Opinion issued December 30, 2014




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-13-00832-CR
                           ———————————
                       GREGORY GRIFFIN, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 179th District Court
                           Harris County, Texas
                       Trial Court Case No. 1368938


                                 OPINION

      A jury convicted appellant Gregory Griffin of murder, and the jury assessed

punishment at 55 years in prison. See TEX. PENAL CODE § 19.02. On appeal,

Griffin contends that the court erred by denying his request for an instruction on

the lesser-included offense of aggravated assault during the guilt-innocence phase
of trial, and by denying his request for an instruction on sudden passion during the

punishment phase. We affirm.

                                     Background

      Griffin worked as an armed security guard, and his employer assigned him

to work at a meat market in north Houston. In November 2013, Griffin ceased

communications with his employer, which led to his termination. Despite being

terminated, he nevertheless went to the meat market the next week to work his

assignment. Griffin’s employer had sent another guard, complainant Jose Argueta,

to work at the meat market that day.

      When Griffin arrived at the market, the owner of the store confronted him in

the parking lot and notified him that another security guard had taken his place.

Griffin told the owner that he had started his own security company and that he

was not going to leave because it was “his job.”

      At this point, Argueta walked out of the store. Griffin shot him multiple

times, including once in the head. He then asked the owner to go back inside the

store and call the police, which she did. Argueta was pronounced dead at the scene.

In a subsequent recorded statement and in testimony at trial, Griffin stated that

Argueta “acted first” and “went for his pistol” as he walked towards him. Griffin

stated that he fired in self-defense and did not intend to kill Argueta.




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      The case was submitted to the jury on the charge of murder, including a

legal instruction on the law of self-defense, which stated in part: “a person is

justified in using force against another when and to the degree he reasonably

believes the force is immediately necessary to protect himself against the other

person’s use or attempted use of unlawful force.” The jury found Griffin guilty of

murder. The sentencing phase immediately followed, and Griffin requested a jury

instruction on sudden passion, which was denied. The jury returned its verdict

assessing punishment at confinement for 55 years. The trial court entered judgment

on the verdict, and Griffin filed a timely notice of appeal.

                                      Analysis

      Griffin brings two issues on appeal. He first argues that the trial court erred

during the guilt-innocence phase of trial when it denied his request for an

instruction on the lesser-included offense of aggravated assault. He also argues that

the trial court erred again during the punishment phase when it denied his request

for an instruction on the law of sudden passion.

I.    Lesser-included offense instruction

      Griffin contends that trial court erred by refusing to charge the jury on

aggravated assault as a lesser-included alternative to the charge of murder. In

deciding whether the jury should have been charged on a lesser-included offense,

we apply a two-pronged test. See Cavazos v. State, 382 S.W.3d 377, 382–83 (Tex.



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Crim. App. 2012). First, we determine as a matter of law whether the offense is a

lesser-included offense of the offense alleged in the indictment. Id. An offense is a

lesser-included offense if:

      (1)    it is established by proof of the same or less than all the facts
             required to establish the commission of the offense charged;

      (2)    it differs from the offense charged only in the respect that a less
             serious injury or risk of injury to the same person, property, or
             public interest suffices to establish its commission;
      (3)    it differs from the offense charged only in the respect that a less
             culpable mental state suffices to establish its commission; or
      (4)    it consists of an attempt to commit the offense charged or an
             otherwise included offense.
TEX. CODE CRIM. PROC. art. 37.09.

      Second, we determine whether there is some evidence in the record that

would permit a rational jury to find that, if the defendant is guilty, he is guilty only

of the lesser-included offense. Cavazos, 382 S.W.3d at 383. This second prong of

our inquiry is a question of fact, and a defendant is entitled to an instruction on a

lesser-included offense “if some evidence from any source raises a fact issue on

whether he is guilty of only the lesser, regardless of whether the evidence is weak,

impeached, or contradicted.” Id. It is not enough that the jury may disbelieve

evidence pertaining to the greater offense; rather, there must be some evidence

directly germane to the lesser-included offense for the factfinder to consider before

an instruction on the lesser-offense is warranted. Sweed v. State, 351 S.W.3d 63, 68



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(Tex. Crim. App. 2011) (quoting Skinner v. State, 956 S.W.2d 532, 543 (Tex.

Crim. App. 1997)). Thus, the standard may be satisfied if some evidence refutes

other evidence establishing the greater offense or if the evidence presented is

subject to different interpretations. Id.

      In this case, Griffin was charged with murder under two definitions in the

Penal Code. Those definitions provide that a person commits the offense of murder

if he “intentionally or knowingly causes the death of an individual” or “intends to

cause serious bodily injury and commits an act clearly dangerous to human life that

causes the death of an individual.” TEX. PENAL CODE § 19.02(b)(1) & (2).

      Griffin contends that the jury also should have been instructed on the offense

of aggravated assault. A person commits assault if he “intentionally, knowingly, or

recklessly causes bodily injury to another.” Id. § 22.01(a)(1). The offense of

assault becomes an aggravated assault if the offender additionally causes serious

bodily injury to another or uses or exhibits a deadly weapon during the commission

of the assault. Id. § 22.02(a). The State concedes that aggravated assault is a lesser-

included offense with respect to the second definition of murder and satisfies the

first prong of our inquiry. See, e.g., Cardenas v. State, 30 S.W.3d 384, 392 (Tex.

Crim. App. 2000).

      Nevertheless, under the second prong of our inquiry, the trial court erred

only if there is some evidence in the record that would permit a rational jury to find



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that Griffin is guilty only of the lesser-included offense of aggravated assault, and

not also of the greater offense of murder. Cavazos, 382 S.W.3d at 383. Griffin

argues that his testimony that he did not intend to kill Argueta constitutes evidence

that would permit a rational jury to find that he is guilty only of aggravated assault.

Griffin admits, however, that he intended to shoot Argueta, and that he caused his

death.

         The Court of Criminal Appeals rejected a similar argument in Forest v.

State, 989 S.W.2d 365 (Tex. Crim. App. 1999). In that case, the court determined

that the defendant’s testimony that he did not intend to kill the victim, but only

intended to shoot the victim “in the butt” during a brawl, did not entitle him to an

instruction on aggravated assault because he intended to cause serious bodily

injury to the victim, and firing the gun at the victim was clearly dangerous to

human life. Id. at 368. Thus the defendant’s testimony established him to be “at the

least . . . guilty of murder under Texas Penal Code § 19.02(b)(2).” Id. A murder

defendant is not entitled to an instruction on aggravated assault when the evidence

shows him to be guilty of a homicide at a minimum. Id.; Jackson v. State, 992

S.W.2d 469, 475 (Tex. Crim. App. 1999).

         As in Forest, the undisputed evidence at trial established that Griffin:

(1) intended to cause serious bodily injury to Argueta by shooting him multiple

times; (2) committed an act clearly dangerous to human life when he fired the gun



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at Argueta; and (3) caused Argueta’s death. Thus the evidence established that if

Griffin was guilty of anything, the offense constituted murder under

section 19.02(b)(2). Accordingly, the trial court did not err when it denied Griffin’s

request for an instruction on aggravated assault during the guilt-innocence phase of

trial. Forest, 989 S.W.2d at 368. Accordingly, we overrule Griffin’s first issue.

II.   Sudden-passion instruction

      In his second issue, Griffin argues that the trial court erred by denying his

request for a jury instruction on sudden passion at the punishment phase of trial.

      During the punishment phase of a murder trial, a defendant may argue that

he caused the death while under the immediate influence of a sudden passion

arising from an adequate cause. TEX. PENAL CODE § 19.02(d). “If the defendant

proves the issue in the affirmative by a preponderance of the evidence, the offense

is a felony of the second degree.” Id. “Sudden passion” is defined for these

purposes as “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.

Id. § 19.02(a)(2). The “adequate cause” giving rise to sudden passion for these

purposes is a 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).



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      An accused is entitled to an instruction on every defensive issue raised by

the evidence, regardless of whether that evidence is weak, contradicted,

unimpeached, or unbelievable. Trevino v. State, 100 S.W.3d 232, 238 (Tex. Crim.

App. 2003). The defendant has the burden of production and persuasion with

respect to the issue of sudden passion. TEX. PENAL CODE § 19.02(d); Wooten v.

State, 400 S.W.3d 601, 605 (Tex. Crim. App. 2013). To justify an instruction on

the issue of sudden passion at the punishment phase, at a minimum the record must

support inferences that: (1) the defendant acted under the immediate influence of a

passion such as terror, anger, rage, or resentment; (2) his sudden passion was in

fact induced by some provocation by the deceased or another acting with him,

which provocation would commonly produce such a passion in a person of

ordinary temper; (3) he committed the murder before regaining his capacity for

cool reflection; and (4) a causal connection existed “between the provocation,

passion, and homicide.” Wooten, 400 S.W.3d 605. If the reviewing court agrees

that a trial court erred by failing to submit a sudden passion instruction, then it

must analyze whether the error harmed the appellant. Id. at 606.

      In considering whether any evidence was raised on this punishment issue,

we review the record from both the guilt-innocence and punishment phases of the

trial. Trevino, 100 S.W.3d at 238. We review evidence offered in support of a

defensive issue in the light most favorable to the defense. Granger v. State, 3



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S.W.3d 36, 38 (Tex. Crim. App. 1999). The evidence may not, however, be so

weak, contested, or incredible that it could not support such a finding by a rational

jury. See McKinney, 179 S.W.3d at 569; Moore v. State, 969 S.W.2d 4, 11 (Tex.

Crim. App. 1998). “The mere fact that a defendant acts in response to the

provocation of another is not sufficient to warrant a charge on sudden passion.

Instead, there must be some evidence that the defendant was under the immediate

influence of sudden passion.” Trevino, 100 S.W.3d at 241.

      The only evidence Griffin relies upon to support his request for the sudden-

passion instruction is his testimony affirming that he acted in “fear” for his life

because Argueta “acted first” and “went for his pistol.” Given this evidence, he

argues that he established by a preponderance of the evidence that he acted under

the immediate influence of a sudden passion. Moreover, he argues that because a

self-defense instruction was given at the guilt-innocence phase, the requested

instruction on sudden passion at the punishment phase also should have been

given. For this legal proposition, Griffin relies upon Trevino v. State, 60 S.W.3d

188 (Tex. App.—Fort Worth 2001), aff’d 100 S.W.3d 232 (Tex. Crim. App. 2003),

in which the Fort Worth court of appeals observed that “[w]hen the defendant

raises issues of self-defense during the guilt/innocence phase of trial, the issue of

sudden passion is typically also raised. . . . Accordingly, trial courts should give

both instructions when requested.” Trevino, 60 S.W.3d at 195 (quoting Chavez v.



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State, 6 S.W.3d 66, 72–73 (Tex. App.—San Antonio 1999, pet. ref’d)). Similar

language can be found in other cases, albeit in the context of different types of

legal challenges. See, e.g., Chavez, 6 S.W.3d at 72–73 (ineffective assistance of

counsel for failure to request sudden-passion instruction); Benavides v. State, 992

S.W.2d 511, 524–25 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (legal

sufficiency of evidence to support murder conviction).

      To the extent the truism that self-defense evidence typically also raises the

issue of sudden passion is borne out factually in most scenarios presenting

questions of legal justification and sudden passion, the observation does not excuse

us from the legal analysis necessary to determine whether a sudden-passion

instruction was required in this case. That is, applying the definition in the Penal

Code, we still must determine whether Griffin caused Argueta’s death under the

immediate influence of sudden passion arising from an adequate cause. TEX.

PENAL CODE § 19.02(a)(1) & (2), (d); McKinney, 179 S.W.3d at 569. A

comparison of the legal standards to justify jury instructions on self-defense (at

guilt-innocence) and sudden passion (at punishment) demonstrates that materially

different legal inquiries are involved, such that it is not the case that, as a matter of

law, every circumstance in which a trial court grants an instruction on self-defense

will also support an instruction on sudden passion if requested.




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            Self-defense                                Sudden passion
  (TEX. PENAL CODE ANN. § 9.31(a))             (TEX. PENAL CODE ANN. § 19.02(d))

“a person is justified in using force        “the defendant may raise the issue as to
against another when and to the degree       whether he caused the death under the
the actor reasonably believes the force is   immediate influence of sudden passion
immediately necessary to protect the         arising from an adequate cause”
actor against the other’s use or
attempted use of unlawful force”

Compare TEX. PENAL CODE ANN. § 9.31 (self-defense), with id. § 19.02(a)(1) &

(2), (d) (sudden passion); see also Fry v. State, 915 S.W.2d 554, 559 (Tex. App.—

Houston [14th Dist.] 1995, no pet.) (explaining that evidence of self-defense is not

the same as evidence of sudden passion: “An actor who fears for his life may

coolly and deliberately dispatch his assailant without panic or hysteria.”).

      In this case, Griffin’s self-defense evidence—his testimony that he shot his

weapon out of fear when Argueta “acted first” and “went for his pistol”—supports

an inference that Griffin responded to some provocation. But standing alone, this

testimony does not support an inference that he acted under the immediate

influence of a passion such as terror, anger, rage, or resentment. Nor does any

other evidence in the record demonstrate that Griffin acted under a passion such as

terror, anger, rage, or resentment. Viewed in the light most favorable to Griffin, his

testimony establishes at most that he feared Argueta drawing his pistol, but “a bare

claim of ‘fear’” does not demonstrate “sudden passion arising from adequate

cause.” See Daniels v. State, 645 S.W.2d 459, 460 (Tex. Crim. App. 1983).


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Because no evidence demonstrates that Griffin acted under the immediate

influence of terror, anger, rage, or resentment, the trial court did not err by denying

an instruction on sudden passion.

      Accordingly, we overrule Griffin’s second issue.

                                     Conclusion

      Having overruled Griffin’s two issues, we affirm the trial court’s judgment.




                                               Michael Massengale
                                               Justice

Panel consists of Justices Jennings, Sharp, and Massengale.

Publish. TEX. R. APP. P. 47.2(b).




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