Affirmed and Memorandum Opinion filed August 14, 2012.




                                          In The

                           Fourteenth Court of Appeals
                                  ___________________

                                   NO. 14-11-00798-CR
                                  ___________________

                      CURTIS ODETTE ROBINSON, Appellant

                                             V.

                           THE STATE OF TEXAS, Appellee


                        On Appeal from the 351st District Court
                                 Harris County, Texas
                            Trial Court Cause No. 1274263


                         MEMORANDUM OPINION

       Curtis Odette Robinson was found guilty of murder and sentenced to 30 years in
prison. In two issues, he argues that the trial court erred in (a) submitting a jury charge
that permitted the jury to return a non-unanimous verdict on whether he committed the
murder under the immediate influence of sudden passion arising from an adequate cause,
and (b) depriving appellant of his right to question the jurors about an alleged unauthorized
communication with certain individuals associated with appellant. Because appellant did
not suffer egregious harm as a result of the jury charge error and waived error by failing to
request an opportunity to question the jurors, we affirm.
                     I. FACTUAL AND PROCEDURAL BACKGROUND

       Abo Obaydah Abdel-Salam owned and operated a gas station and convenience store
on the west side of Houston, Texas. On the night of August 13, 2010, Abdel-Salam and
the store manager, Humberto Martinez, were at work along with several employees. At
about 10:00 p.m. that night, appellant pulled up to the store with a friend, Albert Hall.
Almost as soon as he went inside the store, appellant noticed a stain on his shirt and
proceeded to take the shirt off and throw it away. A store employee directed appellant to a
shirt rack. As appellant perused the shirt rack, Martinez saw appellant take two shirts
from the rack. Appellant dropped one of the shirts and bent down to get it, but when
appellant stood up, the dropped shirt was no longer visible. Martinez, suspecting theft,
told appellant to put the shirt back. As appellant removed the shirt from under his
waistband, Abdel-Salam approached and demanded that appellant leave the store.
Although appellant offered to pay for the shirt, Abdel-Salam refused to accept payment
and insisted that he leave. Appellant began cursing at Abdel-Salam, who responded by
physically forcing appellant out the door and onto the pavement outside.

       As appellant fell to the ground outside the store, Hall approached and confronted
Martinez.    Martinez turned to face Hall, at which point appellant got up and
“sucker-punched” Martinez.       Appellant and Hall proceeded to beat Martinez, and
Martinez’s fellow employees rushed to Martinez’s defense. Abdel-Salam ran inside the
store and returned with a cane, which he used to strike Hall. The fight continued until an
unidentified man stepped in and separated the parties. Meanwhile, appellant ran back to
his car. Without warning, appellant turned the car toward Abdel-Salam and sped directly
at him, running him over and dragging him some distance through the parking lot.
Abdel-Salam died almost instantly. Appellant left the scene with Hall; he was arrested
later that night and charged with murder.

       At trial, appellant took the stand in his own defense. In his version of events,
appellant was falsely accused of stealing, tried to pay, and was physically thrown out of the
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store even as he was trying to leave voluntarily.   He also testified that when he got into
his car, he thought he saw Martinez “trying to open up the door or something or get me
back out of the car.” He stated that his primary concern was that “we’ve got to leave,
we’ve got to leave because I knew the police was coming.” He therefore “panick[ed]” and
simply “took off,” running over Abdel-Salam unintentionally.
       On the eve of the third day of trial, an incident occurred outside the courthouse
involving several jurors and certain individuals apparently associated with appellant.
When the trial court convened the next day, the trial judge announced to the State and
appellant that he would question each juror about what had happened. Neither appellant
nor the State objected to his arrangement or asked to conduct further questioning
themselves. The first juror questioned gave the clearest account of what had taken place:

              I walked out with a couple of jurors. And some of the other jurors
       were already outside smoking. And there was some—I don’t know who
       they were, but some members of—I’m assuming it’s [appellant’s] party,
       were starting to make—they weren’t like screaming, but they were yelling
       about how we’re trying to kill him and we’re trying to hang him. And I
       guess they were calling him the “N” word.
              And it’s just—from that moment on, everybody just wanted to stay
       together. And when we started to walk, they were walking in front of us and
       they kept turning around and making comments to us, and just, you know,
       looking at us like they were just angry. And when we got to the parking
       area, half of us were split. And some of us were in the same parking lot and
       they got in their vehicle and they—they sat in their vehicle until each one of
       us were in our vehicle and driving off. And they were just watching us. It
       just was uncomfortable.
According to a second juror, “there were three or four of us out there smoking. And a
group walked by and said: You-all are trying to kill my n_____r brother, I can see it.”
Several jurors told the trial judge that they had heard about the incident but had not
witnessed it themselves, while others represented that they had not heard about it at all.
Each juror was asked if the incident had compromised his or her ability to be a fair and
impartial juror, and each responded that it had not. Neither appellant nor the State asked


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to question the jurors further, and the trial court reseated all of the jurors for the remainder
of trial without objection.
          At the conclusion of the guilt-innocence phase, the jury found appellant guilty of
murder. Appellant requested that the trial court submit a jury charge on the special issue
of whether he killed Abdel-Salam under the immediate influence of sudden passion arising
from an adequate cause. The trial court submitted a punishment charge that included a
general unanimity instruction providing that “your verdict must be by a unanimous vote of
all members of the jury,” and the trial court also provided a special-issue verdict form on
the issue of sudden passion. That verdict form concluded with the following passage:

          Do you the Jury unanimously find by a preponderance of the evidence that
          the defendant caused the death of [the complainant] under the immediate
          influence of sudden passion arising from an adequate cause? The Jury will
          answer either, “We do” or “We do not.”
The verdict form contained no analogous instruction requiring unanimity for a negative
finding on the issue of sudden passion. Appellant did not object to the charge. The jury
returned a negative finding on sudden passion and sentenced appellant to 30 years in
prison.
                                 II. QUESTIONS PRESENTED

          In two issues, appellant argues that the trial court erred in (a) submitting a jury
charge that permitted the jury to return a non-unanimous verdict on the issue of sudden
passion, and (b) depriving appellant of his right to question the jurors about the alleged
unauthorized communications with the members of appellant’s party.

                                        III. ANALYSIS

   1. Jury Charge Error

          Appellant first argues that the trial court erred in submitting an erroneous jury
charge on the issue of sudden passion. 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. 1984)

                                               4
(op. on reh’g). We first determine whether error exists in the charge. Ngo v. State, 175
S.W.3d 738, 743 (Tex. Crim. App. 2005). If we find error in the charge, then we evaluate
the degree of harm caused by the error. Id. If the appellant preserved the error in the trial
court by timely objection, we will reverse if the appellant shows he suffered “some harm”
resulted from the error. Almanza, 686 S.W.2d at 171. If the appellant failed to preserve
error by timely objection, we will reverse only if the error resulted in “egregious harm.”
Id.

       At the punishment stage of trial, a defendant convicted of murder may raise the
issue of whether he caused the death under the immediate influence of sudden passion
arising from an adequate cause. TEX. PENAL CODE ANN. § 19.02(d) (West 2011). If the
defendant proves this issue in the affirmative by a preponderance of the evidence, the
offense is a felony of the second, rather than the first, degree. Id. “Adequate cause”
means cause that would commonly produce a degree of anger, rage, resentment, or terror in
a person of ordinary temper, sufficient to render the mind incapable of cool reflection. Id.,
§ 19.02(a)(1). “Sudden passion” means passion directly caused by and arising out of
provocation of the individual killed or another acting with the person killed and which
arises at the time of the offense and is not solely the result of earlier provocation. Id., §
19.02(a)(2). The defendant must show 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 v. State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005). 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).

       The State concedes that the jury charge in this case was erroneous. The Court of
Criminal Appeals has held that when sudden passion is raised and submitted to the jury, 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,

                                             5
23 S.W.3d 30, 33–34 (Tex. Crim. App. 2000). In Sanchez, the Court of Criminal Appeals
concluded that jury-charge error existed where the trial court instructed 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 that issue.” Id. at 32.
The jury charge here, like that in Sanchez, presents the jury with two alternatives: if it
unanimously finds in appellant’s favor, it should answer “yes” to the sudden passion issue;
if its finding is not unanimous, it should answer “no.” This charge is inconsistent with the
requirement of jury unanimity in any finding on sudden passion. See also Newton v. State,
168 S.W.3d 255, 257 (Tex. App.—Austin 2005, pet. ref’d) (concluding that instruction
was erroneous where second-degree murder verdict form required unanimous finding on
sudden passion, but first-degree murder verdict form did not).

       Because appellant failed to object to the jury charge, however, we will reverse only
if we conclude that he suffered egregious harm as a result of the charge error. See
Almanza, 686 S.W.2d at 171. If the charge error caused the jury, in fact, to render a
less-than-unanimous verdict on an issue on which unanimity is required, the charge error is
egregiously harmful. Swearingen v. State, 270 S.W.3d 804, 812 (Tex. App.—Austin
2008, pet. ref’d) (citing Ngo, 175 S.W.3d at 750–52). Thus, in this case, appellant
suffered egregious harm if, in fact, the jury did not unanimously 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.           See id. at 812–13.    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. Neither appellant nor the State has the
burden to show egregious harm or the lack thereof. Warner v. State, 245 S.W.3d 458, 464
(Tex. Crim. App. 2008). In evaluating whether appellant suffered egregious harm, 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 v. State,

                                              6
253 S.W.3d 260, 264 (Tex. Crim. App. 2008); Olivas v. State, 202 S.W.3d 137, 144 (Tex.
Crim. App. 2006).

       We first examine the entire jury charge. In Sanchez, the Court of Criminal Appeals
concluded that the appellant had suffered egregious harm where the jury (1) was expressly
instructed that it should find against the appellant if it could not reach a unanimous finding;
and (2) when asked by the trial court whether their decision was unanimous, the jurors
answered it was not. Sanchez, 23 S.W.3d at 32. In that case, three jurors stated that they
had wanted to find in the appellant’s favor on the issue of sudden passion but were
prevented from doing so by the trial court’s instructions. Id. In contrasting subsequent
cases with Sanchez, appellate courts have identified the following circumstances as
lessening the likelihood that the appellant suffered egregious harm as a result of a faulty
unanimity instruction on sudden passion:

              The presence of a general unanimity instruction elsewhere in the charge.
              See Swearingen, 270 S.W.3d at 813; Bradshaw v. State, 244 S.W.3d 490,
              494–98 (Tex. App.—Texarkana 2007, pet. ref’d); Curry v. State, 222 S.W.3d
              745, 753 (Tex. App.—Waco 2007).
              The absence of an affirmative instruction that the jury need not be unanimous
              in finding against the defendant.         Swearingen, 270 S.W.3d at 813;
              Bradshaw, 244 S.W.3d at 497–98; Curry, 222 S.W.3d at 753.
              The absence of affirmative evidence that the jury actually lacked unanimity
              in finding against the defendant.         Swearingen, 270 S.W.3d at 813;
              Bradshaw, 244 S.W.3d at 494–98; Curry, 222 S.W.3d at 753. But see
              London v. State, 325 S.W.3d 197, 208 (Tex. App.—Dallas 2008, pet. ref’d)
              (noting that “on appeal [in an earlier, unpublished case], we considered not
              whether there was any evidence the verdict was not unanimous, but whether
              there was any evidence that it was” and concluding that unanimous
              show-of-hands vote did not mitigate egregious harm because “the collective

                                              7
                 response could have been the result of the jury not being unanimous in
                 reaching an affirmative answer”).
                 The absence of an emphasis on the faulty instruction in the State’s closing
                 argument. See Swearingen, 270 S.W.3d at 814 (“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.”) (citing Ngo, 175 S.W.3d at 750–52 and
                 London, 325 S.W.3d at 208–09); Hines v. State, 269 S.W.3d 209, 221–22
                 (Tex. App.—Texarkana 2008, pet. ref’d, untimely filed) (“The State, by
                 twice emphasizing the very point which was in error, exponentially
                 magnified the error contained in the charge and converted it from theoretical
                 harm into actual harm.”).

Each of these mitigating factors was present in this case. First, a general unanimity
instruction was included in the jury charge for punishment. Second, the jury was not
explicitly told that it need not be unanimous in finding against appellant. Third, there is
no affirmative evidence in this case that the jury was not unanimous in finding against
appellant. After reading the verdict, the trial court asked the jurors, “so say you all to this
verdict?” to which the jurors answered “yes” in unison. Finally, the State did not even
mention the unanimity requirement in its closing argument.

       We next consider the evidence in the case. Allen, 253 S.W.3d at 264. The state of
the evidence in this case does little to help appellant’s argument. Unlike the appellant in
Sanchez, 1 appellant did not call an expert at the punishment phase, nor did appellant
himself testify at that time. The only evidence in support of appellant’s sudden-passion
argument was his own testimony during the guilt-innocence phase. Appellant gave the
following testimony about his state of mind in the moments after the brawl broke up:


       1
           See Sanchez, 23 S.W.3d at 32.
                                               8
Q. What was your intention once that part of the fight was over?

A. To try to tell [Hall]: Let’s go, let’s get out on of here.

Q. What did you do?

A. I got in the car.

Q. When you got in the car, did you see anything? What else was going on
in your mind?

A. When I got in the car, I was looking around to see if I could see [Hall], was
he following behind me. When I looked to my left side mirror, I seen
somebody walking up behind my car, like towards the back door.

Q. Did you recognize who that person was walking up?

A. I believe it was the dude that got cold-punched or something like that.

Q. One of the people that testified earlier?

A. Yes, sir.

Q. Mr. Martinez?

A. I’m not sure of his name.

Q. Okay. But you saw that person, right?

A. Yes, sir.

Q. What did you think he was doing?

A. I thought he was trying to open up the door or something or get me back
out of the car.

Q. What happened next?

A. I put my car in park [sic] and I took off.

Q. What were you doing?

                                        9
A. I was—I was really moving too fast. I was really panicking.

Q. What happened next?

A. I took off. I ran over somebody.

....

Q. How come you didn’t just go straight?

A. I—I don’t know. I mean, I wasn’t really just thinking at the time.

....

Q. What was your purpose of taking off? What did you think?

A. Taking off when, like before—

Q. When you put the car in gear.

A. I put the car in gear because I didn’t know what—the dude—I didn’t
know what he was doing, like, why he’s running up on my car like that.

....

Q. So, in your mind—what was going on in your heart, not your mind.
What was going on in your heart?

A. My heart—my heart was—my heart was beating real fast. It was just
hurting. It was like my heart was telling me to leave the store because
we’ve got to leave, we’ve got to leave because I knew the police was coming.
The police was going to arrive.

Q. So, what was your intent, to run over Mr. Salam?

A. No, sir. No, sir. I . . .

Q. You didn’t just drive straight at him and—

A. No, sir. I had no intention of killing him.

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       ....

       Q. Once you drove and you realized that you had gone over Mr. Salam, did
       you try to get out of the car?

       A. Yes, sir, I wanted to get out of the car.

       Q. Why didn’t you get out of the car?

       A. I was scared.

       Q. And once people drove—I mean, did your friend get in the car at some
       time then?

       A. Yes, sir. Yeah, he jumped in the car.

       Q. And where did you go?

       A. I just—I rode up the street and I had called my cousin D.J. to check on the
       man for me to make sure he was still alive.

       ....

       Q. What was going on in the car between you and Al?

       A. Well, I was shaking. [Hall] was shaking. And I was just—I was like
       cursing, cursing to myself.

       Q. Cursing to yourself about what?

       A. I couldn’t believe—I didn’t—I didn’t—I didn’t want to—I didn’t want to
       believe what just happened happened.

This testimony identifies two causes for appellant’s “panicked” state of mind: (1) fear that
the police would soon arrive, and (2) fear that Martinez “was trying to open up the door or
something or get [appellant] back out of the car.” As a result of his panic and the fact that
he “wasn’t really just thinking at the time,” appellant went too fast and unintentionally hit
Abdel-Salam. His later shock, according to appellant, demonstrated his overwhelmed

                                              11
state of mind at the time he drove at Abdel-Salam. Even taken as true, this testimony does
not support a sudden-passion defense because it fails to show an “adequate cause.” To
support a sudden-passion defense, evidence must show both that the defendant was acting
under the influence of sudden passion and that the passion arose out of an adequate cause.
See Merchant v. State, 810 S.W.2d 305, 309–10 (Tex. App.—Dallas 1991, pet. ref’d). A
bare claim of fear does not show adequate cause. Daniels v. State, 645 S.W.2d 459, 460
(Tex. Crim. App. 1983). Rather, adequate cause means “cause that would commonly
produce a degree of anger, rage, resentment, or terror in a person of ordinary temper,
sufficient to render the mind incapable of cool reflection.” TEX. PENAL CODE ANN. §
19.02(a)(1). Appellant’s fears that the police would soon arrive and that Martinez was
approaching his car do not rise to the level of adequate cause for appellant to become so
devoid of any sort of caution that he would plow into Abdel-Salam at full speed. Further,
any “adrenaline rush” remaining after the fight broke up cannot explain appellant’s rushing
back to his car, starting it, and driving directly at Abdel-Salam.          These are not
circumstances under which a person of ordinary temper would experience such terror as to
“render the mind incapable of cool reflection” so completely. The theoretical possibility
that a member of the jury might have concluded otherwise is not enough to show actual,
rather than theoretical, harm from the faulty charge.

       Third we consider the arguments of counsel. Allen, 253 S.W.3d at 264. As
indicated above, the State did not emphasize the improper burden in closing argument.
Defense counsel only briefly mentioned the special issue, focusing instead on the range of
punishment, and sought mercy from the jury given his client’s age. The State argued that
appellant lacked adequate cause and, that the jury should answer “we do not” to the special
issue, and that the jury should sentence appellant to 50 years in prison. Considering the
charge as a whole, the state of the evidence, and the arguments of the parties, we conclude
that appellant did not suffer egregious harm as a result of the faulty jury charge. Because
appellant failed to preserve error on the faulty charge and did not suffer egregious harm as
a result of the charge, we overrule appellant’s first issue.
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   2. Unauthorized Communication

       Appellant next argues that the trial court erred in failing to allow him to question the
jurors about their alleged unauthorized communication with certain individuals associated
with appellant. Appellant relies on United States v. Sylvester, 143 F.3d 923, 933 (5th Cir.
1998), to support the proposition that an ex parte judicial examination of potentially
influenced jurors is insufficient and that defense counsel has an absolute right to question
the jurors. At the conclusion of the juror examinations, the trial court asked both appellant
and the State whether they had “any objections going forward under this circumstance.”
Neither side raised any objection and at no point did appellant ask for the chance to
question the jurors himself. As a general rule, a defendant must make a timely and
specific objection to preserve error for appellate review.          TEX. R. APP. P. 33.1(a).
Appellant nonetheless argues that “[b]ecause the failure of the trial court to declare a
mistrial violated [a]ppellant’s federal and state constitutional rights to an impartial jury, the
error can properly be classified as fundamental error and can be raised for the first time on
appeal.” To support the proposition that fundamental error can be raised for the first time
on appeal, appellant cites the Court of Criminal Appeals’ plurality decision in Blue v. State,
41 S.W.3d 129 (Tex. Crim. App. 2000). There, the trial court apologized to the venire
panel for its long wait and then explained that the delay occurred because the defendant
was indecisive on whether to accept a plea bargain. Id. at 130. The trial judge then told
the venire that he would have preferred that the defendant had pled guilty. Id. A
plurality of the Texas Court of Criminal Appeals held the trial court’s comments during
voir dire “tainted [the defendant’s] presumption of innocence in front of the venire, were
fundamental error of constitutional dimension and required no objection.”
       Appellant has failed to support his contention that the trial court’s actions in this
case constituted “fundamental error” as required under Blue. The facts of this case are
very different from those in Blue and do not implicate the presumption of innocence.
Appellant cites article 36.22 of the Texas Code of Criminal Procedure, which provides that

                                               13
“[n]o person shall be permitted to converse with a juror about the case on trial except in the
presence and by the permission of the court.” TEX. CODE CRIM. PROC. Art. 36.22 (West
2011). The primary goal of Article 36.22 is to insulate jurors from outside influence.
Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). From this, appellant infers
that any violation of Article 36.22 is tantamount to a denial of the right to an impartial jury.
Even if this is so, however, the Court of Criminal Appeals has held that
       [t]he right to a jury verdict entirely untainted by any potential outside
       influence strikes us as properly categorized among the “[a]ll but the most
       fundamental rights [that] are thought to be forfeited if not insisted upon by
       the party to whom they belong.” We perceive no reason that a defendant
       should not be deemed to have forfeited [this right] in the event that he
       becomes aware of its breach during the course of the trial but fails to call the
       transgression to the trial court’s attention so that the error may be rectified or,
       barring that, so that the defendant can make a timely record for appeal.

Trinidad v. State, 312 S.W.3d 23, 29 (Tex. Crim. App. 2010). Because appellant failed to
object to the trial court’s actions or request the opportunity to question the jurors about the
alleged unauthorized communication, we conclude that appellant has waived error on this
issue. We overrule appellant’s second issue.
                                      IV. CONCLUSION

       Having overruled appellant’s two points of error, we affirm the trial court’s
judgment.




                                            /s/     Tracy Christopher
                                                    Justice



Panel consists of Justices Boyce, Jamison, and Christopher.
Do Not Publish — TEX. R. APP. P. 47.2(b).


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