In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-16-00049-CR ____________________
DENNIS JERMAINE BOOKER, Appellant
V.
THE STATE OF TEXAS, Appellee
_______________________________________________________ ______________
On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 14-20464 ________________________________________________________ _____________
MEMORANDUM OPINION
A jury convicted Dennis Jermaine Booker of murder and then assessed a 60
year sentence. Booker appeals his conviction, and in four issues, he argues that (1)
he received ineffective assistance of counsel; (2) the trial court erred by admitting a
statement that he made while in police custody about having stabbed the victim,
Xavier Cane, in self-defense; (3) the trial court erred by denying Booker’s request
for an instruction on “sudden passion” during the punishment phase of the trial; and
1 (4) the evidence is insufficient to establish that Booker was guilty of murdering Cane
beyond reasonable doubt. We overrule Booker’s issues and affirm the final
judgment.
Background
On the night of August 15, 2014, Cane suffered a fatal stab wound to his chest
while attending a party at an apartment complex in Port Arthur, Texas. In addition
to Cane, fifteen or more others, including Booker, Amira Johnson, Elijah Foreman,
and Demetri Martin, attended the party. Johnson, Booker’s girlfriend, came to the
party with Booker, but they argued, and she left the party with Cane. The testimony
in the trial shows that Johnson and Cane were cousins.
The testimony also shows that shortly before the fight between Booker and
Cane occurred, Booker and Johnson had been arguing. Cane confronted Booker
about why Booker and Johnson were arguing. Cane and Booker began to fight, and
in the course of that fight, Cane’s friends, and Johnson, began to fight with Booker
and his friends.
During Booker’s trial, Johnson testified that she remembered seeing a kitchen
knife with a black and grey handle by a box in the kitchen of the apartment. The
kitchen was very close to where the fight between Booker and Cane occurred.
During Johnson’s testimony, she identified a handle that did not have a blade as the
2 knife-handle that she had seen in the kitchen of the apartment before Booker and
Cane got into a fight. Johnson testified that the knife she saw in the kitchen did not
belong to Booker and that she had never seen Booker carrying that particular knife.
Two of Cane’s friends, Martin and Foreman, testified in the guilt-innocence
phase of Booker’s trial. Martin testified that he saw Cane approach Booker on the
night of the party after having previously seen Booker arguing with Johnson.
According to Martin, Cane went up to Booker and asked “what happened.” At that
point, Booker and Cane started fighting, and Cane was on top of Booker for nearly
the entire fight. The evidence from the trial indicates that Cane was over six feet tall
and weighed approximately 296 pounds. Martin was asked whether he saw a knife
during the fight, but he testified that he did not see anyone with a knife, that he did
not see who stabbed Cane, and that he did not see Booker stab Cane. However,
Martin agreed that on the night the fight occurred, he told the police that Sakari
White, another individual who was at the party, stabbed Cane. Martin explained that
he told the police that White stabbed Cane because he heard others say that they saw
White with a knife immediately after the fight occurred. The day after the fight,
Martin spoke to police again. By then, Martin decided that White could not have
stabbed Cane in the chest because she was behind him during the entire fight, and
from that position, she “would have stabbed [Cane] in the back[.]”
3 Foreman, Cane’s friend, was one of the individuals who came to the party
with Cane. When asked if he witnessed the whole fight between Booker and Cane,
Foreman testified that he saw the fight start, but that he went outside before the fight
was over. According to Foreman, he saw someone jump on Cane’s back while Cane
was on top of Booker. Foreman testified that he did not see who stabbed Cane.
Foreman testified that he did not recall seeing anyone with a knife in their hand while
he was inside the apartment, but he did see a knife in the kitchen near a cake. When
the fight ended, Cane, his friends, and Johnson, left the apartment and were going to
a car that was near the apartment complex. Booker and his friends followed Cane’s
group from the apartment when they went to the car. On the way to the car, Martin
noticed that Cane had blood on his shirt. Shortly after Cane and his friends got into
the car to leave, Cane’s friends realized that Cane had been stabbed.
Before Cane’s group departed the complex in the car, Johnson and Foreman
noticed that White had a pocketknife in her hand. Johnson and Foreman testified in
Booker’s trial that they saw White use the knife to slash three of the tires of their
car. Martin, who was driving the car, took Cane to the hospital. Cane was between
Foreman and Joseph in the back seat of the car. According to Foreman, on the way
to the hospital, he applied pressure to Cane’s chest wound. Cane mumbled during
4 most of the trip, and he spoke a little about his son. Foreman told Cane to stop talking
because they were trying to get him to the hospital.
The autopsy that was performed on Cane indicates that he died at 3:39 a.m.
on August 16, 2014. According to Dr. John Wayne, the pathologist who performed
the autopsy, Cane had a stab wound to his chest that penetrated his heart. According
to Dr. Wayne, the chest wound that punctured Cane’s heart caused his death. Dr.
Wayne did not identify the weapon that caused Cane’s wound. According to Dr.
Wayne, “[a]ny object that had a sharp edge could have caused [Cane’s] stab wound.”
Cane’s chest wound was approximately five to six inches deep, and Dr. Wayne did
not find any blades or metal inside Cane’s body.
Five of the police officers involved in the investigation of the altercation at
the apartment between Cane and Booker testified during Booker’s trial. Officer
Jamarcus Davis, a patrol officer with the Port Arthur Police Department, testified
that he responded to a call about a disturbance at the apartment complex where the
fight occurred. According to Officer Davis, when he drove up to the complex, he
saw a car with three flat tires leaving the complex. Officer Davis testified that when
he walked up to the apartment that was the subject of the disturbance call he
received, he saw blood on the sidewalk. Officer Davis explained that when he went
inside the apartment, he saw several people in the den and kitchen area, and he found
5 Booker in the bathroom. When Officer Davis found Booker, Booker was washing
blood off his hands. Officer Davis testified that he did not notice any visible wounds
on Booker’s hands. Booker told Officer Davis that “he was washing his hands due
to hitting a wall.” Officer Davis and another officer, Officer Chris Duncan, made
everyone go outside the apartment. Officer Davis explained that while he was
involved in the investigation, he was notified that a person at the apartment had gone
to the hospital with a stab wound and that the person who had been stabbed was in
serious condition. The police gave Officer Davis the names of two potential suspects,
and told him that both suspects were believed to still be present at the complex.
Officer Duncan, another Port Arthur police officer who participated in the
investigation, testified during Booker’s trial. Officer Duncan explained that he saw
blood on the bottom of the door of the apartment where the disturbance had
reportedly occurred. According to Officer Duncan, he was advised by a police
dispatcher that Booker was a potential suspect. At that point, he placed Booker in
handcuffs. Officer Duncan testified that he did not question Booker, but when he
placed Booker in handcuffs Booker volunteered: “We were fighting: I stabbed that
n*****. It was self-defense.”1
1 The trial court conducted a hearing without the jury present before it allowed the jury to hear Officer Duncan’s testimony about Booker’s statement. In the hearing, Officer Duncan testified that Booker made the statement while in custody, 6 Officer Duncan searched Booker after Booker admitted stabbing Cane, and
Officer Duncan found the handle of a knife in Booker’s front left pocket. Officer
Duncan identified the handle of the knife that he took from Booker’s pocket during
the trial. According to Officer Duncan, the police never located the blade that went
with the handle. On cross-examination, Officer Duncan agreed that he could not say
whether Cane’s wound was caused by a kitchen knife.
Officer Tomas Barboza, an off-duty patrol officer with the Port Arthur Police
Department, was another of the police officers who responded to the disturbance call
on the night Cane was stabbed. When Officer Barboza got to the apartment, he saw
several people seated outside. He also saw that Booker had already been handcuffed.
Officer Barboza testified that he heard Booker say “He came at me first and that’s
why I stabbed him.”2
but that Booker volunteered the statement even though he did not ask Booker any questions. Officer Duncan testified that, “[f]or some reason my audio recorder was not working.” The trial court overruled Booker’s objection to admitting the statement before the jury in the trial. 2 The trial court also conducted a hearing outside the jury’s presence to address the admissibility of Officer Barboza’s testimony about Booker’s statement. The trial court overruled Booker’s objection to Officer Barboza’s testimony regarding what he heard Booker say. Officer Barboza was not asked whether his body microphone captured Booker’s statement.
7 Officer Reid Rowe, a patrol sergeant with the Port Arthur Police Department,
also came to the apartment complex on the night Cane was stabbed. When Officer
Rowe got to the complex, he saw several individuals handcuffed and sitting outside
the apartment. According to Officer Rowe, he heard Booker say: “We were fighting
and I stabbed that n****. It was self-defense.”3 Officer Rowe left the apartment
complex and went to the hospital, where he spoke with Cane’s friends. According
to Officer Rowe, Cane’s friends thought that White was the person who stabbed
Cane. However, Officer Rowe explained that he had seen White when he went to
the apartment complex, and White did not appear as if she had been in a struggle,
and he did not see any signs that White had blood on her. Officer Rowe explained
that upon further questioning of Cane’s friends, he learned that they had actually
only seen White with a knife outside the apartment and that none of them actually
saw who stabbed Cane.
3 In the hearing the trial court conducted before admitting Officer Rowe’s testimony, Officer Rowe testified that he asked the group seated outside the apartment “what’s going on.” According to Officer Rowe, Booker did not respond. Officer Rowe testified that while explaining to the individuals outside the apartment what the police were doing there, Booker volunteered that he stabbed Cane. Officer Rowe was not asked to address whether his body microphone captured Booker’s statement.
8 Officer Eric Thomason was the last officer who testified in the guilt-innocence
phase of Booker’s trial. According to Officer Thomason, he attempted to speak with
Cane while the doctors were treating him. However, Cane could only respond to his
questions with grunts and groans, and Cane was unable to tell him what actually
happened.
Following closing argument, the jury found Booker guilty of murder and
assessed a sixty-year sentence. This appeal followed.
Analysis
Is the Evidence Sufficient to Support the Verdict?
In his fourth issue, Booker argues the evidence was insufficient to allow the
jury to conclude, beyond reasonable doubt, that Booker murdered Cane. If Booker
were to prevail on this issue, he would be entitled to an acquittal. See Brooks v. State,
323 S.W.3d 893, 898-902 (Tex. Crim. App. 2010). Therefore, because issue four
would give Booker the greatest relief, if sustained, we begin by addressing Booker’s
fourth issue. See Tex. R. App. P. 43.3; Campbell v. State, 125 S.W.3d 1, 4 n.1 (Tex.
App.—Houston [14th Dist.] 2002, no pet.) (stating that the reviewing court should
first address complaints that would afford the defendant the greatest relief).
When reviewing a legal sufficiency challenge in a criminal case, we review
all the evidence admitted before the jury in the light that most favors the jury’s
9 verdict to determine whether any rational factfinder could have found the defendant
guilty of the essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007). In a jury trial, the jury is the sole judge of the credibility of the witnesses
and the weight to afford testimony. Montgomery v. State, 369 S.W.3d 188, 192 (Tex.
Crim. App. 2012). The jury may make reasonable inferences of fact from the
evidence as it sees fit, to weigh the evidence, and to draw reasonable inferences from
the facts in reaching a conclusion regarding the defendant’s guilt. See Hooper, 214
S.W.3d at 13. We “‘determine whether the necessary inferences are reasonable based
upon the combined and cumulative force of all the evidence when viewed in the light
most favorable to the verdict.’” Clayton v. State, 235 S.W.3d 772, 778 (quoting
Hooper, 214 S.W.3d at 16-17). Circumstantial evidence alone can be sufficient to
establish a defendant’s guilt. Hooper, 214 S.W.3d at 13.
To prove that Booker was guilty of murder, the State was required to prove
that Booker intentionally or knowingly caused Cane’s death. See Tex. Penal Code
Ann. § 19.02(b)(1) (West 2011). The cause of Cane’s death was undisputed, as the
evidence showed he died as a result of a stab wound to his chest. However, Booker
disputes whether the evidence was sufficient to establish that he was the person who
stabbed Cane. In closing argument, Booker criticized the police for not fully
10 investigating whether White used her pocketknife to stab Cane; pointed out that
while three officers allegedly heard Booker say that he had stabbed Cane, none of
them captured the statement on the microphones they were carrying on their
uniforms that night; noted that the handle of the knife found in Booker’s pocket did
not have any blood on it, and that the evidence failed to address whether the handle
was capable of having a blade long enough to cause Cane’s deep stab wound;
observed that on the night the stabbing occurred, both Johnson and Foreman claimed
that White stabbed Cane; suggested that the weapon actually used to cause Cane’s
wound was never found; and questioned whether the knife like the one in the kitchen
could have made a wound like the wound that resulted in Cane’s death.
Even though Booker criticizes the quality and amount of the evidence before
the jury, the record contains evidence from which a jury could reasonably infer that
Booker was the person who stabbed Cane. The two were fighting shortly before
Cane discovered his wound; Booker had blood on his hands when police first found
him in the bathroom a short time after the fight occurred; and Booker stated in the
presence of three police officers that he stabbed Cane. These facts allowed the jury
to infer that Booker was the person who stabbed Cane. After reviewing the evidence
in the light that most favors the verdict, we conclude that a rational jury could have
found beyond reasonable doubt that Booker knowingly or intentionally stabbed Cane
11 and that Cane’s chest wound caused his death. See Jackson, 443 U.S. at 320; Brooks,
323 S.W.3d at 896. Therefore, we overrule Booker’s fourth issue.
Did the Trial Court Err by Admitting Booker’s Statements about Stabbing Cane?
In his second issue, Booker argues that he should receive a new trial because
the trial court erred when it admitted Booker’s statements indicating that he was the
person who stabbed Cane. According to Booker, his statements were not admissible
because the statements were made while he was in custody and before he was warned
of his Miranda4 rights.
We review a trial court’s ruling on the admission of evidence for an abuse of
discretion. Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009);
Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). We will uphold
the trial court’s decision unless it lies outside the zone of reasonable disagreement.
Layton, 280 S.W.3d at 240 (citing Montgomery v. State, 810 S.W.2d 372, 380 (Tex.
Crim. App. 1990)). The test for abuse of discretion is whether the ruling was
arbitrary or unreasonable. Montgomery, 810 S.W.2d at 380. We may uphold a trial
court’s ruling on any legal theory or basis that applies to the case. See Martinez v.
State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002).
4 Miranda v. Arizona, 384 U.S. 436, 478-79 (1966). 12 An oral statement made by a person accused of a crime that results from a
custodial interrogation is not admissible at trial unless the accused was warned of
his rights, and the accused knowingly, intelligently, and voluntarily waived those
rights. See Miranda v. Arizona, 384 U.S. 436, 467-68 (1966); see also Tex. Code
Crim. Proc. Ann. art. 38.22, § 2(a)-(b) (West Supp. 2017). However, when the
statements the accused made were not made as the result of an interrogation, the
statements are not excluded based on either article 38.22 or under Miranda. Tex.
Code Crim. Proc. Ann. art. 38.22, § 5 (West Supp. 2017) (“Nothing in this article
precludes the admission of a statement by the accused . . . that is res gestae of the
arrest or of the offense, or of a statement that does not stem from custodial
interrogation or of a voluntary statement[.]”); Miranda, 384 U.S. at 478 (“Any
statement given freely and voluntarily without any compelling influences is, of
course, admissible in evidence,” and “[v]olunteered statements of any kind are not
barred by the Fifth Amendment[.]”). For example, the United States Supreme Court
has held that voluntary statements made in custody that are not the product of an
interrogation are admissible. Rhode Island v. Innis, 446 U.S. 291, 299-300 (1980)
(holding that Miranda did not prohibit voluntary statement that was not made in
response to a question by police even though the defendant was in police custody).
To be suppressed, the accused’s incriminating response must have been “the product
13 of words or actions on the part of the police that they should have known were
reasonably likely to elicit an incriminating response.” Id. at 303.
Under Texas law, the defendant has the initial burden to establish that his
statement resulted from a custodial interrogation. Herrera v. State, 241 S.W.3d 520,
526 (Tex. Crim. App. 2007). In Booker’s case, there is no evidence that Officers
Duncan, Barboza, or Rowe would have reasonably anticipated that Booker would
volunteer the statements they testified that he made and all of them explained during
the hearings the trial court conducted that Booker was not being interrogated when
he made the statements that are at issue in his appeal. In deciding whether to admit
the police officers’ respective accounts about Booker’s statements, the trial court
was entitled to believe their accounts about the context in which Booker’s statements
occurred. Officer Duncan indicated that Booker, upon being handcuffed,
volunteered the statement about stabbing Cane, and that he volunteered the statement
without being asked any questions. Officer Barboza indicated that he heard Booker
admit that he stabbed Cane when he approached the group where Booker was sitting
and before he asked Booker any questions. Officer Rowe stated that Booker
volunteered the statement while he was attempting to explain to a group of people
seated outside the apartment what police were doing there and that Booker made the
statement even though no specific question had been directed at him. The trial court
14 was allowed to conclude from the context in which Booker’s statements occurred
that the officers did not reasonably anticipate getting an incriminating response from
Booker. “That the suspect was neither expressly nor implicitly questioned by police
officers at the time the statement was made often determines the voluntariness of a
statement.” Ramirez v. State, 105 S.W.3d 730, 741 (Tex. App.—Austin 2003, no
pet.) (citing Stevens v. State, 671 S.W.2d 517, 520 (Tex. Crim. App. 1984); Sanchez
v. State, 589 S.W.2d 422, 423 (Tex. Crim. App. 1979); Earnhart v. State, 582
S.W.2d 444, 448 (Tex. Crim. App. 1979); Davis v. State, 780 S.W.2d 945, 947 (Tex.
App.—Fort Worth 1989, pet. ref’d)).
We hold the evidence authorized the trial court to find that Booker’s
statements were not the products of custodial interrogations. Therefore, we conclude
the trial court did not abuse its discretion by admitting Booker’s statements
indicating that he was the person who stabbed Cane. We overrule Booker’s second
issue.
Ineffective Assistance of Counsel
In his first issue, Booker argues that he received ineffective assistance of
counsel. According to Booker, his attorney should have requested the trial court to
instruct the jury on self-defense, and to instruct the jury that it could consider
convicting Booker on the lesser-included-offense of manslaughter. Additionally,
15 Booker alleges that “the totality of trial counsel’s representation constituted
ineffective assistance of counsel.”
To establish a claim of ineffective assistance of counsel, the defendant must
show that the performance of his attorney fell below an objective standard of
reasonableness, and that, but for counsel’s alleged error, the outcome of the
proceedings would probably have been different. Strickland v. Washington, 466 U.S.
668, 687-88 (1984). When making an ineffective assistance of counsel claim, the
defendant bears the burden of developing the facts needed to show that his attorney
was ineffective under the standards identified in Strickland. See Jackson v. State,
877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (citing Strickland, 466 U.S. at 689).
Generally, to prove a claim of ineffective assistance, the defendant must overcome
the “strong presumption that counsel’s conduct fell within the wide range of
reasonable professional assistance.” Thompson v. State 9 S.W.3d 808, 813 (Tex.
Crim. App. 1999) (citing Strickland, 466 U.S. at 690).
In Booker’s case, Booker filed a motion for new trial that alleges a claim of
ineffective assistance. However, Booker’s motion for new trial does not specifically
explain why he was claiming that trial counsel’s performance had been deficient.
Additionally, Booker did not attach any affidavits or exhibits to establish how the
attorney who represented him in his trial provided a defense that fell below the
16 standards that apply to attorneys. The record also does not show that the trial court
conducted a hearing on Booker’s motion. Importantly, because the trial court did not
conduct a hearing on Booker’s motion, the record presently before us contains no
response by Booker’s counsel explaining why he chose to handle Booker’s defense
in the manner that appellate counsel criticizes in Booker’s appeal.
Booker must prove that there was no professional reason for the specific acts
or omissions of trial counsel that appellate counsel is criticizing in Booker’s appeal.
Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 1999). To prove ineffective
assistance, the “allegation of ineffectiveness must be firmly founded in the record,
and the record must affirmatively demonstrate the alleged ineffectiveness.”
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing McFarland v.
State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), overruled on other grounds by
Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998)).
The record in Booker’s direct appeal is insufficient to demonstrate that
“counsel’s representation was so deficient and so lacking in tactical or strategic
decisionmaking as to overcome the presumption that counsel’s conduct was
reasonable and professional.” Bone, 77 S.W.3d at 833 (citation omitted). On this
record, we conclude that Booker has failed to defeat the strong presumption that
counsel’s decisions during his trial fell within the wide range of reasonable
17 professional assistance. See Bone, 77 S.W.3d at 833. Because the trial court did not
conduct a hearing on Booker’s motion for new trial, the record available in Booker’s
direct appeal does not demonstrate that trial counsel’s performance was the product
of an unreasonable trial strategy, or that counsel’s performance led to an unreliable
verdict or punishment. Id. We overrule Booker’s first issue without prejudice to
Booker’s right to raise his claim in a post-conviction writ. See Goodspeed, 187
S.W.3d 390, 392 (Tex. Crim. App. 2005); Robinson, 16 S.W.3d 808, 813 n.7 (Tex.
Crim. App. 2000).
Was Booker Entitled to an Instruction on Sudden Passion?
Following the punishment phase of his trial, Booker asked the trial court to
instruct the jury that it could consider whether he caused Booker’s death under the
immediate influence of a sudden passion that arose from an adequate cause. See Tex.
Penal Code Ann. § 19.02(d) (West 2011). The trial court ruled that Booker was not
entitled to a sudden passion issue.5 In issue three, Booker argues that he is entitled
to a new punishment hearing because the trial court refused his request for a charge
that would have allowed the jury to consider whether he acted in a state of sudden
passion. See id.
5 When it denied Booker’s request, the trial court stated that Booker “specifically testified that that’s not what it was. In addition, [Booker] testified that he does not believe that he committed the offense.” 18 If Booker had been entitled to an issue based on the doctrine of sudden
passion, the jury in his case would have been instructed that if Booker proved that
he caused Cane’s death under the immediate influence of sudden passion arising
from an adequate cause, the offense would be punishable by imprisonment for two
to twenty years, or five to life if enhanced for one prior felony. See id. (“If the
defendant proves [sudden passion] in the affirmative by a preponderance of the
evidence, the offense is a felony of the second degree.”). Under the facts in Booker’s
case, his punishment range was enhanced because he had a prior felony conviction.
Thus, had Booker proven that he acted under the influence of sudden passion, the
jury would have been instructed to consider a minimum sentence of five years rather
than the fifteen year minimum that it considered under the charge the trial court gave
the jury. See id. §§ 12.33(a) (West 2011), 12.42(b) (West Supp. 2017), 19.02(d).
In reviewing a complaint of charge error, we first consider whether error
exists. Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013); Ngo v. State,
175 S.W.3d 738, 743 (Tex. Crim. App. 2005). A punishment phase instruction is
needed to address a claim of sudden passion only if the evidence supports allowing
the jury to consider the doctrine. McKinney v. State, 179 S.W.3d 565, 569 (Tex.
Crim. App. 2005). The Court of Criminal Appeals has explained:
[B]efore a defendant is allowed a jury instruction on sudden passion, he must prove that there was an adequate provocation, that a passion or 19 an emotion such as fear, terror, anger, rage, or resentment existed, that the homicide occurred while the passion still existed and before there was reasonable opportunity for the passion to cool; and that there was a causal connection between the provocation, the passion, and the homicide.
A jury should receive a sudden passion charge if it is raised by the evidence, even if that evidence is weak, impeached, contradicted, or unbelievable. However, the evidence cannot be so weak, contested, or incredible that it could not support such a finding by a rational jury.
Id.
We review the evidence in Booker’s trial in the light most favorable to Booker
in determining whether he was entitled to an issue on his claim that he acted under
the influence of a sudden passion arising from an adequate cause. See Griffin v. State,
461 S.W.3d 188, 192 (Tex. App.—Houston [1st Dist.] 2014, no pet.). A defendant
is entitled to a jury instruction on the issue of sudden passion if the record supports
a reasonable inference that: (1) the defendant in fact acted under the immediate
influence of a passion such as terror, anger, rage, or resentment; (2) his sudden
passion was in fact induced by some provocation by the deceased or another acting
with him, which provocation would commonly produce such a passion in a person
of ordinary temper; (3) he committed the murder before regaining his capacity for
cool reflection; and (4) a causal connection existed “between the provocation,
passion, and homicide.” Wooten, 400 S.W.3d at 605 (internal quotations omitted);
McKinney, 179 S.W.3d at 569; see also Tex. Penal Code Ann. § 19.02(a)(1)-(2) 20 (West 2011). Nonetheless, the mere fact that a defendant acted in response to the
provocation of another individual is not sufficient to warrant a charge of sudden
passion. Trevino v. State, 100 S.W.3d 232, 241 (Tex. Crim. App. 2003). Instead, the
testimony must show that the defendant killed the victim while acting under the
immediate influence of a sudden passion. Id.
Under the Penal Code, the term “sudden passion” is defined 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). To
prove the state of passion was the direct result of an adequate cause, the defendant
must prove that he acted in response to 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.” Id. § 19.02(a)(1). The testimony in
both the guilt-innocence and the punishment phases of the trial are reviewed to
decide if the trial court ruled properly on a defendant’s request for a sudden passion
issue. See Trevino, 100 S.W.3d at 238; Griffin, 461 S.W.3d at 192.
In his brief, Booker argues that the heated altercation he had with Johnson,
followed by Cane’s confronting him about the altercation with Johnson, provoked
and angered him to the point that he was not capable of coolly deciding how to
21 respond. However, the testimony from the trial does not show that Booker reacted
immediately to Cane’s questioning him about his treatment of Johnson by using
deadly force. And, none of the testimony about the fistfight shows that Booker,
during the fight, acted in response to a cause that would commonly produce a degree
of anger, rage, resentment, or terror in a person of ordinary temper that would have
caused a reasonable person to reach for a knife and stab Cane. Finally, there is
nothing in the record about Booker’s relationship with Johnson that indicates a
person of ordinary temper would have stabbed Cane because Cane questioned
Booker about how Booker was treating Johnson. We agree with the trial court’s
conclusion that Booker failed to introduce evidence that he would have responded
to Cane’s questioning of Booker with any force at all, much less deadly force. See
Tex. Penal Code Ann. § 19.02(a)(1) (defining “adequate cause”); Trevino, 100
S.W.3d at 241 (“The mere fact that a defendant acts in response to the provocation
of another is not sufficient to warrant a charge on sudden passion.”). Additionally,
nothing in the testimony about the fight itself shows that Booker developed an
adequate cause that would allow a jury to reasonably conclude that his use of deadly
force was justified. Id. We hold the trial court properly denied Booker’s requested
instruction, and we overrule Booker’s third issue.
22 Conclusion
Given our resolution of Booker’s appellate issues, Booker’s conviction for
murder is affirmed.
AFFIRMED.
_________________________ HOLLIS HORTON Justice
Submitted on September 11, 2017 Opinion Delivered December 13, 2107 Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.