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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 App.-Dallas June 25,1998)(unpublished).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