                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-12-00351-CR


GREGORY RENALDO THOMPSON                                           APPELLANT

                                           V.

THE STATE OF TEXAS                                                      STATE

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          FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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      Appellant Gregory Renaldo Thompson appeals his conviction for murder.

We affirm the trial court’s judgment.

                                I. BACKGROUND

      Appellant and Paula West married in 1996. The relationship was rocky,

and the couple separated and reunited three times before West left Appellant for




      1
       See Tex. R. App. P. 47.4.
the last time in March 2010. In June 2010, West began dating Terry Ross, with

whom she previously had a business relationship.

      In December 2010, West filed for divorce from Appellant. West stated that

Appellant “constantly threatened . . . that he would hurt [West] or kill [her].”

Indeed, Appellant told West’s nephew that if Appellant saw Ross and West

together, West’s family “was going to be singing a sad song.”

      On January 23, 2011, Ross called Appellant with West listening in without

Appellant’s knowledge. During the call, Appellant angrily threatened Ross: “I will

[expletive] you up and leave my family alone.” Two days later on January 25,

2011, West and Ross called Appellant and Appellant again threatened Ross.

When West mentioned the divorce petition, Appellant stated, “If I go to court

Monday and go downtown Fort Worth and find out you filed that divorce, that’s

going to be the worst thing you’ve done.”

      The same day, West spent the night with Ross at his home. Her car,

which she had owned during her marriage to Appellant, was parked in Ross’s

driveway next to Ross’s truck. At 1:15 a.m. on January 26, West’s cell phone

rang, but she did not answer when she saw Appellant was the caller. Appellant

left an irate voicemail: “I don’t know what crazy game you’re playing.” West

decided she should leave and spend the night at her sister’s house.

      Ross went outside to warm up West’s car. When West’s car would not

start, Ross came back inside to tell West that he was going to jump her car

battery. After Ross returned outside, West heard an angry voice outside near

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Ross’s driveway say, “[Expletive] you mother [expletive].” She called 911 and

reported that Appellant was involved in a disturbance outside Ross’s home.

West stepped outside but saw nothing and only heard her car and Ross’s truck

running. West went back inside and locked the door.

      Although West admitted she never told Appellant she and Ross were

dating, she averred that Appellant had seen Ross and West together. Appellant

testified at trial and denied ever threatening Ross or knowing that Ross and West

were dating. Appellant admitted that he had parked his 18-wheeler truck on a

highway service road near Ross’s house at the time of the murder. 2 He asserted

he was walking to Ross’s house to spend the night there, which he occasionally

did. Appellant stated he was unarmed at the time. 3 As Appellant approached

Ross’s house and saw Ross working on his truck, Appellant averred that Ross

attacked him with no provocation. Appellant testified that during the ensuing fight

Ross brandished “some kind of object” and that Appellant bit Ross’s hand

struggling for control of the object. Appellant claimed that Ross began choking

Appellant at some point and that Appellant grabbed Ross around his throat “to try

to figure out why he’s doing this.” Appellant finally was able to wrest the object

away from Ross (which Appellant noticed was a box cutter), backhanding Ross

to knock him away, and he then went back to his truck. Although he was not


      2
       Appellant was a long-haul truck driver.
      3
       Appellant, however, was known to routinely carry a “little pocketknife.”

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angry when he approached Ross’s house, Appellant testified that he was scared,

upset, and confused about being attacked. Once Appellant got to his truck, he

saw that his leg was cut and bleeding. Appellant, however, “drove away” and

headed to Oregon where he was scheduled to make a truck delivery. Along the

way, Appellant admitted that he threw away the clothes he was wearing (and,

presumably, the box cutter) because they were bloody.

      When the police arrived at Ross’s home, they found Ross dead and lying

in the street.   Ross’s throat had been slashed from ear to ear, completely

severing his trachea, carotid artery, and jugular vein. In short, Ross almost had

been decapitated. Ross had defensive cuts on his hands, and his right forearm

had been severely gashed, severing the muscle. One of the investigating police

officers believed that “there was a lot of rage involved in that killing.”

      Appellant was arrested in Utah on January 27, 2011. He had a deep stab

wound on his leg as well as scratches and bite marks. Three of his teeth were

loose from the fight.      He was later indicted for Ross’s murder.          After the

conclusion of the guilt-innocence phase of trial, the court instructed the jury on

the defense of self-defense. 4 The jury found Appellant guilty of murder, implicitly

rejecting self-defense, and the trial proceeded to the punishment phase before

      4
       Unlike sudden passion, which is treated like an affirmative defense, self-
defense is a defense under which the defendant has the burden of production but
the State has the burden of persuasion. See Zuliani v. State, 97 S.W.3d 589,
594 n.5 (Tex. Crim. App. 2003); Dudzik v. State, 276 S.W.3d 554, 557 (Tex.
App.—Waco 2008, pet. ref’d); see also Tex. Penal Code Ann. §§ 2.03, 9.31
(West 2011).

                                           4
the same jury. Before the trial court charged the jury on punishment, Appellant

timely requested an instruction on sudden passion, which the trial court denied.

The jury assessed Appellant’s punishment at sixty years’ confinement. Appellant

appeals and argues in his only point that the trial court erred by refusing to

submit at punishment Appellant’s requested special issue on sudden passion

arising from an adequate cause.

                     II. SUDDEN-PASSION INSTRUCTION

      During the punishment phase, a defendant may raise the issue as to

whether he caused the death of an individual “under the immediate influence of

sudden passion arising from an adequate cause.”           Tex. Penal Code Ann.

§ 19.02(d) (West 2011). If the defendant can prove the issue of sudden passion

by a preponderance of the evidence, the offense is a felony of the second degree

rather than of the first degree. Id.; Trevino v. State, 100 S.W.3d 232, 237 (Tex.

Crim. App. 2003). “Sudden passion” is “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” is

“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). The defendant has the burden of production

and persuasion with respect to the issue of sudden passion. Wooten v. State,



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400 S.W.3d 601, 605 (Tex. Crim. App. 2013) (9–0 decision); see Tex. Penal

Code Ann. § 19.02(d).

      A jury instruction on sudden passion should be given if the evidence at

least minimally supports an inference that (1) the defendant acted under the

immediate influence of an emotion such as terror, anger, rage, or resentment;

(2) his sudden passion was in fact induced by the victim’s provocation, which

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, the emotion, and the

murder. Wooten, 400 S.W.3d at 605. The evidence must be viewed in the light

most favorable to the requested defensive instruction. See Bufkin v. State, 207

S.W.3d 779, 782 (Tex. Crim. App. 2006).         Even if the evidence is “weak,

impeached, contradicted, or unbelievable,” a sudden-passion instruction is

warranted as long as the evidence is not “so weak, contested, or incredible that it

could not support such a finding by a rational jury.” McKinney v. State, 179

S.W.3d 565, 569 (Tex. Crim. App. 2005); See Trevino, 100 S.W.3d at 238.

Therefore, a defendant’s testimony alone is sufficient to raise a defensive issue

requiring an instruction in the charge. Shaw v. State, 243 S.W.3d 647, 662 (Tex.

Crim. App. 2007), cert. denied, 553 U.S. 1059 (2008). Importantly, evidence that

the defendant acted in response to provocation with no evidence that the

defendant was acting under the immediate influence of sudden passion at the



                                        6
time of the murder is insufficient to support a sudden-passion instruction.

Trevino, 100 S.W.3d at 241.

                                 III. APPLICATION

                                      A. ERROR

      Appellant argues that his “version of events did evoke the emotion of terror

sufficient to render his mind incapable of cool reflection”:

             [Appellant] had no idea that [Ross] and [West] were an item.
      He had no reason to believe that his wife was inside the residence.
      His state of mind at the onset of [Ross’s] attack is equally
      understandable to anyone. Perplexed, frightened, and terrified are
      adjectives that seem appropriate. When he realized that [Ross] was
      trying to kill him with a box cutter[,] the jury could have easily
      believed that Appellant’s fear and terror were sufficient to render his
      mind incapable of cool reflection because of [Ross’s] unprovoked
      attack. Appellant’s testimony was sufficient to raise the defense of
      sudden passion arising out of an adequate cause. The jury had a
      right to consider this defensive issue when assessing Appellant’s
      punishment.

Indeed, “[s]elf-defense, if the defendant’s fear rises to the level of terror sufficient

to render the mind incapable of cool reflection, could give rise to a . . . mitigation

instruction.” 6 Michael B. Charlton, Texas Practice Series: Criminal Law § 10.2

(2d ed. 2001). The State retorts that Appellant’s evidence shows that he was

“capable of appraising and reflecting on his situation” and that his emotions were

not sufficiently high to justify a sudden-passion instruction.




                                           7
      Viewing the evidence supporting the sudden-passion argument, 5 Appellant

sufficiently raised the affirmative defense. Appellant was unaware of Ross and

West’s relationship and had not previously threatened Ross. Appellant would

stay with Ross from time to time, even going so far as to assist Ross with the rent

on the home. When he approached Ross’s house unarmed on the night of the

murder, West’s car was in the driveway parked next to Ross’s truck. Ross ran at

Appellant, hit Appellant in the face, and attacked him with a box cutter.          A

physical struggle ensued, with Ross attempting to choke Appellant. During the

fight to gain control of the box cutter, Appellant’s leg was cut, but he did not know

if Ross was hurt. Appellant pushed Ross away while gripping the box cutter and

then ran away.

      Although Appellant stated that, during the fight, he was attempting to

determine why Ross was attacking him, this testimony does not equate to the

“cool reflection” needed to negate the need for a sudden-passion instruction.

This case is distinguishable from Daniels, which the State cites in support of its

argument that Appellant was not subject to sudden passion. Daniels v. State,

645 S.W.2d 459, 460 (Tex. Crim. App. 1983). In Daniels, the defendant testified

that he was afraid the victim was going to kill him and he knew he had to kill the

victim to escape the attack but that he was “in full control.” Id.; see also Wooten,

400 S.W.3d at 607 n.33 (discussing Daniels).

      5
        See Trevino, 100 S.W.3d at 238–39 (“[A]n appellate court’s duty is to look
at the evidence supporting that charge, not [at] the evidence refuting it.”).

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      Here, Appellant was not capable of cool reflection under the facts as

viewed in the light most favorable to the presence of sudden passion. Appellant

was not in control of the situation.    Indeed, he did not know why Ross was

attacking him or if Ross was hurt in the struggle. He was unaware Ross and

West were romantically involved, but West’s car was in Ross’s driveway early in

the morning.   Appellant testified he was scared, upset, and confused.         After

Appellant ran away, he attempted to continue hauling a load to Oregon. Once he

determined his cell phone was not working, he stopped in Utah and called his

uncle from a truck stop who informed Appellant, to Appellant’s surprise, that he

was being sought for capital murder. By this point, police officers arrived at

Appellant’s location and arrested him. See, e.g., Trevino, 100 S.W.3d at 239

(considering appellant’s demeanor after murder as supportive evidence to justify

sudden-passion instruction). An unprovoked, violent attack with a box cutter is

sufficient provocation to induce the requisite emotional state in a person of

ordinary temperament to justify a sudden-passion instruction.       See Moore v.

State, 969 S.W.2d 4, 11 (Tex. Crim. App. 1998) (holding evidence that murder

occurred during violent fight, including victim’s attempt to run appellant over with

a car, sufficient to raise sudden passion); cf. McKinney, 179 S.W.3d at 570–71

(holding victim shouting at and pushing appellant before appellant shot victim

insufficient evidence of sudden passion); Reese v. State, 340 S.W.3d 838, 842

(Tex. App.—San Antonio 2011, no pet.) (finding no adequate cause when

appellant shot victim “after she walked away from the truck and then backed

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away from appellant with her hands raised when he approached her with the

gun” because not common response by an ordinary person).

       Further, Appellant’s claim that any injury to Ross was accidental does not

preclude a sudden-passion instruction.         See Trevino, 100 S.W.3d at 240

(“[Appellant] was entitled to the sudden passion charge at punishment because

there was some evidence supporting that charge regardless of whether it

conflicted with other evidence including some evidence of an accidental

shooting.”). Likewise, the jury’s implicit rejection of the self-defense instruction at

guilt-innocence did not, ipso facto, deprive Appellant of the right to a sudden-

passion instruction at punishment. See id. at 242–43. Appellant’s evidence may

have been weak and, arguably, could have been impeached by the State’s

evidence, “[b]ut a defendant is entitled to the sudden passion charge even if the

evidence is weak and even if it is contradicted by the State’s evidence.” Id. at

239.   The preponderance of the evidence at least minimally supports the

inference that Appellant caused Ross’s death while under the immediate

influence of sudden passion arising from an adequate cause; thus, the trial court

erred in failing to so instruct the jury at punishment. See id. at 237.

                                      B. HARM

       Although we have found error, our inquiry does not end because we must

determine whether that error harmed Appellant. See Wooten, 400 S.W.3d at

606.   A trial court’s failure to include a requested sudden-passion instruction

does not, standing alone, equate to a showing of harm. Id.; see also Trevino,

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100 S.W.3d at 241 (“[A]ccording to the court of appeals, the mere fact that

[Appellant] should have received the charge necessarily means that he was

harmed by the failure to get it. This statement is essentially a conclusion that

harm results per se, an approach that we have rejected.”). 6 Therefore, we must

review this non-structural error for the requisite harm. See Payne v. State, 11

S.W.3d 231, 232 (Tex. Crim. App. 2000) (holding jury-charge error to be non-

structural).

       Because Appellant timely objected to the omission of the sudden-passion

instruction in the trial court, the error requires reversal if it was “calculated to

injure the rights of [the] defendant,” which means no more than that there must

be some harm to Appellant from the error. Tex. Code Crim. Proc. Ann. art. 36.19

(West 2006); Trevino, 100 S.W.3d at 242 (quoting article 36.19 and Almanza v.

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)). In other

words, a properly preserved error will require reversal as long as the error is not

harmless.      Almanza, 686 S.W.2d at 171; see Wooten, 400 S.W.3d at 606

(holding harm analysis of trial court’s failure to include sudden-passion instruction

governed by article 36.19). In making this determination, “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


       6
      Appellant suggests that the length of his sentence is sufficient to
demonstrate harm. This argument also erroneously would truncate the required
harm analysis.

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counsel and any other relevant information revealed by the record of the trial as a

whole.”    Id.; see also Wooten, 400 S.W.3d at 606 (reiterating harm from

exclusion of sudden-passion instruction must be determined “by the record as a

whole”).   As such, “we focus on the evidence and record to determine the

likelihood that a jury would have believed that the appellant acted out of sudden

passion had it been given the instruction.”       Wooten, 400 S.W.3d at 606.

“[B]urdens of proof or persuasion have no place” in this inquiry. Warner v. State,

245 S.W.3d 458, 464 (Tex. Crim. App. 2008).

      As stated above, the court of criminal appeals has instructed that a jury’s

rejection of self-defense alone does not mandate a conclusion that the jury would

also reject sudden passion. Trevino, 100 S.W.3d at 242. As in Trevino, there

could be evidence, which was not discredited by the rejection of a self-defense

claim, that supports a claim of sudden passion. But if a jury rejects a claim of

self-defense, the record as a whole also could demonstrate that Appellant was

not harmed by the failure to receive a sudden-passion instruction. See Wooten,

400 S.W.3d at 608–10.

      The facts of the present case are more consistent with the facts of Wooten.

In Wooten, the appellant claimed that he acted in self-defense and, “[o]nce the

shooting began, that he was overwhelmed by emotions of fear, disorientation,

[and] confusion.” Id. at 604. The court of criminal appeals reasoned that

      the same evidence raised both issues, and the jury’s rejection of the
      evidence adduced to show immediate necessity necessarily
      indicates that it would not have looked favorably upon the

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       appellant’s claim either that he subjectively experienced the requisite
       degree of fear or that an adequate cause for such a degree of fear
       existed.

Id. at 610 n.45.

       Here, the record reveals two competing theories of the murder: (1) Ross

attacked Appellant with a sharp weapon with no provocation versus (2) Appellant

brought a sharp weapon to Ross’s house to confront him about his relationship

with West. Appellant’s son and West both testified at punishment that Appellant

was abusive and violent, even going so far as to choke West “often” during the

marriage. Ross, West, and West’s nephew heard Appellant threaten West and

Ross. Appellant was known to routinely carry a knife. Although Ross’s injuries

were severe and gruesome, Appellant stated he did not know if he cut Ross

during the struggle. It is important to note that, during its deliberations regarding

Appellant’s guilt, the jury specifically requested to see the post-mortem pictures

of Ross’s wounds and the pictures taken of Appellant’s wounds after he was

arrested.   These pictures show that Appellant certainly was not as severely

injured as Ross.     After this violent fight in which he was injured, Appellant

decided to continue with his business and drive to Oregon. When Appellant

called his uncle, and later his mother, he did not tell them that Ross had attacked

him.

       Under the facts of this case, by finding Appellant guilty of Ross’s murder,

the jury necessarily rejected Appellant’s claim of self-defense. Therefore, the

jury had to have disbelieved Appellant that his use of deadly force was necessary

                                         13
to defend himself. As the court of criminal appeals concluded in Wooten, it is

“highly unlikely that a jury that had already rejected the appellant’s claim that he

reasonably believed that deadly force was immediately necessary to defend

himself would nevertheless find in his favor on the issue of sudden passion.” 400

S.W.3d at 609. Thus, the record does not show that Appellant suffered any harm

as a result of the trial court’s failure to give the jury a sudden-passion instruction

based on Appellant’s assertion that fear and the absence of cool reflection

controlled his actions. We overrule Appellant’s point.

                                IV. CONCLUSION

      Having overruled Appellant’s sole point, we affirm the trial court’s

judgment.



                                              LEE GABRIEL
                                              JUSTICE



PANEL: GARDNER, WALKER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: September 19, 2013




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