sudden passion instruction in Texas

2024Rivas v. State, 473 S.W.3d 877, 884 (Tex. App.—San Antonio 2015, pet. ref’d) (citing Wooten, 400 S.W.3d at 605 ). 5 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.

2024Trevino, 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 7 stemming from remarks, which were alleged to cause Appellant to “snap,” did not give rise to adequate cause for a sudden passion instruction).

2023A sudden passion instruction is warranted in the punishment phase if “it is raised by the evidence, even if that evidence is weak, impeached, contradicted, or unbelievable.” Id. (citing Trevino v. State, 100 S.W.3d 232, 238 (Tex. Crim.

2019“It does not matter that the 5 evidence supporting the submission of a sudden passion instruction may be weak, impeached, contradicted, or unbelievable.” Id. (citing McKinney, 179 S.W.3d at 569 ).

2026A defendant is entitled to a sudden-passion instruction if the record “at least minimally” supports the following inferences: 1. that the defendant was acting under the immediate influence of passion, such as terror, anger, rage, or resentment; 23 2. that his sudden passion was in fact induced by some provocation by the deceased, 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

2025DISCUSSION Lozano argues that the trial court erred when it refused to give a sudden passion instruction, and the error caused “some harm.” See Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim.

2023Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim.

2016Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim.

2024See 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).

2023See Beltran, 472 S.W.3d at 289 (identifying issue on appeal as whether we erred in holding that the trial court correctly denied Beltran's request for a sudden passion instruction); Trevino, 100 S.W.3d at 233, 241 (agreeing with court of appeals that the trial judge erred in denying the defendant a requested sudden passion jury charge). –8– violated his common law right to allocution.6 The State argues Alvarado failed to preserve error on this issue by timely objecting in the trial court.

2025Rankin v. State, 617 S.W.3d 169 , 184–85 (Tex. App.—Houston [1st Dist.] 2020, 3 pet. ref’d); Gaona v. State, 498 S.W.3d 706, 710 (Tex. App.—Dallas 2016, pet. ref’d); see Matlock v. State, 392 S.W.3d 662, 671 (Tex. Crim.

2020See Matlock, 392 S.W.3d at 668–72; Gaona v. State, 498 S.W.3d 706, 710 (Tex. App.— Dallas 2016, pet. ref’d) (holding that the rejection of a defendant’s sudden passion claim is reviewed for both factual and legal sufficiency because the defendant has the burden of proof by a preponderance of the evidence).

2024Counsel could have decided to forego a sudden-passion instruction because he could have found that, at best, Carter’s family’s testimony established only that he was afraid of Muldrow, but “a mere claim of fear . . . does not establish the existence of sudden passion arising from an adequate cause.” Id. (finding that a defendant’s claim that he was scared of the deceased was insufficient to raise the issue that he was acting under the immediate influence of sudden passion arising from an adequate cause).

1997App. 1986) (no sudden passion from adequate cause when defendant killed victim after victim had confrontation with defendant's friend and walked up behind defendant and fired shot) In Daniels v. State , the court held that a defendant who feared the victim and realized that he had to kill the victim or be killed was not entitled to a sudden passion instruction. 645 S.W.2d 459, 460 (Tex. Crim.

2015App. 2013); see also Brunson v. State, 764 S.W.2d 888, 894-95 (Tex. App.—Austin 1989, pet. ref’d) (“It is diffi- cult for this Court to imagine a situation in which the evidence would be sufficient to raise the issue of the use of deadly force in self-defense, and yet would not be sufficient to satisfy the adequate cause prong of the voluntary manslaughter test.”); Thompson v. State, 02-12-00351-CR, 2013 WL 5303631 (Tex. App.—Fort Worth 2013, pet. ref’d) (an unpro- voked, violent attack with a box cutter is sufficient provocation to in- duce the requisite emotional state in a person of ordinar

2015App. 2013); see also Brunson, 764 S.W.2d at 894-95 (“It is difficult for this Court to imagine a situation in which the evidence would be sufficient to raise the issue of the use of deadly force in self-defense, and yet would not be sufficient to satisfy the adequate cause prong of the volun- tary manslaughter test.”); Thompson v. State, 02-12-00351-CR, 2013 WL 5303631 (Tex. App.—Fort Worth 2013, pet. ref’d) (an unprovoked, violent attack with a box cutter is sufficient provocation to induce the requisite emotional state in a person of ordinary temperament to justify a sudden-passion instructi

2018App. 2013) (“It is highly unlikely that a jury that had already rejected the appellant’s claim that he reasonably believed that deadly force was immediately necessary to defend himself would nevertheless find in his favor on the issue of sudden passion.”); Rivas v. State, 473 S.W.3d 877 , 885–86 (Tex. App.—San Antonio 2015, pet. ref’d) (“Based on our review of the record as a whole, we conclude that, in this case, the evidence contradicting Leonardo’s claim of self-defense is also sufficient to establish the absence of harm from the denial of a sudden passion instruction.”); see also Newkirk v

2013Id. at 242 (citing Chavez v. State, 6 S.W.3d 56, 65 (Tex.App.-San Antonio 1999, pet. ref d) (holding that when the State's evidence proved sufficient to negate self-defense, it also proved sufficient to show lack of harm in the trial court’s failure to submit a sudden passion instruction)). 44 .

2015Willis v. State, 936 S.W.2d 302 , 308–09 (Tex. App.—Tyler 1996, pet. ref’d).

2009Willis v. State , 936 S.W.2d 302 , 308–09 (Tex. App.—Tyler 1996, pet. ref’d).

2019Newkirk v. State, 506 S.W.3d 188, 192 (Tex. App.—Texarkana 2016, no pet.). “[M]erely showing that a sudden-passion instruction would have given the jury another sentencing [option] is not enough to demonstrate prejudice under Strickland.” Id. at 197 .

2019Newkirk v. State, 506 S.W.3d 188, 192 (Tex. App.—Texarkana 2016, no pet.). “[M]erely showing that a sudden-passion instruction would have given the jury another sentencing [option] is not enough to demonstrate prejudice under Strickland.” Id. at 197 .

2025Smith v. State, 355 S.W.3d 138, 149 (Tex. App.— Houston [1st Dist.] 2011, pet. ref’d) (citing Naasz v. State, 974 S.W.2d 418, 420 (Tex. App.—Dallas 1998, pet. ref’d)).

2023Naasz v. State, 974 S.W.2d 418, 423 (Tex. App.—Dallas 1998, pet. ref’d); Hernandez v. State, 127 S.W.3d 206, 211 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d); Thompson v. State, No. 05- 16-01211-CR, 2017 WL 4945160 , at *6 (Tex. App.—Dallas Nov. 1, 2017, pet. ref’d) (mem. op., not designated for publication).

2024See, e.g., Moncivais, 425 S.W.3d at 407 ; Hernandez, 127 S.W.3d at 211 .

2023Naasz v. State, 974 S.W.2d 418, 423 (Tex. App.—Dallas 1998, pet. ref’d); Hernandez v. State, 127 S.W.3d 206, 211 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d); Thompson v. State, No. 05- 16-01211-CR, 2017 WL 4945160 , at *6 (Tex. App.—Dallas Nov. 1, 2017, pet. ref’d) (mem. op., not designated for publication).

2026“The core concept [of the sudden passion defense] is that a person’s mental state has rendered him incapable of rational thought and collected action.” Swearingen v. State, 270 S.W.3d 804, 820 (Tex. App.—Austin 2008, pet. ref’d).

2025The “core concept” of the sudden passion defense is that “a person’s mental state has rendered him incapable of rational thought and collected action.” Swearingen v. State, 270 S.W.3d 804, 820 (Tex. App.—Austin 2008, pet. ref’d).

2025Smith v. State, 355 S.W.3d 138, 149 (Tex. App.— Houston [1st Dist.] 2011, pet. ref’d) (citing Naasz v. State, 974 S.W.2d 418, 420 (Tex. App.—Dallas 1998, pet. ref’d)).

2023Smith v. State, 355 S.W.3d 138, 149 (Tex. App.— Houston [1st Dist.] 2011, pet. ref’d) (citing Naasz v. State, 974 S.W.2d 418, 420 (Tex. App.—Dallas 1998, pet. ref’d)).

2024See Hill v. State, 679 S.W.2d 173, 174 (Tex. App.—El Paso 1984, no pet.) (citing Hobson v. State, 644 S.W.2d 473, 478 (Tex. Crim.

2024See Hill v. State, 679 S.W.2d 173, 174 (Tex. App.—El Paso 1984, no pet.) (citing Hobson v. State, 644 S.W.2d 473, 478 (Tex. Crim.

2008See Ex parte Watkins , 73 S.W.3d 264 , 276 n.6 (Tex. Crim.

2008See Ex parte Watkins, 73 S.W.3d 264 , 276 n.6 (Tex. Crim.

2008See Bradshaw, 244 S.W.3d at 498 (no egregious harm from similar sudden passion instruction where charge included a general unanimity instruction and “the record contains no evidence that the jury’s verdict was not unanimous.”). 14 Nor did the parties’ arguments or other statements at trial encourage the jury to impose the first-degree felony punishment range based on a non-unanimous failure-to-find sudden passion.

2008See Bradshaw , 244 S.W.3d at 498 (no egregious harm from similar sudden passion instruction where charge included a general unanimity instruction and "the record contains no evidence that the jury's verdict was not unanimous.").

2024Rivas v. State, 473 S.W.3d 877, 884 (Tex. App.—San Antonio 2015, pet. ref’d) (citing Wooten, 400 S.W.3d at 605 ). 5 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.

2024If we ultimately determine the trial court erred by failing to submit a sudden passion instruction and the error was preserved, then we must determine whether the appellant suffered “some harm.” Wooten, 400 S.W.3d at 606 ; Rivas, 473 S.W.3d at 884 .

2023See Rivas v. State, 473 S.W.3d 877, 885 (Tex. App.—San Antonio 2015, pet. ref’d); Curry v. State, 222 S.W.3d 745, 753 (Tex. App.—Waco 2007, pet. ref’d); Benavides v. State, 992 S.W.2d 511, 525 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). –18– In addition to the jury’s rejection of appellant’s self-defense theory, the evidence supporting the inclusion of a sudden passion instruction was weak at best.

2019See Benavides, 992 S.W.2d at 525 (“It would be ‘a rare instance’ when issues of self-defense do not also raise issues of sudden passion,” and “trial courts, on request, are now generally well advised to give both instructions.”).

2020See Simpson v. State, 548 S.W.3d 708, 711 (Tex. App.—Houston [1st Dist.] 2018, pet. ref’d); Swaim v. State, 306 S.W.3d 323, 325 (Tex. App.—Fort Worth 2009, pet. ref’d); Newkirk, 506 S.W.3d at 191-92 .

2018We hold the trial court had no duty to instruct the jury on this unrequested defensive issue."); see Newkirk , 506 S.W.3d at 191-92 (collecting cases and concluding "that sudden passion is a defensive issue which must be requested by the defendant in order to become 'the law applicable to the case.' Accordingly, because Newkirk failed to request a sudden-passion instruction, the trial court had no duty to sua sponte include it in the punishment charge."); Swaim v. State , 306 S.W.3d 323 , 325 (Tex. App.-Fort Worth 2009, pet. ref'd) (similar).

2024See, e.g., Moncivais, 425 S.W.3d at 407 ; Hernandez, 127 S.W.3d at 211 .

2023To establish the sudden passion defense, a defendant must prove that the killing occurred “while the passion still existed and before there was reasonable 12 opportunity for the passion to cool.” Moncivais, 425 S.W.3d at 407 .

2021In light of counsel’s consideration of case law that counsel determined was “directly on point,” counsel 1 See Simpson v. State, 548 S.W.3d 708 , 710–11 (Tex. App.—Houston [1st Dist.] 2018, pet. ref’d) (holding that the accused must request an instruction on sudden passion to preserve error because it is a defensive issue); Newkirk v. State, 506 S.W.3d 188 , 191–92 (Tex. App.— Texarkana 2016, no pet.) (same); Espinoza v. State, No. 14-99-00570-CR, 2000 WL 1591061 , at *3–4 (Tex. App.—Houston [14th Dist.] Oct. 26, 2000, pet. ref’d) (mem. op., not designated for publication) (same); see also Bel

2019See Taylor, 332 S.W.3d at 487 ; Simpson v. State, 548 S.W.3d 708, 711 (Tex. App.—Houston [1st Dist.] 2018, pet. ref’d) (“Simpson acknowledges that he did not ‘explicit[ly] request’ a sudden passion instruction, and the record reflects no objection to its absence.

2025Rankin v. State, 617 S.W.3d 169 , 184–85 (Tex. App.—Houston [1st Dist.] 2020, 3 pet. ref’d); Gaona v. State, 498 S.W.3d 706, 710 (Tex. App.—Dallas 2016, pet. ref’d); see Matlock v. State, 392 S.W.3d 662, 671 (Tex. Crim.

2020See Matlock, 392 S.W.3d at 668–72; Gaona v. State, 498 S.W.3d 706, 710 (Tex. App.— Dallas 2016, pet. ref’d) (holding that the rejection of a defendant’s sudden passion claim is reviewed for both factual and legal sufficiency because the defendant has the burden of proof by a preponderance of the evidence).

2018Id. (quoting Wooten v. State , 400 S.W.3d 601 , 605 (Tex. Crim.

2009In Saldivar v. State , 980 S.W.2d 475 (Tex. App.--Houston [14th Dist.] 1998, pet. ref'd), the defendant requested a sudden passion instruction at the punishment phase of trial based upon her written statement to the authorities.

2024Griffin 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.

2024See Rodriguez v. State, 546 S.W.3d 843, 859 (Tex. App.— Houston [1st Dist.] 2018, no pet.) (reasoning mere allegation appellant may have shot victim because he feared partygoers at victim’s party would hurt him was not enough alone to support sudden passion instruction); Griffin v. State, 461 S.W.3d 188 , 192–93 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (reasoning testimony appellant shot victim out of fear when victim “acted first” and “went for his pistol” did not support inference appellant acted under immediate sudden passion).

2021See Strickland, 466 U.S. at 694 ; see also Glover v. United States, 531 U.S. 198, 200 (2001) (holding that, “if an increased prison term did flow from an error[,] the petitioner has established Strickland prejudice”).

2016Thus, Newkirk argues, “[T]here is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694 , 104 S.Ct. 2052 .

2009Recognizing that he did not request a sudden passion instruction, Swaim argues in his petition for discretionary review that “[t]here are certain issues upon which a trial court has the duty to instruct the jury without an objection or request from either party.” 2 [Emphasis added.] Swaim cites Huizar v. State, 12 S.W.3d 479 , 483–485 (Tex. Crim.

2009Recognizing that he did not request a sudden passion instruction, Swaim argues in his petition for discretionary review that “[t]here are certain issues upon which a trial court has the duty to instruct the jury ■without an objection or request from either party.” 2 [Emphasis added.] Swaim cites Huizar v. State, 12 S.W.3d 479, 483-485 (Tex.Crim.App.2000) (op. on reh’g), for the proposition that a “jury must be instructed at punishment that extraneous offenses must be proved beyond [a] reasonable doubt” and Tubert v. State, 875 S.W.2d 323 (Tex.Crim.App.1994), for the proposition that it is “err

2009Consequently, neither Trevino nor the other case law cited by Swaim supports his argument that the trial court was required to sua sponte include a sudden passion instruction in its charge to the jury. 1 See 1  In his brief to this court, Swaim cites Mims v. State, 3 S.W.3d 923, 928 (Tex. Crim.

2009Consequently, neither Trevino nor the other case law cited by Swaim supports his argument that the trial court was required to sua sponte include a sudden passion instruction in its charge to the jury. 1 See 1  In his brief to this court, Swaim cites Mims v. State, 3 S.W.3d 923, 928 (Tex. Crim.