d 446, 450–51 (Tex. Crim. App. 1985). The burden is on the defendant to
overcome this presumption. Ex parte Wilson, 716 S.W.2d 953, 956 (Tex. Crim. App.
1986). Appellant does not point to any evidence contradicting the judgment recitals
and therefore has not overcome the presumption of regularity. See Breazeale, 683
S.W.2d at 451 (instructing that presumption of judgment’s regularity and
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truthfulness “is never to be lightly set aside”); see also Wiggins v. State, 622 S.W.3d
556, 561 (Tex. App.—Houston [14th Dist.] 2021, pet. ref’d). We overrule this part
of appellant’s second issue.
CONCLUSION
We affirm the judgment of conviction and sentence. We reverse the portion
of the judgment that assessed $105 in Local Consolidated Court Costs and remand
to the trial court for recalculation of court costs.
/s/ Jerry Zimmerer
Justice
Panel consists of Chief Justice Christopher and Justices Zimmerer and Wilson.
Do Not Publish — Tex. R. App. P. 47.2(b).
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