Joe Bradshaw v. State

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-06-00178-CR

JOE BRADSHAW, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 202nd Judicial District Court

Bowie County, Texas

Trial Court No. 03F0153-202

Before Morriss, C.J., Carter and Moseley, JJ.

Opinion by Chief Justice Morriss

O P I N I O N

One evening in early September 2005, Joe Bradshaw had been visiting his estranged wife, Toy Bradshaw. ⁽¹⁾ That visit, like other encounters between the two, had resulted in Toy and Bradshaw arguing. As Bradshaw was about to leave and in response to a specific question by Bradshaw of whether Toy had had any improper relationships with men with whom she worked, she admitted that she had. In response, Bradshaw stabbed Toy forty-eight times, killing her.

Charged with murder, Bradshaw argued during the guilt/innocence phase of trial that he was legally insane at the time of the murder. The jury rejected this argument and found him guilty of murder. During the punishment phase, Bradshaw argued he was acting under the immediate influence of sudden passion arising out of adequate cause. The jury declined to find that Bradshaw was acting under the influence of such sudden passion and assessed fifty years' imprisonment as his punishment.

On appeal, Bradshaw asserts that not requiring jury unanimity in finding no sudden passion was fundamental error, that the exclusion of Raymond Whitten's testimony was error, and that the evidence   concerning   sudden   passion   was   insufficient.   We   affirm   the   judgment   because (1) Bradshaw has failed to show that jury charge error resulted in egregious harm, (2) erroneously excluding Whitten's testimony was harmless, and (3) the evidence is legally and factually sufficient to support the jury's finding on sudden passion.

(1) Bradshaw Has Failed to Show That Jury Charge Error Resulted in Egregious Harm

In his first three points of error, ⁽²⁾ Bradshaw claims the jury charge is erroneous because it does not require a unanimous verdict on the issue of sudden passion. If a defendant is convicted of murder, he or she may argue at punishment that he or she caused the death of the victim while under the immediate influence of sudden passion arising from an adequate cause. Tex. Penal Code Ann. § 19.02 (Vernon 2003). If a defendant establishes by a preponderance of the evidence that he or she did so, the offense level is reduced from a first-degree to a second-degree felony. Id.; Trevino v. State, 100 S.W.3d 232, 237 (Tex. Crim. App. 2003). "'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 is not solely the result of former provocation." Tex. Penal Code Ann. § 19.02. "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."

Article 37.07 of the Texas Code of Criminal Procedure requires a jury finding on sudden passion to be unanimous, whether that finding is that the defendant did, or did not, act under the influence of sudden passion. Sanchez, 23 S.W.3d at 34; see Tex. Code Crim. Proc. Ann. art. 37.07 (Vernon 2006).

Although the jury charge before us requires a unanimous affirmative finding on sudden passion, Bradshaw argues the jury charge does not require a unanimous finding against sudden passion. The jury charge in this case provided, in pertinent part, as follows:

Now, if you find by a preponderance of the evidence that the defendant, Joe Bradshaw, caused the death of Toy Bradshaw while under the immediate influence of sudden passion arising from an adequate cause, you shall so state in Verdict #1 the forms of verdict.

. . . .

If you do not find by a preponderance of the evidence that the defendant, Joe Bradshaw, caused the death of Toy Bradshaw while under the immediate influence of sudden passion arising from an adequate cause, you shall so state in Verdict #1 of the forms of verdict.

(Emphasis added.) In the final paragraph, the charge in this case instructs the jurors that the "verdict must be by a unanimous vote of all members of the jury."

In Sanchez, the trial court explicitly instructed the jury to assess the punishment range for murder if jurors could not unanimously agree that the defendant acted under the influence of sudden passion. Sanchez, 23 S.W.3d at 34. The trial court instructed the jury, "An affirmative ('yes') answer on the issue [of sudden passion] submitted must be unanimous, but if the jury is not unanimous in reaching an affirmative answer, then the issue must be answered 'no.'" Id. at 35-36 (Keller, J., concurring). The jury instruction in the case before us is not as explicit as the one at issue in Sanchez on the point of whether it requires unanimity for a negative finding. Given the less explicit nature of the instruction before us, the question for us is whether the general unanimity instruction at the conclusion of the evidence is sufficient to adequately inform the jury that its finding of no sudden passion must have been unanimous.

The instruction here, concerning a lack of sudden passion, is stated in the negative. Rather than instructing the jury that it must unanimously find the defendant did not act under the influence of sudden passion to apply the first-degree felony punishment range, the jury instruction provides "if you do not find . . ." then the first-degree felony punishment range applies. The punishment instruction instructs the jury to unanimously decide if sudden passion applies. If the jury cannot so unanimously decide, it falls back on the first-degree felony punishment range. Thus, a disagreement results in the first-degree felony punishment range rather than a mistrial.

The charge in this case is essentially equivalent to the charge found to be erroneous in Newton v. State, 168 S.W.3d 255, 258 (Tex. App.--Austin 2005, pet. ref'd). The charge in Newton provided:

The punishment which you may assess is confinement in the Institutional Division of the Texas Dept. of Criminal Justice for life, or for any term of not more than 99 years or less than 5 years; unless you believe that the defendant caused the death under the immediate influence of a sudden passion arising from an adequate cause in which event you may assess confinement for not more than 20 years or less than 2 years. In addition, in either case, a fine not to exceed $10,000 may be imposed. The burden of proof is on the defendant to prove this issue by a preponderance of the evidence.

Now if you believe by a preponderance of the evidence that the defendant caused the death of the deceased while under the immediate influence of sudden passion arising from an adequate cause, you will assess punishment at confinement for not more than 20 years nor less than 2 years and you may impose a fine not to exceed $ 10,000.

Id. at 256-57. The final paragraph of the charge in Newton instructed the jurors to select a foreperson "to preside at your deliberations and to vote with you in arriving at a unanimous verdict." Id. at 257. The Austin Court of Appeals noted that, under Sanchez, a mistrial must be declared if the jurors failed to agree on sudden passion. Because the instruction did not condition the use of the five-to-life punishment range on a unanimous finding that the appellant did not act under the influence of sudden passion, the court found the charge to be erroneous. Id.

This Court distinguished Newton in Barfield v. State, 202 S.W.3d 912, 917 (Tex. App.--Texarkana 2006, pet. ref'd). In Barfield, this Court held the submission of sudden passion as a special issue was an "important distinction" from Newton. The first verdict form in Barfield asked:

Do you, the jury, find by a preponderance of the evidence that on the occasion in question, at the time of the commission of the offense for which the defendant, Arnold Barfield, III, caused the death of Rickey Burns, while he, Arnold Barfield, III, was under the immediate influence of sudden passion arising from adequate cause?

Id. The jury answered the first verdict form, "no." Agreeing with the reasoning of the Tyler Court of Appeals, this Court held the general instruction--in combination with the special issue "asking only whether [the jury] found Barfield acted under the immediate influence of sudden passion"--was sufficient to guarantee a unanimous finding. Id. at 918 (citing Latham v. State, No. 12-05-00146-CR, 2006 Tex. App. LEXIS 6521 (Tex. App.--Tyler July 26, 2006, pet. ref'd) (mem. op., not designated for publication)). The Amarillo Court of Appeals has agreed that a general instruction in combination with a special issue on sudden passion assures a unanimous verdict. See Cartier v. State, 58 S.W.3d 756, 759-60 (Tex. App.--Amarillo 2001, pet. ref'd).

The State argues this case is more similar to Barfield than to Newton. According to the State, the verdict forms in this case ensure the jury's verdict was unanimous in a way similar to Barfield. However, the issue of sudden passion was not submitted to the jury as a special issue in this case. The verdict forms provide as follows:

We, the jury, having found the defendant, Joe Bradshaw, guilty of murder, do further find that the defendant murdered Toy Bradshaw while under the immediate influence of sudden passion arising from an adequate cause and assess his punishment at confinement for _______ in the correctional Institutions Division of the Texas Department of Criminal Justice. (Any term of not more than 20 years or less than 2 years.) In addition, we assess a fine in the amount of $ _________. ($0-10,000.00).

We, the jury, having found the defendant, Joe Bradshaw, guilty of murder do not find that the defendant murdered Toy Bradshaw while under the immediate influence of sudden passion arising from adequate cause and assess his punishment at confinement for _______ in the correctional Institutions Division of the Texas Department of Criminal Justice. (Life or any term of not more than 99 years or less than 5 years.) In addition, we assess a fine in the amount of $ _________. ($0-10,000.00).

The State argues the charge in Newton is distinguishable because the verdict form in Newton "erroneously conditioned the use of the first degree felony punishment range on the absence of a finding in Newton's favor." We disagree the verdict form in this case does not condition the punishment range on the absence of a finding. Unlike Barfield, which had a special issue on sudden passion, the verdict forms in this case do not require the jury to provide an explicit affirmative or an explicit negative ruling on sudden passion. The issue of sudden passion is subsumed in each question. Further, the issue is presented to the jury in an identical manner as the charge. The verdict form presents the lack of sudden passion in the negative. The jury is not asked to find a lack of sudden passion, but rather is merely instructed to assess the first-degree felony punishment range if it does not find Bradshaw acted with sudden passion. Unlike Barfield, the verdict forms do not prevent the charge from being erroneous.

The question of unanimity could be avoided altogether if the sudden passion special issue was submitted to the jury as well as an accompanying unanimity instruction for both an affirmative or a negative finding. See Curry v. State, 222 S.W.3d 745, 752-53 (Tex. App.--Waco 2007, pet. ref'd). Compare Sanchez, 23 S.W.3d at 34, with Barfield, 202 S.W.3d at 917. In this case, there was no special issue on sudden passion, nor was there an accompanying instruction that a negative finding must be unanimous. There is no discernible difference between the jury charge in this case and the jury charge in Newton. The instructions and verdict forms in this case, while not identical, are equivalent. In Newton, the trial court used the phrase "unless you find"; the charge in this case provides "if you do not find." These two phrases are roughly equivalent. The Waco Court of Appeals has found a similar jury charge, in the absence of a special issue on sudden passion, to be erroneous. See Curry, 222 S.W.3d at 753. The jury charge was erroneous.

Because Bradshaw did not object to the jury charge at trial, he must show egregious harm in order for the error to be reversible. When error occurs in failing to properly instruct the jury, our review of the charge is under the Almanza standard. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). An erroneous or incomplete jury charge does not result in automatic reversal of the conviction or punishment. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Instead, the appellate court "must determine whether sufficient harm resulted from the error to require reversal." Id. at 731-32; Almanza, 686 S.W.2d at 171. The level of harm an appellant must demonstrate as having resulted from the erroneous jury instruction depends on whether the appellant properly objected to the error at trial. Abdnor, 871 S.W.2d at 732. If the error was not preserved, reversal is not required unless "the error is so egregious and created such harm that he 'has not had a fair and impartial trial'--in short 'egregious harm.'" Almanza, 686 S.W.2d at 171; see Rudd v. State, 921 S.W.2d 370, 373 (Tex. App.--Texarkana 1996, pet. ref'd).

"Egregious harm" consists of errors affecting the very basis of the case or that deprive the defendant of a valuable right, vitally affect a defensive theory, or make the case for conviction or punishment clearly and significantly more persuasive. Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991); Boones v. State, 170 S.W.3d 653, 660 (Tex. App.--Texarkana 2005, no pet.). Citing Sanchez, Bradshaw argues the charge causes egregious harm because it allows the jury to access the first-degree felony punishment without a unanimous finding on sudden passion. Sanchez is clearly distinguishable on the question of harm. In Sanchez, the defendant presented evidence that the jury verdict was not unanimous. When asked by the trial court whether the decision was unanimous, three jurors indicated they wanted to find in the appellant's favor. Sanchez, 23 S.W.3d at 32. In this case, it is mere speculation whether the verdict was unanimous that there was no sudden passion.

In Newton, the Austin Court of Appeals applied the "some harm" standard of Almanza and concluded the error was harmful. Unlike Newton, the error in this case was not preserved. Therefore, we must apply the egregious-harm standard. In Curry, the Waco Court of Appeals found Curry had not shown egregious harm because (1) nothing in the record indicated the verdict was not unanimous, (2) the instructions included a general statement that the verdict must be unanimous, and (3) Curry's main defensive theory at trial was self-defense. Curry, 222 S.W.3d at 753.

Similar to Curry, the jury instructions in this case included a general statement that the verdict must be unanimous. Further, the record contains no evidence that the jury's verdict was not unanimous. As such, the argument that the verdict may not have been unanimous is pure speculation. The degree of harm demonstrated by an appellant must be actual, not merely theoretical. Almanza, 686 S.W.2d at 174; Taylor v. State, 146 S.W.3d 801, 804 (Tex. App.--Texarkana 2004, pet. ref'd). Because the charge contained a general unanimity instruction and there is no evidence that the verdict was not actually unanimous, the error was not so egregious as to vitally affect a defensive theory or make the case for conviction or punishment clearly and significantly more persuasive. Any harm in this case is purely theoretical. Bradshaw has failed to show the error resulted in egregious harm.

(2) Erroneously Excluding Whitten's Testimony Was Harmless

Bradshaw also argues the trial court erred by excluding the testimony and notes ⁽³⁾ of Whitten. Whitten, a licensed counselor, had counseled Bradshaw just hours before the murder. At the guilt/innocence phase of the trial, ⁽⁴⁾ the defense called Whitten as a witness. After allowing the defense to make an offer of proof outside the presence of the jury, the trial court ruled the testimony was inadmissible. The trial court held that, even if the evidence was relevant, the potential prejudice outweighed the probative value of the evidence.

We review the trial court's decision to admit or exclude evidence under an abuse of discretion standard. See Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996); Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex. Crim. App. 1990). We will not reverse a trial court whose ruling was within the "zone of reasonable disagreement." Green, 934 S.W.2d at 102; Montgomery, 810 S.W.2d at 391 (op. on reh'g).

The Texas Rules of Evidence generally favor the admission of all relevant evidence at trial. "All relevant evidence is admissible, except as otherwise provided by Constitution, by statute, by these rules, or by other rules prescribed pursuant to statutory authority." Tex. R. Evid. 402. "Relevant evidence" means "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." Tex. R. Evid. 401.

The State argues Whitten's testimony is wholly irrelevant to any issue in this case. "In determining whether evidence is relevant, courts look to the purpose for offering the evidence and whether there is a direct or logical connection between the offered evidence and the proposition sought to be proved." Reed v. State, 59 S.W.3d 278 (Tex. App.--Fort Worth 2001, pet. ref'd). Bradshaw argues that the evidence "goes directly to Bradshaw's state of mind the day of, and only hours before, the murder." Because insanity and sudden passion were facts of consequence, Bradshaw's state of mind was relevant at both the guilt/innocence phase and the punishment phase. During the offer of proof, Whitten testified he had met with Bradshaw six times on an individual basis and three times "in group." Whitten concluded that Bradshaw had an anger problem and that the goals of the counseling sessions were to help him resolve his difficulties with anger. According to Whitten, Bradshaw's anger resulted in him having "an attitude of wanting to control everything in his environment, especially his children and his wife." Whitten had recommended that Bradshaw see a physician for help in sleeping. Whitten denied telling Bradshaw to try to save his marriage or ask his wife for a date. Whitten testified to having talked

in general terms of if you are going to establish a relationship it needs to be done from a position of someone that is wanting to show love and caring. Since they were separated at the time, he would need to be requesting from her her presence or a date, if you would put it that way.

Construed liberally, this testimony provides some insight into Bradshaw's state of mind at the time of the murder. The evidence is relevant.

Evidence deemed relevant may nonetheless be excluded under Rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence. Tex. R. Evid. 403; Mozon v. State, 991 S.W.2d 841, 846-47 (Tex. Crim. App. 1999). Evidence is unfairly prejudicial when it has an undue tendency to suggest that a decision be made on an improper basis, commonly, but not necessarily, an emotional one. See Mozon, 991 S.W.2d at 847 n.7; Torres v. State, 794 S.W.2d 596, 600 (Tex. App.--Austin 1990, no pet.). In conducting a Rule 403 balancing test, a trial court should consider the following factors: (a) the probative value of the evidence; (b) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way; (c) the time the proponent needs to develop the evidence; and (d) the proponent's need for the evidence. Shuffield v. State, 189 S.W.3d 782 (Tex. Crim. App. 2006). Rule 403's balancing test carries a presumption that relevant evidence will be more probative than prejudicial. See Rayford v. State, 125 S.W.3d 521, 529 (Tex. Crim. App. 2003); Williams v. State, 958 S.W.2d 186, 196 (Tex. Crim. App. 1997).

The probative value of the evidence weakly favors its admissibility. Although we disagree with the State's position that the evidence is wholly irrelevant, we acknowledge that the relevance of Whitten's testimony is marginal at its strongest. Whitten's testimony focuses almost exclusively on Whitten's advice to Bradshaw. Any insight into Bradshaw's state of mind must be inferred. Nonetheless, this fact does slightly favor admissibility.

The potential of the evidence to impress the jury in some irrational manner weakly favors its exclusion. Bradshaw informed the trial court that Whitten was not being called as an expert witness, but rather as a fact witness. ⁽⁵⁾ Regardless, the jury might equate Whitten's testimony with expert testimony. Further, the fact that Whitten uses Christian teachings in his counseling practice might unduly influence members of the jury with similar religious convictions to view Bradshaw in a more favorable light, or might influence those with a contrary view to unduly disfavor the testimony. The risk of Whitten's testimony being improperly considered as expert testimony, as well as the injection of religion, might have a lasting irrational effect on the jury. This factor provides some support for the trial court's ruling.

The time needed to develop the evidence favors admission. Bradshaw argues that the eight pages of testimony represents a very small portion of the evidence presented. Although we can reasonably assume the testimony would have been longer if made in the presence of the jury, the record indicates the testimony would not have been lengthy. Given the overall length of the trial, we agree with Bradshaw that the time necessary to develop the evidence is relatively small. This factor does not provide support for the trial court's decision.

The last factor, the proponent's need for the evidence, slightly favors its admission. Whitten's testimony, although of marginal relevance and not the only testimony regarding Bradshaw's state of mind, was some evidence of Bradshaw's state of mind at the time of the murder. Other than the expert testimony, Whitten's testimony was the only evidence presented during the guilt/innocence phase of trial tending to demonstrate Bradshaw's state of mind before the murder. This factor weakly favors admissibility.

Rule 403 requires the danger of unfair prejudice to "substantially outweigh" the probative value of the case. It is not enough that there be merely some danger of unfair prejudice. The only factor that weighs against admitting the testimony is that the testimony might impress the jury in some irrational manner. The concern that jurors might irrationally favor or disfavor Bradshaw due to his choice to seek help from a Christian counselor is much too weak to "substantially outweigh" the probative value of the testimony. The decision to exclude Whitten's testimony in its entirety is not within the zone of reasonable disagreement. The trial court abused its discretion by excluding Whitten's testimony in its entirety.

The parties agree that the nonconstitutional harm analysis applies here, in which the error must be disregarded if it does not "affect the defendant's substantial rights." See Tex. R. App. P. 44.2(b); Hall v. State, 13 S.W.3d 115, 119 (Tex. App.--Fort Worth 2000, pet. ref'd). An error affects a "substantial right" of the defendant when the error has a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). A criminal conviction will not be reversed for nonconstitutional error if the appellate court, after examining the record as a whole, "has fair assurance that the error did not influence the jury, or had but a slight effect." Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); see also Tex. R. App. P. 44.2(b).

We disagree with Bradshaw's assertion that the error prevented the jury from gaining insight into Bradshaw's state of mind at the general time of the murder. Whitten's testimony is, at best, of marginal probative value. Whitten's proffered testimony was not extensive, being contained in eight pages of record. In that testimony, though he did say he counseled with Bradshaw just hours before the murder, he actually testified to little else of import, and said nothing about any observations he might have made of Bradshaw's state of mind that day, the principal basis for Bradshaw's argument in favor of admitting Whitten's testimony. Much of Whitten's testimony was about what he told Bradshaw, not of Bradshaw's probable state of mind at the time.

Tom Wright provided expert testimony for the defense at the guilt/innocence phase concerning Bradshaw's sanity at the time of the offense. Wright's testimony was considerably more direct and probative than the tangentially relevant testimony of Whitten. Wright prepared an extensive report on Bradshaw, and this report is in evidence and was available to the jury. The report, as well as Wright's testimony, was based on a battery of tests and an extensive history of Bradshaw. Wright opined that Bradshaw had "intermittent explosive disorder" and that he could respond to certain situations by "bypassing conscious deliberation."

At punishment, Bradshaw personally testified concerning his state of mind. Whitten's testimony was not critical to Bradshaw's defense. Further, as discussed below, there is ample evidence that Bradshaw did not act under the influence of sudden passion arising out of adequate cause. We conclude the error had no more than a slight effect. The error in excluding Whitten's testimony in its entirety was harmless.

(3) The Evidence Is Legally and Factually Sufficient to Support the Jury's Finding on Sudden Passion

Bradshaw finally argues the evidence is insufficient to support the jury's conclusion he was not acting under the influence of sudden passion arising from an adequate cause. Bradshaw argues that his testimony on the issue is uncontested and that there is no evidence inconsistent with or conflicting with his testimony. The State argues the evidence shows Bradshaw was merely "a violent, controlling wife-beater who brutally killed his wife because she dared to leave him."

Bradshaw had the burden to prove the sudden-passion issue by a preponderance of the evidence at the punishment phase. See Tex. Penal Code Ann. § 19.02; Sanchez, 23 S.W.3d at 35. The State was not required to negate the existence of sudden passion; the appellant had the burden of proving it by a preponderance of the evidence. Trevino v. State, 157 S.W.3d 818 (Tex. App.--Fort Worth 2005, no pet.). We review a challenge to the sufficiency of the evidence, on an issue the defendant had the burden of proof at trial, under the same standard applied in civil cases. Cleveland v. State, 177 S.W.3d 374 (Tex. App.--Houston [1st Dist.] 2005, pet. ref'd); Howard v. State, 145 S.W.3d 327, 333 (Tex. App.--Fort Worth 2004, no pet.); cf. Ballard v. State, 161 S.W.3d 269 (Tex. App.--Texarkana 2005), aff'd, 193 S.W.3d 916 (Tex. Crim. App. 2006). A legal sufficiency challenge to the evidence supporting a negative finding on sudden passion involves two steps. "First, the record must be examined for evidence that supports the finding, while ignoring all evidence to the contrary." Howard, 145 S.W.3d at 334; see Cleveland, 177 S.W.3d at 387. "Second, if there is no evidence to support the finding, then the entire record must be examined to see if the contrary proposition is established as a matter of law." Howard, 145 S.W.3d at 334; see Cleveland, 177 S.W.3d at 387.

We review a challenge to the factual sufficiency of the evidence on sudden passion using the same standard of review as a challenge to the rejection of an affirmative defense. See Naasz v. State, 974 S.W.2d 418, 421 (Tex. App.--Dallas 1998, pet. ref'd). That standard requires us to consider all of the evidence in a neutral light and determine whether the verdict is so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Trevino, 157 S.W.3d at 821; see also Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). We are to afford "due deference" to a jury's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006); Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). We must reach "a high level of skepticism" before reversing a jury's verdict on this basis. Roberts v. State, 220 S.W.3d 521 (Tex. Crim. App. 2007).

According to Bradshaw, his testimony that he acted under the influence of sudden passion is uncontested and there is no evidence inconsistent with or conflicting with his testimony. Bradshaw testified as follows:

[Defense Counsel]: When you went over there, during the time that you were taking care of the boys, did you intend to hurt anyone?

[Bradshaw]: No sir, I did not.

[Defense Counsel]: What happened after the boys went to bed?

[Bradshaw]: Toy had come out and started watching TV on the couch before Sam fell asleep, and she and I just sat on the couch and watched TV and talked about everything under the sun.

[Defense Counsel]: Okay. Was there a time that you decided to leave?

[Bradshaw]: Well, I mean, I decided to leave.

[Defense Counsel]: Were you and she arguing at that time?

[Bradshaw]: Yes, sir, we were.

[Defense Counsel]: Did she ask you to leave?

[Bradshaw]: She did.

[Defense Counsel]: And did you get up and start to walk out?

[Bradshaw]: I did.

[Defense Counsel]: Did you then turn around and talk to her?

[Bradshaw]: She said something to me as I was getting up.

[Defense Counsel]: And what did she say?

[Bradshaw]: I had asked her why she hadn't gone ahead and filed for divorce. You know, I really couldn't understand that. I didn't understand what we were doing. And, I mean, I just expressed concern. I just couldn't understand why she hadn't -- why she hadn't filed.

[Defense Counsel]: Was there any talk of her infidelity?

[Bradshaw]: There was some talk of that.

[Defense Counsel]: What is the next thing you remember happening?

[Bradshaw]: I asked her if she had had any improper relationships with any men that she had worked with.

[Defense Counsel]: Did she deny that?

[Bradshaw]: No, sir. She told me that she did.

[Defense Counsel]: And did that make you angry?

[Bradshaw]: It did. It did.

[Defense Counsel]: What happened next?

[Bradshaw]: I lunged at her. I lunged at her.

[Defense Counsel]: Did you hit her?

[Bradshaw]: I'm sure I did. I don't remember striking her. I remember lunging at her.

[Defense Counsel]: Okay what is the next memory you have?

[Bradshaw]: I remember my motion light coming on at my house. I remember -- I remember staring at my console light in my truck, my dash lights for a moment. I remember seeing myself covered in blood.

The record contains only circumstantial evidence negating sudden passion. The evidence in the record showed Bradshaw had previously been physically violent with Toy as well as with a previous wife. The jury also heard evidence that Bradshaw had been a controlling spouse. Further, the jury heard the 9-1-1 call wherein Bradshaw calmly admitted to stabbing his wife.

Examining the entire record, we are unable to conclude that sudden passion is established as a matter of law. The only other witness to the confrontation, Toy Bradshaw, is dead. "The jury was free to make its own determination of appellant's credibility and reject appellant's version of events if it did not believe he was telling the truth." Trevino, 157 S.W.3d at 822.

Further, the jury could have concluded Bradshaw's actions did not arise from an adequate cause, even if it believed Bradshaw's version of the events. The jury could have concluded that telling an estranged spouse about an extramarital relationship would not commonly produce in a person of ordinary temper a degree of anger, rage, resentment, or terror sufficient to render the mind incapable of cool reflection. One would think that husbands and wives of ordinary temper, whether or not living together at the time, could discover a spouse's infidelity without murdering their spouse. The evidence is legally sufficient.

The evidence is also factually sufficient. The jury was presented with considerable evidence of prior domestic abuse by Bradshaw. On one occasion, Bradshaw knocked out several of Toy's teeth. In addition, the jury was presented with evidence of Bradshaw's controlling and violent nature. The jury's conclusion Bradshaw was not under the influence of sudden passion arising from an adequate cause is not clearly wrong or manifestly unjust. The evidence is legally and factually sufficient.

We affirm the judgment of the trial court.

Josh R. Morriss, III

Chief Justice

Date Submitted: October 10, 2007

Date Decided: December 3, 2007

Publish

1. Toy Bradshaw will be referred to by her first name; Joe Bradshaw will be called by Bradshaw.

2. In his second and third points of error, Bradshaw argues the unanimity requirement has its origin in the Texas Constitution and the Due Process Clause of the Fourteenth Amendment. Bradshaw cites Molandes v. State, 571 S.W.2d 3, 4 (Tex. Crim. App. 1978), for the proposition that the Texas Constitution requires the charge on sudden passion to be unanimous. See Tex. Const. art. V, § 13; see also Sanchez v. State, 23 S.W.3d 30, 41 (Tex. Crim. App. 2000) (Keller, J., concurring). Bradshaw argues Texas has guaranteed a "structural protection," i.e., a unanimous verdict, and there is a violation of the Due Process Clause of the Fourteenth Amendment if the State fails to meaningfully vindicate that right. Bradshaw cites Evitts v. Lucey, 469 U.S. 387 (1985), as authority for this proposition. Because the unanimity requirement is well established under the Texas Code of Criminal Procedure, it is not necessary for us to decide whether the Texas Constitution or the United States Constitution requires the verdict to be unanimous.

3. Bradshaw argues that none of the forty-two questions asked of Whitten qualify as hearsay and claims that Whitten's notes qualify as statements for medical diagnosis or treatment--an exception to the hearsay rule. See Tex. R. Evid. 803(4). The State argues that everything contained in the notes constitutes hearsay and that all of the statements are out-of-court statements made for the truth of the matter asserted. Neither side briefed each question or statement individually. The statements made by Bradshaw to Whitten would constitute hearsay, but may be admissible under a hearsay exception. While some of Whitten's testimony and notes may have been hearsay, portions of Whitten's testimony were clearly not hearsay. Whitten testified about the frequency of the counseling sessions, the goals of the counseling, and his advice to Bradshaw. Hearsay objections must be raised in relation to a specific question. The mere fact that a witness could be asked about hearsay statements does not justify the exclusion of the entirety of the witness' testimony. Because the trial court excluded Whitten's testimony in its entirety, it is not necessary for us to determine whether Whitten's testimony concerning statements made by Bradshaw were admissible under a hearsay exception or whether the notes were admissible under an exception to the hearsay rule.

4. Although Whitten was called as a witness during the guilt/innocence phase of trial, Whitten's testimony, if it had been admitted, could have also been considered during the punishment phase. On appeal, Bradshaw argues the error in excluding Whitten's testimony resulted in harm during both phases of trial.

5. Bradshaw's counsel denied Whitten was being called as an expert witness at trial. Bradshaw's trial counsel stated, "[u]nder the LPC Act it specifically states that a counselor offering counseling can be called as a witness for facts or information regarding a therapeutic client. He cannot testify as an expert."