      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-04-00016-CR



                                     Glenn Newton, Appellant

                                                  v.

                                   The State of Texas, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
           NO. 2030574, HONORABLE BOB PERKINS, JUDGE PRESIDING



                                           OPINION


               Appellant Glenn Newton pleaded guilty to murder and raised the issue of sudden

passion. See Tex. Pen. Code Ann. § 19.02(b), (d) (West 2003). The jury returned an instructed

verdict of guilty and assessed punishment at forty years’ imprisonment and a $10,000 fine.

Appellant complains that the trial court’s charge did not require the jury to reach a unanimous verdict

on the sudden passion issue. We agree that the charge was defective, reverse the district court’s

judgment, and remand for a new punishment hearing.

               If, at the punishment stage of a murder trial, the defendant proves by a preponderance

of the evidence that he acted under the immediate influence of sudden passion arising from an

adequate cause, the offense is reduced from a first to a second degree felony. Id. § 19.02(d). The

jury’s verdict on the sudden passion issue must be unanimous. Sanchez v. State, 23 S.W.3d 30, 34

(Tex. Crim. App. 2000) (applying Tex. Code Crim. Proc. Ann. art. 37.07, § 3(c) (West Supp. 2004-
05)). That is, the jurors must agree that the defendant either did or did not act under the immediate

influence of sudden passion arising from an adequate cause. Id. If the jurors fail to agree on the

sudden passion issue, the result is a mistrial. Id. at 33.

                In Sanchez, the trial court instructed the jurors that they could find in the defendant’s

favor on the sudden passion issue only if they were unanimous, and that otherwise they were to find

against him. Id. at 32. Under the instruction given, if some of the jurors were persuaded that the

defendant acted under the influence of sudden passion but the other jurors were not, the jury was

required to assess punishment within the range prescribed for first degree felonies. The court of

criminal appeals held that this violated article 37.07, section 3(c) because it did not require unanimity

on the sudden passion issue, permitted the range of punishment to be determined without the

agreement of the jurors, and reduced the reliability of the punishment verdict. Id. at 33-34.

                In Cartier v. State, the punishment charge required the jurors to answer “yes” or “no”

to a special issue inquiring whether the defendant acted under the immediate influence of sudden

passion arising from an adequate cause, and then to assess punishment accordingly. 58 S.W.3d 756,

759-60 (Tex. App.—Amarillo 2001, pet. ref’d). Elsewhere in the charge, the jurors were told that

they were to unanimously agree upon a verdict. The court of appeals concluded that the charge

satisfied the need for unanimity and did not permit the jurors to return a non-unanimous decision

adverse to the defendant on the sudden passion issue. Id. at 760.

                In the cause now before us, paragraph one of the court’s charge instructed the jurors:


        The punishment which you may assess is confinement in the Institutional Division
        of the Texas Dept. of Criminal Justice for life, or for any term of not more than 99
        years or less than 5 years; unless you believe that the defendant caused the death

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          under the immediate influence of a sudden passion arising from an adequate cause
          in which event you may assess confinement for not more than 20 years or less than
          2 years. In addition, in either case, a fine not to exceed $10,000 may be imposed.
          The burden of proof is on the defendant to prove this issue by a preponderance of the
          evidence.


After defining “preponderance of the evidence,” “sudden passion,” and “adequate cause,” the court

concluded this portion of the charge:


          Now if you believe by a preponderance of the evidence that the defendant caused the
          death of the deceased while under the immediate influence of sudden passion arising
          from an adequate cause, you will assess punishment at confinement for not more than
          20 years nor less than 2 years and you may impose a fine not to exceed $10,000.


This was the court’s only instruction regarding the determination of the appropriate punishment

range.

                 The final paragraph of the charge instructed the jurors to select a foreperson “to

preside at your deliberations and to vote with you in arriving at a unanimous verdict.” The court

submitted four verdict forms in this order: (1) guilty of murder with a sudden passion finding,

without probation; (2) guilty of murder with a sudden passion finding, with probation; (3) guilty of

murder without probation; or (4) guilty of murder with probation. The jurors selected the third

option.

                 Appellant objected that the charge failed to require a unanimous determination of the

sudden passion issue. Specifically, appellant urged that the charge did not require the jurors to

unanimously find against him on this issue as a prerequisite to punishing the offense as a first degree




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felony. The court overruled the objection, expressing the view that the charge and verdict forms

assured that the jurors’ sudden passion decision would be unanimous.

                We agree with appellant that the charge in this cause required unanimity on the

sudden passion issue only in appellant’s favor. The court instructed the jurors to assess a prison term

of five years to life unless they agreed that appellant acted under the immediate influence of sudden

passion arising from an adequate cause. This instruction did not condition the jurors’ use of the five-

to-life punishment range on a unanimous finding that appellant did not act under the influence of

sudden passion; instead, the harsher punishment range was made applicable in the absence of a

finding in appellant’s favor. The court then emphasized the need for unanimity in appellant’s favor

by instructing the jurors to assess a punishment of two to twenty years if they agreed that appellant

acted under the influence of sudden passion. The court never instructed the jurors that they were to

punish this offense as a first degree felony only if they agreed that appellant did not act under the

influence of sudden passion. By requiring unanimity only in appellant’s favor, the court’s charge

effectively told the jurors to treat the offense as a first degree felony if they could not reach

agreement on the sudden passion issue. The later, general reference to a unanimous verdict was not

sufficient to correct the error in that portion of the court’s charge that directly spoke to the selection

of the proper punishment range.

                The verdict forms also required unanimity only in appellant’s favor. The second

degree murder forms (forms one and two) contained a finding that appellant acted under the

immediate influence of sudden passion arising from an adequate cause. But the first degree murder

forms (forms three and four) did not contain a finding that appellant did not act under the influence



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of sudden passion; they were silent with regard to the issue. Like the charge itself, the verdict forms

erroneously conditioned the use of the first degree felony punishment range on the absence of a

finding in appellant’s favor, rather than on a finding against him, on the sudden passion issue.

                “If the error in the charge was the subject of a timely objection in the trial court, then

reversal is required if the error is ‘calculated to injure the rights of defendant,’ which means no more

than that there must be some harm to the accused from the error.” Almanza v. State, 686 S.W.2d

157, 171 (Tex. Crim. App. 1985) (op. on reh’g) (quoting Tex. Code Crim. Proc. Ann. art. 36.19

(West 1981)). Under this standard, “the presence of any harm, regardless of degree, which results

from preserved charging error is sufficient to require reversal of the conviction. Cases involving

preserved charging error will be affirmed only if no harm has occurred.” Arline v. State, 721 S.W.2d

348, 351 (Tex. Crim. App. 1986). The degree of harm must be assayed in light of the entire jury

charge, the state of the evidence, the argument of counsel, and any other relevant information

revealed by the record as a whole. Almanza, 686 S.W.2d at 174. The harm must be actual, and not

just theoretical. Id.

                Appellant pleaded guilty to the alleged murder, and the only fact issue before the jury

was whether appellant committed the murder while under the immediate influence of sudden passion

arising from an adequate cause. It is undisputed that there was evidence raising the sudden passion

issue and that this evidence, if believed by the jury, would support a finding in appellant’s favor.

                Not surprisingly, the sudden passion issue was the primary subject of the jury

arguments. For their part, the prosecutors reminded the jurors that the burden of proof was on

appellant and urged that the evidence preponderated against a finding of either sudden passion or



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adequate cause. The prosecutors did not mention the need for unanimity, either for or against

appellant, on the sudden passion issue. The first of appellant’s attorneys to argue told the jurors,

“Before you can decide what his punishment should be, each of you first has to make an individual

decision was this sudden passion, then you have to all decide are we unanimous in that there was

sudden passion, and then at that point you can move forward as to what happens.” After this

essentially correct statement, counsel demonstrated how easy it is to misstate the unanimity

requirement by adding, “Now, if after you have convened and you have not decided unanimously

that sudden passion is involved, then you go to the last two forms [first degree felony].”

               Appellant’s second attorney, whose sole focus was on the sudden passion issue,

argued correctly:


       Was there sudden passion? It has to be unanimous one way or the other—yes, there
       was; no, there wasn’t. That is the first thing you have to decide. Then depending on
       what your decision is on the sudden passion issue, that will tell you where you go as
       far as punishing him.

       If all 12 of you agree that there is sudden passion, your punishment range is limited
       from two to 20 years in prison. If you give a sentence of less than 10 years and
       recommend probation, and there is a verdict form for that, the judge has to put Glenn
       on probation, and he read some of the conditions that could be given.

       ...

       If you decide that sudden passion is not there—and that must be a unanimous
       decision; all 12 of you must agree there is no sudden passion—then you go on to the
       other range of punishment, five years up to 99 years or life.


This argument accurately stated the need for unanimity—either for or against appellant—on the

sudden passion issue.



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                   After the verdict was returned, the defense asked that the jurors be polled. The court

told the jurors:


        A request has been made that the jury be polled, and by that we mean we are going
        to ask that each of you state your name and if this is your verdict, which is a verdict
        in which you have not found sudden passion, you should say, yes, this is my verdict,
        that the verdict that your foreperson has read is your actual verdict.


Defense counsel asked for “a more specific question. I would like an answer from each juror on

whether they voted for sudden passion or against sudden passion.” The court responded:


        I think the Court is going to decline that request. I think legally if you would just
        state—I will note your exception—that the verdict read by your foreperson is your
        verdict and that verdict does not reflect sudden passion. If that isn’t your verdict,
        please say it is not. So if we start with just your name and then yes, that is my
        verdict; no, that isn’t my verdict. And this is a verdict of 40 years, $10,000 fine, and
        there was no finding of sudden passion.


Each juror then affirmed that the verdict read was his or her verdict.

                   We believe that the jury poll is the key to determining whether the charge error was

harmless in this cause. Although one of appellant’s attorneys accurately explained the need for

unanimity during her jury argument, appellant’s other attorney fell into the same error as the court’s

charge. Moreover, we assume in the absence of evidence to the contrary that the jurors followed the

charge and that they resolved the conflict between counsel’s argument and the court’s instructions

(assuming they perceived it) by giving precedence to the instructions and the accompanying verdict

forms. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998) (jury presumed to follow

court’s instructions). The charge unambiguously told the jurors to assess a prison term of five years



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to life unless they agreed that appellant acted under the immediate influence of sudden passion

arising from an adequate cause. If the jurors read the charge and followed it, it is reasonably possible

that one or more of them may have believed that appellant acted under the influence of sudden

passion, but because the other jurors did not agree, applied the first degree felony punishment range.

See Ovalle v. State, 13 S.W.3d 774, 787 (Tex. Crim. App. 2000). We cannot dismiss the error as

harmless by supposing that the jury ignored the charge. Id. at 788. Thus we must ask: did the jury

poll reflect a unanimous determination against appellant on the sudden passion issue despite the

absence of a unanimity requirement in the court’s charge?

               We conclude that it did not. The court refused to directly ask the jurors whether they

voted for or against a finding of sudden passion. Instead, the court asked each juror to state whether

the verdict read by the foreperson was his or her verdict. As we have previously discussed, the first

degree murder verdict form read by the foreperson did not contain a finding that appellant did not

act under the influence of sudden passion. Given the wording of the verdict forms and of the court’s

question to the jurors, the poll merely reflected each juror’s agreement that the verdict was silent

with respect to the sudden passion issue. It cannot be said that the poll demonstrated a finding by

each juror that appellant did not commit murder under the immediate influence of sudden passion

arising from an adequate cause.

               By failing to require the jurors to agree that appellant did not act under the immediate

influence of sudden passion, the court’s charge was calculated to injure appellant’s rights by denying

him his statutory right to a unanimous verdict. See Sanchez, 23 S.W.3d at 33-34 (affirming court

of appeals’ conclusion that error caused defendant egregious harm); and see Ngo v. State, No. PD-



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0504-04, 2005 Tex. Crim. App. LEXIS 457, at *33-34 (Tex. Crim. App. Mar. 16, 2005) (charge that

did not require unanimous verdict as to offense committed was egregiously harmful). Appellant

timely and specifically objected to the erroneous charge. On this record, it cannot reasonably be said

that the jurors reached a unanimous decision despite the court’s faulty instructions. We cannot

conclude that the error was harmless. Point of error two is sustained.

               Because of our disposition of the charge issue, we need not address appellant’s other

point of error. We affirm the district court’s adjudication of guilt, but we reverse that portion of the

judgment imposing sentence and remand for a new punishment trial. See Tex. Code Crim. Proc.

Ann. art. 44.29(b) (West Supp. 2004-05).




                                               __________________________________________

                                               David Puryear, Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Affirmed in Part; Reversed and Remanded in Part

Filed: June 23, 2005

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