                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         _________________________

              No. 06-10-00130-CR
        ______________________________


         BILLY DEE RILEY, JR., Appellant

                         V.

         THE STATE OF TEXAS, Appellee



   On Appeal from the 102nd Judicial District Court
                Bowie County, Texas
           Trial Court No. 09F0483-102




    Before Morriss, C.J., Carter and Moseley, JJ.
   Memorandum Opinion by Chief Justice Morriss
                                        MEMORANDUM OPINION

        The New Year’s Eve party at the Expo Hall in Nash, Texas, had been going smoothly.

But as the new year of 2009 was just getting started, violence erupted—allegedly gang

oriented—resulting in the death of Terry Matthews. Billy Dee Riley, Jr., was charged with,

convicted of, and sentenced to fifty years’ imprisonment for, Matthews’ murder.

        On Riley’s first appeal to this Court, he argued, and we agreed—Carter, J., dissenting—

that his trial counsel had been ineffective by giving him bad advice—erroneously telling Riley

that a jury, after finding Riley guilty of murder, would be authorized to assess community

supervision for him rather than a prison sentence. Such ruling on that issue, if it had been the

final word, would have disposed of the whole case; therefore, we did not address Riley’s other

appellate complaints.1 The case, however, was further appealed; our decision was reversed by

the Texas Court of Criminal Appeals,2 based on that court’s conclusion that Riley had not

demonstrated that the outcome of his trial was affected by the admittedly substandard legal

advice. Riley’s appeal has been remanded to us to address Riley’s remaining issues on appeal.

        We affirm the judgment of the trial court because (1) the trial court had no duty to

admonish Riley that he was ineligible to get community supervision from the jury, (2) Riley did



1
 Riley’s grounds on appeal include that: (1) he received ineffective assistance of counsel, who incorrectly advised
him that he would be eligible for community supervision by a jury even if convicted of murder; (2) the trial court
had a duty to admonish him regarding ineligibility of community supervision from a jury; (3) the trial court erred by
excluding “certain photographs and testimony”; (4) the evidence was insufficient to establish the jury’s rejection of
sudden passion during punishment; (5) the court failed to include language in the punishment charge requiring
rejection of the issue of sudden passion to be unanimous; (6) the punishment charge allowed rendition of a
nonunanimous verdict; and (7) counsel rendered ineffective assistance in failing to object to the punishment charge.
2
 See Riley v. State, No. PD-1531-11, 2012 WL 4092874 (Tex. Crim. App. Sept. 19, 2012). The Texas Court of
Criminal Appeals concluded with respect to the first issue that, “while appellant has shown deficient performance by
trial counsel, he has failed to prove that, had defense counsel properly informed appellant of his ineligibility for
probation, there is a reasonable probability that his trial would have produced a different result.” Id. at *4.

                                                         2
not preserve any error in the exclusion of evidence, (3) the evidence is legally and factually

sufficient to support the jury’s rejection of sudden passion, (4) egregious harm has not been

shown in the failure to instruct the jury that rejection of sudden passion must be unanimous, and

(5) no prejudice has been shown from Riley’s counsel’s failure to object to the punishment

charge.

(1)       The Trial Court Had No Duty to Admonish Riley that He Was Ineligible to Get
          Community Supervision from the Jury

          Not only did Riley claim ineffective assistance of counsel due to the community-

supervision mistake, he also claims that the trial court should have admonished him to dissuade

him of the misunderstanding. Riley’s counsel erroneously believed that Riley could receive

community supervision in the event that he was convicted of murder.3 He filed an “Application

for community supervision from the jury.” During voir dire, the court informed the jury:

          The offense of murder under the law of the State of Texas is a first degree felony
          offense. As a first degree felony offense, what that means is it carries a
          punishment of not less than five years nor more than ninety-nine years or life in
          prison. Under certain circumstances the law of the State of Texas provides that if
          a defendant has never before been convicted of a felony offense and that is proven
          and shown to the jury, then the jury, if they assess a punishment of ten years or
          less, the jury may recommend by their verdict that probation be granted to a
          defendant. . . . So at the outset, to be a qualified juror, you must be willing to
          consider anything from five years probation all the way up to life in prison.

The erroneous belief that Riley could be considered for community supervision as a punishment

option was shared by the State and the trial court. In fact, the entire punishment proceeding was

focused on community supervision, and the parties did not discover that the jury was unable to

consider this punishment option until submission of the punishment charge.

3
 Sections 3g and 4(d)(8) of Article 42.12 of the Texas Code of Criminal Procedure prevent a judge or jury from
ordering or recommending community supervision following a conviction of murder. TEX. CODE CRIM. PROC. ANN.
art. 42.12, §§ 3g, 4(d)(8) (West Supp. 2012).

                                                      3
            Riley argues that “the trial judge failed to correct the parties’ erroneous beliefs

concerning . . . eligibility for probation until it was too late.” Riley stated that, had the trial court

properly admonished him, he “would have withdrawn his jury demand4 and requested that the

trial court withhold a finding of guilt and consider granting deferred adjudication.”5

            The trial court is under no duty to admonish a defendant who pleads not guilty. Williams

v. State, 477 S.W.2d 607 (Tex. Crim. App. 1972); see TEX. CODE CRIM. PROC. ANN. art. 26.12

(West 2009). Moreover, as a general rule, there is no mandatory duty for the trial court to

admonish the defendant on his or her eligibility for community supervision. See Ex parte

Williams, 704 S.W.2d 773, 775 (Tex. Crim. App. 1986); Gomez v. State, 681 S.W.2d 814, 816

(Tex. App.—Houston [14th Dist.] 1984, no writ) (“Although we also feel that the better practice

is to advise a defendant of his ineligibility for probation as a matter of course when this

circumstance arises, there is no indication that the trial judge was obliged to inform appellant of

this fact.”). There are exceptions, however, when the trial court should admonish the defendant

regarding community supervision, but these exceptions are applicable only when the court’s duty




4
    The record below contains Riley’s affidavit stating:

            Other than the underlying felony conviction of murder in the above-entitled and numbered cause, I
            have never before been convicted of a felony in any federal or state court in this or any other
            state. . . . Prior to trial, and during the course of the trial, each of my attorneys advised me that I
            would be eligible for probation in the event I was convicted of murder. . . . Had my trial attorneys
            not given me erroneous advice concerning my eligibility for probation in the event I was convicted
            of murder, I would have entered an open plea of nolo contendere to the trial court in hopes that the
            trial court would grant deferred adjudication probation pursuant to Section 5 of Article 42.12 of
            the Texas Code of Criminal Procedure.
5
 A “court’s failure to properly admonish a defendant cannot be forfeited and may be raised for the first time on
appeal unless it is expressly waived.” Bessey v. State, 239 S.W.3d 809, 812 (Tex. Crim. App. 2007).


                                                              4
to admonish is based on the defendant’s plea of guilty or nolo contendere.6 See TEX. CODE

CRIM. PROC. ANN. art. 26.13(a) (West Supp. 2012); Williams, 704 S.W.2d at 776–77; Downs v.

State, 137 S.W.3d 837, 839–41 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (op. on reh’g)

(analyzing exception when defendant pled guilty); Tabora v. State, 14 S.W.3d 332, 334–35 (Tex.

App.—Houston [14th Dist.] 2000, no pet.).7 Here, because Riley pled not guilty, the trial court

was not required to admonish him with respect to eligibility for community supervision.

(2)     Riley Did Not Preserve any Error in the Exclusion of Evidence

        Before the jury retired to deliberate, there was some discussion on the record concerning

certain photographs that included gang-related tattoos or jewelry.8 The photographs in question

were not offered on the record until after the jury had started its deliberations, at which time

Riley made an offer of proof. For an offer of proof to be timely, it must be made “as soon as

practicable, but before the court’s charge is read to the jury.” TEX. R. EVID. 103. Unless the

substance of the excluded evidence is apparent from the context of the record, the offering party

must present a timely offer of proof. TEX. R. EVID. 103(a)(1); Guidry v. State, 9 S.W.3d 133,

153 (Tex. Crim. App. 1999). Because the record must be developed before the charge is read to

the jury, an offer of proof or bill of exception is untimely if not presented before then. See TEX.



6
 If a court volunteers information about community supervision by its own volition in a case where the defendant
has pled guilty or nolo contendre, the information provided must be accurate. Williams, 704 S.W.2d at 776; Richard
v. State, 788 S.W.2d 917, 919 (Tex. App.—Houston [1st Dist.] 1990, no pet.).
7
 Also, before Riley’s testimony during guilt/innocence, the trial court asked Riley, “Q. Do you also understand that
you are charged with murder and the punishment range is five to ninety-nine or life?” Riley responded, “A. Yes,
sir.”
8
 The trial court had granted the State’s motion in limine with respect to any evidence that might have linked the
victim to the “Lil Cuz Boys” gang. The grant or denial of a pretrial motion in limine is a preliminary ruling only
and normally preserves nothing for appellate review. Geuder v. State, 115 S.W.3d 11, 14–15 (Tex. Crim. App.
2003).

                                                         5
R. EVID. 103(b); Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998). Because the record

contains nothing by way of an offer of the photographs or the offer of proof until after the charge

was read to the jury and it was deliberating, no error was preserved regarding the exclusion of

the four photographs.9


9
 As to the first photograph, the record of this exchange, which occurred after the jury had retired to deliberate, is
included for clarity:

                  [Riley’s counsel]: Judge, when JShaun Riley was testifying, we approached to offer
        testimony of JShaun Riley to the effect that he recognized on the deceased, Terry Matthews, that
        he had a representation of the tattoo, “little cuz boys,” across his chest. We attempted and would
        like to offer that.

                 THE COURT: All right, this is just for the purposes of the record, as it was properly
        predicated—and help me, Mr. Davis . . .

                 [Riley’s counsel]: Well, JShaun testified that he would have recognized Terry Matthews,
        had he seen a picture of him. But then I approached—and he would have testified that this was
        Terry Matthews, had he been presented this photo. He was not afforded the opportunity to
        identify him by this photo. Therefore, the defense objects and would like to present it now for the
        record.

                 [The State]: And, Judge, for record purposes we objected because “little cuz boys” is
        represented to be a gang, and was represented by the defense to be a gang, and this photograph
        could have been cropped at the neck and the face shown. And what we sought to keep out through
        a motion in limine was the tattoo [sic], little cuz boys, and the idea that there was a gang affiliation
        or a gang.

                 [Riley’s counsel]: And, Judge, we were just presenting it to JShaun because JShaun
        Riley had saw Terry, the deceased, on the night in question without his shirt off, and that was how
        he identified him. . . .

                 THE COURT: . . . the Court had sustained the objection of the State. The probative
        value of that photograph does not overcome the prejudicial effect, at least in the opinion of the
        Court.

        As to the second photograph, the following exchange occurred after the jury retired to deliberate:

                  [Riley’s counsel]: Judge, we would also offer a photograph of Courtney Holt, and if
        Olivia Smith were able to be presented this photo, she would have testified that this was one and
        the same Courtney Holt who she testified initiated the confrontation that night, and this is a true
        and accurate representation of what he was actually wearing that night, and we would offer that
        just so the jury could see and get a visual of Courtney Holt as we started off the case.

                 THE COURT: All right.


                                                           6
        This point of error is overruled.

(3)     The Evidence is Legally and Factually Sufficient to Support the Jury’s Rejection of
        Sudden Passion

        Riley argues the evidence was legally and factually insufficient to support a negative

finding on the issue of sudden passion. Murder is a first degree felony. TEX. PENAL CODE ANN.

§ 19.02(c) (West 2011). At the punishment phase of trial, defendant may seek to reduce

punishment to that of a second degree felony by proving that he or she caused the death under

                 [The State]: Judge, also that photograph could have been cropped at the neck, and there
        is being held a chain with jewelry on it that says “LCB,” which is obviously association with little
        cuz boys, and we’re getting into the gang aspect.

        As to the next photograph, the following transpired after the jury retired to deliberate:

                [Riley’s counsel]: Also, Your Honor, while the medical examiner was on the stand, I
        attempted to offer a photo that shows the entire body of Terry D. Matthews to show the jury that
        complete body, all the wounds, so they could get an adequate picture of all the wounds on his
        body.

                  [The State]: And we would object, Judge because the body is fully nude, bearing the
        tattoo [sic] “little cuz boys,” and has an incision that runs below the chest plate almost to the pubic
        area, and is not probative of any issue in this case as there were autopsy photographs introduced
        that do indeed show the wounds.

The third photograph was offered for the purpose of demonstrating that Matthews’ hands were bagged at the
hospital. On appeal, Riley advances the arguments that the photograph “would have demonstrated a strong
relationship between Courtney Holt and the decedent.”

        As to the last photograph, counsel argued:

                 [Riley’s counsel]: And, Your Honor, I as well offer two photographs that I would like to
        proffer. While Detective Scott Sartor was on the stand, I offered this photograph that he said
        either Detective Brown took at the hospital, that shows that the gunshot residue evidence was
        property protected there. I offer this into evidence to show that.

                 THE COURT: And again, ultimately as the expert testified without objection, the Court
        is of the opinion in this particular situation that the photograph is of the victim who is in the
        process of dying, and it is of the opinion that it is not—it’s a gruesome photograph that added
        nothing to the jury.

                 [The State]: Plus the chest—the photograph shows the little cuz boys tattoo. And in
        addition, Judge—and Mr. Tyler, correct me if I’m wrong, but I stipulated on the gunshot residue,
        so this was not necessary to show that the hands were properly bagged and preserved because I
        stipulated to that.


                                                          7
immediate influence of sudden passion with adequate cause. TEX. PENAL CODE ANN. § 19.02(d)

(West 2011). “Sudden passion” is passion directly caused by and from provocation by the

individual killed or a third party acting with the person killed which arises at time of offense and

is not solely the result of former provocation. TEX. PENAL CODE ANN. § 19.02(a)(2) (West

2011). “Adequate cause” is any cause that would typically lead to anger, rage, resentment, or

terror in a person of ordinary temperament, sufficient to render the mind incapable of cool

reflection. TEX. PENAL CODE ANN. § 19.02(a)(1) (West 2011). If the defendant affirmatively

proves sudden passion by a preponderance of the evidence, the offense is a second degree felony.

TEX. PENAL CODE ANN. § 19.02(d).

        The Texas Court of Criminal Appeals held that Jackson v. Virginia, 443 U.S. 307 (1979),

is the only standard a reviewing court should apply to determine the sufficiency of evidence in

support of the elements of a criminal offense that the State must prove beyond a reasonable

doubt. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). However, the Jackson

standard does not apply to review sufficiency of the evidence supporting the jury’s rejection of

sudden passion during punishment. Smith v. State, 355 S.W.3d 138, 148 (Tex. App.—Houston

[1st Dist.] 2011, pet. ref’d). Judge Cochran’s concurrence in Brooks suggested that the standard

in Meraz is still the appropriate standard of review where defendant had the burden of proof on

an affirmative defense.      See e.g. Lantrip v. State, 336 S.W.3d 343, 346 n.5 (Tex. App.—

Texarkana, 2011, no pet.); Ervin v. State, 331 S.W.3d 49, 53 n.2 (Tex. App.—Houston [1st Dist.]

2010, pet. ref’d).10 We have previously ruled that we review a challenge to the sufficiency of the



10
  See Johnson v. State, No. 05-09-00133-CR, 2010 WL 5142392, **6–7 (Tex. App.—Dallas Dec. 20, 2010, pet.
ref’d) (not designated for publication). Although the unpublished case has no precedential value, we may take

                                                     8
evidence on sudden passion using the same standard of review as a challenge to the rejection of

an affirmative defense. Bradshaw v. State, 244 S.W.3d 490, 502 (Tex. App.—Texarkana 2007,

no pet.). Therefore, Brooks does not alter the standard of review concerning sudden passion, and

we will conduct both a legal and factual sufficiency review. De Leon v. State, 373 S.W.3d 644,

650 (Tex. App.—San Antonio 2012, pet. ref’d) (citing Meraz v. State, 785 S.W.2d 146, 154–55

(Tex. Crim. App. 1990)).

        “A legal sufficiency challenge to the evidence supporting a negative finding on sudden

passion involves two steps.” Bradshaw, 244 S.W.3d at 502. First, we examine the record for

evidence that supports the fact-finder’s negative finding on sudden passion, “while ignoring all

evidence to the contrary.” Id. Second, if no evidence is found to support a rejection of sudden

passion, then we examine the entire record to determine if it establishes the contrary proposition

of sudden passion as a matter of law. Id. (citing Cleveland v. State, 177 S.W.3d 374, 387 (Tex.

App.—Houston [1st Dist.] 2005, pet. ref’d)); see Perez v. State, 323 S.W.3d 298, 304 (Tex.

App.—Amarillo 2010, pet. ref’d). In reviewing the record, we show deference to the fact-

finder’s determination of credibility of witnesses and weight they gave to the evidence.

Cleveland v. State, 177 S.W.3d 374, 388–89 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).

        In addressing a factual sufficiency challenge to the jury’s negative finding of sudden

passion, which the defendant has to prove by a preponderance of the evidence, we employ the

Meraz standard. Lantrip, 336 S.W.3d at 346 (citing Brooks, 323 S.W.3d at 924 n.67); Cleveland,

177 S.W.3d at 390–91. We ask whether, after considering all of the evidence, the judgment is so

against the great weight and preponderance of the evidence that it is clearly wrong or manifestly

guidance from it “as an aid in developing reasoning that may be employed.” Carrillo v. State, 98 S.W.3d 789, 794
(Tex. App.––Amarillo 2003, pet. ref’d).

                                                       9
unjust. Smith, 355 S.W.3d at 148 (citing Meraz, 785 S.W.2d at 154–55); Bradshaw, 244 S.W.3d

at 502. During this analysis, we review all of the evidence in a neutral light and do not intrude

on the fact-finders’ roles as the judges of the weight and credibility of the evidence and

testimony. Smith, S.W.3d at 148 (citing Cleveland, 177 S.W.3d at 390–91); Bradshaw, 244

S.W.3d at 502.

       Because we are called on to assess evidentiary sufficiency, a review of the evidence is

necessary.

       The Expo Hall in Nash, Texas, played host to this ill-fated New Year’s Eve party. Riley

attended the party with his cousin, Jeffrey Scales, and JShaun Riley. Also in attendance were

members of a local gang called the “Lil Cuz Boys,” including Matthews, the victim in this case,

and Matthews’ friend, Courtney Holt.

       The party was in full swing when “the DJ started playing . . . crunk music,” in the form of

a “fighting song.” Female witnesses Olivia Smith and Shambrika Griffin were on the dance

floor when the “Lil Cuz Boys” began responding to the music’s call for violence. Griffin

recalled, “[Holt] and a group of boys was just cutting up and started bouncing around in a

circle.” She stated the boys were “bouncing around us there, and . . . started pushing” the girls

surrounding Griffin. Griffin claimed that “the girl with me, they hit her . . . They all just started

fighting.” Smith testified that she was pushed by Holt and that she pushed back and told him,

“[D]on’t push me,” at which point Holt “drew up like he was going to hit me, and that’s when he

. . . started fighting.” Riley testified that Matthews and his gang “came over to the place where I

was standing, but I was standing off from the people that I was with, and they started pushing on




                                                 10
them. . . . At first it was just a little shoving, and then it got more aggressive.” Griffin testified

Riley attempted to help the girls. The party erupted into a “big fight.”

       Security guard Lee Roy Mack stated that “a fight broke out in” the building involving

approximately eight to ten people. “Pepper spray was induced” to control the fight, but had the

opposite effect. Gunfire erupted. Partygoer Gregory Wooten testified, “[T]here was some

fighting going on and shooting and security started making the place out so everybody was

running . . . . People ended up at the corner, so they started shooting and the window busted out.”

Wooten said that his friend was shot in the leg and that “[i]t was crazy.” Smith said, “Everybody

started trying to run outside, and I guess they were shooting outside so everybody came back in.”

JShaun stated, “[A]fter they maced the place, most people ran outside and that’s when all the

gunshots started going on, like the first couple of gunshots, and then I saw [Riley] come back.”

       Scales, who had ridden with Riley to the party, was seated in Riley’s car waiting for him

to leave. Riley testified that he ran to his car when the security guard used pepper spray. His

intent at that point was to leave, but he heard gunshots, remembered JShaun was still in the

building, and “didn’t want him to get hurt.” Riley told the jury that he “reached in my middle

console and got my gun and cocked it back and then I put the safety on and I put it in my back

pocket.” Scales testified he fought with Riley over the gun. He said, “[W]e struggled over it and

[Riley was] fighting and I just let it go, and he left again.” Riley was on his way back to the

Expo Hall when he “got hit with a bottle.”

       Smith, who was in the Expo Hall, stated, “[Riley] was running like to come back in, and

that’s when [Holt] was hitting” him. JShaun testified he witnessed Riley getting “hit in the head

with a glass bottle,” and both JShaun and Smith claimed several others joined Holt in the beating


                                                 11
of Riley. Smith testified Holt was carrying a gun.11 As Riley was enduring a beating by Holt

and his gang, Smith heard a gun go off. She did not see the firearm that was discharged, but

believed it was Riley’s “[b]ecause when it went off, the dudes started running, backing up.”

Riley admitted that, because the group was “still attacking me, . . . . I pulled the gun out of my

back pocket. The gun . . . went off two times because the safety got jammed; and when the

safety got jammed, I was trying to get it unjammed and the first shot, it scared me and I flinched

and it shot again.” Riley said his assailants ran after the first shot was fired. He then testified,

“[W]hen I was hearing shots and the window broke, I turned around and like—trying to make

myself big. I didn’t want to throw my whole chest off but I was shooting over my shoulder. And

I could see flashes of the guns, and I was shooting and I shot until my gun was clear.”

            Witness Gabriel Young testified that he saw Riley shoot Matthews and that Matthews did

not have a gun. Crime scene technician Kristy Whisenhunt found a forty-five caliber casing, two

forty caliber casings, four nine millimeter Luger casings, eight .380 caliber casings, and two “38

special cartridge casings” at the crime scene. After receiving a bullet from Matthews’ body,

Whisenhunt and Officer Wade Thomas both informed the jury that the murder weapon was a

.380 caliber firearm. Sergeant Kevin Schutte testified the murder weapon and .380 caliber

bullets were retrieved from Riley’s home. Faced with this evidence, Riley was asked, “[W]e

know you killed Terry Matthews, don’t we,” to which he responded, “That’s what the evidence

proved. . . . It’s science.”




11
     Griffin testified that she saw “a dude laying down with a gun” shooting and that it was not Riley.

                                                            12
       (a)    Legally Sufficient Evidence Supported Rejection of Sudden Passion

       Riley raised the issue of sudden passion by arguing that he was responding to an attack.

Smith testified that “[Riley] was running like to come back in, and that’s when [Holt] was

hitting” him. JShaun stated he witnessed Riley getting “hit in the head with a glass bottle,” and

both JShaun and Smith claimed several others joined Holt in the beating of Riley. Importantly,

while there was testimony that Matthews was friends with Holt, no witness testified that

Matthews himself participated in the melee or otherwise provoked Riley. Even if Matthews was

a participant in Riley’s attack, merely acting in response to the provocation by another is not

sufficient to warrant a charge on sudden passion, because there must be some evidence that the

appellant was under the immediate influence of sudden passion. Trevino v. State, 100 S.W.3d

232, 241 (Tex. Crim. App. 2003). Where testimony demonstrates that a defendant had sufficient

time for “cool reflection,” the requirement of adequate cause cannot be shown. See TEX. PENAL

CODE ANN. § 19.02(a)(1).

       In this case, Riley’s uncontroverted testimony provided sufficient evidence for the jury’s

rejection of sudden passion. Riley testified that he ran to his car as security guards sprayed

pepper spray. His intent at that point was to leave. Even though Riley testified that he returned

to the building because “he heard gunshots, remembered JShaun was still in the building, and

“didn’t want him to get hurt,” the fact-finder was in the best position to determine whether a

person of ordinary temperament would have left the scene. Mack’s testimony that no one was

cornering Riley while he was at his vehicle and Scales’ testimony that he fought with Riley over

the weapon would have provided additional support for the suggestion that Riley had time in




                                               13
which to cool off. Instead, although he had the opportunity to leave the scene of the incident

safely, Riley made the conscious decision to return to the Expo Hall with his weapon.

       The jury could have decided Riley had a second opportunity for cool reflection. Riley

testified that because the group was “still attacking me, . . . . I pulled the gun out of my back

pocket. The gun . . . went off two times because the safety got jammed; and when the safety got

jammed, I was trying to get it unjammed and the first shot, it scared me and I flinched and it shot

again.” After the alleged misfire, Riley claimed that his assailants ran away from him. Smith

also claimed that Holt’s group began evacuating the area after the gunshot. Smith claimed that

she did not witness Holt shooting at Riley, and several witnesses testified Matthews was not

carrying a weapon. Riley stated that after the misfire, he “stumbled . . . ten feet” and placed his

gun in his back pocket. Since Riley’s assailants fled after the first shot, a jury could have found

he had another opportunity to reflect and leave the scene without further escalation because he

was no longer being provoked. Instead, Mack testified, “Mr. Riley was out of his car and just

shooting, randomly shooting.”

       As to the actual shooting of Matthews, witness Young testified Matthews was standing in

front of his car without a weapon when Riley shot him from a distance of approximately ten feet.

Given that Riley’s assailants were fleeing and that Matthews was close to his vehicle, the jury

could have developed the idea that Matthews was fleeing the scene and could have reasoned that

a person of ordinary temperament would not have chased down Matthews as he was trying to

escape, but instead would have safely retreated and avoided danger.

       Also, a defendant may not rely on a cause of his own making, precipitating a

confrontation, to support his argument that he acted out of sudden passion from adequate cause.


                                                14
Smith, 355 S.W.3d at 149 (citing Naasz v. State, 974 S.W.2d 418, 420 (Tex. App.—Dallas 1998,

pet ref’d)); Trevino v. State, 157 S.W.3d 818, 822 n.4 (Tex. App.—Fort Worth 2005, no pet.).

The jury could have found that Holt’s attack was a response to Riley’s return to the Expo Hall

with a weapon. Thus, the jury could have decided Riley precipitated the confrontation that

resulted in subsequently killing Matthews.

         We conclude that this evidentiary record, “while ignoring all evidence to the contrary,”

supports the fact-finder’s negative finding on sudden passion.12 Bradshaw, 244 S.W.3d at 502.

Therefore, legally sufficient evidence supported the jury’s negative finding on the issue of

sudden passion.

         (b)      Factually Sufficient Evidence Supported Rejection of Sudden Passion

         The record also supports the theory that Riley fired several shots in response to the four

other weapons that were being shot. Riley testified he was scared. This could have been

because his cousin was in the building where gunfire was erupting or because he was being

attacked by Holt, who was carrying a weapon. In any event, the jury is the sole judge of the

weight and credibility given to any witness’ testimony. See Cleveland, 177 S.W.3d at 390–91;

see also Trevino, 157 S.W.3d at 822. As noted above, from Riley’s own testimony, the jury was

free to conclude that he had sufficient time for cool reflection before shooting Matthews from a

range of ten feet. Therefore, after considering all of the relevant evidence, we conclude that the

verdict is not so against the great weight and preponderance of the evidence as to be manifestly




12
 Since the first prong of the test is satisfied, we need not analyze whether the record establishes sudden passion as a
matter of law. Perez, 323 S.W.3d at 305 (citing Howard v. State, 145 S.W.3d 327, 333–34 (Tex. App.—Fort Worth
2004, no pet.)).

                                                         15
unjust, but rather reflected an appropriate exercise of the jury’s fact-finding role. See Meraz, 785

S.W.2d at 154–55.

       The evidence is legally and factually sufficient.

(4)    Egregious Harm Has Not Been Shown in the Failure to Instruct the Jury that Rejection of
       Sudden Passion Must be Unanimous

       Riley claims the trial court “committed fundamental error in failing to include language

within the punishment charge requiring that the jury’s decision on the issue of sudden passion

had to be unanimous before it could then proceed to assessment of a term of imprisonment.” Our

review of jury charge error involves a two-step process. Abdnor v. State, 871 S.W.2d 726, 731

(Tex. Crim. App. 1994); see also Sakil v. State, 287 S.W.3d 23, 25–26 (Tex. Crim. App. 2009).

Initially, we determine whether error occurred and then evaluate whether sufficient harm resulted

from the error to require reversal. Abdnor, 871 S. W.2d at 731–32.

       At the punishment stage of a murder trial, “the defendant may raise the issue as to

whether he caused the death under the immediate influence of sudden passion arising from an

adequate cause.” TEX. PENAL CODE ANN. § 19.02(d). “Sudden passion” means “passion directly

caused by and arising out of provocation by the individual killed or another acting with the

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

provocation.” TEX. PENAL CODE ANN. § 19.02(a)(2). “Adequate cause” means “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.” TEX. PENAL CODE ANN.

§19.02(a)(1). If a defendant establishes by a preponderance of the evidence that he or she acted




                                                16
out of sudden passion, the offense level is reduced from a first degree to a second degree felony.

TEX. PENAL CODE ANN. § 19.02(d); Trevino, 100 S.W.3d at 237.

        Article 37.07, Section 3(c) of the Texas Code of Criminal Procedure provides:

        If the jury finds the defendant guilty and the matter of punishment is referred to
        the jury, the verdict shall not be complete until a jury verdict has been rendered on
        both the guilt or innocence of the defendant and the amount of punishment. In the
        event the jury shall fail to agree on the issue of punishment, a mistrial shall be
        declared only in the punishment phase of the trial, the jury shall be discharged,
        and no jeopardy shall attach. The court shall impanel another jury as soon as
        practicable to determine the issue of punishment.

TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(c) (West Supp. 2012). Therefore, a jury finding for

or against sudden passion is required to be unanimous. Bradshaw, 244 S.W.3d at 494 (citing

TEX. CODE CRIM. PROC. ANN. art. 37.07 (West Supp. 2012)); Sanchez v. State, 23 S.W.3d 30, 34

(Tex. Crim. App. 2000).13

        In this case, the jury charge provided:

        The punishment which you may assess is confinement in the Institutional
        Division of the Texas Department of Criminal Justice for life, or for any term of
        not more than ninety-nine (99) years or less than five (5) years; unless you believe
        that the defendant caused the death under the immediate influence of a sudden
        passion arising from an adequate cause in which event you may assess
        confinement for not more than twenty (20) years or less than two (2) years . . . .

        Now if you believe by a preponderance of the evidence that the defendant caused
        the death of the deceased while under the immediate influence of sudden passion
        arising from an adequate cause, you will assess punishment at confinement for not
        more than twenty (20) years nor less than two (2) years and you may impose a
        fine not to exceed ten thousand dollars ($10,000).



13
  See Johnson v. State, No. 06-10-00089-CR, 2011 WL 240875, at *4 (Tex. App.—Texarkana Jan. 26, 2011, no
pet.) (mem. op.) (not designated for publication). Although this unpublished case has no precedential value, we may
take guidance from it “as an aid in developing reasoning that may be employed.” Carrillo v. State, 98 S.W.3d 789,
794 (Tex. App.—Amarillo 2003, pet. ref’d).


                                                        17
In the final paragraph, the jury charge instructed the jurors that the “verdict must be by a

unanimous vote of all members of the jury.” In Bradshaw, we noted that our sister court in

Newton v. State, 168 S.W.3d 255, 258 (Tex. App.—Austin 2005, pet. ref’d),14 found an

essentially equivalent charge to be erroneous because, while it requires a unanimous affirmative

finding on sudden passion, it does not require a unanimous finding against sudden passion.

Bradshaw, 244 S.W.3d at 495.

           Just as in Bradshaw and Newton, the charge in this case does not “condition the use of the

five-to-life punishment range on a unanimous finding that the appellant did not act under the

influence of sudden passion.” Id. at 496; Newton, 168 S.W.3d at 257. In other words, the five-

to-life punishment range was offered as the default punishment range “unless” the jury

unanimously agreed that Riley acted with sudden passion. Yet, “a mistrial must be declared if

the jurors failed to agree on sudden passion.” Bradshaw, 244 S.W.3d at 496 (citing Newton, 168

S.W.3d at 257); Sanchez, 23 S.W.3d at 33 (interpreting Article 30.07, § 3(c) to require mistrial if

jury does not unanimously agree to sudden passion issue). Just as in Bradshaw and Newton, the




14
     The charge in Newton provided:

           The punishment which you may assess is confinement in the Institutional Division of the Texas
           Dept. of Criminal Justice for life, or for any term of not more than 99 years or less than 5 years;
           unless you believe that the defendant caused the death under the immediate influence of a sudden
           passion arising from an adequate cause in which event you may assess confinement for not more
           than 20 years or less than 2 years. . . . Now if you believe by a preponderance of the evidence that
           the defendant caused the death of the deceased while under the immediate influence of sudden
           passion arising from an adequate cause, you will assess punishment at confinement for not more
           than 20 years nor less than 2 years and you may impose a fine not to exceed $10,000.

Newton, 168 S.W.3d at 256–57.

                                                           18
court’s charge in this case failed to ensure a unanimous verdict on rejection of sudden passion.15

Therefore, it was erroneous. The State concedes this point.

        An erroneous or incomplete jury charge does not, however, result in automatic reversal of

the conviction or punishment. Bradshaw, 244 S.W.3d at 497; Abdnor, 871 S.W.2d at 731. We

now decide whether the error was harmful. Riley admits in his brief that he failed to object to

the jury charge. Because Riley did not preserve his complaint at trial, we must decide whether

the error was so egregious and created such harm that the appellant did not have a fair and

impartial trial. Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008); Almanza v. State,

686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g), superseded on other grounds by

rule as stated in Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988); Boones v. State,

170 S.W.3d 653, 660 (Tex. App.—Texarkana 2005, no pet.).

        Egregious harm occurs where an error affects the very basis of a case, deprives the

defendant of a valuable right, vitally affects a defensive theory, or makes the case for conviction

or punishment clearly and significantly more persuasive. Boones, 170 S.W.3d at 660 (citing

Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991)). This is a difficult standard to

prove, and it must be determined on a case-by-case basis. Ellison v. State, 86 S.W.3d 226, 227

(Tex. Crim. App. 2002). The “actual degree of harm must be assayed in light of the entire jury

charge, the state of the evidence, including the contested issues and weight of probative

evidence, the argument of counsel and any other relevant information revealed by the record of

the trial as a whole.” Almanza, 686 S.W.2d at 171.

15
  A general instruction in combination with a special issue on sudden passion assures a unanimous verdict. See
Cartier v. State, 58 S.W.3d 756, 759–60 (Tex. App.—Amarillo 2001, pet. ref’d). Here, as in Bradshaw, the general
instruction requiring a unanimous verdict did not cure the error where no special issue on sudden passion was
submitted to the jury. Bradshaw, 244 S.W.3d at 496.

                                                      19
        In Bradshaw, we stated that, where there is no evidence that the jury’s verdict is not

unanimous, the egregious-harm standard cannot be met because “the degree of harm

demonstrated by an appellant must be actual, not merely theoretical.” Bradshaw, 244 S.W.3d at

497–98. In doing so, we cited to Curry v. State, 222 S.W.3d 745, 753 (Tex. App.—Waco 2007,

pet. ref’d), which found no error where: “(1) nothing in the record indicated the verdict was not

unanimous, (2) the instructions included a general statement that the verdict must be unanimous,

and (3) Curry’s main defensive theory at trial was self-defense.” Bradshaw, 244 S.W.3d at 498.

Curry reasoned: “Self-defense and sudden passion are not mutually exclusive, but to the extent

[the defendant]’s sudden passion arose out of his alleged self-defense, the jury unanimously

rejected that notion with its guilt finding on murder.” Curry, 222 S.W.3d at 753.

        Here, there is no evidence from the record suggesting that the harm to Riley due to the

erroneous submission was anything other than theoretical.16 The defensive strategy at trial was

that of self-defense—that Riley’s gun was fired as he was being beaten by Holt and his gang. At

punishment, Riley’s counsel argued:

        First, you’re going to have to decide if Billy knowingly, intentionally and with
        malice killed Terry Matthews. I don’t see it. I mean the other option is what
        Billy did, was it under such circumstances that rendered him incapable of cool
        reflection. I mean y’all heard that. There was guns fired, people fighting, bullets
        going everywhere, people yelling, screaming. Could anybody reflect and have
        cool reflection at that time? I don’t think so.

As in Curry, to the extent Riley’s sudden passion arose from his alleged self-defense, this theory

was previously rejected by the jury. Further, the jury was instructed that it would not be proper

to assess punishment “by lot, chance, any system of averages, or any method other than a full,


16
 Here, the trial court asked and received assurance that the verdict on punishment was the unanimous verdict of
each juror. However, as in Newton, this did not cure the error. Newton, 168 S.W.3d at 259.

                                                      20
fair, and free exercise of the opinions of the individual jurors.” Yet, they unanimously sentenced

Riley to fifty years’ imprisonment, outside of the range that would have been assessed had

sudden passion been found.

       Therefore, under our precedent, Riley cannot show egregious harm. Bradshaw, 244

S.W.3d at 498; see Curry, 222 S.W.3d at 753 (finding no egregious harm where “nothing in the

record indicates that the jury did not unanimously find against Marvin on sudden passion,” and

where main defensive strategy at trial was self-defense).

(5)    No Prejudice Has Been Shown from Riley’s Counsel’s Failure to Object to the
       Punishment Charge

       Riley argues that his counsel rendered ineffective assistance in failing to object to the jury

charge. We apply the two-pronged Strickland test handed down by the United States Supreme

Court to determine Riley’s issue of ineffective assistance of counsel. Hill v. Lockhart, 474 U.S.

52, 57 (1985); Strickland v. Washington, 466 U.S. 668 (1984). Failure to satisfy either prong of

the Strickland test is fatal. Ex parte Martinez, 195 S.W.3d 713, 730 n.14 (Tex. Crim. App.

2006). Thus, we need not examine both Strickland prongs if one cannot be met. Strickland, 466

U.S. at 697.

       First, Riley must show that counsel’s performance fell below an objective standard of

reasonableness in light of prevailing professional norms. Id. at 687–88. There is a strong

presumption that counsel’s conduct fell within the wide range of reasonable professional

assistance and that the challenged action could be considered sound trial strategy. Id. at

689; Ex parte White, 160 S.W.3d 46, 51 (Tex. Crim. App. 2004); Tong v. State, 25 S.W.3d 707,

712 (Tex. Crim. App. 2000). Therefore, we will not second-guess the strategy of Riley’s counsel



                                                21
at trial through hindsight. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979); Hall v.

State, 161 S.W.3d 142, 152 (Tex. App.—Texarkana 2005, pet. ref’d).

       The second Strickland prejudice prong requires a showing that, but for counsel’s

unprofessional error, there is a reasonable probability that the result of the proceeding would

have been different. Strickland, 466 U.S. at 687–88.

       Any allegation of ineffectiveness of counsel must be firmly founded in the record.

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d

808, 813 (Tex. Crim. App. 1999); Wallace v. State, 75 S.W.3d 576, 589 (Tex. App.—Texarkana

2002), aff’d, 106 S.W.3d 103 (Tex. Crim. App. 2003). From the record received by this Court,

Riley must show by a preponderance of the evidence that counsel was ineffective.

Goodspeed, 187 S.W.3d at 392; Thompson, 9 S.W.3d at 813; Cannon v. State, 668 S.W.2d 401,

403 (Tex. Crim. App. 1984). Although Riley filed a motion for new trial in this case and a

hearing was held on the motion, the motion did not reference this point of error. At the hearing,

counsel was not asked about this issue. No reasons were given for failing to object. However,

we cannot see how failing to object to a jury charge that does not require unanimity on the issue

of sudden passion can be considered a valid trial strategy.

       In any event, because the polled jury members averred that their decision with respect to

rejecting sudden passion was unanimous, Riley cannot show that any deficient performance

damaged his defense to such a degree that there was a reasonable probability the result of the

trial would have been different. See Strickland, 466 U.S. at 693.

       Riley argues, however, that the harm stems from the standard used to evaluate harm in

the court’s failure to submit the proper charge. In other words, Riley complains that had counsel


                                                22
objected, he would not be required to show egregious harm to obtain reversal on the jury charge

error. While true, even the some-harm standard requires Riley to prove actual, as opposed to

theoretical, harm. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986). The problem

is, he cannot prove actual harm.17

         We affirm the judgment of the trial court.




                                                      Josh R. Morriss, III
                                                      Chief Justice

Date Submitted:            November 8, 2012
Date Decided:              November 20, 2012

Do Not Publish




17
  In support, Riley cites to Newton, 168 S.W.3d 225. In Newton, the defendant pled guilty to the murder and the
only fact question was the issue of sudden passion. Id. at 258. Newton stated that “we assume in the absence of
evidence to the contrary that the jurors followed the charge,” which “unambiguously told the jurors to assess a
prison term of five years to life unless they agreed that appellant acted under the immediate influence of sudden
passion arising from adequate cause.” Id. Newton reasoned, “If the jurors read the charge and followed it, it is
reasonably possible that one or more of them may have believed that appellant acted under the influence of sudden
passion, but because the other jurors did not agree, applied the first degree felony punishment range . . . . We cannot
dismiss the error as harmless by supposing that the jury ignored the charge.” Id. The court concluded that “[b]y
failing to require the jurors to agree that appellant did not act under the immediate influence of sudden passion, the
court’s charge was calculated to injure appellant’s rights by denying him his statutory right to a unanimous verdict.”
Id. at 260. We distinguish Newton from this case because, as in Curry, Riley’s guilt was tried, a jury rejected his
theory of self-defense, and the facts as viewed from a defensive standpoint indicate that Riley’s sudden passion
arose as a result of the assault by Holt and his gang.

                                                         23
