                                                                             ACCEPTED
                                                                        14-14-00610-CR
                                                          FOURTEENTH COURT OF APPEALS
                                                                      HOUSTON, TEXAS
                                                                    3/9/2015 4:50:14 PM
                                                                   CHRISTOPHER PRINE
                                                                                 CLERK

                 No. 14-14-00610-CR

                                                         FILED IN
                        IN THE                    14th COURT OF APPEALS
                                                     HOUSTON, TEXAS
             Court of Appeals                      3/9/2015 4:50:14 PM
                                                  CHRISTOPHER A. PRINE
For the Fourteenth Judicial District of Texas              Clerk

                At Houston
                    __________

          ALAN POZZERLE,
                    Appellant
                          v.

       THE STATE OF TEXAS
                     Appellee
                     _________
               Cause numbers 1384872
          In the 183rd Judicial District Court
               Of Harris County, Texas
                     _________

            Appellant’s Brief
                      __________

                                 KELLY ANN SMITH
                                 Texas Bar No. 00797867

                                 P.O. Box 10751
                                 Houston, TX 77206
                                 281-734-0668

                                 Counsel for Appellant

           ORAL ARGUMENT REQUESTED
                     IDENTITY OF PARTIES AND COUNSEL


The Appellant has provided a complete list of all interested parties’ names below,

under TEX. R. APP. P. 38.1.

       The appellant or convicted person:
               Alan Pozzerle            Appellant
                                         TDCJ No. 01943752
                                         Estelle Unit
                                         264 FM 3478,
                                         Huntsville, TX 77320-3320


       Counsel for the appellant:
            Kelly Ann Smith             Counsel on appeal
                                         PO Box 10751
                                         Houston, Texas 77206
                                         Phone: (281) 734-0668
               Allen Tanner             Counsel at trial
                                         917 Franklin, Ste. 550
                                         Houston, Texas 77002
                                         (713) 225-1100
Counsel for the State:
               Devon Anderson           District Attorney of Harris County
                                         Harris County Criminal Justice Center
               Luis Batarse             Assistant District Attorneys at trial
               Lisa Collins              Harris County Criminal Justice Center
                                         1201 Franklin, Suite 600
                                         Houston, Texas 77002
                                         Telephone: (713) 755-5800

Trial Judge:
               Hon. Vanessa Velasquez  Presiding Judge of the 183rd District Court
                                            TABLE OF CONTENTS

                                                                                                                              Page

IDENTITY OF PARTIES AND COUNSEL .........................................................................1
INDEX OF AUTHORITIES...............................................................................................4
STATEMENT OF THE CASE ...........................................................................................6
ISSUES PRESENTED ......................................................................................................6
   The trial court erred by refusing the appellant’s request to
   instruct the jury on defense of property as justification for
   William Johnson’s murder. .........................................................................6
   The trial court erred by refusing to instruct the jury on the
   sudden-passion special issue. ...................................................................6
SUMMARY OF THE FACTS ............................................................................................7
ARGUMENT: FIRST ISSUE PRESENTED .......................................................................10
   The trial court erred by refusing the appellant’s request to
   instruct the jury on defense of property as justification for
   William Johnson’s murder. .......................................................................10
    I.     Summary of the argument .............................................................................. 10

    II.    Summary of the pertinent facts ...................................................................... 10

    III.   The trial court erred by refusing to instruct the jury on
           defense of property as justification for William Johnson’s
           murder................................................................................................................. 11

           A.     The standard of review ............................................................................ 11
           B.     Law regarding jury instructions on defensive issues ............................ 12
           C. The appellant was entitled to a defense of property instruction
           because it was raised by the evidence that the entire incident
           revolved around his efforts to retrieve his recently stolen mobile
           phone................................................................................................................... 13

ARGUMENT: SECOND ISSUE PRESENTED ...................................................................16
   The tr**ial court erred by refusing the appellant’s request to
   instruct the jury on the sudden passion special issue. ........................16


                                                                      2
                                           TABLE OF CONTENTS
                                               (continued)

SECOND ISSUE (continued)

    I.      Summary of the argument .............................................................................. 16

    II.     Summary of the pertinent facts ...................................................................... 17

    III.    The trial court erred by refusing the appellant’s request to
            instruct the jury on the sudden passion special issue. ................................. 17

             A. The standard of review ............................................................................ 17
             B.    The law: Sudden Passion........................................................................ 178
             C. The appellant was entitled to a sudden passion instruction ............. 20
PRAYER .....................................................................................................................21
CERTIFICATE OF SERVICE ..........................................................................................21




                                                                   3
                                          INDEX OF AUTHORITIES

Cases
Almanza v. State,
  686 S.W.2d 157 (Tex. Crim. App. 1984)
  (op. on reh'g) ............................................................................................... 11, 16, 17, 18
Benavides v. State,
  992 S.W.2d 511 (Tex. App.-Houston
  [1st Dist.] 1999, pet. ref'd) .............................................................................................. 19
Bufkin v. State,
  207 S.W.3d 779 (Tex. Crim. App. 2006) ...................................................................... 12
Kunkle v. State,
  771 S.W.2d 43 (Tex. Crim. App. 1986), cert. denied, 492 U.S. 925 (1989) ................ 13
London v. State,
  325 S.W.3d 197 (Tex. App.-Dallas 2008, pet. ref'd) ..................................................... 18
Love v. State,
  199 S.W.3d 447 (Tex. App.— Houston
  [1st Dist.] 2006, pet. ref’d) ........................................................................................... 12
McKinney v. State,
 179 S.W.3d 565 (Tex. Crim. App. 2005) ...................................................................... 19
Miller v. State,
  815 S.W.2d 582 (Tex. Crim. App. 1991) ............................................................... 12, 16
Neal v. State,
  256 S.W.3d 264 (Tex. Crim. App. 2008) ................................................................ 12, 18
Ngo v. State,
  175 S.W.3d 738 (Tex. Crim. App. 2005) ................................................................ 11, 17
Rogers v. State,
  105 S.W.3d 630 (Tex. Crim. App. 2003) ...................................................................... 12
Shaw v. State,
  243 S.W.3d 647 (Tex. Crim. App. 2007) ...................................................................... 12
Swearingen v. State,
  270 S.W.3d 804 (Tex. App.-Austin 2008, pet. ref'd) ........................................ 11, 17, 18
Trevino v. State,
  100 S.W.3d 232, 242 n. 40 (Tex. Crim. App. 2003) ......................................... 19, 20, 21
Walters v. State,
 247 S.W.3d 204 (Tex. Crim. App. 2007) ................................................................ 12, 13


                                                                    4
                                        INDEX OF AUTHORITIES
                                                    (Continued)

Statutes
TEX. PENAL CODE § 19.02 .......................................................................................... 18, 20
TEX. PENAL CODE § 9.41 ............................................................................................ 10, 14
TEX. PENAL CODE § 9.42 ...................................................................................... 10, 14, 15




                                                                5
TO THE HONORABLE COURT OF APPEALS:

                            STATEMENT OF THE CASE

      The State accused the appellant of murder. (CR 34). The indictment alleged

that the appellant caused William Johnson’s death by striking Johnson with a motor

vehicle and, in a separate paragraph, with a club (CR 34). The appellant pled not

guilty to the indictments’ allegations, and the case was tried together before a jury and

the Honorable Vanessa Velasquez, presiding judge of the 183rd District Court in

Harris County Texas (RR Vol. II at 5-6). The jury found the appellant guilty of

murder than assessed his punishment at thirty-five years in prison (CR 91, 98, 99; RR

Vol. VI at 96; Vol. VII at 4). The appellant filed a notice of appeal, and the trial

court certified the appellant’s right to appeal (CR 102-3).



                                ISSUES PRESENTED

      1. The trial court erred by refusing the appellant’s request to
         instruct the jury on defense of property as justification for
         William Johnson’s murder.

      2. The trial court erred by refusing to instruct the jury on the
         sudden-passion special issue.




                                               6
                           SUMMARY OF THE FACTS

      In April 2013, Alvin Hickman was homeless and lived under a bridge near

Airline Drive in Houston (RR Vol. IV 84). Sometimes he would stay at the nearby

Western Inn (RR Vol. IV 87). On April 19th, Hickman grew tired of panhandling and

went to the appellant’s room at the Western Inn (RR Vol. IV at 89). The appellant

was looking for his mobile phone. Someone had stolen it and wanted $80 for its

return (RR Vol. IV at 91-2). Hickman joined the appellant in his van and the two

went to a nearby convenience store to retrieve the appellant’s phone (RR Vol. IV at

96-8). The appellant met the phone thief on a street nearby the store (RR Vol. IV at

100-101).

      Hickman recognized the phone thief as a “hustler” who went by the moniker,

“G”1 (RR Vol. IV 102). G had the appellant’s phone (RR Vol. IV at 103). Hickman

saw the appellant get a “a pipe or a stick” before he got out of the van to confront G

(RR Vol. IV at 104). According to Hickman, the appellant “whooped” G with the

pipe; “[h]e was tearing him up with the stick” (RR Vol. IV at 104-5). G took off

running (RR VOl. IV at 106). The appellant got back into the van and drove it into

G and pinned him against a fence (RR Vol. IV at 106, 107). Hickman got out of the

van and ran away (RR Vol. IV at 108). Hickman did some drugs and sat under the

bridge because he was afraid (RR Vol. IV at 109). At some point Hickman went back

1
  The medical examiner identified “G” by fingerprint comparison as William Johnson
(RR Vol. IV at 172-3).

                                             7
to try to help G, but G was too heavy and couldn’t walk. So Hickman left him there

and went back under the bridge (RR Vol. IV at 113). G was still alive and moaning

(RR Vol. IV at 116, 133).

      Hickman described the appellant’s demeanor as unusual:

             But to see a white guy in the hood get out there in the
             paint like that, that was, like -- you know, because he
             was --the guy right here have never disrespected me.
             He don't even do drugs. He don't even drink. But that
             day, he lost it. So, it really tripped me out, you know.
             I'd never seen a bad side to him. Never have. But that
             day, he tripped all the way out.

                                      *********

             He was silent. His -- his face, I can't describe it, but he
             was not hisself. He was, like, transformed to
             something else. I don't know what it was, but he was
             not hisself. I had never seen him act like that before,
             never.

(RR Vol. IV at 128-9, 136).

      The appellant testified that he left his mobile phone in his room At the

Western Inn and when he returned the phone was gone (RR Vol. V at 130-32). The

appellant felt desperate. He used his mobile phone for work and kept records on the

phone that translated to two weeks of pay (RR Vol. V at 133). The appellant was not

affluent. It was very important to the appellant to find the phone (RR Vol. V at 134).

Eventually someone answered his phone and demanded $80 for the phone’s return

(RR Vol. V at 134). The appellant phoned 911 for assistance and proceeded to the

nearby convenience store to retrieve it (RR Vol. IV at 136). Neither the police nor

the phone thief arrived (RR Vol. V at 136). The appellant called his phone again and


                                                  8
made other arrangements with the thief to meet (RR Vol. V at 137). The appellant,

who was exhausted and frazzled, took Hickman with him when he went to retrieve

his phone (RR Vol. V at 138).

      The appellant met up with the complainant in a street near the Western Inn

and grabbed a floor jack handle before he got out of his van (RR Vol. V at 145). He

carried the handle for protection because it was a bad neighborhood (RR Vol. V at

145). The appellant gave the complainant $80. The complainant then pulled a knife

and the appellant struck him with the floor jack handle in self-defense (RR Vol. V at

147-8). The complainant took off running with the appellant’s phone (RR Vol. V at

151). (RR Vol. at 151). Still anxious to retrieve his phone, the appellant went after

the complainant in his van. Hickman interfered with the steering wheel, and the

appellant struck the complainant with his van (RR Vol. V at 154).

      The appellant got out of his van and retrieved his phone (RR Vol. V at 155).

The appellant testified that during the whole incident while he was trying to retrieve

his phone, his “mind was doing a hundred miles a minute”; he was mad and scared

when the complainant pulled a knife (RR Vol. V at 156).




                                             9
                    ARGUMENT: FIRST ISSUE PRESENTED

          The trial court erred by refusing the appellant’s request to
          instruct the jury on defense of property as justification for
          William Johnson’s murder.


I.    Summary of the argument


      The trial court improperly denied the appellant’s request for a jury instruction

on defense of property under Penal Code sections 9.41 and 9.42. TEX. PENAL CODE

§§ 9.41 & 9.42.



II.   Summary of the pertinent facts


      After the appellant rested its case-in-chief, the trial court conducted a charge

conference (RR Vol. V at 192-96). The appellant requested, among other things:

             We're asking for a charge under self-defense and also
             a charge under deadly force to protect property under
             9.42 of the Penal Code. . . .

              . . I just wanted to be more specific as to our request
             for deadly force to protect property. We believe it was
             a theft at nighttime for a burglary. So, we're asking for
             that charge.

(RR Vol V at 194, 196). The trial court ruled:

             I'm going to allow the self-defense. I'm not going to
             allow the defense of property. . . . Okay. I looked at
             the section in the Penal Code and I don't think it
             applies. So, I'm going to deny your request.

(RR Vol V at 194, 196).


                                               10
       The next morning, before jury argument, the trial court asked the appellant if

he had any objections to the charge (RR Vol. VI at 4). The following colloquy

ensued:

             [THE APPELLANT]: Same ones I made yesterday on
             the record, Judge.

             THE COURT: That would be with regards to defense
             of property at nighttime?

             [THE APPELLANT]: Yes, ma'am, using deadly force.

             THE COURT: All right. And I denied that. So, that's
             still denied.

(RR Vol. VI at 4).


III.   The trial court erred by refusing to instruct the jury on
       defense of property as justification for William Johnson’s
       murder

          A. The standard of review

       This Court should review jury-charge error under the familiar two-pronged

test set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on

reh'g); Swearingen v. State, 270 S.W.3d 804, 808 (Tex. App.-Austin 2008, pet. ref'd).

First, this Court should determine whether error exists. Ngo v. State, 175 S.W.3d 738,

743 (Tex. Crim. App. 2005). When error exists, this Court should then evaluate the

harm caused by the error. Id. The harm required for reversal depends on whether

that error was preserved in the trial court. Swearingen, 270 S.W.3d at 808. When error

is preserved by timely objection, the record must show merely “some harm.”

Almanza, 686 S.W.2d at 171. Unobjected-to charge error requires reversal when it

                                             11
resulted in “egregious harm.” Neal v. State, 256 S.W.3d 264, 278 (Tex. Crim. App.

2008).

            B. Law regarding jury instructions on defensive issues

         A defendant is entitled, upon a timely request, to an instruction on any

defensive issue raised by the evidence, provided that (1) the defendant timely requests

an instruction on that specific theory and (2) the evidence raises that issue. Rogers v.

State, 105 S.W.3d 630, 639 (Tex. Crim. App. 2003). To preserve error, the defendant

must sufficiently identify the defensive theory for which he seeks an instruction. Id. at

640.

         A defendant is entitled to an instruction on every defensive issue raised

regardless of whether the evidence is strong, feeble, unimpeached or contradicted, and

even when the trial court thinks that the testimony is not worthy of belief. Walters v.

State, 247 S.W.3d 204, 209 (Tex. Crim. App. 2007). This rule is designed to insure that

the jury, not the judge, will decide the relative credibility of the evidence. Miller v.

State, 815 S.W.2d 582, 585 (Tex. Crim. App. 1991). When a defensive theory is raised

by the evidence from any source and a charge is properly requested, it must be

submitted to the jury. Shaw v. State, 243 S.W.3d 647, 662 (Tex. Crim. App. 2007).

         This Court should review the denial of a requested defensive instruction in the

light most favorable to the defendant and for an abuse of the trial court’s discretion.

Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006); Love v. State, 199 S.W.3d

447, 455 (Tex. App.— Houston [1st Dist.] 2006, pet. ref’d).

                                               12
           C. The appellant was entitled to a defense of property
              instruction because it was raised by the evidence that the
              entire incident revolved around his efforts to retrieve his
              recently stolen mobile phone


       Here, the appellant tried his case on a theory of defense of property and self.

He testified that immediately prior to the altercation, his mobile phone had been

stolen, and the complainant was holding it in lieu of a ransom. The apparent thief

spoke to the appellant and demanded $80 for the phone’s return. The appellant

needed his mobile phone for work and was desperately anxious for its return. He met

William Johnson in an attempt to retrieve his phone. The meeting was captured on

videotape and witnessed by Alvin Hickman. The appellant admitted engaging in the

acts that led to Johnson’s death, but claimed Johnson was alive when he left him. The

appellant admitted to striking Johnson with a jack handle and his van, but claimed

Hickman, his accomplice,2 turned the wheel and was more responsible than him for

the van striking Johnson. The appellant recovered his phone.

       The record reflects that the appellant’s case-in-chief was neither complex nor

lengthy and that the trial court had just heard testimony from the appellant that the

2
  Alvin Hickman was an accomplice. An “accomplice witness” is someone who has participated
with another before, during, or after an offense’s commission. See Kunkle v. State, 771 S.W.2d
435, 439 (Tex. Crim. App. 1986), cert. denied, 492 U.S. 925 (1989). While the appellant
testified that Hickman was responsible for the van striking the complainant, the two acted
together in confronting the complainant. The appellant is responsible for Hickman’s actions
under party liability. Thus, the appellant’s attempts to minimize his responsibility for the van
striking the complainant do not undermine the evidence entitling him to the defensive
instruction. That is to say the appellant did admit to conduct that, under the law of parties, was
sufficient to sustain a conviction for murder and satisfies the “confession-and-avoidance
requirement. See Walters v. State, 247 S.W.3d 204, 210 (Tex. Crim. App. 2007).


                                                   13
appellant was attempting to retrieve his mobile phone from the complainant. The

Appellant gave the trial court specific reasons why he believed the Appellant was

entitled to an instruction on defense of property. Thus, the requested instruction was

preserved for review.

      The appellant was entitled to a protection of property defense under section

9.41, and a use of deadly force defense under section 9.42. During the charge

conference the appellant requested an instruction on section 9.42 on use of deadly

force to protect property. See TEX. PENAL CODE §§ 9.41 & 9.42. Section 9.41

provides in pertinent part:

              (b) A person unlawfully dispossessed of land or
             tangible, movable property by another is justified in
             using force against the other when and to the degree
             the actor reasonably believes the force is immediately
             necessary to reenter the land or recover the property
             if the actor uses the force immediately or in fresh
             pursuit after the dispossession and:

                    (1) the actor reasonably believes the other had
                    no claim of right when he dispossessed the
                    actor;

TEX. PENAL CODE § 9.41.

      Section 9.42, allows a person to use deadly force against another to protect

tangible, movable property:

      (1) if he would be justified in using force against the other
      under Section 9.41; and

      (2) when and to the degree he reasonably believes the
      deadly force is immediately necessary:

             (A) to prevent the other’s imminent commission of
             arson, burglary, robbery, aggravated robbery, theft


                                             14
             during the nighttime, or criminal mischief during the
             nighttime; or

             (B) to prevent the other who is fleeing immediately
             after committing burglary, robbery, aggravated
             robbery, or theft during the nighttime from escaping
             with the property; and

      (3) he reasonably believes that:

             (A) the land or property cannot be protected or
             recovered by any other means; or

             (B) the use of force other than deadly force to protect
             or recover the land or property would expose the
             actor or another to a substantial risk of death or
             serious bodily injury.

TEX. PENAL CODE § 9.42.

      Here, the appellant was justified in using force under Sections 9.41 and 9.42,

and the evidence raised the right to an instruction on the use of deadly force to

protect property.     The appellant and Hickman testified that the complainant

possessed the appellant’s recently stolen mobile phone and would not return it unless

the appellant paid him $80. The appellant testified that he desperate, frantic and

scared because the complainant pulled a knife.         Such conduct constituted the

“imminent” commission of one or more of the section 9.42 enumerated offenses.

Thus, the evidence—whether strong, feeble, unimpeached, contradicted, or not

worthy of belief—raised a defensive issue, and the trial court should have instructed

the jury accordingly.    Viewing the evidence in the light most favorable to the

Appellant, the trial court abused its discretion in refusing to give a section 9.42

defensive instruction in the jury charge.



                                              15
      The trial court’s refusal to give the jury a defensive instruction deprived the

Appellant of the ability to present a defense and argue that defense to the jury. He

was entitled to have the jury rule on his claim of defense of property. By refusing the

requested instruction, the trial court removed any opportunity for the jury to decide

the relative credibility of the evidence or the merits of the defense. See Miller, 815

S.W.2d at 585. Accordingly, the Appellant suffered “some” harm from the trial

court’s erroneous refusal to give the instruction. See Almanza v. State, 686 S.W.2d 157,

171 (Tex. Crim. App. 1984) (holding when charging error is preserved for review,

reversal is required if the error caused “some” harm).



                  ARGUMENT: SECOND ISSUE PRESENTED

          The trial court erred by refusing the appellant’s request to
          instruct the jury on the sudden passion special issue.


I.    Summary of the argument


      The trial court improperly denied the appellant’s request for a jury instruction

on the sudden passion special issue.




                                              16
II.    Summary of the pertinent facts

       While the jury was deliberating the appellant’s guilt, the appellant asked the trial

court to include a jury instruction on sudden passion in its punishment charge:

             THE COURT: Mr. Tanner, any objection to the charge

             MR. TANNER: Yes, ma'am. We're requesting under
             19.02 the adequate cause, sudden passion –

             THE COURT: Okay.

             MR. TANNER: -- to be added. We think the evidence
             did show that the Defendant acted in sudden passion
             based on adequate cause. We would like to submit
             that to the jurors where the range of punishment
             would be two to 20.

             THE COURT: All right. Well, thank you very much, but
             the Court respectfully disagrees. And I'm not going to
             include that in the charge.

(RR Vol. VI at 31-2).



III.   The trial court erred by refusing the appellant’s request to
       instruct the jury on the sudden passion special issue.

          A. The standard of review

       This Court should review jury-charge error under the familiar two-pronged test

set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (op. on reh'g);

Swearingen v. State, 270 S.W.3d 804, 808 (Tex. App.-Austin 2008, pet. ref'd). First, this

Court should determine whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex.

Crim. App. 2005). When error exists, this Court should then evaluate the harm

caused by the error. Id. The harm required for reversal depends on whether that


                                               17
error was preserved in the trial court. Swearingen, 270 S.W.3d at 808. When error is

preserved in the trial court by timely objection, the record must show merely “some

harm.” Almanza, 686 S.W.2d at 171. Unobjected-to charge error requires reversal

when it resulted in “egregious harm.” Neal v. State, 256 S.W.3d 264, 278 (Tex. Crim.

App. 2008).

          B. The law: Sudden Passion


       If a defendant has been convicted of murder, he may argue at the punishment

stage of trial that he caused the complainant’s death while under the immediate

influence of sudden passion arising from an adequate cause. TEX. PENAL CODE §

19.02(d); London v. State, 325 S.W.3d 197, 207 (Tex. App.-Dallas 2008, pet. ref'd). If

the defendant proves this issue by a preponderance of the evidence, the offense is

reduced from a first-degree felony to a second-degree felony. TEX. PENAL CODE §

19.02(d); London, 325 S.W.3d at 207. The Penal Code defines “sudden passion” as

“passion directly caused by and arising out of provocation by the individual killed ...

which passion arises at the time of the offense and is not solely the result of former

provocation.” TEX. PENAL CODE § 19.02(a)(2). “Adequate cause” is defined 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). To be entitled to an affirmative finding on this issue, the

defendant must demonstrate that “the homicide occurred while the passion still


                                               18
existed and before there was reasonable opportunity for the passion to cool; and that

there was a causal connection between the provocation, the passion, and the

homicide.” McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005).

       Self-defense and sudden passion are intricately intertwined, and facts that give

rise to a self-defense issue generally give rise to a sudden-passion issue. Trevino v. State,

100 S.W.3d 232, 242 n. 40 (Tex. Crim. App. 2003). Because self-defense and sudden

passion so often arise from the same facts, trial courts are “generally well advised to

give both instructions.” Benavides v. State, 992 S.W.2d 511, 525 (Tex. App.-Houston

[1st Dist.] 1999, pet. ref'd).

           C. The appellant was entitled to a sudden passion instruction


       In this case, the trial court instructed the jury on self-defense but refused to

instruct the jury on sudden passion (CR 86-8). A trial court is obligated to instruct

the jury on sudden passion when the evidence supports such a finding. Id. at 524-25.

As long as the record contains some evidence to support a sudden-passion charge—

even if that evidence is weak, impeached, contradicted, or unbelievable— the jury

should receive a sudden-passion instruction. McKinney, 179 S.W.3d at 569.

       While the appellant did claim he acted in self-defense, the facts giving rise to

sudden passion were larger and encompassed more actions than those relating only to

self defense. There was ample evidence apart from self-defense that he acted out of

sudden passion. The appellant testified that he needed his mobile phone for work;


                                                19
that it would cost him a significant amount of money if he could not retrieve it. The

appellant was far from affluent. He was desperate: his “mind was doing a hundred

miles a minute” and he was mad (RR Vol. V at 156).

      Hickman testified that he had never seen the appellant act like that before:

             I'd never seen a bad side to him. Never have. But that
             day, he tripped all the way out.

                                      *********

             He was silent. His -- his face, I can't describe it, but he
             was not hisself. He was, like, transformed to
             something else. I don't know what it was, but he was
             not hisself. I had never seen him act like that before,
             never.

(RR Vol. IV at 128-9, 136).

      While the jury did reject the appellant’s self-defense claim, the Court of

Criminal Appeals has held that a “jury's rejection of self- defense at guilt-innocence

does not necessarily mean that, given an instruction on sudden passion at punishment,

it would have rejected that theory as well.” Trevino, 100 S.W.3d at 242-43. Given the

foregoing, especially the fact that the complainant’s theft of his mobile phone caused

a degree of anger, rage, resentment that rendered the appellant incapable of cool

reflection, the trial court should have instructed the jury on sudden passion at the

punishment phase.

      If the jury had determined that the appellant acted out of sudden passion, the

offense would have been reduced to a second-degree felony, which carries a

maximum sentence of 20 years. See TEX. PENAL CODE § 19.02(d). Because the jury


                                                  20
assessed the appellant’s punishment at 35 years without the sudden-passion

instruction, the error in failing to instruct the jury was harmful. The correct remedy in

such a situation is to reverse the trial court's judgment as to punishment and remand

the case for a new punishment hearing. See, e.g., Trevino, 100 S.W.3d at 243.

                                       PRAYER


      The appellant respectfully submits that he was denied a fair and impartial trial.

His issues presented should be sustained, and his sentence should be reversed.



                                                   __/s/__Kelly Smith_______________
                                                   KELLY ANN SMITH
                                                   Texas Bar No. 00797867


                           CERTIFICATE OF SERVICE

      Under TEX. R. APP. P. 9.5, this certifies that the undersigned served a copy of

this brief on the State of Texas at the following address: Devon Anderson, District

Attorney 1201 Franklin, 6th Floor Houston, Texas 77002.


                                                   __/s/__Kelly Smith_______________
                                                   KELLY ANN SMITH
                                                   Texas Bar No. 00797867

                                                   P.O. Box 10752
                                                   Houston, TX 77206
                                                   281-734-0668
                                                   Kelly.A.Smith.06@gmail.com




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