holding that the appellant was entitled to a sudden passion instruction when he offered evidence that he and his wife had a “verbal altercation”; that his wife then confronted him with a gun, pointed it at him, and fired it twice; that the gun misfired; that the appellant went into the bathroom to get his gun, and his wife shot at him while he was in the bathroom; that the two struggled over the guns; and that he eventually “managed” to shoot his wife
How later courts described this case
- holding that the appellant was entitled to a sudden passion instruction when he offered evidence that he and his wife had a “verbal altercation”; that his wife then confronted him with a gun, pointed it at him, and fired it twice; that the gun misfired; that the appellant went into the bathroom to get his gun, and his wife shot at him while he was in the bathroom; that the two struggled over the guns; and that he eventually “managed” to shoot his wife
- holding that some evidence of sudden passion consisted of the defendant “freaking out,” “scared and panicked,” “crying and shaking,” “pacing,” “consistently upset and crying,” “sounded distressed,” and “looked past” the investigator
- holding that where, as here, defendant properly objected to error in charge, we must reverse if record demonstrates that error “was calculated to injure the rights of the defendant” or caused “some harm”
- holding that defendant was entitled to jury charge on sudden passion where detective testified that defendant informed him (1) he had altercation with complainant over phone numbers of other women she found in his wallet; (2
Written by the judges who cited it.
The opinion
KEASLER, J., delivered this concurring and dissenting opinion.
I join sections I and II of the Court’s opinion but dissent to sections III and IV. I believe the error in the charge was harmless.
The State’s argument is persuasive. While it will not always be the case that evidence of self-defense renders harmless the failure to give a sudden passion charge at punishment, it is also true that a jury’s rejection of self-defense could, in a particular case, demonstrate that the defendant was not harmed by the failure to receive a sudden passion charge. 1 As the majority recognizes, this case involved two competing theories at guilt-innocence. The State argued that Trevino shot Michelle in cold blood and staged the crime scene after-wards to make it look like self-defense. The defense, on the other hand, argued that Trevino and Michelle struggled and that Trevino shot Michelle in self-defense. Indeed, the defense made clear during closing argument that if the jury were to find that the crime scene was staged, it would have to conclude that Trevino did not act in self-defense. On the other hand, if the jury were to conclude that the crime scene was not staged, it would have to find that he did act in self-defense. Under all the specific facts of this case, the jury’s rejection of self-defense at guilt-innocence necessarily constituted a rejection of sudden passion. As a result, I cannot believe that Trevino suffered any harm whatsoever in the denial of the charge.
I would reverse the judgment of the Court of Appeals and reinstate the trial court’s judgment of conviction.
. See Chavez v. State, 6 S.W.3d 56, 65 (Tex.App.San Antonio 1999, pet. ref d) (stating that except in rare instances, when the State’s evidence is sufficient to overcome a claim of self-defense, it will also be sufficient to show the absence of sudden passion).