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Click here for the full text of this decision FACTS:Juan Domingo Velazquez shot and killed Rudolph Dorsey, an apartment complex security guard, while Dorsey was on duty on May 24, 2005. Stephanie Jones and Krystal Simmons, residents of the apartment complex, witnessed parts of the incident. Jones said that she heard a gunshot around 10 p.m. and looked out her apartment window. She said that she saw Velazquez get into a car and drive away quickly while screeching his tires. She said that he drove across the street to a convenience store parking lot and stayed there in his car for five to 10 minutes, after which he drove back to the apartment complex in the same erratic manner. A few minutes later, Jones said that she looked out her window and saw Velazquez, who was no longer in his car, talking with Dorsey. Velazquez had a gun pointed at Dorsey, who was pleading for his life. Velazquez then shot Dorsey twice, backed up and shot him four more times before running away. Jones testified that her windows were very thin and that she frequently overheard conversations outside. She neither heard nor saw, however, any struggle or fight before Velazquez shot Dorsey, and she did not observe Dorsey with a weapon or using force of any kind. Simmons heard the first gunshot and looked out her window. She recognized Velazquez, and, while he was parked across the street, Simmons had come out from her apartment and talked to Dorsey. Dorsey told Simmons he was going to get Velazquez’s license plate number. After Dorsey got the information, he attempted to place a call on his cell phone. Simmons then saw Velazquez approach Dorsey, place a hand on him and shoot him twice. Simmons ran back to her apartment and called 911. Like Jones, Simmons said that she did not observe any physical conflict or hear any threats or insults from Dorsey before Velazquez shot him. When police arrived at the scene, Dorsey was dead. Dorsey’s gun was missing no bullets, and no bullet was in the chamber ready to be fired. Velazquez testified during the punishment phase. He explained that he was working on his car in the parking lot when Dorsey approached him and rudely began asking questions and eventually insulted him with racial slurs. Velazquez did not testify that Dorsey hit him at this point, although he had told police that. Velazquez claimed that he became angry but ignored Dorsey and went into his apartment for 10- to 15-minutes, where he became further angered and frightened by his family’s absence. Although Velazquez never told this to police, he testified that when he returned outside, Dorsey approached him and again used racial slurs before assaulting him with a flashlight, knocking him to the ground and kicking him. Velazquez testified that he stood up and pulled out his gun, telling Dorsey not to move. Velazquez claimed Dorsey tried to pull out his gun, and so Velazquez shot him. He then said, “What have I done?” and ran away. The jury convicted Velazquez of murder. Velazquez appealed. HOLDING:Affirmed. In his first two issues, Velazquez claimed that the evidence was legally and factually insufficient to support the jury’s negative finding on the issue of sudden passion. At the punishment stage of a murder trial, the court explained that a defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from adequate cause. “Sudden passion,” the court stated, means “passion directly caused by and arising out of provocation by the individual killed,” while “adequate cause” meant “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.” If the defendant proved sudden passion by a preponderance of the evidence, the offense is reduced to a second degree felony, the court stated. The court found that some evidence presented at trial supported the jury’s negative finding on the sudden passion issue; thus, the evidence was legally sufficient. Furthermore, the court found that based on a neutral review of all the evidence, the evidence supporting the jury’s finding was not so weak as to render the verdict manifestly unjust or against the great weight and preponderance of the evidence. Thus, the evidence was also factually sufficient to support the verdict. In his third issue, Velazquez sought a new trial, because the court reporter did not record all of the bench conferences in his trial. Because Velazquez did not object at trial to the court reporter’s failure to record all of the bench conferences, the court found that Velazquez waived any error. OPINION:Yates, J.; Yates, Anderson and Hudson, J.J.

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