Chapter 19
Criminal Homicide
19.6 Instruction—Murder—Sudden Passion
You have found the defendant, [name], guilty of murder. It is now your duty to assess punishment. The defendant contends he committed the murder under the immediate influence of sudden passion arising from an adequate cause. Before you assess punishment, you must determine whether the defendant has proved this contention by a preponderance of the evidence.
Relevant Statutes
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. This is called the doctrine of “sudden passion.”
If the defendant proves that he acted under the influence of sudden passion, this offense is punishable by—
- any term of imprisonment for no less than two years and no more than twenty years, or
- any term of imprisonment for no less than two years and no more than twenty years and a fine of no more than $10,000.
If the defendant does not prove that he acted under the influence of sudden passion, this offense is punishable by—
- any term of imprisonment for no less than five years and no more than ninety-nine years or for life, or
- any term of imprisonment for no less than five years and no more than ninety-nine years or for life and a fine of no more than $10,000.
You must all agree on whether the defendant has proved that he acted under the influence of sudden passion.
Burden of Proof
The burden is on the defendant to prove, by a preponderance of the evidence, that he acted under the influence of sudden passion.
Definitions
Sudden Passion
“Sudden passion” means 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.
Adequate Cause
“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.
Preponderance of the Evidence
The term “preponderance of the evidence” means the greater weight of credible evidence presented in this case. For a fact to be proved by a preponderance of the evidence, you must find that the fact is more likely true than not true.
Application of Law to Facts
You must determine whether the defendant has proved, by a preponderance of the evidence, that he acted under the immediate influence of sudden passion arising from an adequate cause.
You must all agree on whether the defendant has proved sudden passion before you may assess punishment.
Your resolution of this issue will determine which of the two verdict forms you will use. If you all agree the defendant has proved sudden passion, use the first verdict form, titled “Verdict—Defendant Has Proved Sudden Passion.” If you all agree the defendant has not proved sudden passion, use the second verdict form, titled “Verdict—Defendant Has Not Proved Sudden Passion.”
If you all agree the defendant has proved, by a preponderance of the evidence, that he acted under the influence of sudden passion, you are to determine and state in your verdict—
- any term of imprisonment for no less than two years and no more than twenty years, or
- any term of imprisonment for no less than two years and no more than twenty years and a fine of no more than $10,000.
If you all agree the defendant has not proved, by a preponderance of the evidence, that he acted under the influence of sudden passion, you are to determine and state in your verdict—
- any term of imprisonment for no less than five years and no more than ninety-nine years or for life, or
- any term of imprisonment for no less than five years and no more than ninety-nine years or for life and a fine of no more than $10,000.
VERDICT—DEFENDANT HAS PROVED SUDDEN PASSION
We, the jury, having found the defendant, [name], guilty of the offense of murder, all agree that the defendant has proved that he acted under the influence of sudden passion. We assess the defendant’s punishment at: (select one)
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VERDICT—DEFENDANT HAS NOT PROVED SUDDEN PASSION
We, the jury, having found the defendant, [name], guilty of the offense of murder, all agree the defendant has not proved that he acted under the influence of sudden passion. We assess the defendant’s punishment at: (select one)
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Comment
The definition of “sudden passion” is based on Tex. Penal Code § 19.02(a)(2). The definition of “adequate cause” is based on Tex. Penal Code § 19.02(a)(1). The role of sudden passion in criminal liability for murder is addressed in Tex. Penal Code § 19.02(d).
Legally Justified Conduct as Adequate Cause. The court of criminal appeals has held that conduct constituting a legally permissible response to the defendant’s illegal behavior cannot constitute adequate cause:
The evidence clearly indicates that appellant initiated the entire criminal episode which led to the deceased’s death and that the deceased shot appellant in an attempt to prevent the aggravated kidnapping of Lockard. See V.T.C.A. Penal Code § 20.04(a)(2). Under §§ 9.32 and 9.33, supra, the deceased was justified in using deadly force in defense of himself and a third person, specifically Lockard. We will not consider the deceased’s justified actions as an adequate cause for appellant’s illegal acts. To so hold would allow criminals a justifiable reason for killing their victims who rightly seek to protect themselves or others from criminal activity. Thus, we hold that the deceased’s actions in shooting appellant did not constitute adequate cause from which sudden passion may arise.
Harris v. State, 784 S.W.2d 5, 10 (Tex. Crim. App. 1989) (citations omitted).
Defining “Preponderance of the Evidence.” The Penal Code does not define “preponderance of the evidence.” While terms left undefined by the legislature should generally remain so in the charge, there is an exception for terms that have a known and established legal meaning. See Medford v. State, 13 S.W.3d 769, 772 (Tex. Crim. App. 2000) (inappropriate for jurors to apply own definitions of “arrest”). The court of criminal appeals has not determined whether “preponderance of the evidence” qualifies under this exception, but it long ago upheld an insanity instruction defining preponderance as “the greater weight of credible testimony.” McGee v. State, 238 S.W.2d 707, 716 (Tex. Crim. App. 1950) (op. on reh’g). Unlike the more common “reasonable doubt” standard—which it is better not to attempt to define, Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000)—further explanation of the term “preponderance” may be of appreciable help to jurors. See Murff v. Pass, 249 S.W.3d 407, 411 (Tex. 2008) (per curiam) (finding no error in judge’s explanations to counter venire’s confusion between clear-and-convincing and preponderance standards). The “greater weight” or “greater weight and degree” definitions have long been used in both civil and criminal jury charges. See, e.g., Harrell v. State, 65 S.W.3d 768, 772 n.2 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (voluntary release in safe place of kidnapping victim); Watts v. State, 680 S.W.2d 667, 672 (Tex. App.—Fort Worth 1984, pet. ref’d) (defense of insanity); Benton v. State, 107 S.W. 837, 838 (Tex. Crim. App. 1908) (jury charge on former jeopardy). That definition is part of the instruction on preponderance of the evidence required in civil cases. Tex. R. Civ. P. 226a (defining preponderance as “the greater weight of credible evidence presented in this case” and explaining that a fact must be “more likely true than not true” to be proved by a preponderance). The Committee thus concluded it would not be error to define the term for jurors and may frequently be helpful.