Lead Opinion
Pursuant to Texas Rule of Appellate Procedure 50, we withdraw our March 13, 2008 opinion and judgment and substitute the following. Tex.R.App. P. 50.
A jury convicted Appellant David Lee Swaim, Jr. of murder and assessed his punishment at life imprisonment. In two points, Swaim argues that the trial court committed harmful error by failing to include a jury charge instruction on sudden passion and that his trial counsel was ineffective for failing to request an instruction on sudden passion. We will affirm.
Early in the morning on August 16, 2005, Joshua Hall knocked on Swaim’s door looking for someone to drink and socialize with. They had nevеr met before, but Swaim let Hall enter his residence. Both had consumed alcohol during the day, and both either were or soon became intoxicated. Sometime later, an altercation occurred, and Swaim stabbed Hall nine times, killing him.
In his first point, Swaim argues that the tidal cоurt reversibly erred by failing to include a sudden passion instruction in its charge to the jury because there was evidence of a heated, verbal exchange between Swaim and Hall.
At the punishment stage of a murder trial, the defendant may raise the issue of whether he causеd the death under the immediate influence of sudden passion arising from an adequate cause. Tex. Penal Code Ann. § 19.02(d) (Vernon 2003). 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.
In Trevino v. State, the court of criminal appeals clarified that sudden passion is a “punishment issue” and that “a sudden passion charge should be given if there is some evidence to support it, even if that evidence is weak, impeached, contradicted, or unbelievable.”
Recognizing that he did nоt 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.”
Although Swaim’s second point in his brief to this court states that his trial counsel “was ineffective for not presenting mitigating evidence during the sentencing phase,” his argument under the point is that his trial counsel was ineffective for failing to request an instruction on sudden passion.
To establish ineffective assistance of counsel, the appellant must show by a preponderance of the evidence that his counsеl’s representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for counsel’s deficiency, the result of the trial would have been different. Strickland v. Washington,
The following witnesses testified on Swaim’s behalf at punishment: Hal Farmеr, Swaim’s friend; Jesse Carreon, Swaim’s friend and the father of Swaim’s boss; Douglas Swaim, Swaim’s cousin; Don Christian, a probation supervisor; Scott Allen Tony, Swaim’s brother-in-law; Denise Tony, Swaim’s sister; and Barbara Swaim, Swaim’s mother. With the exception of Christian, who explained the probation prоcess to the jury, Swaim’s witnesses recounted and opined that Swaim was not a violent person, either when sober or intoxicated, and that they were surprised or shocked to learn' that he had been
In his petition for discretionary review, Swaim argues that contrary to our analysis in the memorandum opinion issued March 13, 2008, the evidence raised the issue of sudden passion. Swaim points to evidence that he testified Hall said he “knew how to get ahold of’ his daughter and that he was “in complete shock” when Hall brought up his daughter and his girlfriend. Swaim also points to the testimony of an investigator who testified that Swaim told him Hall “began talking about [his] daughter” and that Swaim “went intо a rage.” In his brief to this court, however, Swaim did not argue that any of this evidence — which was elicited at the guilt phase, not the punishment phase — supported an instruction on sudden passion; instead, he relied only on the testimony of the individuals who testified on his behalf at punishment, which we set forth above. See Marlo v. State,
Having overruled both of Swaim’s points, we affirm the trial court’s judgment.
DAUPHINOT, J., filed a dissenting opinion.
WALKER, J., concurs without opinion.
Notes
. In his brief to this court, Swaim cites Mims v. State,
. Swaim did not assert this argument on appeal.
Dissenting Opinion
dissenting on appellant’s petition for discretionary review.
Sudden passion arising from an adequate cause is neither a defense nor an affirmative defense.
[T]he mitigation special issue for death penalty cases is neither embedded within elements the State must prove nor is it set up as an exception. Instead, the mitigation speciаl issue is framed as a stand-alone punishment mitigation issue, a characteristic it shares with a number of punishment mitigating factors that are clearly defensive issues, including temporary insanity caused by intoxication, unsuccessful renunciation of an inchoate offense, the current sudden passion issue in a murder case, release in a safe place under both the older and newer versions of the aggravated kidnapping statute, and mental retardation in a death penalty case.
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We conclude that the mitigation special issue is a defensive issue that cannot be forfeited by inaction but can be waived, and because it is a defensive issue, the defendant has a right to insist upon its waiver. The trial judge in this case erred in refusing to allow appellant to waive submission of the issue to the jury, and as a result, erred in admitting victim-impact and victim-character evidence that would have otherwise been excluded.4
This holding from the Texas Court of Criminal Appeals supports Appellant’s contention that the sudden passion mitigation issue before us cannot be forfeited. That is, contrary to the majority’s holding in overruling Appellant’s first point, Appellant’s failure to request a sudden passion instruction does not negate his right to the instruction triggered by the presence of evidence raising the issue.
I note that the majority’s holding, in overruling Appellant’s second point, that Appellant failed to raise the issue of sudden passion by a preponderance of the evidence, if correct, would moot the majority’s discussion of the first point. A careful review of the record, however, shows that Appellant did sufficiently raise the issue to be entitled to the instruction.
Although there are contradictions in the testimony, Appellant testified that Hall came to his door at 1:14 a.m. and made a point of saying that he knew Appellant’s girlfriend and that he knew Appellant’s daughter and “how to get ahold of’ her. Such threats, implied though they are, are the stuff suspense thrillers are made of for a reason — they’re scary. The evidence shows that after Appellant let Hall into his home, he realized that Hall was the local drug dealer. Hall attacked Appellant from behind, and they fought. Appellant testified that he was terrified. From the record before us, I conclude that Appellant clearly raised the issue of sudden passion arising from adequate cause.
The jury charge properly instructed the jury that they might consider “all of the faсts shown by the evidence admitted before [them] in the full trial of this case.” And in deciding whether the evidence raises the issue of sudden passion, we also must consider the entire record that was
Following the precedent of the Texas Court of Criminal Appeals, the sudden passion instruction “is a defensive issue that cannot be forfeited by inaction but can be waived, and because it is a dеfensive issue, the defendant has a right to insist upon its waiver.”
I would hold that the evidence raised the issue of sudden passion, that Appellant could not and did not forfeit the right to a sudden passion instruction by his inaction, and, consequently, that the trial court was obligated to give the instruction sua sponte. The harm that Appellant suffered is readily apparent and egregious: the range of confinement Appellant facеd as a result of the error was five to ninety-nine years instead of two to twenty years.
I would sustain Appellant’s first point, not reach his second point, and reverse and remand this case for a new trial on punishment. Because the majority does not, I must respectfully dissent.
. See Tex. Penal Code Ann. §§ 2.03, 2.04, 19.02(a), (d) (Vernon 2003).
. See Sanchez v. State,
. Tex. Penal Code Ann. § 19.02(d).
. Williams v. State,
. See Murphy v. State, 777 S.W.2d 44, 63 (Tex.Crim.App.1988) (op. on reh'g) (“It is axiomatic, for example, that punishment should fit the particular crime. Accordingly, the trial court routinely instructs the jury it may consider all evidence admitted at the guilt phase in making its punishment determination.”), superseded on other grounds by Tex.Code Crim. Proc. Ann. art. 37.07, § 3(a) (Vernon Supp. 2009).
. See Murphy, 111 S.W.2d at 63.
. Williams,
. See Tex. Penal Code Ann. §§ 12.32(a), 12.33(a) (Vernon Supp. 2009), 19.02(c), (d).