      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-12-00440-CR



                                  Brian Lee Russell, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 427TH JUDICIAL DISTRICT
       NO. D-1-DC-10-301971, HONORABLE JIM CORONADO, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury found appellant Brian Lee Russell guilty of murder. See Tex. Penal Code

§ 19.02. The jury assessed punishment at forty years’ imprisonment. In eight appellate issues, Russell

asserts that the trial court erred in (1) limiting Russell’s cross-examination of a witness about the

witness’s pending felony charge, (2) failing to properly instruct the jury in several respects, and

(3) denying Russell’s motion for new trial. We affirm the judgment of the trial court.


                                         BACKGROUND

               This case involves a deadly shooting at an apartment complex in Austin, Texas.

Franklin Espinales, the victim in this case, was attending a child’s birthday party in the complex’s

courtyard when Russell approached. Russell was not part of the gathering, and he later testified that

he went to the complex to meet a prostitute. According to witnesses, several of the party’s guests,

including Espinales and Raul Castaneda, spoke to Russell when he arrived. Unfortunately, the
majority of guests could not speak English, and Russell could not speak Spanish. Castaneda’s

wife—who assisted Castaneda in managing the apartments and was the only bilingual person at the

event—tried to assist Russell. Castaneda’s wife stated that Russell was hostile and told her that she

could not help him. Castaneda threatened to call the police, to which Russell allegedly replied “call

the police because you’re going to need them.”

                Castaneda, his wife, and Espinales told Russell to leave. According to Russell, several

guests began yelling at him in Spanish. A tenant on the second-floor balcony poured a beer on

Russell’s head and threatened to throw the bottle at him. At this point, Espinales and his brother

Edwin1 pushed Russell back several feet.2 Russell drew a handgun, pointed it at various people in

the crowd, shot Espinales in the face, and then fled the scene. Espinales died from his injuries.

                Russell was subsequently arrested and indicted for Espinales’s murder. At trial, several

witnesses—including Castaneda, his wife, Edwin, and other tenants—testified for the State. Four

of these witnesses testified that Espinales and the other party guests did not threaten or provoke

Russell, and an additional two witnesses testified that Russell was upset and aggressive. However,

Russell testified that the guests were behaving in a threatening manner and that Russell shot

Espinales because Espinales lunged toward him with a bottle. The jury found appellant guilty of

murder as alleged in the indictment. Following a punishment hearing, the jury assessed punishment

at forty years’ imprisonment. This appeal followed.




       1
           To avoid confusion, we refer to Edwin Espinales by his first name.
       2
        Some witnesses testified that Espinales and Edwin pushed Russell to move him out of the
way from the beer which was being poured from the second-floor balcony.

                                                   2
                                           DISCUSSION

                Russell raises eight issues on appeal, which we group into the following three

complaints. First, Russell argues that the trial court impermissibly limited his cross-examination of

Castaneda concerning Castaneda’s pending felony charge. Second, Russell asserts that the trial court

failed to adequately instruct the jury in several respects. Finally, Russell claims that the trial court

erred in denying his motion for new trial based on an ineffective-assistance-of-counsel claim. We

address each complaint separately.


Cross-examination about pending felony charges

                In his first issue on appeal, Russell asserts that the trial court erred in limiting his

cross-examination of Castaneda concerning Castaneda’s pending felony charge for attempted sexual

assault of a child. Specifically, Russell asserts that defense counsel should have been permitted to

ask Castaneda about when Castaneda learned that there was an arrest warrant for this charge because

it may have explained why Castaneda’s testimony about the shooting did not match his previous

statements to Russell’s private investigator.3 The State contends that Russell failed to preserve this

complaint for review.

                To preserve a complaint for appeal, a party must make a timely request, objection,

or motion to the trial court and obtain an adverse ruling. Tex. R. App. P. 33.1; see also Martinez v.


       3
          At trial, Castaneda testified unequivocally that Russell was the initial aggressor and that
no one gave Russell cause to be afraid. However, Russell’s private investigator testified that Castaneda
previously told the investigator that Russell may have been afraid that he would be assaulted.
According to Russell, the jury could have believed that the pending arrest warrant made Castaneda
biased in favor of the State, and therefore the timing of when Castaneda learned about the arrest
warrant could have bolstered the private investigator’s assertion that Castaneda changed his narrative
concerning the shooting to support the State’s theory of the case.

                                                   3
State, 17 S.W.3d 677, 686 (Tex. Crim. App. 2000) (concluding that defendant failed to preserve

error when trial court deferred ruling on objection to defendant’s question but defendant never asked

question again or obtained ruling). Under this standard, a party seeking to introduce evidence must

(1) attempt to introduce the evidence; (2) if an objection is lodged, specify the purpose for which

the evidence is offered and the reasons the evidence is admissible; (3) obtain a ruling; and (4) if

the judge rules the evidence is inadmissible, make a record, through a bill of exceptions, of the

precise evidence the party desires admitted. See Tex. R. App. P. 33.1; Melendez v. Exxon Corp.,

998 S.W.2d 266, 274 (Tex. App.—Houston [14th Dist.] 1999, no pet.).

               During cross-examination, defense counsel asked Castaneda if he knew that there

was a warrant out for his arrest when he spoke with Russell’s private investigator. The State

immediately objected and—outside the presence of the jury—asserted that questions about the

warrant impermissibly related to a specific instance of bad conduct that could not be used to impeach

Castaneda’s credibility. See Tex. R. Evid. 608(b). Before the trial court ruled on this objection, the

following exchange occurred between defense counsel, the prosecutor, and the trial court:


               [Defense]:      I only have one more question.

               [Court]:        But the Court has already ruled regarding the warrant
                               question.4

               [Defense]:      My last question is does [Castaneda] know how many
                               years he can get for the charge he is facing.


       4
         During a separate portion of her cross-examination, defense counsel asked Castaneda if he
knew that there was a warrant for his arrest. The State objected to the question on the basis that the
warrant was improper impeachment evidence, and the trial court sustained the objection. See Tex.
R. Evid. 608(b).

                                                  4
               ....

               [Defense]:     Let’s think this through. The reason it’s relevant he
                              has a charge is if he is looking at a long prison
                              sentence, he has a motive to testify favorably for the
                              defense [sic]. So I think the number of years you can
                              be sent down the river for is rather highly relevant in
                              terms of his motive to fabricate, his motive to shade
                              his testimony.

               [State]:       That is different from asking about his warrant. If
                              you want to say—

               [Defense]:     You’re totally right. The last question is: Do you
                              know how many years you can get if you are
                              convicted of the felony offense for which you are
                              currently charged? That’s my question.
               ....

               [State]:       Okay. That’s fine.


               The proceedings then returned to open court, and the trial court asked the State if it

wished to withdraw its objection. The State replied that it would withdraw its objection if defense

counsel withdrew her question about when Castaneda learned that there was a warrant for his arrest.

Defense counsel agreed to withdraw her question about the warrant and proceeded to ask Castaneda

about the potential punishment for his pending felony charge. The issue of when Castaneda learned

about the warrant was not raised again.

               The trial court never ruled on the State’s objection to defense counsel’s question

concerning when Castaneda learned about the warrant. Nevertheless, Russell asserts that the trial

court made an adverse ruling when it referenced its previous ruling precluding questions about

Castaneda’s warrant. See supra n.4. The trial court did not say that it was sustaining the State’s

objection, and defense counsel never attempted to explain why she should be allowed to question

                                                 5
Castaneda about the timing of the arrest warrant. Rather, as soon the State lodged its objection,

defense counsel changed her question to the potential punishment that Castaneda faced and withdrew

her question concerning when Castaneda learned about the warrant.

                Therefore, Russell has failed to preserve this issue for review because defense counsel

did not obtain an adverse ruling from the trial court on her question concerning when Castaneda

learned about the arrest warrant. See Martinez, 17 S.W.3d at 686. We overrule Russell’s first

appellate issue.


Jury-charge complaints

                In his second, third, fourth, seventh, and eighth issues on appeal, Russell raises three

complaints about the jury charge. First, Russell argues that the trial court erred in failing to instruct

the jury on the law of sudden passion. See Tex. Penal Code § 19.02(d) (reducing classification of

murder to second-degree felony if committed “under the immediate influence of sudden passion”).

Second, Russell contends that the trial court’s instruction on the law of retreat was misleading.

See id. § 9.31(e) (explaining when party claiming self-defense has no duty to retreat). Third, Russell

argues that the trial court erred in failing to instruct the jury that Edwin’s prior inconsistent

statements could be considered as both impeachment evidence and as an excited utterance. See

Tex. R. Evid. 803(2) (providing that excited utterances are exception to hearsay rule).

                Our review of an alleged error in a jury charge involves a two-step inquiry. First, we

determine whether there was in fact error in the jury charge. Barrios v. State, 283 S.W.3d 348, 350

(Tex. Crim. App. 2009) (citing Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005)). Second,

assuming that error existed, we determine whether the defendant properly preserved the error at



                                                   6
trial. Id. at 350 (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)). If the

error was properly preserved, reversal is required if there is “some harm” to the defendant. Almanza,

686 S.W.2d at 171. However, if the error was not properly preserved, the error must be “fundamental,”

meaning that it was “so egregious and created such harm that the defendant ‘has not had a fair and

impartial trial.’” Barrios, 283 S.W.3d at 350 (quoting Almanza, 686 S.W.2d at 171). With these

standards in mind, we turn to the alleged jury-charge errors in this case.


Sudden-passion instruction

               In his second, third, and fourth issues on appeal, Russell asserts that the trial court

erred in failing to instruct the jury on the law of sudden passion at the punishment phase of trial.5

Specifically, Russell claims that the jury could have reasonably concluded that when he shot

Espinales, Russell was incapable of cool reflection because he was afraid of being assaulted by

Espinales and the other party guests. See Tex. Penal Code § 19.02(a)(1) (defining “adequate cause”

to create sudden passion); see also McKinney v. State, 179 S.W.3d 565, 569–70 (Tex. Crim. App.

2005) (describing when defendant is entitled to sudden-passion instruction). Therefore, according

to Russell, the record supports a sudden-passion instruction that could have resulted in the jury

convicting him only of a second-degree felony. See McKinney, 179 S.W.3d at 569 (noting that

sudden-passion is mitigating circumstance that reduces punishment classification of murder).


       5
           Russell also asserts that the trial court should have instructed the jury on the “lesser-
included offense” of voluntary manslaughter. Voluntary manslaughter is no longer a separate
offense in the Penal Code, having been replaced with the sudden-passion mitigation defense in
section 19.02(d). See Moore v. State, 969 S.W.2d 4, 8 n.1 (Tex. Crim. App. 1998) (discussing
legislature’s repeal of voluntary manslaughter statute). Therefore, to the extent Russell separately
argues that the trial court should have instructed the jury on the non-existent offense of voluntary
manslaughter, we conclude that such an argument is without merit. See id.

                                                 7
                Russell concedes that he did not request a sudden-passion instruction at trial. This

Court recently concluded that a trial court does not commit error by failing to give an unrequested

sudden-passion instruction. See Teague v. State, No. 03-10-00434-CR, 2012 WL 512661, at *6–7

(Tex. App.—Austin Feb. 16, 2012, pet. ref’d) (mem. op., not designated for publication) (citing

Swaim v. State, 306 S.W.3d 323, 325 (Tex. App.—Fort Worth 2009, pet. ref’d)). As we noted,

sudden passion is a defensive issue that is not “law of the case,” and therefore must be brought to

the court’s attention. Thus, unless the defendant requests a sudden-passion instruction, the trial

court is under no obligation to include such an instruction sua sponte. See id.

                On appeal, Russell does not distinguish the facts of this case from those of Teague,

nor does he offer any argument as to why the trial court had an obligation to include a sudden-

passion instruction on its own volition. We find the reasoning of Teague persuasive and adhere

to its conclusion that the trial court is under no obligation to give an unrequested sudden-passion

jury instruction. See id. Given that Russell failed to request a sudden-passion instruction, we

conclude that the trial did not err in failing to give such an instruction in this case. Having found

no error, we need not conduct a harm analysis.6 See id. We overrule Russell’s second, third, and

fourth appellate issues.




       6
          In his third appellate issue, Russell asserts that the trial court erred in denying his motion
for new trial on the basis that the court erred in failing to give a sudden-passion instruction. Given
that we review a denial of a motion for new trial based on alleged jury-charge error under the same
Almanza standard, we also overrule Russell’s third appellate issue. See Igo v. State, 210 S.W.3d
645, 647 (Tex. Crim. App. 2006) (explaining that standard for reviewing jury-charge complaint
raised in motion for new trial is same as if raised in direct appeal).

                                                   8
Duty-to-retreat instruction

                In his seventh issue on appeal, Russell asserts that the jury instruction improperly

implies that he had an affirmative duty to retreat. According to Russell, the instruction indicated that

Russell’s failure to retreat meant that he could not be justified in using deadly force to defend

himself. Before discussing the particular instruction given in this case, we must examine the state

of duty-to-retreat law.

                The law regarding the duty to retreat has changed recently. “Before 2007, the deadly-

force self-defense statute contained a provision imposing a general duty to retreat.” Morales v. State,

357 S.W.3d 1, 4–5 (Tex. Crim. App. 2011) (discussing changes in duty-to-retreat law). In 2007, the

legislature amended the Penal Code to eliminate the general-duty-to-retreat provision. See id. Thus,

although “failure to retreat may be considered in determining whether a defendant reasonably

believed that his conduct was immediately necessary to defend himself or a third party,” courts

should no longer instruct juries that there is a duty to retreat. See id. at 5 n.11 (concluding trial court

erred in instructing jury on general duty to retreat after 2007 amendments). However, the legislature

specified that an accused has “no duty to retreat” when (1) the accused has the right to be present at

the location where deadly forced is used, (2) the accused has not provoked the person against whom

the deadly force is used, and (3) the accused has not engaged in criminal activity at the time the

deadly force is used. See id. at 5 (citing Tex. Penal Code § 9.32(c)–(d)). When applicable, a trial

court should instruct the jury that if it concludes the accused had no duty to retreat, the jury may

not consider the accused’s failure to retreat in determining whether his use of deadly force was

necessary. See id.; see also Tex. Penal Code § 9.32(d).



                                                    9
               The jury instruction in this case included the following no-duty-to-retreat instruction:


                       A person who has a right to be present at the location where
               the deadly force is used, who has not provoked the person against
               whom the deadly force is used, and who is not engaged in criminal
               activity at the time the deadly force is used, is not required to retreat
               before using deadly force as described by this section.


Russell objected to this instruction, asserting that it was undisputed that the no-duty-to-retreat

statute did not apply in this case because Russell did not have a right to be at the apartment complex

after he was told to leave.7 See Tex. Penal Code § 9.32(c). Furthermore, Russell argues that the jury

could improperly interpret this instruction to mean that Russell had an affirmative duty to retreat

because he did not have a right to be at the apartment complex. Cf. Morales, 357 S.W.3d at 5.

               This same issue was addressed in Whitney v. State, 396 S.W.3d 696, 701–03 (Tex.

App.—Fort Worth 2013, pet. ref’d). In Whitney, the Fort Worth Court of Appeals noted that “even

if an instruction setting out the circumstances under which a person using force . . . has no duty to

retreat necessarily implies the existence of” a duty to retreat, a no-duty-to-retreat instruction is

nevertheless a correct statement of the law. Id. at 703 (citing Tex. Penal Code § 9.31(e)). Therefore,

the court concluded that the trial court did not err in giving a no-duty-to-retreat instruction because

the instruction “track[s] the law as set out by the legislature.” Id. (citing Martinez v. State, 924

S.W.2d 693, 699 (Tex. Crim. App. 1996); Riddle v. State, 888 S.W.2d 1, 8 (Tex. Crim. App. 1994),

cert. denied, 514 U.S. 1068 (1995)). We agree with this conclusion.


       7
           The State argues that this paragraph was intended to ask whether the party guests had the
right to stand their ground, not whether Russell had a duty to retreat. Even assuming that the guests’
right to stand their ground was relevant, the instruction does not specify that it is referring to the
party guests’ conduct rather than Russell’s.

                                                  10
               In this case, the trial court gave a correct instruction about when a person does

not have a duty to retreat, tracking the language of section 9.32(c) of the Penal Code verbatim.

“Following the law as it is set out by the Texas Legislature will not be deemed error on the part of

a trial judge.” Martinez, 924 S.W.2d at 699. Therefore, we cannot conclude that the trial court

abused its discretion by including the no-duty-to-retreat instruction. We overrule Russell’s seventh

appellate issue.


Excited-utterance instruction

               In his eighth issue on appeal, Russell asserts that the trial court erred in refusing

to instruct the jury that it could consider Edwin’s out-of-court statements for more than just

impeachment purposes. Specifically, Russell argues that Edwin’s statements to police shortly after

the shooting constituted an excited utterance and therefore were admissible for the truth of the matter

asserted. See Tex. R. Evid. 803(2) (excepting excited utterances from general rule that hearsay

statements cannot be considered for truth of matter asserted). Thus, according to Russell, the trial

court’s instruction that a witness’s previous inconsistent statements could only be considered for

impeachment purposes was incorrect as it applied to Edwin.

               At trial, Edwin testified that he was in his apartment when he heard yelling in the

courtyard. Edwin explained that when he went to see what was happening, Russell was already

pointing a gun at his brother, Espinales. Edwin stated that he tried to get between Russell and

Espinales, but could not reach them before Russell shot Espinales. Russell elicited testimony from

a detective assigned to this case, who stated that on the night of the shooting, Edwin told police that

Russell initially pointed the gun at him, and that it was Espinales who stepped in front of the gun to

                                                  11
protect his brother. According to the detective, Edwin also stated that prior to Russell’s arrival,

Edwin asked Espinales to stay in the apartment but Espinales “pulled the muscle on me” and insisted

on helping clean up the trash at the party. The State did not object to this testimony, nor did it

request a limiting instruction to inform the jury that the detective’s testimony should only be

considered for impeachment purposes.

               The jury charge in this case included the following instruction:


                       You are instructed that a witness may be impeached by
               showing he or she has made other and different statements out of
               court from those testified to in trial. Such impeachment evidence
               may be considered by you to aid you in determining, if it does, the
               weight, if any, to be given the testimony of the witnesses at trial and
               the credibility of the testimony; but such impeachment evidence, if
               any, is not to be considered for any other purpose.


At the charge conference, Russell objected to the above instruction—asserting that Edwin’s out-of-

court statements to the detective qualified as an excited utterance that could be considered for the

truth of the matter asserted. See generally Apolinar v. State, 155 S.W.3d 184, 186–87 (Tex. Crim.

App. 2005) (discussing admissibility of excited utterances for truth of matter asserted).

               Given that the State did not object to the detective’s testimony at trial, the jury could

consider his testimony for any purpose, including for the truth of the matters asserted in Edwin’s

out-of-court statements. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005)

(noting that jury may consider “unobjected-to hearsay evidence” for any purpose). Therefore, we

will assume without deciding that the trial court erred in giving an instruction indicating that

Edwin’s out-of-court statements could only be considered for impeachment purposes, and will

proceed to determine whether this error was harmful to Russell.

                                                  12
               Because Russell objected to the court’s charge, we consider whether Russell suffered

“some harm” from the complained-of instruction. See Almanza, 686 S.W.2d at 171. In determining

whether there was some harm from an erroneous jury instruction, we consider “(1) the jury charge

as a whole, (2) the arguments of counsel, (3) the entirety of the record, and (4) other relevant

factors presented by the record.” Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013).

This is a less stringent standard than the egregious-harm analysis applicable to unpreserved error.

Id. However, we will not reverse a conviction unless the defendant has “suffered some actual,

rather than merely theoretical, harm from the error.” Warner v. State, 245 S.W.3d 458, 462 (Tex.

Crim. App. 2008).

               Edwin’s alleged statements to police give a different account of where Edwin was

immediately before the shooting and suggest that Espinales tried to shield Edwin from Russell’s

gun, rather than Edwin trying to shield Espinales. But Edwin’s out-of-court statements in no way

indicate that Espinales threatened Russell or that Russell reasonably feared that the other guests

would attack him. Therefore, the inconsistencies between Edwin’s prior statements and testimony

at trial have little or no relevancy to any fact of consequence in this case. Thus, even if the trial

court erred in instructing the jury that it could only consider Edwin’s out-of-court statements for

impeachment purposes, those statements appear to have no probative value other than impeaching

Edwin’s credibility.

               At most, Edwin’s out-of-court statement that Espinales “muscled up” to Edwin earlier

in the night could indicate that Espinales was upset and aggressive at some point in the evening.

However, four eye-witnesses—including Edwin, Castaneda, and Castaneda’s wife—testified that



                                                 13
Espinales did not threaten or provoke Russell. Furthermore, a total of six witnesses said that Russell

was upset and aggressive before the shooting. Russell was the only witness who testified that

Espinales was the aggressor. Given that Russell fled the scene, tried to hide the murder weapon

with a friend, and initially lied about being involved in the shooting, there is strong indication in the

record that he was not a credible witness. Therefore, even if the jury had believed that Espinales

was aggressive toward Edwin earlier in the evening, it is highly unlikely that the jury would have

credited Russell’s testimony that Espinales threatened him with unlawful deadly force.

                Based on the limited probative value of Edwin’s out-of-court statements and the

overwhelming evidence of guilt, we conclude that Russell was not harmed by the trial court’s

instruction indicating that Edwin’s previous statements could be considered for impeachment

purposes only. We overrule Russell’s eighth appellate issue.


Motion for new trial

                In his fifth and sixth issues on appeal, Russell asserts that the trial court erred in

failing to rule on his motion for new trial, which was denied by operation of law. See Tex. R. App.

P. 21.8(c). Specifically, Russell argues that his motion for new trial contained a valid ineffective-

assistance-of-counsel claim, in which he complained about his trial counsel’s failure to request a

sudden-passion instruction. See supra pp. 7–8.

                We review a trial court’s denial of a motion for new trial for an abuse of discretion.

See State. v. Herndon, 215 S.W.3d 901, 907 (Tex. Crim. App. 2007). “Accordingly, when analyzing

the trial court’s failure to grant a new trial on the basis of ineffective assistance of counsel, we view

the relevant legal standards through the prism of abuse of discretion.” Ramirez v. State, 301 SW.3d

                                                   14
410, 415 (Tex. App.—Austin 2009, no pet.). A trial court abuses its discretion in denying a motion

for new trial when no reasonable view of the record could support its ruling. Id.

               To prevail on an ineffective-assistance-of-counsel claim, Russell was required to

satisfy the two-prong test set out in Strickland v. Washington, 466 U.S. 668, 687 (1984); see

also Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting Strickland standard

for claims of ineffective assistance of counsel). Under Strickland, a defendant must show that

(1) the counsel’s performance was deficient and (2) the defendant was prejudiced by the deficient

performance. 466 U.S. at 687. Our review of counsel’s performance must be highly deferential; we

presume that counsel makes all significant decisions in the exercise of reasonable judgment.

Strickland, 466 U.S. at 689. Counsel’s performance is deficient when it falls “below an objective

standard of reasonableness” based upon “prevailing professional norms.” Id.; see also Perez v. State,

310 S.W.3d 890, 893 (Tex. Crim. App. 2010).

               To demonstrate prejudice in this case, Russell must show there is a reasonable

probability that, but for his counsel’s deficient performance, the outcome of his trial would

have been different. See Strickland, 466 U.S. at 694. A reasonable probability is one sufficient

to undermine our confidence in the verdict. Id. Russell has a duty to bring forth a record that

affirmatively demonstrates his counsel’s alleged ineffectiveness by a preponderance of the evidence.

See Scheanette v. State, 144 S.W.3d 503, 509–10 (Tex. Crim. App. 2004).

               “[E]xcept in rare instances, facts that give rise to a self-defense issue also give rise

to a sudden-passion issue.” See Wooten v. State, 378 S.W.3d 652, 657 (Tex. App.—Houston [14th

Dist.] 2012, pet. granted), rev’d on other grounds 400 S.W.3d 601, 606–07 (Tex. Crim. App. 2013).



                                                 15
Given that the trial court gave a self-defense instruction during the guilt/innocence phase of trial,

Russell may have been entitled to a sudden-passion instruction at punishment. Id. Furthermore, his

counsel’s failure to request such an instruction was arguably not based on strategy.8 However, we

need not decide whether counsel’s performance was deficient because Russell has failed to

affirmatively demonstrate that he was prejudiced by his counsel’s failure to request a sudden-passion

instruction. See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (“[A]n appellant’s

failure to satisfy one prong of the Strickland test negates a court’s need to consider the other prong.”).

                The court of criminal appeals has recognized that “evidence in a case in which a jury

rejected a claim of self-defense could demonstrate also that the appellant was not harmed by the

failure to receive a sudden passion charge.” Trevino v. State, 100 S.W.3d 232, 242 (Tex. Crim. App.

2003). When the basis of a self-defense claim is that the victim’s conduct reasonably made the

defendant afraid that the victim would use deadly force, and the jury rejects that self-defense claim,

it is unlikely that the jury would accept that the victim’s actions were adequate to produce the degree

of fear necessary to make a person of ordinary temperament “lose control.” See Wooten v. State,

400 S.W.3d 601, 609 (Tex. Crim. App. 2013).

                In this case, Russell’s self-defense claim rested on his version of the events leading

up to the shooting, in which he asserted that Espinales lunged at him with a bottle. The jury rejected

this self-defense claim, implicitly finding either that Russell was not credible or that Espinales’s

actions were not sufficient to make Russell reasonably believe that Espinales would use deadly force.


        8
         Russell’s appellate counsel attached his affidavit to Russell’s motion for new trial, in which
appellate counsel stated that Russell’s trial counsel confided to him that “she did not know she
could” request a sudden-passion instruction.

                                                   16
Therefore, like the record in Wooten, the record in this case strongly suggests that the jury would

have rejected a sudden-passion claim for the same reason it rejected Russell’s self-defense claim.

See id.

               The trial court could have reasonably concluded that Russell failed to show that he

was prejudiced by his counsel’s failure to request a sudden-passion instruction.9 Because we cannot

conclude that the trial court abused its discretion in denying Russell’s motion for new trial on this

basis, we overrule Russell’s fifth and sixth appellate issues.


                                          CONCLUSION

               Having overruled Russell’s eight issues on appeal, we affirm the trial court’s

judgment of conviction.



                                               __________________________________________

                                               Scott K. Field, Justice

Before Chief Justice Jones, Justices Pemberton and Field

Affirmed

Filed: April 18, 2014

Do Not Publish


          9
          Russell also asserts that the trial court erred in failing to conduct a hearing on his motion
for new trial. Given our conclusion that the trial court could have reasonably determined that Russell
was not prejudiced by his counsel’s allegedly deficient performance, we also conclude that the trial
court did not abuse its discretion in failing to conduct a hearing on the motion for new trial. See
Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006) (noting that trial court need not
conduct hearing if can dispose of motion for new trial on record and affidavits alone).

                                                  17
