Comment

Legislative Background. Before 1993, a killing that would otherwise be murder was reduced to voluntary manslaughter if the facts showed what was often called “sudden passion.” Legislation enacted that year retained former sudden-passion law but made it a potential issue for the sentencing stage of a murder trial. Acts 1993, 73d Leg., R.S., ch. 900, § 1.01 (S.B. 1067), eff. Sept. 1, 1994. A defendant convicted of murder now may raise and prove, at the punishment phase of the trial, that he acted in sudden passion. If the defendant is successful, the murder—otherwise a first-degree felony—becomes a second-degree felony and the punishment is assessed on that basis. Tex. Penal Code § 19.02(d).

The instruction at CPJC 19.6, then, is to be used at the punishment stage of a murder prosecution if submission of the defendant’s contention of sudden passion is appropriate.

Need to Submit. Clearly the punishment stage instructions should address sudden passion only if it is raised by the evidence. The court of criminal appeals explained:

McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005) (citation omitted) (applying Trevino v. State, 100 S.W.3d 232 (Tex. Crim. App. 2003)).

This appears to mean that a sudden-passion instruction should be given if the evidence is such that a reasonable jury could find all elements of sudden passion proved by a preponderance of the evidence.

Unanimity. The jury must be unanimous on sudden passion. Sanchez v. State, 23 S.W.3d 30, 34 (Tex. Crim. App. 2000) (“Article 37.07, § 3(c), requires unanimity with respect to the jury’s preliminary vote on sudden passion.”). This means the instruction cannot simply permit assessment of punishment for a first-degree felony on the lack of a finding of sudden passion. The instruction must require a unanimous determination that the defendant failed to prove sudden passion. E.g., Swearingen v. State, 270 S.W.3d 804, 812 (Tex. App.—Austin 2008, pet. ref’d) (“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.”).

Submission by Special Issue. One court of appeals held that a trial judge errs in refusing to submit a special issue on sudden passion. Curry v. State, 222 S.W.3d 745, 752–53 (Tex. App.—Waco 2007, pet. ref’d). The Austin court of appeals held that refusal to submit the matter as a special issue is not, itself, error. It acknowledged, however, that “there may be good reasons for trial courts to submit sudden passion by a special issue.” See Swearingen, 270 S.W.3d at 811. The Committee concluded that, whether required or not, submission of the matter by a special issue is best practice.

Adherence to Statutory Framework. Some members of the Committee believed that the statutory framework was sufficiently awkward that jury instructions can and should take considerable liberty with that framework. Under the explicit terms of the statute, a defendant has the opportunity to prove “he caused the death [of the victim] under the immediate influence of sudden passion arising from an adequate cause.” Tex. Penal Code § 19.02(d). Section 19.02 provides definitions of the terms adequate cause (section 19.02(a)(1)) and sudden passion (section 19.02(a)(2)). These definitions arguably, however, do not carefully distinguish the concepts being defined. The requirements that the “cause” be “provocation” and that it be “by the person killed or another acting with the person killed,” for example, appear in the definition of sudden passion rather than that of adequate cause. Perhaps most importantly, section 19.02(a)(2)’s definition of sudden passion simply uses, without definition, the term passion.

The case law makes clear that a defendant’s case for reduction of a murder to a second-degree felony requires proof of a certain impact on the defendant’s mind, i.e., actual “passion.” Further, it suggests that the appellate courts have derived a definition of the term actual passion from the definition of adequate cause in section 19.02(a)(1). E.g., McKinney, 179 S.W.3d at 570 (“There is no evidence that the verbal taunting and physical pushing by [the victim] produced a degree of anger, rage, resentment, or terror in Appellant, sufficient to render his mind incapable of cool reflection.”); Trevino, 100 S.W.3d at 241 (“The mere fact that a defendant acts in response to the provocation of another is not sufficient to warrant a charge on sudden passion. Instead, there must be some evidence that the defendant was under the immediate influence of sudden passion.”); Havard v. State, 800 S.W.2d 195, 217 (Tex. Crim. App. 1989) (“For a claim of fear to rise to the level of sudden passion, there must be evidence that the defendant’s state of mind rendered him incapable of cool reflection.”). Actual passion appears to be defined in the case law as a condition rendering the mind incapable of cool reflection.

This definition is implicit in the statutory language. The term adequate cause means 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. It seems to follow that actual passion must mean “a degree of anger, rage, resentment, or terror rendering the mind incapable of cool reflection.” This definition is, however, nowhere explicitly set out in the statutes.

The appellate case law also demands proof that the defendant acted on the adequate provocation before the passage of sufficient time for the passions of a reasonable person to “cool.” Johnson v. State, 815 S.W.2d 707, 712 (Tex. Crim. App. 1991) (“[E]ven if the jury did believe the taunts were sufficient to provoke appellant initially, a rational factfinder could still determine that appellant continued to inflict the injuries leading to his wife’s death long after ‘sudden passion’ would have subsided in a person of ordinary temper.”). See also Bufkin v. State, 207 S.W.3d 779, 783 (Tex. Crim. App. 2006) (in sudden passion situation, “the State might claim that the killing occurred a day later, after the passion should have cooled”). This requirement that the defendant act on the provocation before such a cooling period passes, like the definition of actual passion, is not explicitly stated as a requirement in section 19.02.

The Committee considered an approach that some members favored as, in their view, more carefully distinguishing the questions put to juries and providing definitions more effectively focusing on those questions. Under this approach, the basic issue would be put as follows:

The jury would then be given several definitions: