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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. 1699-98
RONNIE RAY MIMS, Appellant
v.
THE STATE OF TEXAS
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS
DALLAS COUNTY __
KELLER, J., delivered the unanimous opinion ofthe Court.
OPINION
We granted appellant's petition to determine whether adefendant in an attempted murder
prosecution is entitled to an instruction on the "sudden passion" issue1 when such instruction is
raised by the evidence. The Court ofAppeals held that "the law does not require an instruction on
• For the purpose ofthis opinion, when referring to "sudden passion," we mean the entire
conceptencoSby the issue's* forth in Texas Penal Cede §19.02(d). All references o
sectionlZZme version ofthe Texas Penal Code applicable to the current prosecution except
as otherwise indicated.
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MIMS - 2
sudden passion in an attempted murder case." Mims v. State, 1998 W.L. 334441, slip op. at 1-2
(Tex. App.-Dallas June 25,1998)(unpublished). We will reverse.
The first rule of statutory construction is that we interpret statutes in accordance with the
plain meaning of their language unless the statutory language is ambiguous or the plain meaning
leads to absurd results. Boykin v. State, 818 S.W.2d 782, 785-786 &786 n. 4(Tex. Crim. App.
1991). In accordance with Boykin, we examine the language ofthe statute in question.
The murder statute begins by defining "adequate cause" and "sudden passion" —terms that
are used later in the "sudden passion" issue. See Texas Penal Code §19.02(a).2 The next section of
the murder statute proscribes conduct constituting the offense. §19.02(b). The law considers
conduct that "causes the death of an individual" to be murder ifone ofthree culpable mental states
or circumstances accompanies the conduct: (1) intent or knowledge (that death would occur), (2) the
intent to commit serious bodily injury coupled with an act clearly dangerous to human life, and (3)
the commission or attempted commission ofafelony coupled with an act clearly dangerous to human
life. Id.3 The punishment for murder is set out as follows:
2 The pertinent subsection provides:
(a) In this section:
(1) "Adequate cause" means cause that would commonly produce adegree
ofanger, rage, resentment, or terror in aperson ofordinary temper, sufficient to
render the mind incapable of cool reflection.
(2) "Sudden passion" means passion directly caused by and arising out of
provocation by the individual killed or another acting with the person »hich
passion arises at the time ofthe offense and is not solely the result offormer
provocation.
3 The textof that subsection provides:
MIMS - 3
(c) Except as provided in subsection (d), an offenseunder this section is a felony of
the first degree.
(d) At the punishment stage of a trial, the defendant may raise the issue as to whether
he caused the death under the immediate influence of sudden passion arising from
an adequate cause. If the defendant proves the issue in the affirmative by a
preponderance of the evidence, the offense is a felony of the second degree.
Texas Penal Code §19.02(c) & (d)(emphasis added).
The criminal attempt statute provides in relevant part:
(a) A person commits an offense if, with specific intent to commit an offense, he
does an act amounting to more than mere preparation that tends but fails to effect the
commission of the offense intended.
(d) An offense under this section is one category lower than the offense attempted....
Texas Penal Code §15.01 (emphasis added).
Appellant contends that the attempt statute and the sudden passion issue should, in an
appropriate case, combine to create a thirddegree felony. We agree. Theplainlanguage of boththe
murder and attempt statutes supports this conclusion. §19.02(d) characterizes sudden passion
murderas an "offense"that is a second degree felony. The attempt statute provides that the attempt
offense is onedegree lower than the"offense" attempted. If sudden passion is shown, the"offense"
attempted issecond degree murder, and hence, the attempt offense (attempted second degree murder)
A personcommitsan offense if he:
(1) intentionally or knowingly causes the death of anindividual;
(2) intends to cause serious bodily injury and commits an act clearly dangerous to
human life that causes the death of an individual; or
(3) commits or attempts to commit afelony, other than manslaughter, and in the
course of and in furtherance of thecommission or attempt, or in immediate flight
from the commission orattempt, he commits orattempts to commit an act clearly
dangerous to human life that causes the death ofan individual.
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MIMS-4
is afelony ofthe third degree. The attempt statute does not state that the punishment range must be
determined solely by the elements of an offense as found in the guilt phase ofthe trial. Under the
murder statute, ifthe sudden passion issue is submitted, the degree ofthe offense is not determined
until the punishment phase ends. Under the plain language ofthe statutes, then, the sudden passion
issue can be submitted inanattempted murder prosecution.
The State makes several arguments for finding the sudden passion issue to be inapplicable
in the present context. First, the State focuses on the language ofthe §19.02(d) with emphasis on
the italicized portion:
At the punishment stage ofatrial, the defendant may raise the issue as to whether he
caused the death under the immediate influence ofsudden passion arising from an
adequate cause.
Relying upon this language, the State contends that the sudden passion issue applies only when the
defendant actually causes the death ofan individual - which does not occur in an "attempt" crime.
But all crimes to which the attempt statute applies are defined as the completed versions of the
crime. The crime ofmurder, for example, requires that adeath occur. The real question is whether
"second degree murder" can be considered as the base offense for determining the degree offelony
under the attempt statute when second degree status is determined mthe punishment phase. That
the punishmentphase issue, along with the guilt phase elements in the statute, assumes acompleted
offense does not answer that question.
Moreover, "causing the death ofan individual" is m,an elementofthe sudden passion issue
in amurderprosecution. The factfinder has already determined, atthe time the suddenpassionissue
is submitted, that the defend** caused the victim's death. The italicize* words in the phrase
Id. at 404. Malice was traditionally defined as "a state or condition ofthe mind
showing aheart regardless of social duty and fatally bent on mischief."
Id. Malice has also been
defined by what it is not; namely, malice was not present ifthe crime was committed "under the
influence ofsudden passion, arising from an adequate cause." Spearman v. State, 4S.W. 586, 587
(Tex. Crim. App. 1887). Before 1927, then, the sudden passion issue was the distinguishing element
between murder and manslaughter.
At the time, there existed no offense ofcriminal attempt. Instead, the Penal Code proscribed
assaults "with intent" to commit particularly described offenses. See Texas Penal Code, Chapter 4
(1925). One ofthose offenses was "assault with intent to murder." Texas Penal Code, Article 1160
(1925)(last amended in 1903). At the time, however, there was no "assault with intent to commit
manslaughter" offer.se ThurSoodv. Stat,,
220 S.W. 337, 338 (Tex. Crim. App. 1920). Instead,
when there was evidence to show sudden passion (i.e. the absence of "malice") for an intended
killing in which death did not in fact result, the defendant was entitled to an instruction on
aggravated assault.
Id.
In 1927, the Legislature repealed the articles relating to manslaughter. Session Laws, 40th
Leg., S.B. 168, §3, p. 413 (1927). The Legislature deleted "malice aforethought" from the
description ofthe offense ofmurder, but itcreatedanother subsection inthe statute requiring the trial
MIMS - 7
court to define malice aforethought in all cases and requiring the trial court to instruct the jury that,
in the absence of malice aforethought, the sentence assessed could not exceed five years. Session
Laws, 40th Leg., S.B. 168, §3a, p. 413; Texas Penal Code, Articles 1256 and 1257b (1927). The
Legislature did not, however, change the offense ofassault with intent tomurder. Assault with intent
to murder had its own punishment range: two to fifteen years. Article 1160.4
Even so, the failure of the "assault with intent to murder" statute to distinguish between
sudden passion murders and other murders was remedied just a few years later. In 1931, the
Legislature added to the murder statute instructions concerning "murder without malice." Texas
Penal Code, Article 1257c (1931). The new instructions defined the "sudden passion" issue very
similarly to the present-day definition and explicitly characterized murder "without malice" as a
sudden passion murder.
Id. In addition, the Legislature added to the "assault with intent to murder"
offense apenalty section relating to offenses committed without malice. Article 1160 (1931). While
the punishment range for "assault with intent to murder" (in general) continued to be two to fifteen
years, ifthe jury found that the assault was committed "without malice," the punishment range was
one to three years.
Id. That offense remained essentially unchanged until the implementation ofthe
"modern" Texas Penal Code in 1974.5 And from 1974 until 1994, there existed a separate offense
4Potentially, the language in the murder statute may have limited the upper end of that
range to five years. Assault with intent to murder necessarily referenced the murder statute, and
the murder statute imposed afive-year cap unless the jury believed that "the defendant was
prompted and acted with his malice aforethought."
5For cases discussing adefendant's entitlement to ajury instruction on sudden passion
(and that were tried shortly before the new Penal Code became effective), see Ray v. State,
515
S.W.2d 664 (Tex. Crim. App. 1974) and Bryant v. State,
482 S.W.2d 270 (Tex. Crim. App.
1972).
MIMS - 8
of"voluntary manslaughter" —an offense which could be "attempted" under the Penal Code. So,
at least since 1931 and probably (except for three years) stretching back to the 1800s, attempt or its
equivalent has been available for sudden passion homicides. This long history oflegislated leniency
toward attempted homicides arising from sudden passion counsels against construing this most
recent statutory change as eliminating the sudden passion issue from attempted homicide offenses.
And we should be especially reluctant to change alongstanding interrelation of the law on
what is, at best, an ambiguous textual basis, when there appear to be other, more obvious
explanations for the statutory change. Two more obvious intended effects ofthe legislative change
here are: (1) to shift the burden ofproofon the sudden passion issue to the defendant, and (2) to turn
the issue into apunishment phase issue, thereby minimizing the effects ofreversible error that might
occur in connection with the issue. And in fact, these purposes tend to go hand in hand. While
affirmative defenses have been phrased by the Legislature in the modern penal code as guilt phase
issues, mitigating factors upon which the defendant has the burden of proof, where such factors
actually decrease the grade ofthe offense ifproven, have nearly always been phrased as punishment
issues. See §15.04(d)(for inchoate offenses, renunciation that does not prevent commission ofthe
object offense); §19.02(d)(sudden passion murder); §20.04(c)(release in asafe place under the
aggravated kidnapping statute); §71.02(d) and former §71.05(c)(1993)(for engaging in organized
criminal activity, renunciation that does not prevent commission of the object offense). But see
§§28.06(e), 32.02(d)(detenninationofvalue in certainproperty crimes when the actor shows he has
given consideration for or had alegal interest in the property or service in question).
Finally, the State contends that applying the "sudden passion" issue to attempted murder
leads to an absurd result: "A defendant charged with attempted murder might lower the degree of
MIMS - 9
his offense through evidence of sudden passion; however, a defendant with the same actus reus and
mens rea, but charged with aggravated assault, would not have the same avenue open to him."
State's brief at 6. But the State provides no reason why such disparate treatment is absurd. That an
accused's conduct may violate several penal provisions with differing punishments is hardly
uncommon.
Moreover, the State's reasoning would apply equally to aggravated assault and murder.
Murder can be reduced in degree by proof of sudden passion, but aggravated assault cannot.
Nevertheless, both murder and aggravated assaultare reduced in degree for "attempted" versions of
thoseoffenses. The inequity perceived by the State inheres in the application of sudden passionto
murder, not in its application under the attempt statute. Further, another inequity exists between the
murder and aggravated assault offenses. Aggravated assault is listed as an offense that is ineligible
for mandatory supervision. Texas Government Code §508.149(a)(6). But, while first degree murder
islisted as ineligible, §508.149(a)(2), second degree murder (i.e. murder with sudden passion) is not
so listed. See §508.149,passim. Nor is attempted murder listed. Id The State errs in assuming that
aggravated assault and attempted murder must somehow be viewed as equivalent offenses.
Infact, two absurd results would occur ifthe State's interpretation were adopted. One isthat,
when sudden passion is present, the attempted and object offenses would be felonies of the same
degree, avariance from the result that the Legislature appears to have intended when it provided that
an
attempted offense would be one degree lower than the completed offense. Another absurd result
is
that a person would obtain the benefit of the sudden passion issue's submission only if he
successfully completed his crime. That result would appear to thwart the Legislature's intent to
discourage the completion of criminal activity, which is evidenced by its formulation of lesser
MIMS-10
penalties for attempted offenses.
Accordingly, we hold that, if raised by the evidence, the sudden passion issue should be
submitted in the punishment phase ofan attempted murder prosecution. The judgment ofthe Court
ofAppeals is reversed and the case is remanded for proceedings consistent with this opinion.
KELLER, J.
DELIVERED: October 20,1999
PUBLISH
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Court of Criminal &ppeala
Pox 12308 LISA ROMBOK
Capitol Station CLERK 5TH COURT OF APPEALS
COURTHOUSE 600 COMMERCE 2ND FLOOR
&ujSttn,feag787U DALLAS TX 752 02
1699-98
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