Timothy Michael Geng v. the State of Texas

Opinion filed July 25, 2024

In The

Eleventh Court of Appeals
__________

No. 11-22-00317-CR
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TIMOTHY MICHAEL GENG, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 118th District Court
Howard County, Texas
Trial Court Cause No. 16280

MEMORANDUM OPINION
This case involves Appellant, Timothy Michael Geng, bludgeoning a woman
to death with a shovel during a verbal argument and alleging that he did so under the
influence of sudden passion. See TEX. PENAL CODE ANN. § 19.02(a), (d) (West
Supp. 2023). Appellant was charged by indictment with murder. Id. § 19.02(b)(1).
Appellant entered an open plea of guilty to the offense and elected to have the jury
assess his punishment. The jury assessed Appellant’s punishment at imprisonment
for life in the Institutional Division of the Texas Department of Criminal Justice, and
the trial court sentenced him accordingly. Id. § 12.32(a) (West 2019); § 19.02(c).
In Appellant’s sole issue on appeal, he contends that the trial court erred in
failing to submit an instruction on sudden passion during the punishment phase of
trial. See id. § 19.02(d). We affirm.
Factual and Procedural History
On April 9, 2022, Department of Public Safety Trooper Andrew Najera
apprehended Appellant in Zavala County, Texas, after two observed traffic
violations and a pursuit that led to Appellant crashing his vehicle in a field.
Following the pursuit, Appellant walked slowly toward Trooper Najera with his
hands up and said, “Just shoot me. Just shoot me. I already killed somebody.”
Based on Appellant’s statements and learning that Appellant resided in Big Spring,
Trooper Najera contacted the Big Spring Police Department to perform a welfare
check on the victim, Guadalupe Miranda. Officer Jeremiah Griff with the Big Spring
Police Department responded to the welfare check and discovered Miranda,
deceased, in the home that she had shared with Appellant. Officer Griff testified
that it looked like Miranda had been there for several days, that her head was against
the door, and that “[s]he had a severe laceration to her forehead and what looked like
an indention on the left side of her head.” The residence was in disarray with clothes
and papers scattered in several rooms.1
Crystal City Police Detective Eric Estes interviewed Appellant while he was
in custody. Appellant initially told Detective Estes that he was not responsible for
killing Miranda, but that he only found her dead. The following day, Appellant
changed his story about finding Miranda dead, and he confessed that he “snapped”
and killed her.

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Appellant admitted that he ransacked the house to make it appear as if a burglary had occurred.

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Appellant stated that, on that day, they argued because Miranda wanted him
to plant the rosebushes, but he wanted to go “make some money.” Appellant
retrieved tools, including the shovel, from the workshop to load into the pickup and
he and Miranda argued in the workshop. Appellant stated that, back in the house,
“we got into it” and “[Miranda] was at the back door, and I went out there and
grabbed the shovel out of the truck.” After returning with the shovel, Appellant said,
“I’m going to hit you with this.” Appellant said that he “threw her against the door”
and hit her with the shovel twice; once on top of her head and once on the side of
her head. Over the next several days and prior to his apprehension in Zavala County,
Appellant drove to Midland, drove to San Angelo, purchased pornographic DVDs
on Miranda’s credit card, stopped at a casino in central Texas, and drove to Eagle
Pass. Appellant said, “Why did I do it? I know she was nitpicking at me; I know
that she was trying to -- f-----g didn’t want me to do this, didn’t want me to do that.
And she wanted me to plant the rosebushes.”
According to Appellant’s testimony, both he and Miranda had been drinking
alcohol before the murder. Appellant testified that he had problems with alcohol
and drug abuse and stated that both he and Miranda were alcoholics. Appellant
testified that, on the day that Miranda was killed, Appellant had asked to use her
pickup to travel to San Angelo for a job and asked that she accompany him. Miranda
did not want Appellant to go to San Angelo but she also did not want to go with him.
Appellant testified that they were laughing and talking one minute, and then it was
a “mess.” The couple kept drinking while they argued, and Miranda threatened to
call the police if Appellant left with her pickup.
Appellant testified that he retrieved a shovel from the front lawn that he
intended to put up, and he carried it through the residence to do so. Appellant
testified that Miranda stepped in between him and the door and said, “You’re not

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going to San Angelo, you’re going to stay here.” Appellant testified that he
“snapped” and struck her in the head with the shovel, killing her.
During the charge conferences, Appellant’s trial counsel requested an
instruction on sudden passion. The State responded that the evidence did not support
such an instruction because it did not meet the “adequate cause” requirement. See
PENAL § 19.02(a)(1), (d). The trial court denied Appellant’s request. Following
deliberations, the jury sentenced Appellant to life in prison.
Standard of Review and Applicable Law
Appellate review of an alleged charge error in the jury instructions 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 a 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 exists, we
must 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 is responsible for providing 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); Bell v. State, 635 S.W.3d 641, 645 (Tex. Crim. App. 2021).
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.

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At the punishment phase of trial, a defendant “may raise the issue as to
whether he caused the death under the immediate influence of sudden passion arising
from an adequate cause.” PENAL § 19.02(d). “Sudden passion is a mitigating
circumstance that, if found by the jury to have been proven by a preponderance of
the evidence, reduces the offense from a first degree felony to a second degree
felony.” McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005) (citing
PENAL § 19.02(c), (d)); Beltran v. State, 472 S.W.3d 283, 293 (Tex. Crim. App.
2015).
The Penal Code defines sudden passion as “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). The Penal Code defines adequate cause as
“cause that would commonly produce a degree of anger, rage, resentment or terror
in a person of ordinary temper, sufficient to render the mind incapable of cool
reflection.” Id. § 19.02(a)(1). When requested, a sudden passion instruction is
justified if the record minimally supports an inference:
1) that the defendant in fact acted under the immediate influence of
a passion such as terror, anger, rage, or resentment; 2) that his
sudden passion was in fact induced by some provocation by the
deceased or another acting with him, which provocation would
commonly produce such a passion in a person of ordinary temper;
3) that he committed the murder before regaining his capacity for
cool reflection; and 4) that a causal connection existed “between
the provocation, passion, and homicide.”

Wooten v. State, 400 S.W.3d 601, 605 (Tex. Crim. App. 2013) (quoting McKinney,
179 S.W.3d at 569). The defendant has the burden of production and persuasion on
the issue. Rivas v. State, 473 S.W.3d 877, 884 (Tex. App.—San Antonio 2015, pet.
ref’d) (citing Wooten, 400 S.W.3d at 605).

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A sudden passion instruction is warranted even if the evidence on the issue is
“weak, impeached, contradicted, or unbelievable.” Trevino v. State, 100 S.W.3d
232, 238 (Tex. Crim. App. 2003). “However, the evidence cannot be so weak,
contested, or incredible that it could not support such a finding by a rational jury.”
McKinney, 179 S.W.3d at 569. One principle of a sudden passion defense is that a
high degree of emotion must be produced from provocation by the victim or another
person such that it renders the actor incapable of rational thought and action. See
PENAL § 19.02(a); Wooten, 400 S.W.3d at 605; Kennedy v. State, 193 S.W.3d 645,
653–54 (Tex. App.—Fort Worth 2006, pet. ref’d).
In deciding whether the trial court erred, we must determine whether
Appellant was entitled to a sudden passion instruction by examining whether there
was evidence that met the McKinney factors. See McKinney, 179 S.W.3d at 569.
Accordingly, we examine whether Miranda provoked Appellant in a manner that
would commonly produce a passion such as terror, anger, rage, or resentment in a
person of ordinary temper; whether Appellant acted under the immediate influence
of that extreme passion or emotion; whether Appellant murdered Miranda while that
passion or emotion still existed and before there was a reasonable opportunity for
that passion to cool; and whether a causal connection existed between Miranda’s
provocation, Appellant’s passion, and the murder. See id.; Beltran, 472 S.W.3d at
290. “An appellate court’s duty is to look at the evidence supporting the charge of
sudden passion, not the evidence refuting it.” Beltran, 472 S.W.3d at 294.
Analysis
In Appellant’s sole issue on appeal, he contends that the trial court erred in
refusing to grant his request to include a sudden passion instruction because “[t]he
evidence of adequate cause is scant but sufficient to have enabled a rational jury to
have found for the Appellant; [and that] therefore, the omission of the charge was
harmful.”
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We review the evidence that might support Appellant’s claim for an
instruction on sudden passion. See Beltran, 472 S.W.3d at 294; Trevino, 100 S.W.3d
at 239. Appellant’s testimony provides the only evidence from which we can derive
any alleged sudden passion, because he described the events preceding the murder,
his mental state, and Miranda’s actions prior to its commission. In this regard, the
evidence that could conceivably support a sudden passion instruction was limited to
his testimony that Miranda was “nagging” him, refused to allow him to take her
pickup to San Angelo, and said she was going to call the police if he took her pickup
without permission. On appeal, Appellant asserts that Miranda’s “nagging” and
“belligerence” constituted provocation that created a passion sufficient to warrant
the instruction. But Appellant’s testimony at trial was that he didn’t know why he
killed her; he was never that mad; he did not actually remember what she said that
may have been provoking; and that he did not “remember actually doing it.”
Appellant testified that he just “snapped.”
Although Appellant concedes on appeal that mere “nagging or arguing is not
considered to be an adequate cause” for sudden passion, he argues that Miranda’s
“drinking and belligerence remove[d] the case from the realm of ordinary
bickering.” We disagree. The circumstances to assert sudden passion by reason of
anger or rage must be exceptional. See Beltran, 472 S.W.3d at 295 (a sudden passion
instruction was warranted when the defendant was awoken in the night by the victim
sexually assaulting him and there was no time to find a more reasoned alternative
course of action). “Arguing and nagging,” alone does not rise to the level of
adequate cause required by the statute, and simply reacting violently in response to
provocation by another is not enough. Trevino, 100 S.W.3d at 238; see also
Dwelle v. State, No. 11-20-00237-CR, 2022 WL 2720445 (Tex. App.—Eastland
July 14, 2022, no pet.) (mem. op., not designated for publication) (holding that anger

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stemming from remarks, which were alleged to cause Appellant to “snap,” did not
give rise to adequate cause for a sudden passion instruction).
Appellant provides no supporting legal basis as to why Miranda’s
“intoxication and belligerence” would elevate the “nagging,” as described in
Appellant’s testimony, to a level of adequate cause as required by the statute. There
was no evidence of an immediate threat of physical harm or heightened danger of
harm to Appellant as a result of Miranda’s alleged inebriation. And even a belief
that a person posed a threat to his life, without more, does not support giving a
sudden passion instruction. Griffin v. State, 461 S.W.3d 188, 193–94 (Tex. App.—
Houston [1st Dist.] 2014, no pet.) (citing Daniels v. State, 645 S.W.2d 459, 460 (Tex.
Crim. App. 1983)).
Moreover, a defendant may not rely on a cause of his own making to support
an argument for sudden passion. Moncivais v. State, 425 S.W.3d 403, 407 (Tex.
App.—Houston [1st Dist.] 2011, pet. ref’d) (citing Smith v. State, 355 S.W.3d 138,
147 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d)). Here, one of the inciting
factors could be that Appellant wanted to use Miranda’s pickup and that she did not
give her permission for him to do so. That this made Appellant angry is a cause of
his own making. A bare claim of emotionalism without facts that would cause a
person of ordinary temperament to experience that severe or extreme emotionalism
is insufficient to meet the “adequate cause” requirement. See McKinney, 179 S.W.3d
at 570 (“There is no evidence that the verbal taunting and physical pushing by [the
victim] produced a degree of anger, rage, resentment, or terror in Appellant,
sufficient to render his mind incapable of cool reflection.”); Kennedy v. State, 193
S.W.3d 645, 653–54 (Tex. App.—Fort Worth 2006, pet. ref’d) (some evidence must
show that “Appellant’s mental state rose beyond a bare claim of fear to render him
incapable of rational thought and collected action”). Appellant failed to provide
more than a bare claim that Miranda was nagging him, and then he “snapped.” That
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does not demonstrate a level of provocation from Miranda that would commonly
produce such a violent act in a person of ordinary temper. It could be argued that
everyone that overreacts as a result of being angered “snaps.” That Appellant said
that he “snapped” without more does not create an issue of sudden passion. In this
regard, “the mere fact that a defendant acts in response to the provocation of another
is not sufficient to warrant a charge on sudden passion.” Trevino, 100 S.W.3d at
241. Moreover, sudden passion is an extreme emotional and psychological state.
Dukes v. State, 486 S.W.3d 170, 180 (Tex. App.—Houston [1st Dist.] 2016, no pet.)
(citing Saldivar v. State, 980 S.W.2d 475, 506 (Tex. App.—Houston [14th Dist.]
1998, pet. ref’d)). The statement of Appellant that he snapped is not by itself
evidence of the type of extreme emotional and psychological state required for
sudden passion. Id.
Thus, the issue of sudden passion was not raised by the evidence. Appellant
failed to establish by a preponderance of the evidence that Miranda adequately
provoked him or that he was gripped by a high degree of passion or emotion as
required by the statute. Further, there is no evidence as to the remaining McKinney
factors—that sufficient passion or emotion still existed and before there existed a
reasonable opportunity for Appellant’s passion to cool, or that there was a causal
connection between the alleged provocation, the passion, and the homicide.2
Contrary to Appellant’s argument, the evidence indicates that he had time to retrieve
the shovel from the front of the house and that he did not recall being “that mad” at
Miranda before striking her.
Having found that the issue of sudden passion was not raised by the evidence,
we hold that the trial court did not err in denying Appellant’s request for a sudden

Here, we are not looking to evidence that refutes the instruction, but noting the lack of evidence
2

on the McKinney factors, which is relevant to our review. See Beltran, 472 S.W.3d at 294; McKinney, 179
S.W.3d at 570–71.

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passion instruction. Because we find that the trial court did not err, we need not
conduct a harm analysis. See Bell, 635 S.W.3d at 645; see also TEX. R. APP. P. 47.1.
We overrule Appellant’s sole issue on appeal.
This Court’s Ruling
We affirm the judgment of the trial court.

W. BRUCE WILLIAMS
JUSTICE

July 25, 2024
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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