Newkirk v. State

Decision Date09 November 2016
Docket NumberNo. 06–15–00160–CR,06–15–00160–CR
Parties Joshua Madison NEWKIRK, Appellant v. The STATE of Texas, Appellee
CourtTexas Court of Appeals

Peter I. Morgan, Attorney at Law, Greenville, TX, for appellant.

Steven Lilley, Assistant District Attorney, Greenville, TX, for appellee.

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

OPINION

Opinion by Justice Burgess

On February 14, 2014, Stacie Clayton received angry and threatening text messages from her ex-husband, Joshua Madison Newkirk. The text messages led to a telephone conversation between Newkirk, Clayton, and Clayton's fiancé, Joshua Edmund Gerber. The conversation ended when Gerber, a martial-arts expert, told Newkirk he would meet him at Newkirk's house. Newkirk, who was not at home, travelled to that location recklessly and at a high rate of speed. Shortly after he arrived, neighbors heard several gunshots and discovered Gerber's lifeless body. Newkirk admitted shooting Gerber, but claimed he acted in self-defense. Newkirk was charged with murder, and at his trial, the jury rejected his defense, convicted him, and then sentenced him to forty years' imprisonment.

On appeal, Newkirk argues that the trial court erred in failing to include an instruction on sudden passion during the punishment phase of his trial. He also argues that counsel's failure to request such an instruction constituted ineffective assistance. We conclude that the trial court was under no duty to sua sponte instruct the jury on an unrequested sudden-passion issue. We further find that Newkirk cannot demonstrate prejudice in the omission of a sudden-passion instruction. Accordingly, we affirm the trial court's judgment.

I. There Was No Duty to Instruct the Jury on an Unrequested Defensive Issue
A. Standard of Review

"At the punishment stage of a trial, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause." TEX. PENAL CODE ANN. § 19.02(d) (West 2011). "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. " ‘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(a)(2) (West 2011). " ‘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." TEX. PENAL CODE ANN. § 19.02(a)(1) (West 2011).

"[T]he jury is ... bound to receive the law from the court and be governed thereby." TEX. CODE CRIM. PROC. ANN. art. 36.13 (West 2007). "A trial court must submit a charge setting forth the ‘law applicable to the case.’ " Lee v. State , 415 S.W.3d 915, 917 (Tex. App.–Texarkana 2013, pet. ref'd) (quoting TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007) ). We employ a two-step process in our review of alleged jury charge error. See Abdnor v. State , 871 S.W.2d 726, 731 (Tex. Crim. App. 1994).

"Initially, we determine whether error occurred and then evaluate whether sufficient harm resulted from the error to require reversal." Wilson v. State , 391 S.W.3d 131, 138 (Tex. App.–Texarkana 2012, no pet.) (citing Abdnor , 871 S.W.2d at 731–32 ).

B. Application

The question here is whether sudden passion was the law applicable to the case. In Posey v. State , the Texas Court of Criminal Appeals determined that defensive issues "are not ‘law applicable to the case under Code of Criminal Procedure 36.14 unless and until the defendant raises the issue by a timely objection or request." Wooten v. State , 400 S.W.3d 601, 605 n.19 (Tex. Crim. App. 2013) (quoting Posey v. State , 966 S.W.2d 57, 60–62 (Tex. Crim. App. 1998) ). Thus, Posey held that "the trial judge has no duty to instruct the jury sua sponte regarding" defensive issues. Id. (citing Posey , 966 S.W.2d at 62 ) (reasoning that Texas Code of Criminal Procedure Article 36.14's requirement to raise objections to the charge would be rendered meaningless if the court ruled otherwise).1 Yet, the defensive issue in Posey was "mistake of fact," and the Texas Court of Criminal Appeals has "yet to specifically address whether sudden passion is a defensive issue in contemplation of Posey ." Id .

Likewise, this Court has not previously determined whether an instruction on sudden passion is required sua sponte if raised by the evidence.2 However, several of our sister courts have previously determined that sudden passion is a defensive issue and, therefore, does not become the law of the case until it is raised by the defendant. Russell v. State , No. 03–12–00440–CR, 2014 WL 1572473, at *4 (Tex. App.–Austin Apr. 18, 2014, pet. ref'd) (mem. op., not designated for publication); Wilson v. State , No. 08–11–00042–CR, 2013 WL 461060, at *8 (Tex. App.–El Paso Feb. 6, 2013, pet. ref'd) (not designated for publication) (citing Swaim v. State , 306 S.W.3d 323, 325 (Tex. App.–Fort Worth 2009, pet. ref'd) ); see also Eisert v. State , No. 05–05–01604–CR, 2006 WL 3259339, at *2 (Tex. App.–Dallas Nov. 13, 2006, no pet.) (mem. op., not designated for publication); Romero v. State , No. 01–03–00558–CR, 2004 WL 2677124, at *7 (Tex. App.–Houston [1st Dist.] Nov. 24, 2004, pet. ref'd) (mem. op., not designated for publication); Haynes v. State , No. 14–99–00533–CR, 2001 WL 306434, at *4 (Tex. App.–Houston [14th Dist.] Mar. 29, 2001, pet. ref'd) (not designated for publication); Rios v. State , 990 S.W.2d 382, 384 (Tex. App.–Amarillo 1999, no pet.) ; Leach v. State , 983 S.W.2d 45, 49 (Tex. App.–Tyler 1998, no pet.).3

After examining the reasoning in Posey and the opinions penned by our sister courts, we conclude that sudden passion is a defensive issue which must be requested by the defendant in order to become "the law applicable to the case." TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). Accordingly, because Newkirk failed to request a sudden-passion instruction, the trial court had no duty to sua sponte include it in the punishment charge. We overrule Newkirk's first point of error.

II. Newkirk Cannot Show Prejudice from Counsel's Failure to Request the Sudden-Passion Instruction

In his second point of error, Newkirk argues that his counsel rendered ineffective assistance in failing to object to the omission of a sudden-passion instruction in the punishment charge. In order to succeed on this point, Newkirk must demonstrate that he was entitled to the instruction, that there was no possible trial strategy that could have contributed to counsel's decision not to seek a sudden-passion instruction, and that he was prejudiced by the omission of the sudden-passion instruction. Because we find that Newkirk cannot demonstrate prejudice, we overrule his second point of error.

A. Standard of Review

The right to counsel does not mean the right to errorless counsel. Robertson v. State , 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). In order to prevail on a claim of ineffective assistance of counsel, the defendant must satisfy the two-pronged test set forth in Strickland v. Washington , 466 U.S. 668, 687–88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Ex parte Imoudu , 284 S.W.3d 866, 869 (Tex. Crim. App. 2009). The first prong requires a showing that counsel's performance fell below an objective standard of reasonableness. Strickland , 466 U.S. at 688, 104 S.Ct. 2052. That requirement can be difficult to meet since there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052.

The second Strickland prong, sometimes referred to as "the prejudice prong," requires a showing that, but for counsel's unprofessional error, there is a reasonable probability that the result of the proceeding would have been different. Id. at 694, 104 S.Ct. 2052. "A reasonable probability" is defined as "a probability sufficient to undermine confidence in the outcome." Id .

Failure to make a showing under either prong defeats a claim for ineffective assistance. Rylander v. State , 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003). The Strickland test, "of necessity[,] requires a case-by-case examination of the evidence." Williams v. Taylor , 529 U.S. 362, 382, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (quoting Wright v. West , 505 U.S. 277, 308, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (Kennedy, J., concurring in judgment)).4

B. Sudden Passion

In determining whether sudden passion was an issue in the punishment phase of a trial, appellate courts review the record to see if there was some evidence that: (1) the defendant acted under the immediate influence of terror, anger, rage, or resentment; (2) the defendant's sudden passion was induced by some provocation by the victim and such provocation would commonly produce such passion in a person of ordinary temper; (3) the defendant committed the murder before regaining his capacity for cool reflection; and (4) there was a causal connection between the victim's provocation, the defendant's passion, and the homicide. Beltran v. State , 472 S.W.3d 283, 294 (Tex. Crim. App. 2015). "A defendant's testimony alone is sufficient to raise a defensive issue requiring an instruction in the charge." Id. at 290.

A defendant that presents evidence of sudden passion is entitled to an instruction on this mitigating circumstance "even if that evidence is weak, impeached, contradicted, or unbelievable." Trevino v. State , 100 S.W.3d 232, 238 (Tex. Crim. App. 2003) (per curiam). The question is "whether there was any evidence from which a rational jury could infer sudden passion." Moore v. State , 969 S.W.2d 4, 11 (Tex. Crim. App. 1998). "Anything more than a scintilla of evidence is sufficient to entitle a defendant" to a sudden passion instruction at...

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