      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-07-00556-CR



                                Tye Van Swearingen, Appellant

                                                 v.

                                  The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
          NO. 60607, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



                                          OPINION


               A jury convicted Tye Van Swearingen of murdering his wife, Stephanie. See

Tex. Penal Code Ann. § 19.02(b) (West 2003). During the punishment phase of trial, Swearingen

raised the mitigating circumstance of “sudden passion.” See id. § 19.02(a), (c) & (d). The district

court submitted the issue to the jury in the form of an instruction to assess punishment at between

two and twenty years imprisonment (the range applicable to second-degree felonies) if “you find by

a preponderance of the evidence that the defendant caused the death under the immediate influence

of sudden passion arising from an adequate cause.” Otherwise, the jury was to assess punishment

at between five and ninety-nine years’ imprisonment (the first-degree felony range). The court

submitted a verdict form that did not contain any specific reference to the jury’s preliminary sudden
passion finding, but merely required the jury to indicate the punishment it assessed.             The

jury imposed a sentence of 65 years’ imprisonment, and the district court rendered judgment

accordingly.

               Swearingen brings two issues in which he seeks a new trial on punishment based on

claimed error in the district court’s sudden passion submission. In his first issue, Swearingen

contends that the district court erred in refusing to submit a verdict form in which the jury would

separately or specifically indicate its acceptance or rejection of the sudden passion issue. In his

second issue, Swearingen complains that the charge as submitted required the jury to be unanimous

in making any affirmative finding of sudden passion, but did not also require unanimity in any

negative finding. As we explain below, we agree that the charge was erroneous in failing to require

unanimity in any negative sudden passion finding, but do not find harm requiring reversal.

Consequently, we will affirm the judgment.


                                         BACKGROUND

               Because Swearingen does not challenge his murder conviction or the sufficiency of

the evidence supporting the jury’s punishment verdict, we will address the underlying facts only

to the extent they bear upon our harm analysis, below. Of immediate relevance to Swearingen’s

complaints of charge error, the penal code provides that murder is a first-degree felony unless, during

the punishment phase of trial, “the defendant proves . . . in the affirmative by a preponderance of the

evidence” that he “caused the death under the immediate influence of sudden passion arising from

an adequate cause,” in which case the offense is a second-degree felony. See id. § 19.02(c) & (d);

see also id. § 19.02(a) (defining “sudden passion” and “adequate cause”). The district court included

                                                  2
an instruction on sudden passion in its charge on punishment. Following appropriate abstract

instructions, the application paragraphs stated:


       If you find by a preponderance of the evidence that the defendant caused the death
       under the immediate influence of sudden passion arising from an adequate cause, you
       will assess the defendant’s punishment at confinement in the Institutional Division
       of the Texas Department of Criminal Justice for any term not more than 20 years or
       less than 2 years. In addition, a fine not to exceed $10,000 may be imposed.[1]

       However, if you do not find by a preponderance of the evidence that the defendant
       committed the offense of murder under the immediate influence of sudden passion
       arising from an adequate cause, you will assess the defendant’s punishment at
       confinement in the Institutional Division of the Texas Department of Criminal Justice
       for Life or for any term not more than 99 years or less than 5 years. In addition, a
       fine not to exceed $10,000 may be imposed.[2]


The jury was given a verdict form in which it was to indicate Swearingen’s term of incarceration and

the amount of any fine. Although the above instructions required the jury to make a preliminary

finding as to whether Swearingen had acted under the influence of sudden passion in order to

determine the applicable punishment range, the district court did not submit a separate verdict form

on the sudden passion issue or one in which the jury otherwise could specifically indicate its finding

on that issue. Instead, the jury’s sudden passion finding (or failure-to-find) was to be subsumed or

implied within the jury’s verdict imposing Swearingen’s sentence.

                In the paragraph immediately following its sudden passion instruction, the district

court further instructed the jury that “[i]n arriving at your unanimous verdict, it will not be proper



       1
         This is the punishment range for second-degree felonies. See Tex. Penal Code Ann.
§ 12.32 (West 2003).
       2
           The punishment range for first-degree felonies. See id. § 12.33 (West 2003).

                                                   3
to fix the same by lot, chance or any other method than by a full, fair and free exercise of the opinion

of the individual jurors under the evidence admitted before you.”

               The jury imposed a sentence within the first-degree felony range—65 years’

imprisonment—consistent with a failure to find sudden passion. The district court had also

instructed the jury that it could recommend probation if it assessed not more than ten years’

imprisonment and found that Swearingen had no prior felony convictions. In a separate verdict form,

the jury found that Swearingen had no prior felony convictions but, consistent with the sentence it

assessed, declined to recommend probation. The district court rendered judgment on the verdicts.


                                    STANDARD OF REVIEW

               We review claims of jury charge error under the two-pronged test set out in Almanza

v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). We first determine whether

error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If error exists, we

then evaluate the harm caused by the error. Id. The degree of harm required for reversal depends

on whether that error was preserved in the trial court. When error is preserved in the trial court

by timely objection, the record must show only “some harm.” Almanza, 686 S.W.2d at 171. By

contrast, unobjected-to charge error requires reversal only if it resulted in “egregious harm.” See

Neal v. State, 256 S.W.3d 264, 278 (Tex. Crim. App. 2008).




                                                   4
                                            ANALYSIS

Specific verdict form

                Swearingen acknowledges that “the issue of Sudden Passion was submitted” through

the district court’s instruction conditioning the applicable punishment range on the jury’s preliminary

finding of whether “by a preponderance of the evidence . . . the defendant caused the death under

the immediate influence of sudden passion arising from an adequate cause.” The jury was instructed

that if it found in the affirmative, it was to assess punishment within the second-degree felony

punishment range. Conversely, the jury was instructed that “if you do not find by a preponderance

of the evidence that the defendant committed the offense of murder under the immediate influence

of sudden passion arising from an adequate cause,” it was to assess punishment in the first-degree

felony punishment range. We presume, absent evidence to the contrary, that the jury followed these

instructions and that the 65-year sentence it imposed therefore reflects that the jury did “not find”

in Swearingen’s favor on the sudden passion issue. Thrift v. State, 176 S.W.3d 221, 224 & n.10

(Tex. Crim. App. 2005).

                As we explain below, the charge’s conditioning of the first-degree felony punishment

range on the jury’s failure to find unanimously Swearingen did act under sudden passion, as opposed

to a unanimous jury finding that Swearingen did not act under sudden passion, was error—the focus

of Swearingen’s second issue. In his first issue, however, Swearingen contends—tracking his sole

specific objection to the punishment charge at trial3—only that the district court erred in failing to

submit the sudden passion issue through a verdict form that separately or otherwise “allow[ed] the


       3
           See infra at p. 11.

                                                  5
jury to specifically demonstrate its acceptance or rejection of that issue.” His complaint, in other

words, is that the jury’s sudden-passion finding was subsumed within a broad-form or general

verdict on punishment rather than explicitly reflected in the verdict form. We cannot conclude that

this form of submission, in itself, was error.

               Swearingen emphasizes appellate cases illustrating that some Texas trial courts have

submitted the sudden passion issue through a separate verdict form requiring a specific “yes” or “no”

finding on that issue alone, see Barfield v. State, 202 S.W.3d 912, 917 (Tex. App.—Texarkana 2006,

pet. ref’d), or through alternative verdict forms that incorporate explicit findings on the issue. See

Newton v. State, 168 S.W.3d 255, 258 (Tex. App.—Austin 2005, pet. ref’d).4 In fact, Barfield,

like several other appellate cases, also recognize that a separate yes-or-no sudden passion verdict

form, combined with a general instruction that the jury’s verdict must be unanimous, is sufficient

to ensure that the jury’s sudden passion finding is unanimous. Barfield, 202 S.W.3d at 917-18; see

Latham v. State, No. 12-05-00146-CR, 2006 Tex. App. LEXIS 6521, at *21 (Tex. App.—Tyler

July 26, 2006, pet. ref’d) (mem. op., not designated for publication); Cartier v. State, 58 S.W.3d 756,

759-60 (Tex. App.—Amarillo 2001, pet. ref’d); see also Bradshaw v. State, 244 S.W.3d 490, 497

(Tex. App.—Texarkana 2007, pet. ref’d) (suggesting that separate verdict form on sudden passion

could have prevented unanimity problem with jury instructions similar to those here). However,




       4
          In Newton, as Swearingen points out, the trial court submitted four alternative punishment
verdict forms that reflected findings of (1) guilty of murder with a sudden passion finding, (2) guilty
of murder with a sudden passion finding, with probation, (3) guilty of murder without probation, and
(4) guilty of murder with probation. Newton v. State, 168 S.W.3d 255, 257 (Tex. App.—Austin
2005, pet. ref’d).

                                                  6
only a single court—a divided Waco Court of Appeals—has held that the sudden passion issue must

be submitted through a separate verdict form, or in any particular form.

                 In Curry v. State, the trial court, as the Waco court noted, “adequately instructed the

jury on sudden passion” and submitted seven alternative verdict forms, four of which contained an

explicit finding “not under the influence of sudden passion,” and the three others containing a

finding “that the defendant was acting under the influence of sudden passion.” 222 S.W.3d 745, 752

(Tex. App.—Waco 2007, pet. ref’d). The charge also contained a general unanimity instruction.

Id. The jury chose one of the verdict forms containing a finding of “not under the influence

of sudden passion” and imposed a sentence of seventy years’ imprisonment for murder. Id. The

defendant argued that the trial court erred in failing to submit a specific question on sudden passion

and that the error deprived him of a unanimous verdict. The Curry majority agreed the charge

was erroneous.

                 The Curry majority reasoned that, “[a]s several cases indicate, the better practice is

for the trial court to submit a preliminary sudden passion special issue.” Id. In support for this

“better practice,” the majority referred to Barfield, Cartier, and Latham—which, as noted above,

merely recognized that a separate sudden passion verdict form, combined with a general unanimity

instruction, is sufficient to ensure a unanimous sudden passion finding, but did not hold that form

of submission was necessarily required. The majority then stated, “We would add that the superior

practice would be for the trial court to submit such a preliminary sudden passion special issue with

an accompanying unanimity instruction for either an affirmative or negative finding.” Id. at 252-53.

On this basis, it “agree[d] with [the defendant] that the trial court erred.” Id. at 253.



                                                   7
               Nonetheless, the Curry majority affirmed the judgment of conviction, finding that the

defendant, who had not objected to the trial court’s failure to submit a separate sudden passion

special issue, had not suffered egregious harm by actually being deprived of unanimity in the jury’s

adverse sudden passion finding. See id. It reasoned in part that “because each of the seven verdict

forms were inclusive of the sudden passion issue and we presume that the jury followed the general

unanimity instruction, the jury necessarily would have unanimously voted for or against sudden

passion with any of the seven verdict forms, including the one they chose and by which they assessed

the seventy-year sentence.” Id. Although concurring in the judgment, Chief Justice Gray urged that

there was “no error in the charge” in the first place and questioned whether the majority, in its

discussion of “better and superior practices,” had “really explain[ed] what the error was in the charge

that was actually given.” Id. at 755-56 (Gray, C.J., concurring).

               Although Curry seems to hold that a trial court errs in failing to submit sudden

passion through a separate preliminary question, Swearingen cites it for the more limited proposition

that a trial court errs in failing to submit a verdict form—whether a separate question or

an alternative verdict form—in which the jury makes an explicit sudden passion finding. We

respectfully disagree with either view. Other than Curry, we find no support for the notion that an

otherwise-proper charge containing substantively correct instructions regarding sudden passion and

proper unanimity instructions is nonetheless erroneous solely because the issue is not submitted

through a separate question or specific verdict form. Though it has required special verdicts on

certain other issues in criminal cases, the legislature has not prescribed any particular form in which

sudden passion must be submitted. See Cartier, 58 S.W.3d at 758 (observing that section 19.02 of



                                                  8
penal code “does not prescribe the form or manner of accompanying instructions for the submission

of the issue of sudden passion.”); cf. Tex. Code Crim. Proc. Ann. art. 37.071, § 2(b) (West 2006).5

Nor has the court of criminal appeals. See, e.g., Mims v. State, 3 S.W.3d 923, 928 (Tex. Crim. App.

1999) (holding only that “if raised by the evidence, the sudden passion issue should be submitted in

the punishment phase of an attempted murder prosecution.”). No other court of appeals has done

so, either. Furthermore, as Curry itself recognizes, trial courts may, through proper instructions,

ensure that the jury makes the required unanimous finding on sudden passion, based on the correct

substantive law, regardless of the form in which the issue is submitted. We are to presume that

jurors follow such instructions absent evidence to the contrary. Thrift, 176 S.W.3d at 224 & n.10;

Curry, 222 S.W.3d at 253.

                There may be good reasons for trial courts to submit sudden passion in the manner

Swearingen advocates, in terms of helping ensure jury unanimity, Barfield, 202 S.W.3d at 917-18,

and facilitating appellate review. Cf. Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 388-89

(Tex. 2000) (discussing limitations on broad-form submission in civil cases). However, we cannot

conclude that the district court’s refusal to submit sudden passion in such a form was, in itself, error.

Accordingly, we overrule Swearingen’s first issue.




        5
          For example, in article 37.071, which governs proceedings in capital cases, the legislature
has required that the trial court submit jury issues on future dangerousness and “whether the
defendant actually caused the death of the deceased or did not actually cause the death of the
deceased but intended to kill the deceased or another or anticipated that a human life would be
taken.” Tex. Code Crim. Proc. Ann. art. 37.071 § 2(b) (West 2006). It has further mandated that
“the jury shall return a special verdict of ‘yes’ or ‘no’ on each issue submitted under Subsection (b)
of this Article.” Id. art. 37.071, § 2(c).

                                                   9
Jury unanimity

               On the other hand, Swearingen’s jury-unanimity complaint in his second issue has

merit. The court of criminal appeals has held that when sudden passion is raised and submitted, the

jury must unanimously agree that the defendant either did or did not act under the immediate

influence of sudden passion arising from an adequate cause. Sanchez v. State, 23 S.W.3d 30, 33-34

(Tex. Crim. App. 2000); Newton, 168 S.W.3d at 256. This requirement derives in part from the

statutory requirement that the jury “agree” unanimously as to both “the guilt or innocence of the

defendant and the amount of punishment.” Sanchez, 23 S.W.3d at 33-34 (quoting Tex. Code Crim.

Proc. Ann. art. 37.07, § 3(c)). Here, the jury was instructed to assess the second-degree felony range

of punishment if it found “by a preponderance of the evidence that [Swearingen] caused the death

under the immediate influence of sudden passion arising from an adequate cause.” This instruction,

combined with the charge’s general unanimity instruction, ensured that any affirmative finding on

sudden passion would be unanimous. However, the charge did not similarly require a unanimous

finding that Swearingen did not act under the immediate influence of sudden passion arising from

adequate cause. Instead, the jury was instructed to assess punishment in the first-degree felony

range “if you do not find by a preponderance of the evidence that the defendant committed the

offense of murder under the immediate influence of sudden passion arising from an adequate cause.”

(Emphasis added). In other words, the jury was authorized to impose the first-degree felony

punishment range as a default if it failed to find unanimously that Swearingen did act under

sudden passion.




                                                 10
               It is true that, because the burden of proof on sudden passion remains with the

defendant, an individual juror’s failure to find the defendant did act under the influence of sudden

passion functions as a finding that the defendant did not act under the influence of sudden passion.

However, the jury’s collective failure to find unanimously that the defendant acted under sudden

passion does not necessarily equal a unanimous collective finding that the defendant did not act

under sudden passion. The jury collectively would have failed to find unanimously that Swearingen

acted under sudden passion if, for example, only one juror had voted that Swearingen did not.

Because the charge conditioned the first-degree felony punishment range on only a failure to find

sudden passion unanimously rather than a unanimous negative finding on the issue, the charge

was erroneous. See Sanchez, 23 S.W.3d at 34; Bradshaw, 244 S.W.3d at 494-97; Newton,

168 S.W.3d at 256-58.

               Having found charge error, we next determine the degree of harm required to reverse.

The degree of harm required for reversal turns on whether Swearingen preserved a jury-unanimity

objection at trial. See Almanza, 686 S.W.2d at 171. During the charge conference, Swearingen

objected to the charge on the basis that it omitted a separate verdict form on sudden passion:


       The verdict form is lacking in regards to the sudden passion issue. It is defined and
       described within the contents of the charge itself and in the verdict form it is absent
       and in its absence even try to argue around it it’s very confusing to the jury unless it’s
       specifically there.


The district court overruled this objection, observing that the charge “raises the sudden passion

[issue] and gives the definitions and tells the jury what the punishment range is and explains that

and so I think it’s sufficient.” Swearingen made no further objections to the charge. On appeal, he

                                                  11
acknowledges that he “did not specifically object” that the charge failed to properly instruct the jury

regarding unanimity on the sudden passion issue. However, he “takes the position that the failure

of the trial court to present a proper verdict form to the jury (see Issue One above) prevented

Appellant from requesting a unanimous finding” and that “because the trial court denied the request

for a proper verdict form for the jury to affirmatively find, or not find, sudden passion[,] no objection

to lack of unanimity should be required.” We disagree that the district court’s refusal to submit a

separate verdict form on sudden passion somehow “prevented” or excused Swearingen from raising

jury-unanimity objections to the charge as submitted. Nor can we conclude, especially in light of

our analysis of Swearingen’s first issue, that Swearingen’s objection concerning the absence of a

sudden passion special verdict form was sufficient to alert the district court to the unanimity problem

with its instruction. See Pennington v. State, 697 S.W.2d 387, 390 (Tex. Crim. App. 1985) (“[A]s

a predicate for complaint to a jury charge on appeal the accused is required to distinctly specify each

ground of objection. To constitute a valid objection to jury instructions, the objection must

be specific and clear enough to apprise the trial court of the nature of the objection.”); see also

Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007) (requiring that defendant “distinctly specify[]

each ground of objection” to charge). We hold that Swearingen failed to raise his jury-unanimity

objection at trial. Consequently, we will reverse only if we find the charge error caused Swearingen

“egregious harm.” See Almanza, 686 S.W.2d at 171.

                “Jury charge error is egregiously harmful if it affects the very basis of the case,

deprives the defendant of a valuable right, or vitally affects a defensive theory.” Allen v. State,

253 S.W.3d 260, 264 (Tex. Crim. App. 2008). If the charge error caused the jury, in fact, to render



                                                   12
a less-than-unanimous verdict on an issue on which unanimity is required, the charge error is

egregiously harmful. See Ngo, 175 S.W.3d at 750-52. In terms of the charge here, Swearingen

would be egregiously harmed if, in fact, the jury assessed punishment in the first-degree felony range

based on anything less than twelve jurors failing to find “by a preponderance of the evidence that the

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

adequate cause.”

               The purpose of the egregious-harm inquiry is to ascertain whether the defendant has

incurred actual, not just theoretical, harm. Almanza, 686 S.W.2d at 174. It is a “difficult standard.”

Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002). Our inquiry is factual in nature and

turns on the unique circumstances of this case. See id. Neither Swearingen nor the State has the

burden to show harm or the lack thereof. See Warner, 245 S.W.3d at 464. Rather, an appellate court

“makes its own assessment” in evaluating what effect, if any, an error had on the jury’s verdict by

looking “only to the record before it.” Ovalle v. State, 13 S.W.3d 774, 787 (Tex. Crim. App. 2000).

We are to consider (1) the entire jury charge, (2) the state of the evidence, including the contested

issues and the weight of the probative evidence, (3) the parties’ arguments, and (4) any other relevant

information revealed by the record of the trial as a whole. Allen, 253 S.W.3d at 264; Olivas v. State,

202 S.W.3d 137, 144 (Tex. Crim. App. 2006).

               In some cases, appellate courts are able to evaluate the impact of charge error on jury

unanimity through direct evidence, such as a trial court’s poll of the individual jurors. See Sanchez,

23 S.W.3d at 32 (jury poll revealed that three jurors voted in the affirmative); see also Newton,

168 S.W.3d at 259 (while applying “some harm” standard to preserved unanimity error in sudden



                                                  13
passion submission, observing that “the jury poll is the key to determining whether the charge error

was harmless.”). However, no jury poll was requested here, nor was there any other evidence

presented regarding the votes of individual jurors. Consequently, we must infer from the record

whether less than twelve jurors found against Swearingen on the preliminary sudden passion issue.

See Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996) (“[W]e do not require direct

evidence of harm to establish egregious harm.”).

                We begin with the text of the charge. Although the charge permitted the jury to

impose the first-degree felony punishment range based on a mere failure to find sudden passion

unanimously, it did not affirmatively direct the jury not to be unanimous in failing to find sudden

passion, or even emphasize that it could be. Cf. Sanchez, 23 S.W.3d at 33 (charge “instructed the

jurors that they could find in appellant’s favor on the issue of sudden passion only if they were

unanimous, and that otherwise they would have to find against appellant” on yes-no sudden passion

special issue). In fact, the charge’s sudden passion instruction, in combination with its general

unanimity instruction, was arguably susceptible to a lay jury’s interpretation that it was required to

be unanimous in “not find[ing] by a preponderance of the evidence that the defendant committed the

offense of murder under the immediate influence of sudden passion arising from an adequate cause.”

At a minimum, we can conclude that the charge did not preclude or affirmatively discourage a

unanimous finding that Swearingen did not act under sudden passion. See Bradshaw, 244 S.W.3d

at 498 (no egregious harm from similar sudden passion instruction where charge included a general

unanimity instruction and “the record contains no evidence that the jury’s verdict was not

unanimous.”).



                                                 14
               Nor did the parties’ arguments or other statements at trial encourage the jury to

impose the first-degree felony punishment range based on a non-unanimous failure-to-find sudden

passion. In some cases involving charge error implicating jury unanimity, appellate courts have

found egregious harm based in part on prosecutor statements urging the jury to make a non-

unanimous finding. See Ngo, 175 S.W.3d at 750-52 (prosecutor repeatedly emphasized that jury

need not be unanimous in selecting among multiple offense submitted in the disjunctive); London

v. State, No. 05-07-00983-CR, ___ S.W.3d ____, ___, 2008 Tex. App. LEXIS 6995, at *23-24

(Tex. App.—Dallas Sept. 22, 2008, no pet. h.) (in closing argument, prosecutor emphasized,

with regard to separate sudden passion verdict form, that “[i]f one of you say, no, then your answer

is no”). However, nothing of this sort occurred here. Neither party mentioned the unanimity

requirement with regard to sudden passion until the State’s rebuttal closing argument in the

punishment phase of trial. In the context of a vigorous attack on the probative value of Swearingen’s

evidence regarding sudden passion, the State briefly alluded to the unanimity requirement:


       In order to decide the issue of sudden passion, all 12 of you have to agree. It has to
       be unanimous that this defendant acted in sudden passion and the facts do not support
       it.


The State then continued its argument, focusing on why the “facts do not support” Swearingen’s

sudden passion theory.

               The first sentence of this statement is a correct shorthand description of the

requirement that the jury’s finding on sudden passion must be unanimous. The second sentence is

a correct description of one-half of this requirement—the jury must be unanimous in any affirmative



                                                15
finding on sudden passion—but omits mention that a negative finding must also be unanimous. The

State’s failure to fully describe the unanimity requirement, while making only a passing reference

in the context on an argument focused on the merits of Swearingen’s sudden passion theory, falls

short of the sorts of affirmative entreaties encouraging juries not to render a unanimous verdict

present in cases like Ngo and London. Cf. Ngo, 175 S.W.3d at 750-51; London, ___ S.W.3d at ___;

2008 Tex. App. LEXIS 6885, at *23-24. In short, this is not a case where a prosecutor’s

misstatements regarding jury unanimity “emphasiz[ed] the very point which was in error [and]

exponentially magnified the error contained in the charge and converted it from theoretical harm

to actual harm.” Hines v. State, No. 06-08-00004-CR, 2008 Tex. App. LEXIS 8036, at *33, ___

S.W.3d ___, ___ (Tex. App.—Texarkana Oct. 23, 2008, no pet. h.).

               Nor, in this context, can we infer egregious harm from the evidence at trial. During

the guilt-innocence phase of trial, the central evidence of Swearingen’s guilt was a detailed written

confession given by Swearingen on Wednesday, October 18, 2006, approximately four days after

he killed Stephanie. Swearingen recounted that around 5 p.m. on the preceding Saturday, as

Stephanie was preparing to go out that evening to a party with a female friend, the couple had a

heated argument in which Stephanie had been hitting and scratching him. Eventually,


       I attacked her [Stephanie]. I threw her on the floor and I choked her. . . . I was on top
       [of] her. I don’t remember if I was sitting on top of her. She was still trying to fight
       me and hit me. I grabbed tighter around her neck. After that I was not sure if she
       was dead or not. I freaked out. She was like a bluish color and she had a little bit of
       blood coming from her nose. She still had water in the bathtub [from taking a
       shower, referenced earlier in his statement]. I picked her up and threw her in there.
       I don’t know why I did that.




                                                  16
Then, Swearingen continued, he “walked into the living room to pick up” the couple’s two-year old

daughter, who “was crying.” He then called his mother, who lived in Missouri, “told her that she

needed to come and get [the daughter]” and confided that he had killed Stephanie. Thereafter,

Swearingen admitted, he moved Stephanie’s car from the driveway outside their house into the

garage, concealing it. Later, when the friend of Stephanie’s who was to accompany her to the party

came by, Swearingen told her that Stephanie had already left to go to the party. Swearingen then

“finished [preparing] dinner for [his daughter] and put her asleep around 8:00 p.m.” With the

child in bed,


       I took her body out of the bathtub and put it in the trunk of her car. I put a red handle
       flat tip shovel in the trunk with her. I put in the clothes that she was supposed to
       wear to the party. I put a[] trash bag over her face so the water would not drip all
       over the floor. I put a blanket down in the trunk so that the blood would not get in
       the trunk. Her purse and wallet were already in the vehicle in the front. I then went
       to bed. I went to bed late.


The following day, Swearingen continued, his mother arrived, and he drove Stephanie’s car from

the couple’s Killeen home and left it in a parking lot in Copperas Cove, in neighboring Coryell

County. That afternoon, Swearingen falsely reported his wife missing to Killeen police; he later

gave an initial statement in which he admitted the couple had an argument, but claimed that

Stephanie had stormed out of the house and never returned. Later that evening, Swearingen drove

his truck to Copperas Cove, retrieved Stephanie’s vehicle, and drove it to a cemetery south of

Killeen, where he dug into one of the previously-occupied gravesites and buried Stephanie on top

of the casket inside. He discarded the shovel in a creek near Nolanville and, with his mother’s

boyfriend following in Swearingen’s truck (which evidently had been retrieved from Copperas

                                                 17
Cove), drove Stephanie’s car to Waco, where Swearingen abandoned it in “some neighborhood.”

Swearingen then rode back to Killeen with his mother’s boyfriend.

               The jury also heard evidence that an autopsy identified the cause of Stephanie’s

death as homicide but could not determine a precise means or time of death—strangulation,

drowning in the bathtub, the effects of Swearingen’s leaving her in a car trunk with a trash bag over

her head, or some combination of these acts—due to decomposition. Swearingen did not testify or

present any other evidence during the guilt-innocence phase; his trial counsel argued only that the

State had not met its burden of proving that he had intentionally or knowingly caused Stephanie’s

death. The district court submitted to the jury a single count of murder with three alternative

theories as to how Swearingen intentionally or knowingly caused Stephanie’s death: (1) “by

squeezing the neck of the said Stephanie Swearingen with the defendant’s hand”; (2) “by placing

the head of Stephanie Swearingen under water”; or (3) “by manner and means unknown to the grand

jury.” After barely one hour of deliberations, the jury rendered its verdict of guilty.

               During the punishment phase, Swearingen relied solely on a sudden passion

theory—in essence, that the continued, combined effects of numerous stresses on himself and the

couple’s marriage contributed to his losing control during a heated argument and killing Stephanie.

Swearingen testified, and several other witnesses confirmed, that he and Stephanie had a volatile,

deeply troubled marriage characterized by frequent arguments in which she often became violent

with him. The couple had married in October 2001, when Stephanie was nineteen. Following his

wedding date, Swearingen, then a U.S. Army staff sergeant, was deployed to Korea for twenty-one

months. The couple separated following his Korea deployment, but reunited and conceived



                                                 18
their daughter. While Stephanie was expecting, Swearingen was deployed to Iraq for eleven

months ending in February 2005. Their daughter was born during this deployment. At the time of

Stephanie’s murder, Swearingen was within approximately two-and-a-half weeks of leaving for a

second deployment to Iraq. As the deployment approached, Stephanie, according to Swearingen,

had been insisting that he designate her as the sole beneficiary on his life insurance policy, to the

exclusion of his son from a prior relationship.

               In January 2006, Stephanie was arrested on domestic violence charges stemming

from one of their arguments. The couple thereafter went through an eight-hour anger-management

course and six weeks of marital counseling provided by the Army for persons returning from

overseas duty. However, by the end of September 2006, the couple had resolved to divorce. The

jury heard evidence of tension between the pair regarding custody or control of their daughter.

               The jury also heard evidence of marital infidelity by both Stephanie and Swearingen.

Although there was evidence that Swearingen knew several months before the murder that

Stephanie had previously cheated on him or was aware of this history “in general,” he insisted that

he had been unaware that her cheating was still ongoing until she revealed it to him on the evening

before her death.

               In his statement, Swearingen described the circumstances leading up to the murder:


       On Friday 10-13-06 at about 3:00 p.m. I got home from work. Around 4:45 p.m., she
       and I started talking about custody and divorce. She stated that she was willing to
       stay in the area so that I could be around [the daughter]. Around 5:00 p.m. my wife
       and I started arguing. We argued off an[d] on for several hours. We argued about my
       life insurance policy. She believed that she should have it all if something happened
       to me. She did not think I should [sic] so much to my son. After about an hour of
       that, we started arguing about her infidelity. That is when she told me that she had

                                                  19
       been messing around on me. She told me that she had been seeing this guy for about
       three months. She did not give me his name or anything about him. She just told me
       that she talks to him on the computer and that she had slept with him. Hearing that,
       I grabbed [a] cigar and left the house.


Swearingen proceeded to a Killeen bar where, he wrote, he “drank coke and smoked a cigar.” He

returned home around 10:30 or 11:00 and found that he was locked out of the house. Swearingen

“knocked on the door and rang the door bell.” “After about 5-10 minutes,” Stephanie opened the

door and let Swearingen inside. They resumed arguing, and Stephanie eventually “slammed the

door to the bedroom” and locked it. Then, Swearingen stated, “I knocked the door open and

told her not to lock me out of my house again.” Swearingen left and spent the night at his

cousin’s house.

               The following afternoon, Swearingen continued, he returned to the house and he and

Stephanie resumed arguing, this time about Swearingen “going to see my son in Illinois.” Their

daughter woke up, and she and Stephanie took a shower together. Swearingen testified that he or

Stephanie would shower while their daughter played with bath toys in the tub. He recounted that

the tub was still half-full with water when he later “threw” Stephanie in there. After Stephanie got

out of the shower, the couple began arguing again.


       After about 5:00 p.m., she started doing her hair and getting ready for the party. I
       asked her how long she was going to be at the party and she said that she did not
       know. Afterwards, we argued more about me going to Illinois. She told me that I did
       not need to see my son and that I had just seen him and that the only reason I wanted
       to go was to see my ex. I asked her why did it matter anyway and she did not want
       to be with me and she had made that point known. She told me that I was stupid and
       that I knew nothing. Then she said to me, “where do you think I go when I say that
       I am going out?” After that I picked up [their daughter] and took her out of the room.
       When I returned to the room, she was arguing with me more and typing on her

                                                 20
       computer. She told me that when I return from Iraq, she was going to sell all of my
       stuff. She said that I would never see my daughter and my daughter would hate me.
       She walked back into the bathroom. I pushed pause on her I-Tunes on her computer
       and closed the lid on her laptop. I then asked her how many times she had cheated
       on me and she told me that she did not know. I asked her if it had been since January
       and she told me that it basically never stopped. I asked her if she cheated on me and
       then came back and slept with me and she said no but how does his cum taste.


After some similarly graphic exchanges, Stephanie, according to Swearingen, clarified that she was

referring to having performed oral sex on the other man; asked Swearingen again, “How does his

cum taste?”; and then spit on him. Then, Swearingen claimed:


       I took her laptop and disconnected the power cord. I took it into the office. When
       I returned to the bedroom, she threw her phone at me and said here control me. At
       that point, I set the phone on the bed. My daughter had walked back into the room.
       I picked up my daughter and I picked up the phone. She demanded that I give her the
       phone back. I snapped the phone in half and laid it on the nightstand.[6] After that
       she attacked me by scratching me and slapping me. I told her to stop and I pushed
       her back. I told her to get out of the house. She attacked me again in the same
       manner, this time scratching my face. She tried yanking my daughter out of my arms.
       My daughter started crying. After that I sat my daughter down and I attacked her.


After this, Swearingen continued with his description, quoted above, of how he strangled Stephanie,

“threw her” into the bathtub, and later disposed of her.

                During his testimony, Swearingen elaborated on the events described in his written

statement. Swearingen claimed that Stephanie had made him “extremely angry” during their

argument and that he did not realize, while he was attacking her, that his hands had wound up around

her neck. Swearingen added that, when he realized what he had done to Stephanie, he “was




       6
           The broken “phone” was admitted into evidence. It was a folding cellular telephone.

                                                21
terrified.” Swearingen testified, “At that point I saw that my wife was not breathing and I noticed

that there was blood from her nose and I knew that she was dead, sir.” When asked why he put

Stephanie in the bathtub, Swearingen answered, “I was scared. I saw the blood and I knew that it

was going to get on the carpet and I didn’t know what to do, sir. I—I don’t know.”

               On cross-examination, the State highlighted the passage of time and Swearingen’s

deliberative acts between the events that supposedly caused him to lose control and when he

attacked Stephanie:


       Q:      When you took that computer and threw it in the room was it connected . . .
               to the wall with the power cord?

       A:      I had disconnected the power cord as it states in my statement before I threw
               it from the room.

       Q:      So that took time, right?

       A:      It takes very little time to unplug a computer, ma’am.

       Q:      So you would agree it takes some time?

       A:      Maybe a second.

       Q:      Okay. And you’ll agree that it takes time to walk into the other room and
               take the computer in the other room?

       A:      Yes, ma’am.

       Q:      But it’s your testimony that you were extremely enraged at that time?

       A:      Yes, I was angry at that time.

       Q:      Okay. So then you came back into the room and that’s when she threw her
               phone at you?

       A:      Yes, ma’am.

                                                22
Q:     And you disabled her phone at that point so that she wasn’t able to call for
       help?

A:     No, I believe my statement says, ma’am, that I threw it on the bed. Correct?

Q:     Then you picked it up and broke it in half, correct?

A:     Yes, I did, ma’am.

Q:     So how much time elapsed between throwing the phone on the bed and
       picking it back up and snapping it in half?

A:     In that statement what is not stated, ma’am, is the entire time, we were
       fighting. The entire time she was arguing. She followed me to the room
       when I threw the computer on the bed.

Q:     You have never stated that before, have you?

A:     There’s a—like I said, ma’am, that statement is a broad spectrum. It goes
       over a four hour period.

....

Q:     So how much time elapsed from throwing that phone on the bed and picking
       it up and snapping it in half?

A:     Maybe a minute or two.

Q:     But you’re extremely enraged during that period?

A:     Yes, the argument still continued.

....

Q:     . . . . Was there a continuous argument?

A:     Yes. That was minor, minor time, ma’am.

Q:     I’m sorry. Minor what?

A:     There was a minor period of time in that.



                                        23
Q:     Please define minor period of time.

A:     Maybe three, maybe that fight lasted—that argument lasted three, four
       minutes when I broke the phone.

Q:     You then went in and picked up your daughter?

A:     My daughter was standing in the room I believe is what the statement says,
       ma’am.

Q:     We’re not talking about what the statement says, we’re talking about what
       actually happened.

A:     Yes, my daughter was in the room at that time period.

Q:     So you picked up your daughter and you’re extremely enraged and it’s your
       testimony that as an extremely enraged individual you picked up your
       daughter?

A:     I picked up my daughter to remove her from the room because she did not
       need to be there with us arguing.

....

Q:     Okay. So now it’s your testimony that you did have your daughter in your
       arms when you were extremely enraged?

A:     Yes. I had picked up my daughter and I was—I had the phone in my hand.

Q:     And you were extremely enraged, correct?

A:     No, I was angry, ma’am, yes.

Q:     Okay. So now you’re just angry. So you’ve gone from extreme rage to anger
       in the course of this fight, correct?

A:     Ma’am?

Q:     It’s a yes or no question, please just answer the question.

A:     I was extremely angered, ma’am.



                                        24
       Q:      You just testified that you were angry during that time period; is that not the
               truth?

       A:      I said that I was angry, ma’am, yes.

       Q:      But not extremely. You made that a point?

       A:      I did not make a point of not say[ing] extremely, ma’am.

       ....

       Q:      So you had enough presence of mind to put your daughter down before
               attacking your wife, correct?

       A:      I put my daughter down so that she would not be further injured.

       Q:      Okay. So you had enough presence of mind to put your daughter down
               before attacking your wife? Yes or no?

       A:      Yes, my wife was still attacking me.

       Q:      But you had enough of your mind to think, I don’t want to injure my daughter
               so I’m going to put her down, correct?

       A:      Yes, ma’am.

       Q:      Then you attacked her, correct?

       A:      Yes, ma’am, my wife and I got into a physical fight.


               Swearingen called a psychologist, Dr. Frank Pugliese, who testified that, in his

expert opinion, it was “possible” that Swearingen’s emotions got the better of him at that moment

that he strangled Stephanie. However, on cross-examination, Pugliese acknowledged that it was also

“possible” that Swearingen was malingering in an attempt to protect himself, but claimed that he did

not think Swearingen had been. On the other hand, Pugliese admitted that he “really can’t say” what

Swearingen’s state of mind was at the time Swearingen killed Stephanie.

                                                 25
               The State also presented evidence that Swearingen had, in the past, mentioned killing

Stephanie. Swearingen admitted that there was what he characterized as “a running joke” among

himself; Austin Twombly, a close friend and fellow soldier; and each of their wives “about killing

each other for the insurance benefits.” Also, in rebuttal, Twombly testified that Swearingen had told

him in August 2006 “that if he ever did kill [Stephanie], he’d take her back to Missouri and bury her

in a dry well where no one would ever be able to find her.”

               The jury was properly instructed that to prove sudden passion, Swearingen had

the burden of establishing, by a preponderance of the evidence, that he caused Stephanie’s

death “while under the immediate influence of sudden passion arising from an adequate cause.”

Tex. Penal Code Ann. § 19.02(d); McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005).

“Sudden passion” was defined 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). “Adequate cause” was

correctly defined as 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). The court of criminal appeals has summarized these elements as “there was an

adequate provocation, that a passion or an emotion such as fear, terror, anger, rage, or resentment

existed, that the homicide occurred while the passion still existed and before there was reasonable

opportunity for the passion to cool; and that there was a causal connection between the provocation,

the passion, and the homicide.” McKinney, 179 S.W.3d at 569. The core concept is that a person’s

mental state has rendered him incapable of rational thought and collected action. See Kennedy



                                                  26
v. State, 193 S.W.3d 645, 653-54 (Tex. App.—Fort Worth 2006, pet. ref’d). The mere fact that

someone acts in response to provocation of another is not enough. Trevino v. State, 100 S.W.3d 232,

241 (Tex. Crim. App. 2003).

               There was little, if any, evidence that Swearingen could have been acting under the

immediate influence of sudden passion when, after strangling Stephanie, he “threw her” into the half-

full bathtub, left her there, and later placed her in a car trunk with a trash bag over her head—all

means through which the jury could have found Swearingen intentionally or knowingly caused

Stephanie’s death. In fact, Swearingen acknowledged that he had moved Stephanie to the bathtub

and later placed the trash bag over her head to avoid leaving evidence of her blood or water on the

carpet. Such calculated acts belie Swearingen being incapable of rational thought or self-control.

At most, Swearingen presented evidence relevant to a theory that he had been acting under the

immediate influence of sudden passion during his initial act of strangling Stephanie. However, any

potential probative value of such evidence was largely eviscerated by Swearingen’s admissions that,

prior to their final argument, he already knew of the facts that allegedly caused him to lose

control—including the nature and extent of Stephanie’s ongoing infidelity—and that he undertook

numerous deliberative acts during their final argument and immediately prior to attacking her.

               In summary, this was not a case in which the evidence of sudden passion proved to

be “substantial.” See Ruiz v. State, 753 S.W.2d 681, 685 (Tex. Crim. App. 1988). Although there

may have been evidence of former provocation, the evidence was, at best, weak in establishing that

Swearingen was incapable of rational thought and collected action when he strangled Stephanie,

much less when he subsequently left her in a half-full bathtub and otherwise attempted to conceal



                                                 27
evidence of his acts. See, e.g., McKinney, 179 S.W.3d at 570 (holding that victim pushing and

yelling at defendant just before defendant shot victim was not adequate cause to give rise to

immediate influence of sudden passion because fight began earlier in the day); Bradshaw,

244 S.W.3d at 503.

               Considering the entire record, including the jury charge, the parties’ arguments at

trial, and the weight of the evidence, we cannot find anything more than “theoretical” harm

stemming from the charge error. See Bradshaw, 244 S.W.3d at 498; see also Curry, 222 S.W.3d at

753 (concluding that defendant’s speculation that one juror “might have found sudden passion” is

“theoretical harm that we will not credit.”); Newton, 168 S.W.3d at 258 (“The harm must be actual,

and not just theoretical.”). Absent egregious harm, we must overrule Swearingen’s second issue.


                                        CONCLUSION

               Having overruled Swearingen’s issues, we affirm the judgment of the district court.




                                             __________________________________________

                                             Bob Pemberton, Justice

Before Chief Justice Law, Justices Puryear and Pemberton

Affirmed

Filed: December 4, 2008

Publish




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