                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-07-165-CR


DAVID LEE SWAIM, JR.                                               APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE

                                   ------------

        FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

                                   ------------

                    OPINION ON APPELLANT’S
              PETITION FOR DISCRETIONARY REVIEW

                                   ------------

      Pursuant to Texas Rule of Appellate Procedure 50, we withdraw our

March 13, 2008 opinion and judgment and substitute the following. Tex. R.

App. P. 50.

      A jury convicted Appellant David Lee Swaim, Jr. of murder and assessed

his punishment at life imprisonment. In two points, Swaim argues that the trial

court committed harmful error by failing to include a jury charge instruction on
sudden passion and that his trial counsel was ineffective for failing to request

an instruction on sudden passion. We will affirm.

      Early in the morning on August 16, 2005, Joshua Hall knocked on

Swaim’s door looking for someone to drink and socialize with. They had never

met before, but Swaim let Hall enter his residence. Both had consumed alcohol

during the day, and both either were or soon became intoxicated. Sometime

later, an altercation occurred, and Swaim stabbed Hall nine times, killing him.

      In his first point, Swaim argues that the trial court reversibly erred by

failing to include a sudden passion instruction in its charge to the jury because

there was evidence of a heated, verbal exchange between Swaim and Hall.

      At the punishment stage of a murder trial, the defendant may raise the

issue of whether he caused the death under the immediate influence of sudden

passion arising from an adequate cause. Tex. Penal Code Ann. § 19.02(d)

(Vernon 2003).    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.

      In Trevino v. State, the court of criminal appeals clarified that sudden

passion is a “punishment issue” and that “a sudden passion charge should be

given if there is some evidence to support it, even if that evidence is weak,

impeached, contradicted, or unbelievable.” 100 S.W.3d 232, 238 (Tex. Crim.

                                       2
App. 2003).     The court clearly pointed out, however, that Trevino had

“requested the judge to instruct the jury pursuant to Penal Code Section

19.02(d),” but “[t]he judge rejected the proposed charge.” Id. at 236. Trevino

therefore addressed the propriety of giving an instruction on sudden passion at

punishment when such an instruction has been requested by the defendant; it

did not address the issue of whether a trial court is required to include an

instruction on sudden passion at punishment when there is no request for such

an instruction by a defendant who claims some evidence exists to support the

instruction. See id.; Fair v. State, No. 03-05-00348-CR, 2006 WL 2032489,

at *3 (Tex. App.—Austin July 21, 2006, pet. ref’d) (mem. op., not designated

for publication) (citing Trevino and stating in parenthetical that “assuming

defendant requests charge, charge must be given if ‘evidence raises the issue’”

(emphasis added)).   In this case, Swaim did not assert an objection to the

absence of a sudden passion instruction nor did he request that the instruction

be included in the charge. Consequently, neither Trevino nor the other case law

cited by Swaim supports his argument that the trial court was required to sua

sponte include a sudden passion instruction in its charge to the jury. 1    See



      1
       In his brief to this court, Swaim cites Mims v. State, 3 S.W.3d 923,
928 (Tex. Crim. App. 1999), for the holding that “if raised by the evidence, the
sudden passion issue should be submitted in the punishment phase of an
attempted murder prosecution.” Like Trevino, Mims is inapposite.

                                       3
Trevino, 100 S.W.3d at 236–38; Fair, 2006 WL 2032489, at *3 (“For sudden

passion mitigation to apply, the defendant at the punishment phase must

(i) raise the issue as to whether he caused the death under the immediate

influence of sudden passion arising from adequate cause and (ii) prove the issue

in the affirmative by a preponderance of the evidence.” (emphasis added)).

      Recognizing that he did not request a sudden passion instruction, Swaim

argues in his petition for discretionary review that “[t]here are certain issues

upon which a trial court has the duty to instruct the jury without an objection

or request from either party.” 2 [Emphasis added.] Swaim cites Huizar v. State,

12 S.W.3d 479, 483–485 (Tex. Crim. App. 2000) (op. on reh’g), for the

proposition that a “jury must be instructed at punishment that extraneous

offenses must be proved beyond [a] reasonable doubt” and Tubert v. State,

875 S.W.2d 323 (Tex. Crim. App. 1994), for the proposition that it is “error to

omit [a] sentencing option that would allow [the] jury to send [the] defendant

to [a] community correctional facility rather than prison.” Swaim also cites

code of criminal procedure article 36.14, which “places the legal duty and

responsibility on the trial judge to prepare for a jury a proper and correct charge

on the law.” (quoting Doyle v. State, 631 S.W.2d 732, 738 (Tex. Crim. App.




      2
           Swaim did not assert this argument on appeal.

                                        4
(1980)). Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2007). Swaim then

concludes that “[t]he trial judge therefore had the responsibility of instructing

the jury on the proper range of punishment in light of the evidence of sudden

passion.” Neither Huizar, nor Tubert, nor any other court of criminal appeals

case that we have located, nor article 36.14 hold or require that a trial court

must include an instruction at punishment on sudden passion in the absence of

a request by the defendant. Accordingly, we overrule Swaim’s first point.

      Although Swaim’s second point in his brief to this court states that his

trial counsel “was ineffective for not presenting mitigating evidence during the

sentencing phase,” his argument under the point is that his trial counsel was

ineffective for failing to request an instruction on sudden passion.

      To establish ineffective assistance of counsel, the appellant must show

by a preponderance of the evidence that his counsel’s representation fell below

the standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial would have

been different.   Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.

2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v.

State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999).

                                        5
      The following witnesses testified on Swaim’s behalf at punishment: Hal

Farmer, Swaim’s friend; Jesse Carreon, Swaim’s friend and the father of

Swaim’s boss; Douglas Swaim, Swaim’s cousin; Don Christian, a probation

supervisor; Scott Allen Tony, Swaim’s brother-in-law; Denise Tony, Swaim’s

sister; and Barbara Swaim, Swaim’s mother. With the exception of Christian,

who explained the probation process to the jury, Swaim’s witnesses recounted

and opined that Swaim was not a violent person, either when sober or

intoxicated, and that they were surprised or shocked to learn that he had been

charged with murder. Swaim argues that this evidence called for an instruction

on sudden passion. But none of the evidence “raise[d] the issue as to whether

[Swaim] caused [Hall’s] death under the immediate influence of sudden passion

arising from an adequate cause.” See Tex. Penal Code Ann. § 19.02(d) (stating

that a defendant may raise the issue as to whether he caused the death under

sudden passion), § 19.02(a)(1) (providing “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), § 19.02(a)(2) (providing “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




                                       6
is not solely the result of former provocation). The evidence that Swaim directs

us to merely detailed his nonviolent character.

      In his petition for discretionary review, Swaim argues that contrary to our

analysis in the memorandum opinion issued March 13, 2008, the evidence

raised the issue of sudden passion. Swaim points to evidence that he testified

Hall said he “knew how to get ahold of” his daughter and that he was “in

complete shock” when Hall brought up his daughter and his girlfriend. Swaim

also points to the testimony of an investigator who testified that Swaim told

him Hall “began talking about [his] daughter” and that Swaim “went into a

rage.” In his brief to this court, however, Swaim did not argue that any of this

evidence—which was elicited at the guilt phase, not the punishment

phase—supported an instruction on sudden passion; instead, he relied only on

the testimony of the individuals who testified on his behalf at punishment,

which we set forth above. See Marlo v. State, 720 S.W.2d 496, 500 n.7 (Tex.

Crim. App. 1986) (declining to address argument asserted for the first time in

petition for discretionary review); Lambrecht v. State, 681 S.W.2d 614, 616

(Tex. Crim. App. 1984).      Even considering this evidence along with the

evidence that Swaim relied on in his brief, Hall’s statement that he knew how

to get in touch with Swaim’s daughter is not, alone, “adequate cause” as

defined by the penal code. See Tex. Penal Code Ann. § 19.02(a)(1). The

                                       7
evidence that Swaim argues raised the issue of sudden passion—identified in

both his brief and in his petition for discretionary review—does not rebut the

strong presumption that his trial counsel’s decision not to request an instruction

on sudden passion fell within the wide range of reasonable professional

assistance. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Thompson,

9 S.W.3d at 814. We overrule Swaim’s second point.

      Having overruled both of Swaim’s points, we affirm the trial court’s

judgment.




                                                  DIXON W. HOLMAN
                                                  JUSTICE

PANEL: DAUPHINOT and WALKER, JJ.; and DIXON W. HOLMAN (Senior
Justice, Retired, Sitting by Assignment).

DAUPHINOT, J. filed a dissenting opinion.

WALKER, J. concurs without opinion.

PUBLISH

DELIVERED: December 17, 2009




                                        8
                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                              NO. 2-07-165-CR


DAVID LEE SWAIM, JR.                                             APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE

                                  ------------

          FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

                                  ------------

              DISSENTING OPINION ON APPELLANT’S
              PETITION FOR DISCRETIONARY REVIEW

                                  ------------

      Sudden passion arising from an adequate cause is neither a defense nor

an affirmative defense. 1 It is an odd duck that arose from courts being faced

with the absurd conundrum of a sufficiency claim based on the fact that the




      1
       See Tex. Penal Code Ann. §§ 2.03, 2.04, 19.02(a), (d) (Vernon
2003).
lesser included offense of voluntary manslaughter contained an essential

element not found in the greater offense of murder. 2

      Sudden passion now is actually a mitigation issue at punishment in

murder cases. The statute places the burden on the defense to prove sudden

passion by a preponderance of the evidence. 3 The Texas Court of Criminal

Appeals has addressed the trial court’s obligation to include a mitigation

instruction in the context of a capital murder trial, comparing the capital murder

mitigation issue to the sudden passion mitigation issue:

            [T]he mitigation special issue for death penalty cases is
      neither embedded within elements the State must prove nor is it
      set up as an exception. Instead, the mitigation special issue is
      framed as a stand-alone punishment mitigation issue, a
      characteristic it shares with a number of punishment mitigating
      factors that are clearly defensive issues, including temporary
      insanity caused by intoxication, unsuccessful renunciation of an
      inchoate offense, the current sudden passion issue in a murder
      case, release in a safe place under both the older and newer
      versions of the aggravated kidnapping statute, and mental
      retardation in a death penalty case.

              ....

            We conclude that the mitigation special issue is a defensive
      issue that cannot be forfeited by inaction but can be waived, and
      because it is a defensive issue, the defendant has a right to insist
      upon its waiver. The trial judge in this case erred in refusing to


      2
         See Sanchez v. State, 275 S.W.3d 901, 907 (Tex. Crim. App. 2009)
(Keller, P.J., concurring) (citations and references omitted).
      3
           Tex. Penal Code Ann. § 19.02(d).

                                        2
         allow appellant to waive submission of the issue to the jury, and as
         a result, erred in admitting victim-impact and victim-character
         evidence that would have otherwise been excluded. 4

         This holding from the Texas Court of Criminal Appeals supports

Appellant’s contention that the sudden passion mitigation issue before us

cannot be forfeited. That is, contrary to the majority’s holding in overruling

Appellant’s first point, Appellant’s failure to request a sudden passion

instruction does not negate his right to the instruction triggered by the presence

of evidence raising the issue.

         I note that the majority’s holding, in overruling Appellant’s second point,

that Appellant failed to raise the issue of sudden passion by a preponderance

of the evidence, if correct, would moot the majority’s discussion of the first

point.       A careful review of the record, however, shows that Appellant did

sufficiently raise the issue to be entitled to the instruction.

         Although there are contradictions in the testimony, Appellant testified

that Hall came to his door at 1:14 a.m. and made a point of saying that he

knew Appellant’s girlfriend and that he knew Appellant’s daughter and “how

to get ahold of” her.      Such threats, implied though they are, are the stuff

suspense thrillers are made of for a reason—they’re scary. The evidence shows



         4
       Williams v. State, 273 S.W.3d 200, 222, 224–25 (Tex. Crim. App.
2008) (citations omitted).

                                          3
that after Appellant let Hall into his home, he realized that Hall was the local

drug dealer. Hall attacked Appellant from behind, and they fought. Appellant

testified that he was terrified.   From the record before us, I conclude that

Appellant clearly raised the issue of sudden passion arising from adequate

cause.

      The jury charge properly instructed the jury that they might consider “all

of the facts shown by the evidence admitted before [them] in the full trial of

this case.” And in deciding whether the evidence raises the issue of sudden

passion, we also must consider the entire record that was before the jury. 5 As

the Murphy court points out, if, at sentencing, the jury does not consider the

evidence admitted in the guilt phase of the trial, how can the jury make the

punishment fit the crime? 6

      Following the precedent of the Texas Court of Criminal Appeals, the

sudden passion instruction “is a defensive issue that cannot be forfeited by

inaction but can be waived, and because it is a defensive issue, the defendant



      5
        See Murphy v. State, 777 S.W.2d 44, 63 (Tex. Crim. App. 1988) (op.
on reh’g) (“It is axiomatic, for example, that punishment should fit the particular
crime. Accordingly, the trial court routinely instructs the jury it may consider
all evidence admitted at the guilt phase in making its punishment
determination.”), superseded on other grounds by Tex. Code Crim. Proc. Ann.
art. 37.07, § 3(a) (Vernon Supp. 2009).
      6
           See Murphy, 777 S.W.2d at 63.

                                        4
has a right to insist upon its waiver.” 7 In the case before this court, Appellant

did not affirmatively waive the instruction; the instruction was never mentioned

below.

      I would hold that the evidence raised the issue of sudden passion, that

Appellant could not and did not forfeit the right to a sudden passion instruction

by his inaction, and, consequently, that the trial court was obligated to give the

instruction sua sponte. The harm that Appellant suffered is readily apparent

and egregious: the range of confinement Appellant faced as a result of the

error was five to ninety-nine years instead of two to twenty years. 8

      I would sustain Appellant’s first point, not reach his second point, and

reverse and remand this case for a new trial on punishment.         Because the

majority does not, I must respectfully dissent.




                                                  LEE ANN DAUPHINOT
                                                  JUSTICE

PUBLISH

DELIVERED: December 17, 2009


      7
           Williams, 273 S.W.3d at 224.
      8
       See Tex. Penal Code Ann. §§ 12.32(a), 12.33(a) (Vernon Supp.
2009), 19.02(c), (d).

                                        5
