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                                 ft-%-t%bS-C4L                                                   USA ROMBOR
                                                                                          CLERK, 5th DISTRICT


                                                                     ,OFi   PEALS. t>tfi OIST.

                                                                    0CnS4l99S
                                                                             {US*.




         IN THE COURT OF CRIMINAL APPEALS
                                                   OF TEXAS

                                                    NO. 1699-98



                             RONNIE RAY MIMS, Appellant

                                                        v.



                                        THE STATE OF TEXAS

          APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
                      FROM THE FIFTH COURT OF APPEALS
                                               DALLAS COUNTY                   __


              KELLER, J., delivered the unanimous opinion ofthe Court.
                                                    OPINION


       We granted appellant's petition to determine whether adefendant in an attempted murder
prosecution is entitled to an instruction on the "sudden passion" issue1 when such instruction is
raised by the evidence. The Court ofAppeals held that "the law does not require an instruction on

       • For the purpose ofthis opinion, when referring to "sudden passion," we mean the entire
conceptencoSby the issue's* forth in Texas Penal Cede §19.02(d). All references o
sectionlZZme version ofthe Texas Penal Code applicable to the current prosecution except
as otherwise indicated.
                         <,.*-<--•ii-sWfc*;**!^^




                                                                                        MIMS -    2


sudden passion in an attempted murder case." Mims v. State, 1998 W.L. 334441, slip op. at 1-2
(Tex. App.-Dallas June 25,1998)(unpublished). We will reverse.
       The first rule of statutory construction is that we interpret statutes in accordance with the
plain meaning of their language unless the statutory language is ambiguous or the plain meaning
leads to absurd results. Boykin v. State, 818 S.W.2d 782, 785-786 &786 n. 4(Tex. Crim. App.
1991). In accordance with Boykin, we examine the language ofthe statute in question.
        The murder statute begins by defining "adequate cause" and "sudden passion" —terms that
are used later in the "sudden passion" issue. See Texas Penal Code §19.02(a).2 The next section of
 the murder statute proscribes conduct constituting the offense. §19.02(b). The law considers
 conduct that "causes the death of an individual" to be murder ifone ofthree culpable mental states
 or circumstances accompanies the conduct: (1) intent or knowledge (that death would occur), (2) the
 intent to commit serious bodily injury coupled with an act clearly dangerous to human life, and (3)
 the commission or attempted commission ofafelony coupled with an act clearly dangerous to human
 life. Id.3 The punishment for murder is set out as follows:

         2 The pertinent subsection provides:

         (a) In this section:
                 (1) "Adequate cause" means cause that would commonly produce adegree
         ofanger, rage, resentment, or terror in aperson ofordinary temper, sufficient to
         render the mind incapable of cool reflection.
                  (2) "Sudden passion" means passion directly caused by and arising out of
          provocation by the individual killed or another acting with the person »hich
          passion arises at the time ofthe offense and is not solely the result offormer
          provocation.

          3 The textof that subsection provides:
                                                                                          MIMS -   3

       (c) Except as provided in subsection (d), an offenseunder this section is a felony of
       the first degree.

       (d) At the punishment stage of a 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. If the defendant proves the issue in the affirmative by a
       preponderance of the evidence, the offense is a felony of the second degree.

Texas Penal Code §19.02(c) & (d)(emphasis added).

       The criminal attempt statute provides in relevant part:

       (a) A person commits an offense if, with specific intent to commit an offense, he
       does an act amounting to more than mere preparation that tends but fails to effect the
       commission of the offense intended.

       (d) An offense under this section is one category lower than the offense attempted....

Texas Penal Code §15.01 (emphasis added).

       Appellant contends that the attempt statute and the sudden passion issue should, in an

appropriate case, combine to create a thirddegree felony. We agree. Theplainlanguage of boththe

murder and attempt statutes supports this conclusion. §19.02(d) characterizes sudden passion

murderas an "offense"that is a second degree felony. The attempt statute provides that the attempt

offense is onedegree lower than the"offense" attempted. If sudden passion is shown, the"offense"

attempted issecond degree murder, and hence, the attempt offense (attempted second degree murder)

       A personcommitsan offense if he:

       (1) intentionally or knowingly causes the death of anindividual;

       (2) intends to cause serious bodily injury and commits an act clearly dangerous to
       human life that causes the death of an individual; or

        (3) commits or attempts to commit afelony, other than manslaughter, and in the
        course of and in furtherance of thecommission or attempt, or in immediate flight
        from the commission orattempt, he commits orattempts to commit an act clearly
        dangerous to human life that causes the death ofan individual.
                                                 ..,! . •s:   >:•   •   •.•"••'••'•••   ••   ' •




                                                                                                   MIMS-4


is afelony ofthe third degree. The attempt statute does not state that the punishment range must be
determined solely by the elements of an offense as found in the guilt phase ofthe trial. Under the
murder statute, ifthe sudden passion issue is submitted, the degree ofthe offense is not determined
until the punishment phase ends. Under the plain language ofthe statutes, then, the sudden passion
issue can be submitted inanattempted murder prosecution.
        The State makes several arguments for finding the sudden passion issue to be inapplicable
in the present context. First, the State focuses on the language ofthe §19.02(d) with emphasis on
 the italicized portion:

         At the punishment stage ofatrial, the defendant may raise the issue as to whether he
         caused the death under the immediate influence ofsudden passion arising from an
         adequate cause.

 Relying upon this language, the State contends that the sudden passion issue applies only when the
 defendant actually causes the death ofan individual - which does not occur in an "attempt" crime.
 But all crimes to which the attempt statute applies are defined as the completed versions of the
 crime. The crime ofmurder, for example, requires that adeath occur. The real question is whether
  "second degree murder" can be considered as the base offense for determining the degree offelony
  under the attempt statute when second degree status is determined mthe punishment phase. That
  the punishmentphase issue, along with the guilt phase elements in the statute, assumes acompleted
  offense does not answer that question.
           Moreover, "causing the death ofan individual" is m,an elementofthe sudden passion issue
   in amurderprosecution. The factfinder has already determined, atthe time the suddenpassionissue
   is submitted, that the defend** caused the victim's death. The italicize* words in the phrase
   <Vh*r he caused A. dea,H under the immediate influence of sudden passion arising from an
                                                                                       MIMS -    5


adequate cause" simply acknowledge the setting in which the remainder of that phrase can be

evaluated.


       Further, the phrase "he caused thedeath under the immediate influence of sudden passion

arising from an adequate cause" in§19.02(d) isidentical to language contained inthe old voluntary

manslaughter offense found in former §19.04, for which attempt was available.                  See

§19.04(a)(1993). That the language was simply lifted from the voluntary manslaughter statute

mitigates against finding that language to have changed the applicability of the attempt statute to

sudden passion homicides.

       Second, the State claims thatthe basis for submitting the sudden passion issue in an attempt

case disappeared with the abolition ofthe voluntary manslaughter offense. That argument assumes

that the degree ofthe object crime must be determined solely from the results ofthe guilt phase of
trial — an assumption that appears to be inconsistent with the statutory language, as we have
discussed above. Moreover, the State's argument is undermined by Texas' long history oftreating

attempted murder with more leniency when the defendant acts with "sudden passion."
        Before 1927, criminal homicide was divided into three categories: negligent homicide,
manslaughter, and murder. See Texas Penal Code Chapters 14, 15, and 16 (1925). Negligent
homicide involved death caused by negligence or carelessness where there was an apparent danger
of causing death. Texas Penal Code, Articles 1231 and 1232 (1925). Manslaughter involved
 "voluntary homicide committed under the immediate influence of sudden passion arising from an
 adequate cause, but neither excused nor justified by law." Texas Penal Code, Article 1244 (1925).
 Murder involved the killing ofanother person with "malice aforethought" and was "distinguishable
 from every other species ofhomicide by the absence ofcircumstances which reduce the offense to
                                                                                        MIMS -     6


negligent homicide or manslaughter, or which excuse or justify the homicide." Texas Penal Code,
Article 1256 (1925).

       Both murder and manslaughter required proof ofan intent to kill (or constructive proof by

showing the use of adeadly weaponper se). Collins v. State, 299 S.W. 403,405 (Tex. Crim. App.
1927). Murder required the additional mental element of "malice aforethought" (often referred to
simply as "malice"). Id. at 404. Malice was traditionally defined as "a state or condition ofthe mind
showing aheart regardless of social duty and fatally bent on mischief." Id. Malice has also been
defined by what it is not; namely, malice was not present ifthe crime was committed "under the
influence ofsudden passion, arising from an adequate cause." Spearman v. State, 4S.W. 586, 587
 (Tex. Crim. App. 1887). Before 1927, then, the sudden passion issue was the distinguishing element
 between murder and manslaughter.

        At the time, there existed no offense ofcriminal attempt. Instead, the Penal Code proscribed
 assaults "with intent" to commit particularly described offenses. See Texas Penal Code, Chapter 4
 (1925). One ofthose offenses was "assault with intent to murder." Texas Penal Code, Article 1160
 (1925)(last amended in 1903). At the time, however, there was no "assault with intent to commit
 manslaughter" offer.se ThurSoodv. Stat,, 220 S.W. 337, 338 (Tex. Crim. App. 1920). Instead,
  when there was evidence to show sudden passion (i.e. the absence of "malice") for an intended
  killing in which death did not in fact result, the defendant was entitled to an instruction on
  aggravated assault. Id.
          In 1927, the Legislature repealed the articles relating to manslaughter. Session Laws, 40th
  Leg., S.B. 168, §3, p. 413 (1927). The Legislature deleted "malice aforethought" from the
  description ofthe offense ofmurder, but itcreatedanother subsection inthe statute requiring the trial
                                                                                             MIMS -    7


court to define malice aforethought in all cases and requiring the trial court to instruct the jury that,

in the absence of malice aforethought, the sentence assessed could not exceed five years. Session

Laws, 40th Leg., S.B. 168, §3a, p. 413; Texas Penal Code, Articles 1256 and 1257b (1927). The

Legislature did not, however, change the offense ofassault with intent tomurder. Assault with intent

to murder had its own punishment range: two to fifteen years. Article 1160.4

        Even so, the failure of the "assault with intent to murder" statute to distinguish between

sudden passion murders and other murders was remedied just a few years later. In 1931, the

Legislature added to the murder statute instructions concerning "murder without malice." Texas

Penal Code, Article 1257c (1931). The new instructions defined the "sudden passion" issue very

similarly to the present-day definition and explicitly characterized murder "without malice" as a
sudden passion murder. Id. In addition, the Legislature added to the "assault with intent to murder"
offense apenalty section relating to offenses committed without malice. Article 1160 (1931). While
the punishment range for "assault with intent to murder" (in general) continued to be two to fifteen
years, ifthe jury found that the assault was committed "without malice," the punishment range was
one to three years. Id. That offense remained essentially unchanged until the implementation ofthe
"modern" Texas Penal Code in 1974.5 And from 1974 until 1994, there existed a separate offense



          4Potentially, the language in the murder statute may have limited the upper end of that
 range to five years. Assault with intent to murder necessarily referenced the murder statute, and
 the murder statute imposed afive-year cap unless the jury believed that "the defendant was
 prompted and acted with his malice aforethought."
          5For cases discussing adefendant's entitlement to ajury instruction on sudden passion
 (and that were tried shortly before the new Penal Code became effective), see Ray v. State, 515
 S.W.2d 664 (Tex. Crim. App. 1974) and Bryant v. State, 482 S.W.2d 270 (Tex. Crim. App.
 1972).
                                                                                          MIMS - 8


of"voluntary manslaughter" —an offense which could be "attempted" under the Penal Code. So,
at least since 1931 and probably (except for three years) stretching back to the 1800s, attempt or its
equivalent has been available for sudden passion homicides. This long history oflegislated leniency
toward attempted homicides arising from sudden passion counsels against construing this most
recent statutory change as eliminating the sudden passion issue from attempted homicide offenses.
        And we should be especially reluctant to change alongstanding interrelation of the law on
what is, at best, an ambiguous textual basis, when there appear to be other, more obvious
 explanations for the statutory change. Two more obvious intended effects ofthe legislative change
 here are: (1) to shift the burden ofproofon the sudden passion issue to the defendant, and (2) to turn
 the issue into apunishment phase issue, thereby minimizing the effects ofreversible error that might
 occur in connection with the issue. And in fact, these purposes tend to go hand in hand. While
  affirmative defenses have been phrased by the Legislature in the modern penal code as guilt phase
  issues, mitigating factors upon which the defendant has the burden of proof, where such factors
  actually decrease the grade ofthe offense ifproven, have nearly always been phrased as punishment
  issues. See §15.04(d)(for inchoate offenses, renunciation that does not prevent commission ofthe
  object offense); §19.02(d)(sudden passion murder); §20.04(c)(release in asafe place under the
  aggravated kidnapping statute); §71.02(d) and former §71.05(c)(1993)(for engaging in organized
  criminal activity, renunciation that does not prevent commission of the object offense). But see
   §§28.06(e), 32.02(d)(detenninationofvalue in certainproperty crimes when the actor shows he has
   given consideration for or had alegal interest in the property or service in question).
           Finally, the State contends that applying the "sudden passion" issue to attempted murder
   leads to an absurd result: "A defendant charged with attempted murder might lower the degree of
                                                                                          MIMS -    9


his offense through evidence of sudden passion; however, a defendant with the same actus reus and

mens rea, but charged with aggravated assault, would not have the same avenue open to him."

State's brief at 6. But the State provides no reason why such disparate treatment is absurd. That an

accused's conduct may violate several penal provisions with differing punishments is hardly

uncommon.



        Moreover, the State's reasoning would apply equally to aggravated assault and murder.

Murder can be reduced in degree by proof of sudden passion, but aggravated assault cannot.

Nevertheless, both murder and aggravated assaultare reduced in degree for "attempted" versions of

thoseoffenses. The inequity perceived by the State inheres in the application of sudden passionto

murder, not in its application under the attempt statute. Further, another inequity exists between the

murder and aggravated assault offenses. Aggravated assault is listed as an offense that is ineligible

for mandatory supervision. Texas Government Code §508.149(a)(6). But, while first degree murder

islisted as ineligible, §508.149(a)(2), second degree murder (i.e. murder with sudden passion) is not
so listed. See §508.149,passim. Nor is attempted murder listed. Id The State errs in assuming that
aggravated assault and attempted murder must somehow be viewed as equivalent offenses.
         Infact, two absurd results would occur ifthe State's interpretation were adopted. One isthat,

when sudden passion is present, the attempted and object offenses would be felonies of the same
degree, avariance from the result that the Legislature appears to have intended when it provided that
an
     attempted offense would be one degree lower than the completed offense. Another absurd result
is
     that a person would obtain the benefit of the sudden passion issue's submission only if he
 successfully completed his crime. That result would appear to thwart the Legislature's intent to
 discourage the completion of criminal activity, which is evidenced by its formulation of lesser
                                                                                   MIMS-10


penalties for attempted offenses.
       Accordingly, we hold that, if raised by the evidence, the sudden passion issue should be
submitted in the punishment phase ofan attempted murder prosecution. The judgment ofthe Court
ofAppeals is reversed and the case is remanded for proceedings consistent with this opinion.
                                                    KELLER, J.




 DELIVERED: October 20,1999
 PUBLISH
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Court of Criminal &ppeala
       Pox 12308                     LISA ROMBOK
     Capitol Station                CLERK      5TH COURT OF APPEALS
                                    COURTHOUSE           600 COMMERCE 2ND FLOOR
   &ujSttn,feag787U                 DALLAS TX 752 02
                                    1699-98
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