David Lee Swaim, Jr. v. State ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-165-CR
DAVID LEE SWAIM, JR. APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
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OPINION ON APPELLANT’S
PETITION FOR DISCRETIONARY REVIEW
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Pursuant to Texas Rule of Appellate Procedure 50, we withdraw our
March 13, 2008 opinion and judgment and substitute the following. Tex. R.
App. P. 50.
A jury convicted Appellant David Lee Swaim, Jr. of murder and assessed
his punishment at life imprisonment. In two points, Swaim argues that the trial
court committed harmful error by failing to include a jury charge instruction on
sudden passion and that his trial counsel was ineffective for failing to request
an instruction on sudden passion. We will affirm.
Early in the morning on August 16, 2005, Joshua Hall knocked on
Swaim’s door looking for someone to drink and socialize with. They had never
met before, but Swaim let Hall enter his residence. Both had consumed alcohol
during the day, and both either were or soon became intoxicated. Sometime
later, an altercation occurred, and Swaim stabbed Hall nine times, killing him.
In his first point, Swaim argues that the trial court reversibly erred by
failing to include a sudden passion instruction in its charge to the jury because
there was evidence of a heated, verbal exchange between Swaim and Hall.
At the punishment stage of a murder trial, the defendant 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)
(Vernon 2003). If the defendant proves the issue in the affirmative by a
preponderance of the evidence, the offense is a felony of the second degree.
Id.
In Trevino v. State, the court of criminal appeals clarified that sudden
passion is a “punishment issue” and that “a sudden passion charge should be
given if there is some evidence to support it, even if that evidence is weak,
impeached, contradicted, or unbelievable.” 100 S.W.3d 232, 238 (Tex. Crim.
2
Ohio App. 2003). The court clearly pointed out, however, that Trevino had
“requested the judge to instruct the jury pursuant to Penal Code Section
19.02(d),” but “[t]he judge rejected the proposed charge.” Id. at 236. Trevino
therefore addressed the propriety of giving an instruction on sudden passion at
punishment when such an instruction has been requested by the defendant; it
did not address the issue of whether a trial court is required to include an
instruction on sudden passion at punishment when there is no request for such
an instruction by a defendant who claims some evidence exists to support the
instruction. See id.; Fair v. State, No. 03-05-00348-CR, 2006 WL 2032489,
at *3 (Tex. App.—Austin July 21, 2006, pet. ref’d) (mem. op., not designated
for publication) (citing Trevino and stating in parenthetical that “assuming
defendant requests charge, charge must be given if ‘evidence raises the issue’”
(emphasis added)). In this case, Swaim did not assert an objection to the
absence of a sudden passion instruction nor did he request that the instruction
be included in the charge. Consequently, neither Trevino nor the other case law
cited by Swaim supports his argument that the trial court was required to sua
sponte include a sudden passion instruction in its charge to the jury. 1 See
1
 In his brief to this court, Swaim cites Mims v. State, 3 S.W.3d 923,
928 (Tex. Crim. App. 1999), for the holding that “if raised by the evidence, the
sudden passion issue should be submitted in the punishment phase of an
attempted murder prosecution.” Like Trevino, Mims is inapposite.
3
Trevino, 100 S.W.3d at 236–38; Fair, 2006 WL 2032489, at *3 (“For sudden
passion mitigation to apply, the defendant at the punishment phase must
(i) raise the issue as to whether he caused the death under the immediate
influence of sudden passion arising from adequate cause and (ii) prove the issue
in the affirmative by a preponderance of the evidence.” (emphasis added)).
Recognizing that he did not request a sudden passion instruction, Swaim
argues in his petition for discretionary review that “[t]here are certain issues
upon which a trial court has the duty to instruct the jury without an objection
or request from either party.” 2 [Emphasis added.] Swaim cites Huizar v. State,
12 S.W.3d 479, 483–485 (Tex. Crim. App. 2000) (op. on reh’g), for the
proposition that a “jury must be instructed at punishment that extraneous
offenses must be proved beyond [a] reasonable doubt” and Tubert v. State,
875 S.W.2d 323 (Tex. Crim. App. 1994), for the proposition that it is “error to
omit [a] sentencing option that would allow [the] jury to send [the] defendant
to [a] community correctional facility rather than prison.” Swaim also cites
code of criminal procedure article 36.14, which “places the legal duty and
responsibility on the trial judge to prepare for a jury a proper and correct charge
on the law.” (quoting Doyle v. State, 631 S.W.2d 732, 738 (Tex. Crim. App.
2
 Swaim did not assert this argument on appeal.
4
(1980)). Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2007). Swaim then
concludes that “[t]he trial judge therefore had the responsibility of instructing
the jury on the proper range of punishment in light of the evidence of sudden
passion.” Neither Huizar, nor Tubert, nor any other court of criminal appeals
case that we have located, nor article 36.14 hold or require that a trial court
must include an instruction at punishment on sudden passion in the absence of
a request by the defendant. Accordingly, we overrule Swaim’s first point.
Although Swaim’s second point in his brief to this court states that his
trial counsel “was ineffective for not presenting mitigating evidence during the
sentencing phase,” his argument under the point is that his trial counsel was
ineffective for failing to request an instruction on sudden passion.
To establish ineffective assistance of counsel, the appellant must show
by a preponderance of the evidence that his counsel’s representation fell below
the standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel’s deficiency, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.
2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v.
State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999).
5
The following witnesses testified on Swaim’s behalf at punishment: Hal
Farmer, Swaim’s friend; Jesse Carreon, Swaim’s friend and the father of
Swaim’s boss; Douglas Swaim, Swaim’s cousin; Don Christian, a probation
supervisor; Scott Allen Tony, Swaim’s brother-in-law; Denise Tony, Swaim’s
sister; and Barbara Swaim, Swaim’s mother. With the exception of Christian,
who explained the probation process to the jury, Swaim’s witnesses recounted
and opined that Swaim was not a violent person, either when sober or
intoxicated, and that they were surprised or shocked to learn that he had been
charged with murder. Swaim argues that this evidence called for an instruction
on sudden passion. But none of the evidence “raise[d] the issue as to whether
[Swaim] caused [Hall’s] death under the immediate influence of sudden passion
arising from an adequate cause.” See Tex. Penal Code Ann. § 19.02(d) (stating
that a defendant may raise the issue as to whether he caused the death under
sudden passion), § 19.02(a)(1) (providing “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), § 19.02(a)(2) (providing “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
6
is not solely the result of former provocation). The evidence that Swaim directs
us to merely detailed his nonviolent character.
In his petition for discretionary review, Swaim argues that contrary to our
analysis in the memorandum opinion issued March 13, 2008, the evidence
raised the issue of sudden passion. Swaim points to evidence that he testified
Hall said he “knew how to get ahold of” his daughter and that he was “in
complete shock” when Hall brought up his daughter and his girlfriend. Swaim
also points to the testimony of an investigator who testified that Swaim told
him Hall “began talking about [his] daughter” and that Swaim “went into a
rage.” In his brief to this court, however, Swaim did not argue that any of this
evidence—which was elicited at the guilt phase, not the punishment
phase—supported an instruction on sudden passion; instead, he relied only on
the testimony of the individuals who testified on his behalf at punishment,
which we set forth above. See Marlo v. State, 720 S.W.2d 496, 500 n.7 (Tex.
Crim. App. 1986) (declining to address argument asserted for the first time in
petition for discretionary review); Lambrecht v. State, 681 S.W.2d 614, 616
(Tex. Crim. App. 1984). Even considering this evidence along with the
evidence that Swaim relied on in his brief, Hall’s statement that he knew how
to get in touch with Swaim’s daughter is not, alone, “adequate cause” as
defined by the penal code. See Tex. Penal Code Ann. § 19.02(a)(1). The
7
evidence that Swaim argues raised the issue of sudden passion—identified in
both his brief and in his petition for discretionary review—does not rebut the
strong presumption that his trial counsel’s decision not to request an instruction
on sudden passion fell within the wide range of reasonable professional
assistance. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Thompson,
9 S.W.3d at 814. We overrule Swaim’s second point.
Having overruled both of Swaim’s points, we affirm the trial court’s
judgment.
DIXON W. HOLMAN
JUSTICE
PANEL: DAUPHINOT and WALKER, JJ.; and DIXON W. HOLMAN (Senior
Justice, Retired, Sitting by Assignment).
DAUPHINOT, J. filed a dissenting opinion.
WALKER, J. concurs without opinion.
PUBLISH
DELIVERED: December 17, 2009
8
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-165-CR
DAVID LEE SWAIM, JR. APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
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DISSENTING OPINION ON APPELLANT’S
PETITION FOR DISCRETIONARY REVIEW
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Sudden passion arising from an adequate cause is neither a defense nor
an affirmative defense. 1 It is an odd duck that arose from courts being faced
with the absurd conundrum of a sufficiency claim based on the fact that the
1
 See Tex. Penal Code Ann. §§ 2.03, 2.04, 19.02(a), (d) (Vernon
2003).
lesser included offense of voluntary manslaughter contained an essential
element not found in the greater offense of murder. 2
Sudden passion now is actually a mitigation issue at punishment in
murder cases. The statute places the burden on the defense to prove sudden
passion by a preponderance of the evidence. 3 The Texas Court of Criminal
Appeals has addressed the trial court’s obligation to include a mitigation
instruction in the context of a capital murder trial, comparing the capital murder
mitigation issue to the sudden passion mitigation issue:
[T]he mitigation special issue for death penalty cases is
neither embedded within elements the State must prove nor is it
set up as an exception. Instead, the mitigation special issue is
framed as a stand-alone punishment mitigation issue, a
characteristic it shares with a number of punishment mitigating
factors that are clearly defensive issues, including temporary
insanity caused by intoxication, unsuccessful renunciation of an
inchoate offense, the current sudden passion issue in a murder
case, release in a safe place under both the older and newer
versions of the aggravated kidnapping statute, and mental
retardation in a death penalty case.
....
We conclude that the mitigation special issue is a defensive
issue that cannot be forfeited by inaction but can be waived, and
because it is a defensive issue, the defendant has a right to insist
upon its waiver. The trial judge in this case erred in refusing to
2
 See Sanchez v. State, 275 S.W.3d 901, 907 (Tex. Crim. App. 2009)
(Keller, P.J., concurring) (citations and references omitted).
3
 Tex. Penal Code Ann. § 19.02(d).
2
allow appellant to waive submission of the issue to the jury, and as
a result, erred in admitting victim-impact and victim-character
evidence that would have otherwise been excluded. 4
This holding from the Texas Court of Criminal Appeals supports
Appellant’s contention that the sudden passion mitigation issue before us
cannot be forfeited. That is, contrary to the majority’s holding in overruling
Appellant’s first point, Appellant’s failure to request a sudden passion
instruction does not negate his right to the instruction triggered by the presence
of evidence raising the issue.
I note that the majority’s holding, in overruling Appellant’s second point,
that Appellant failed to raise the issue of sudden passion by a preponderance
of the evidence, if correct, would moot the majority’s discussion of the first
point. A careful review of the record, however, shows that Appellant did
sufficiently raise the issue to be entitled to the instruction.
Although there are contradictions in the testimony, Appellant testified
that Hall came to his door at 1:14 a.m. and made a point of saying that he
knew Appellant’s girlfriend and that he knew Appellant’s daughter and “how
to get ahold of” her. Such threats, implied though they are, are the stuff
suspense thrillers are made of for a reason—they’re scary. The evidence shows
4
 Williams v. State, 273 S.W.3d 200, 222, 224–25 (Tex. Crim. App.
2008) (citations omitted).
3
that after Appellant let Hall into his home, he realized that Hall was the local
drug dealer. Hall attacked Appellant from behind, and they fought. Appellant
testified that he was terrified. From the record before us, I conclude that
Appellant clearly raised the issue of sudden passion arising from adequate
cause.
The jury charge properly instructed the jury that they might consider “all
of the facts shown by the evidence admitted before [them] in the full trial of
this case.” And in deciding whether the evidence raises the issue of sudden
passion, we also must consider the entire record that was before the jury. 5 As
the Murphy court points out, if, at sentencing, the jury does not consider the
evidence admitted in the guilt phase of the trial, how can the jury make the
punishment fit the crime? 6
Following the precedent of the Texas Court of Criminal Appeals, the
sudden passion instruction “is a defensive issue that cannot be forfeited by
inaction but can be waived, and because it is a defensive issue, the defendant
5
 See Murphy v. State, 777 S.W.2d 44, 63 (Tex. Crim. App. 1988) (op.
on reh’g) (“It is axiomatic, for example, that punishment should fit the particular
crime. Accordingly, the trial court routinely instructs the jury it may consider
all evidence admitted at the guilt phase in making its punishment
determination.”), superseded on other grounds by Tex. Code Crim. Proc. Ann.
art. 37.07, § 3(a) (Vernon Supp. 2009).
6
 See Murphy, 777 S.W.2d at 63.
4
has a right to insist upon its waiver.” 7 In the case before this court, Appellant
did not affirmatively waive the instruction; the instruction was never mentioned
below.
I would hold that the evidence raised the issue of sudden passion, that
Appellant could not and did not forfeit the right to a sudden passion instruction
by his inaction, and, consequently, that the trial court was obligated to give the
instruction sua sponte. The harm that Appellant suffered is readily apparent
and egregious: the range of confinement Appellant faced as a result of the
error was five to ninety-nine years instead of two to twenty years. 8
I would sustain Appellant’s first point, not reach his second point, and
reverse and remand this case for a new trial on punishment. Because the
majority does not, I must respectfully dissent.
LEE ANN DAUPHINOT
JUSTICE
PUBLISH
DELIVERED: December 17, 2009
7
 Williams, 273 S.W.3d at 224.
8
 See Tex. Penal Code Ann. §§ 12.32(a), 12.33(a) (Vernon Supp.
2009), 19.02(c), (d).
5