Affirmed in Part, Reversed in Part, and Remanded, and Majority and
Dissenting Opinions filed May 13, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00591-CR
ROBERT EARL HART, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 1524656
MAJORITY OPINION
A jury convicted appellant Robert Earl Hart of first-degree murder and
assessed punishment at 30-years imprisonment, including a fine in the amount of
$5,000.00. Hart appeals his conviction and raises three issues on appeal: (1) Hart’s
counsel was ineffective by failing to suppress or object at trial to the admission of
video surveillance footage during guilt-innocence; (2) Hart’s counsel was
ineffective when he rejected an instruction on sudden passion after the trial court
offered to include it in the court’s charge at punishment; and (3) the trial court
erred when it failed to include, sua sponte, an instruction on sudden passion in the
court’s charge on punishment as part of the law of the case in the punishment
phase of the trial. Because we conclude that Hart’s trial counsel was ineffective by
rejecting a sudden-passion jury instruction, we affirm the portion of the judgment
regarding appellant’s conviction, reverse the portion of the judgment of the trial
court regarding punishment, and remand the case to the trial court for a new
punishment hearing.
I. BACKGROUND
Ronald Lynn Ray was a former boyfriend of Hart’s adult daughter,
Stephanie. At trial, Stephanie testified that Ray was abusive, violent, and
controlling. She also testified that he tried to isolate her from her family, including
confiscating her cellular phone. Stephanie contacted law enforcement authorities
on several occasions because she was concerned that Ray would harm her or her
family members. Stephanie testified that she tried to leave Ray several times but he
would not leave her alone.
In September 2016, Stephanie was staying at her parents’ home. Ray drove
up to the home uninvited while the family was having lunch. Ray parked across the
street from Hart’s home, took off his shirt and started to smoke a cigarette while
standing outside his vehicle with the car door open. Hart came outside shortly
thereafter and approached Ray with a handgun. Words were briefly exchanged, and
then Hart pointed his gun at Ray and shot. Hart shot several more times as Ray ran
away to hide behind his vehicle. Ray collapsed near the back of his vehicle minutes
later. Though it was disputed by Hart at trial, the State introduced evidence that
Hart attempted to stage a self-defense claim by placing a handgun in Ray’s hand.
Hart also told law enforcement that he believed he heard a gunshot before he fired
2
his weapon.
Hart had several surveillance cameras on the front of his home, which
captured the confrontation and shooting on video. This video was the foundation of
the case for the State, as law enforcement witnesses testified that they did not
intend to charge Hart with murder until they saw the surveillance video. Law
enforcement gained access to the surveillance video because Hart’s wife,
Elizabeth, signed consent forms authorizing the Harris County Sheriff’s Office, as
well as the Harris County Constable, Precinct 3, the right to search and seize “any
and all letters, papers, material and other property, which they desire.”
II. ANALYSIS
A. Ineffective assistance of counsel claims
In issues one and two, Hart argues that his trial counsel was ineffective in
failing to suppress or object at trial to the admission of video surveillance footage
and by rejecting a jury instruction on sudden passion offered by the trial court.
1. Standard
To prevail on his claim that he did not receive effective assistance of
counsel, Hart must show by a preponderance of the evidence that (1) his counsel’s
performance fell below an objective standard of reasonableness and (2) but for his
counsel’s unprofessional error, there is a reasonable probability that the result of
the proceeding would have been different. See Strickland v. Washington, 466 U.S.
668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 56–57 (Tex. Crim. App.
1986) (adopting Strickland analysis). A reasonable probability is “a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. A
failure to make a showing under either prong defeats a claim for ineffective
assistance. Id. at 700.
3
There is a “strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Id. at 689. To overcome this
presumption, a claim of ineffective assistance must be firmly demonstrated in the
record. See Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). In most
cases, direct appeal is an inadequate vehicle for raising such a claim because the
record is generally undeveloped and cannot adequately reflect the motives behind
trial counsel’s actions. Id.
The record must demonstrate that counsel’s performance fell below an
objective standard of reasonableness as a matter of law, and that no reasonable trial
strategy could justify trial counsel’s acts or omissions, regardless of his or her
subjective reasoning. Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011).
Though Hart did not file a motion for new trial alleging ineffective assistance of
counsel, there is a record of his counsel’s reasoning that the parties rely on in their
arguments.
2. Hart’s counsel chose not to pursue a motion to suppress
In issue one, Hart challenges the jury’s finding of guilt because he asserts his
trial counsel was ineffective in failing to move to suppress or object at trial to the
admission of video surveillance footage that was the basis for the State’s case.
Failure to file a motion to suppress does not per se constitute ineffective assistance
of counsel. Wert v. State, 383 S.W.3d 747, 753 (Tex. App.—Houston [14th Dist.]
2012, no pet.). The record reflects that Hart’s trial counsel considered avenues for
suppressing the video and ultimately did not believe he could support it. During
pretrial proceedings, Hart’s counsel informed the trial court that Elizabeth did not
know what she was signing, but then later counsel stated that he did not have a
motion to suppress because he had no evidence to support it. It is undisputed that
Hart’s counsel never attempted to elicit sworn testimony from Elizabeth on the
4
topic.
Even we were to assume it was objectively unreasonable for Hart’s counsel
not to bring a motion to suppress under these circumstances, Hart cannot make the
required showing under the second prong of the Strickland test. To succeed on this
ineffective-assistance-of-counsel claim, Hart must show harm—that the trial court
would have granted the motion to suppress. Jackson v. State, 973 S.W.2d 954, 957
(Tex. Crim. App. 1998). Hart argues that the trial court would have granted the
motion because it was clear that Elizabeth did not understand or fully consent to
the search and seizure. We disagree.
A search conducted pursuant to voluntary consent is an established
exception to the constitutional-warrant requirement. See Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973). Texas law requires the State to prove
voluntariness of consent to search by clear-and-convincing evidence. Reasor v.
State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000). The trial court must look at the
totality of the circumstances surrounding the statement of consent to determine
whether consent was given voluntarily. Id. We consider various factors in
determining voluntariness of consent: age, education, and intelligence; any
constitutional advice given, such as whether the consenting person had the option
to refuse consent; whether the consenting person was in custody or restrained at the
time, and the length of any such detention; and whether weapons were drawn. See
id. (citing Schneckloth, 412 U.S. at 226). An officer’s testimony that consent was
voluntarily given can be sufficient evidence to prove the voluntariness of the
consent. See Martinez v. State, 17 S.W.3d 677, 683 (Tex. Crim. App. 2000).
Although Elizabeth testified in the punishment phase of trial, she did not
testify regarding her lack of consent to the search. Elizabeth’s signed consent was
admitted into the record during trial. And the Harris County Sherriff’s Deputy,
5
Sofia Silva, who witnessed Elizabeth sign the second consent form, testified at
trial. Deputy Silva advised Elizabeth that her consent was voluntary and allowed
her as much time as she needed to read it. Elizabeth never asked any questions or
sought any clarification as to the forms she was being asked to sign. Deputy Silva
further testified that Elizabeth was not under arrest at the time she signed the form,
was composed, and took approximately five minutes to review the form. The
record also reflects that Elizabeth had already signed a similar consent form
allowing the Harris County Constable, Precinct 3, to search the home. Though
Elizabeth was sitting in the constable’s vehicle during the discussion and signing
of the consent forms, Elizabeth was a competent adult who was not detained or
under duress, and she was advised of her option to refuse consent. We conclude
that the State established Elizabeth’s consent to the search by clear-and-convincing
evidence. The only indication that Elizabeth may not have understood what she
was signing was the statement made by Hart’s counsel, which does not constitute
evidence. See Delgado v. State, 544 S.W.2d 929, 931 (Tex. Crim. App. 1977).
Hart also argues that even if Elizabeth understood she was allowing officers
to search her home, it was not established by clear-and-convincing evidence that
that she had given consent for officers to search the family’s surveillance
equipment. The consent form signed by Elizabeth allowed law enforcement the
right to search and seize “any and all letters, papers, material and other property,
which they desire.” Hart cites no authority or testimony to support his argument
that the surveillance equipment in the home was not included in the “material and
other property” language identified in the consent form. This court has previously
determined that property for purpose of a search included surveillance equipment.
Foreman v. State, 561 S.W.3d 218, 234 (Tex. App.—Houston [14th Dist.] 2018)
(citing Code of Criminal Procedure article 18.02(a)(10) in evaluating search
6
warrant and probable-cause affidavit), rev’d on other grounds, 613 S.W.3d 160
(Tex. Crim. App. 2020); see also Tex. Code Crim. Proc. Ann. art. 3.01 (all words,
phrases, and terms to be understood in usual acceptation in common language).
Though the consent form does not specifically identify electronic devices or media,
the consent is broad, and a fair reading of the consent form should have apprised
Elizabeth that the surveillance system was included.
Hart further argues that someone without prior training and experience
would have thought that the equipment was malfunctioning or not set to record.1 It
is unclear how this argument affects the voluntariness of Elizabeth’s consent, and
Hart does not support this argument with any authority or evidence. Elizabeth did
not limit her consent in any manner; therefore, her understanding of the
functioning of the surveillance equipment is immaterial. We conclude Hart’s claim
of ineffective assistance of counsel based on failure to bring a motion to suppress
cannot be sustained on this record. See Jackson, 973 S.W.2d at 957 (claim of
ineffective assistance could not be sustained based on record before appellate court
because appellant failed to develop facts and details of search sufficient to show
search was invalid).
We overrule issue one.
3. Hart’s counsel rejected the sudden-passion instruction
In issue two, Hart challenges the assessment of his punishment arguing
1
The forensic-video technician who retrieved the video footage testified at trial that the
system was clearly receiving a live feed from the cameras on the front of the house when he
arrived. He further testified that the buttons on the digital video recorder were initially not
responding, so he restarted the system. He did not have to utilize any password or authorization
to access and retrieve the stored video. See Lown v. State, 172 S.W.3d 753, 760–61 (Tex. App.—
Houston [14th Dist.] 2005, pet. ref’d) (upholding denial of motion to suppress when evidence did
not prove defendant manifested objective indication of his desire to keep certain files
confidential).
7
counsel was ineffective by rejecting an instruction on sudden passion after the trial
court offered to include it in the court’s charge and then failed to present evidence
to support such an instruction.2 Hart asserts the first prong of the Strickland
analysis is satisfied because there was no strategic reason for counsel to request the
removal of the sudden-passion instruction from the charge. Hart’s counsel stated
on the record that he did not believe the facts in the case supported the instruction:
THE COURT: Okay. So, I’m reading the jury charge with respect to
the punishment phase of trial. And I proposed a — just for proposals
— a special issue regarding sudden passion, adequate cause sudden
passion. And, Mr. Dixon, you are telling you me that you do not want
that in there. As you’ve discussed with the State, you don’t believe the
facts support it; is that correct?
[DEFENSE COUNSEL]: That is correct, Judge. I went through about
six pieces of case law, and there was one that was directly on point
and it just — it wasn’t supported by the facts.
THE COURT: So, I’m going to take out the sudden passion part out
of it. And other than that, do you have any — have you had an
opportunity to read the charge yet?
[DEFENSE COUNSEL]: Yes. I read it yesterday, Judge.
THE COURT: Is there any objections, additions, subtractions?
2
The State argued that Hart failed to adequately brief issue two in that he failed to brief a
claim that (1) he was entitled to an instruction on sudden passion and (2) trial counsel was
ineffective for failing to present evidence of sudden passion at the punishment phase of trial. The
State correctly identifies that an appellant’s brief must contain “a clear and concise argument for
the contentions made, with appropriate citations to authorities and to the record.” Tex. R. App. P.
38.1(i). However, briefing rules are construed liberally, and substantial compliance is sufficient.
Tex. R. App. P. 38.9. With respect to Hart’s briefing of his claim he was entitled to an instruction
on sudden passion, we conclude there is no briefing waiver. Id.
Hart does not present any briefing demonstrating how his trial counsel failed to present
evidence to support such an instruction. However, Hart clarifies in his reply that he did not
intend for his second issue to be divided. Rather, he meant to “emphasize trial counsel’s total
abdication on this matter. . . [t]he fact that trial counsel failed to present evidence that would
support the instruction when he had the opportunity to do so, simply underscores Appellant’s
contention.” Because Hart is not asserting multiple issues, we need not address the State’s
argument as to inadequate briefing on Hart’s claim that his counsel was ineffective for failing to
present evidence of sudden passion at the punishment phase of trial. Tex. R. App. P. 47.1.
8
[COUNSEL FOR THE STATE]: Not from the State.
[DEFENSE COUNSEL]: Not from the defense.
a. Did the actions of Hart’s counsel fall below an objective
standard of reasonableness?
Hart was convicted of murder, which is punishable by imprisonment from
five years to life. Tex. Penal Code Ann. §§ 12.32(a), 19.02(c). During the
punishment phase of a murder trial, a defendant may argue that he caused the death
while under the immediate influence of a sudden passion arising from an adequate
cause. Tex. Penal Code Ann. § 19.02(d). “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. If the jury had been allowed to consider the sudden-passion
instruction and determined Hart acted under “the immediate influence of sudden
passion arising from adequate cause,” Hart’s offense would have been punishable
by imprisonment from two to twenty years. Tex. Penal Code Ann. §§ 12.33(a),
19.02(d).
“Sudden passion” is defined for these purposes as “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.” Tex. Penal Code Ann. § 19.02(a)(2) (emphasis
added). The “adequate cause” giving rise to sudden passion for these purposes is 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.” Tex. Penal Code Ann. § 19.02(a)(1); see also Beltran v. State, 472
S.W.3d 283, 294 (Tex. Crim. App. 2015) (requiring causal connection between
complainant’s provocation, defendant’s passion, and homicide). A defendant who
presents evidence of sudden passion is entitled to an instruction on this mitigating
circumstance “even if that evidence is weak, impeached, contradicted, or
9
unbelievable.” Trevino v. State, 100 S.W.3d 232, 238 (Tex. Crim. App. 2003) (per
curiam).
The State argues that the evidence did not raise the issue of sudden passion
because the provocation by the victim was insufficient to cause “violent passion.”
In making this argument, the State overlooks evidence supporting the instruction,
concluding the victim’s behavior should have only caused irritation. Our review
must focus on the evidence supporting the instruction, rather the evidence tending
to show that Hart did not act under the immediate influence of sudden passion.
Beltran, 472 S.W.3d at 294. Stephanie testified at trial that Ray was violent, and
she believed that Ray was going to hurt her, as well as her father. She also testified
that her father was aware of Ray’s violent nature and had previously seen the
“marks” on her from his abuse. She also testified that her father had seen
threatening text messages sent by Ray to Stephanie’s mother, Elizabeth, just days
before the shooting.
Further, Stephanie and her younger sister were upset when Ray arrived, and
she testified they both screamed for their father. The evidence supported a
conclusion that Hart was acting out of terror or rage, or both. The video also
established provocative behavior on Ray’s part, who immediately removed his
shirt on arrival and baited Stephanie and her father with his presence outside the
property. The video does reflect a brief verbal exchange, though there is no sound
in the video. Stephanie’s testimony, along with statements by Hart to the homicide
investigator, establish that Hart and Ray immediately started yelling at each other.
Stephanie recalled hearing her father tell Ray he was not supposed to be at the
home. The homicide investigator testified that Hart brought a gun outside to
confront Ray because Hart told him that Ray had pulled a gun on his family in the
past. A jury could reasonably conclude that Hart reacted pursuant to provocation
10
by Ray, which “would commonly produce such passion in a person of ordinary
temper.” Beltran, 472 S.W.3d at 294.
The timing of the incident supports a conclusion that Hart lost his capacity
for cool reflection. Ray arrived at the house and had not been outside of his car for
an entire minute before the shooting occurred. The jury could have determined that
Ray’s arrival outside Hart’s home along with his provocative behavior began a
causal chain leading to Hart’s passion and ultimately Ray’s death. We conclude
there was evidence supporting Hart’s entitlement to the sudden-passion instruction.
See Trevino, 100 S.W.3d at 238. Though Hart’s counsel believed that his client
was not entitled to the sudden-passion instruction, this subjective belief is not
controlling in our analysis. See Lopez v. State, 343 S.W.3d at 143. Because his
reasoning for rejecting the instruction offered by the court was erroneous, it cannot
form the basis for a sound trial strategy. See Vasquez v. State, 830 S.W.2d 948, 951
(Tex. Crim. App. 1992) (“Under the facts of this case, it would have been error for
the trial court to refuse such an instruction, had one been requested. Counsel’s
performance in not seeking the instruction was clearly deficient.”). We conclude
that Hart’s counsel’s performance was deficient for seeking the removal of the
instruction from the jury charge.
The dissent claims that we “eviscercate[] any discretion that seasoned
criminal defense attorneys may exercise to pursue one defense strategy over
another.” However, that is not the case. The facts in this case are unusual and this
opinion will not have any effect on seasoned criminal-defense attorneys who
choose to pursue defensive strategies on behalf of their clients. As already
discussed, this is not a situation in which Hart’s counsel elected to pursue an
alternative defensive strategy instead of seeking a sudden-passion instruction.3
3
The dissent argues that Hart was not portrayed as a hot-headed man, but as a
11
Further reasoning that Hart’s counsel believed “at that moment” that his client was
not entitled to a sudden-passion instruction, the dissent argues that we should
assume that counsel reasonably decided not to pursue the instruction.4 However,
the record does not support a sound trial strategy in the mistaken belief of Hart’s
counsel. While our appellate review should eliminate “the distorting effects of
hindsight,” our precedent also does not condone sweeping under the rug legal
representation that falls below an objective standard of reasonableness. Strickland,
466 U.S. at 687, 689.
b. Was Hart harmed?
Hart must next demonstrate that the trial court would have submitted the
instruction to the jury and there was a reasonable probability that, but for counsel’s
considerate family man who wanted to protect his daughter from a problematic boyfriend.
However, the Penal Code does not require that a defendant be a “hot head” in order to receive
the sudden-passion instruction. The sudden-passion instruction is available to a defendant who
causes the death of another “under the immediate influence of sudden passion arising from an
adequate cause.” See Tex. Penal Code Ann. § 19.02(a)(1), (a)(2), (d). The dissent’s suggestion
that Hart’s portrayal as a considerate family man who simply “had enough” of the violent and
manipulative behavior of his daughter’s abusive boyfriend could form the basis of an alternate
defensive strategy is misleading and ignores the plain language of the Penal Code. See id.
4
The dissent cites case law for the proposition that it is not objectively unreasonable to
fail to request an instruction when that instruction is inconsistent with a theory that counsel
advanced at trial. See Okonkwo v. State, 398 S.W.3d 689, 697 (Tex. Crim. App. 2013). However,
the cases relied on by the dissent are not applicable to the facts before us, because Hart’s counsel
told the trial court on the record that he did not believe the instruction was supported by the facts.
Further, the cases advanced by the dissent focus on instructions and defenses applicable to the
guilt-and-innocence phase of trial. See id.; Dannhaus v. State, 928 S.W.2d 81, 86–87 (Tex.
App.—Houston [14th Dist.] 1996, pet. ref’d); Martini v. State, No. 05-17-00693-CR, 2018 WL
3598978, at *3 (Tex. App.—Dallas July 27, 2018, no pet.) (mem. op., not designated for
publication); Roberts v. State, No. 01-16-00059-CR, 2016 WL 6962308, at *5 (Tex. App.—
Houston [1st Dist.] Nov. 29, 2016, pet. ref’d) (mem. op., not designated for publication); Alonzo
v. State, No. 03-05-00849-CR, 2006 WL 2589194, at *4 (Tex. App.—Austin Sept. 8, 2006, no
pet.) (mem. op., not designated for publication). Unlike the defensive issues raised in the cases
cited by the dissent, the sudden passion-instruction is considered after the jury finds a defendant
guilty of murder and operates only to reduce the punishment for murder. See Tex. Penal Code
Ann. § 19.02(d); see generally 43 George E. Dix & John M. Schmolesky, Texas Practice:
Criminal Practice and Procedure § 43:69 (3d ed. 2011 & Supp. 2020).
12
failure to request the sudden-passion instruction, the outcome would have been
different, resulting in a shorter sentence. See Strickland, 466 U.S. at 694; see also
Glover v. United States, 531 U.S. 198, 200 (2001) (holding that, “if an increased
prison term did flow from an error[,] the petitioner has established Strickland
prejudice”). However, it is not enough to show that another sentencing option was
available. See Newkirk v. State, 506 S.W.3d 188, 197–98 (Tex. App.—Texarkana
2016, no pet.). The exchange excerpted above between Hart’s counsel and the trial
court establishes for purposes of this inquiry the trial court would have submitted a
sudden-passion instruction. Therefore, we review for harm, focusing “on the
evidence and record to determine the likelihood that a jury would have believed
that the appellant acted out of sudden passion had it been given the instruction.”
Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013).
In the context of a defendant’s failure to receive a sudden-passion
instruction, courts consider whether the jury, as here, already rejected a claim of
self-defense as part of the harm analysis. “The evidence in a case in which a jury
rejected a claim of self-defense could demonstrate also that the defendant was not
harmed by the failure to receive a sudden passion charge, but the evidence in
another such case might not demonstrate a lack of harm.” Trevino, 100 S.W.3d at
242. Sudden passion and self-defense are not mutually exclusive, and a jury’s
rejection of self-defense does not necessarily preclude a sudden-passion
instruction. See Beltran, 472 S.W.3d at 290. In Trevino and Wooten, on which Hart
relies, the Court of Criminal Appeals addressed the question of how a jury’s
rejection of self-defense affects the harm analysis with respect to the erroneous
denial of a sudden-passion instruction. See Wooten, 400 S.W.3d at 608; Trevino,
100 S.W.3d at 241.
In Trevino, defendant was charged with the murder of his wife. 100 S.W.3d
13
at 232, 236. Defendant claimed the shooting occurred after a heated argument and
struggle over two guns. Id. at 233. According to the lead detective, defendant told
him his wife confronted him with a gun after finding telephone numbers of other
women in his wallet. Id. Defendant retrieved his gun, and after his wife shot at him
but missed, the two struggled over the guns. Id. In the course of the struggle,
defendant’s wife was shot three times. Id. The detective testified the crime scene
did not match defendant’s story. Id. Based on this testimony, the State argued
defendant shot his wife and then staged the scene to make it look like self-defense.
Id. at 232, 235–36. The jury rejected defendant’s claim the shooting was an
accident and he acted in self-defense and, after the trial court refused to instruct the
jury on sudden passion, assessed a 60-year sentence. Id. at 236. Agreeing with the
court of appeals that defendant was harmed, the Court of Criminal Appeals noted
the jury could have found defendant killed his wife in sudden passion and then
staged the crime scene to make the killing appear to have occurred in self-defense.
Id. at 241–43.
In Wooten, defendant was charged with murder after a gunfight with the
victim. 400 S.W.3d at 602–03. According to defendant, who testified at trial, the
victim dropped off defendant’s girlfriend at defendant’s apartment after “backing
out” of a “date” with her. Id. at 603. Defendant greeted his girlfriend outside the
apartment and approached the victim’s car. Id. Defendant testified he saw the
victim had placed a gun on the console but began talking with him. Id. When the
conversation turned to why the “date” had not occurred, the victim’s demeanor
“became more combative.” Id. When defendant told the victim he should pay his
girlfriend “something for her time,” the victim lashed out verbally and then shot at
defendant. Id. Defendant allegedly shot back in self-defense, killing the victim. Id.
The jury rejected defendant’s self-defense claim, and as in Trevino, when the
14
trial court refused to instruct on sudden passion, assessed a 60-year sentence. Id. at
603–04. The court of appeals, concluding the failure to instruct on sudden passion
harmed defendant, reversed as to punishment. Id. at 604. Disagreeing defendant
was harmed, the Court of Criminal Appeals observed “the success of appellant’s
self-defense claim boiled down to whether the jury would accept that, when he
shot [the victim], he reasonably believed that deadly force was necessary to protect
himself from [the victim’s] use of deadly force.” Id. at 607, 609. Noting deadly
force was the only element of self-defense refuted by the evidence, the court
concluded the jury rejected the inference the victim shot first because, had they
believed defendant’s testimony the victim shot first, the jury “almost certainly”
would have acquitted defendant. Id. The court further concluded that, the jury,
having rejected defendant’s self-defense claim, “was highly unlikely” to find
defendant acted under sudden passion. Id.
Unlike Wooten, the determination made by the jury here did not turn on
Hart’s credibility, as he did not testify at trial and there was video evidence of the
interaction between Hart and Ray. We conclude the facts of this case are more like
those in Trevino. Just as in Trevino, Hart shot a person with whom he was familiar
and with whom he had an acrimonious history. Like the facts of Trevino, the
evidence at the crime scene and in the video did not support a self-defense claim.
Trevino, 100 S.W.3d at 233. And just as the jury in Trevino could have found
appellant shot his wife under the immediate influence of a sudden passion, the jury
here could have found that Hart acted, or overreacted, in a sudden passion in
attempting to protect his family. Id. at 242–43. The jury was able to view Ray’s
arrival and provocative behavior, as well as the very short time that elapsed
between Ray’s arrival and the shooting.5
5
Our sister court reached a similar conclusion in an unpublished case. See Kitchens v.
15
The jury also had enormous discretion to sentence Hart anywhere from five
years to life, and it assessed a sentence of 30 years. If the sudden-passion
instruction had been given, the jury would have been told that an affirmative
sudden-passion finding would limit Hart’s sentence to a maximum of 20 years.
Tex. Penal Code Ann. §§ 12.33(a), 19.02(d). In assessing a 30-year sentence for a
murder captured on video, the jury could have concluded that Hart did not act in
self-defense but that he overreacted to Ray’s provocation. Viewing the record as a
whole, including the jury’s sentence, a “reasonable probability” exists that the jury
could have rejected Hart’s self-defense claim, yet found that he acted under the
influence of sudden passion arising from an adequate cause. Because a “reasonable
probability” exists that the jury could have assessed a lower sentence with a
punishment range between two to 20 years, our confidence in the conviction is
undermined. Strickland, 466 U.S. at 694; see also Vasquez v. State, 830 S.W.2d at
951.
We sustain issue two. Because we have sustained issue two, we need not
reach issue three. Tex. R. App. P. 47.1.
State, No. 01-18-00518-CR, 2019 WL 6482408, at *12–13 (Tex. App.—Houston [1st Dist.] Dec.
3, 2019, no pet.) (mem. op., not designated for publication) (defendant was harmed by trial
court’s failure to instruct jury on sudden passion when defendant shot stranger who showed up
asking for whereabouts of individual who was not there and threatened defendant in
confrontation lasting less than three minutes).
16
III. CONCLUSION
We affirm the trial court’s judgment in part as to guilt, but reverse the
portion of the judgment as to sentencing, and we remand the case to the trial court
for a new punishment hearing.
/s/ Charles A. Spain
Justice
Panel consists of Justices Wise, Bourliot and Spain (Wise, J., dissenting).
Publish—Tex. R. App. P. 47.2(b).
17