Swearingen v. State

• Decision Date: 04 December 2008
• Docket Number: No. 03-07-00556-CR.,03-07-00556-CR.
• Parties: Tye Van SWEARINGEN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

270 S.W.3d 804

Tye Van SWEARINGEN, Appellant, v. The STATE of Texas, Appellee.

No. 03-07-00556-CR.

Court of Appeals of Texas, Austin.

December 4, 2008.

James H. Kreimeyer, Belton, for appellant.

Bob D. Odom, Belton, for appellee.

Before Chief Justice LAW, Justices PURYEAR and PEMBERTON.

OPINION

BOB PEMBERTON, Justice.

A jury convicted Tye Van Swearingen of murdering his wife, Stephanie. See Tex. Penal Code Ann. § 19.02(b) (West 2003). During the punishment phase of trial, Swearingen raised the mitigating circumstance of "sudden passion." See id. § 19.02(a), (c) & (d). The district court submitted the issue to the jury in the form of an instruction to assess punishment at between two and twenty years imprisonment (the range applicable to second-degree felonies) if "you find by a preponderance of the evidence that the defendant caused the death under the immediate influence of sudden passion arising from an adequate cause." Otherwise, the jury was to assess punishment at between five and ninety-nine years' imprisonment (the first-degree felony range). The court submitted a verdict form that did not contain any specific reference to the jury's preliminary sudden passion finding, but merely required the jury to indicate the punishment it assessed. The jury imposed a sentence of 65 years' imprisonment, and the district court rendered judgment accordingly.

Swearingen brings two issues in which he seeks a new trial on punishment based on claimed error in the district court's sudden passion submission. In his first issue, Swearingen contends that the district court erred in refusing to submit a verdict form in which the jury would separately or specifically indicate its acceptance or rejection of the sudden passion issue. In his second issue, Swearingen complains that the charge as submitted required the jury to be unanimous in making any affirmative finding of sudden passion, but did not also require unanimity in any negative finding. As we explain below, we agree that the charge was erroneous in failing to require unanimity in any negative sudden passion finding, but do not find harm requiring reversal. Consequently, we will affirm the judgment.

BACKGROUND

Because Swearingen does not challenge his murder conviction or the sufficiency of the evidence supporting the jury's punishment verdict, we will address the underlying facts only to the extent they bear upon our harm analysis, below. Of immediate relevance to Swearingen's complaints of charge error, the penal code provides that murder is a first-degree felony unless, during the punishment phase of trial, "the defendant proves ... in the affirmative by a preponderance of the evidence" that he "caused the death under the immediate influence of sudden passion arising from an adequate cause," in which case the offense is a second-degree felony. See id. § 19.02(c) & (d); see also id. § 19.02(a) (defining "sudden passion" and "adequate cause"). The district court included an instruction on sudden passion in its charge on punishment. Following appropriate abstract instructions, the application paragraphs stated:

If you find by a preponderance of the evidence that the defendant caused the death under the immediate influence of sudden passion arising from an adequate cause, you will assess the defendant's punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for any term not more than 20 years or less than 2 years. In addition, a fine not to exceed $10,000 may be imposed.¹

However, if you do not find by a preponderance of the evidence that the defendant committed the offense of murder under the immediate influence of sudden passion arising from an adequate cause, you will assess the defendant's punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for Life or for any term not more than 99 years or less than 5 years. In addition, a fine not to exceed $10,000 may be imposed.[²]

The jury was given a verdict form in which it was to indicate Swearingen's term of incarceration and the amount of any fine. Although the above instructions required the jury to make a preliminary finding as to whether Swearingen had acted under the influence of sudden passion in order to determine the applicable punishment range, the district court did not submit a separate verdict form on the sudden passion issue or one in which the jury otherwise could specifically indicate its finding on that issue. Instead, the jury's sudden passion finding (or failure-to-find) was to be subsumed or implied within the jury's verdict imposing Swearingen's sentence.

In the paragraph immediately following its sudden passion instruction, the district court further instructed the jury that "[i]n arriving at your unanimous verdict, it will not be proper to fix the same by lot, chance or any other method than by a full, fair and free exercise of the opinion of the individual jurors under the evidence admitted before you."

The jury imposed a sentence within the first-degree felony range—65 years' imprisonment—consistent with a failure to find sudden passion. The district court had also instructed the jury that it could recommend probation if it assessed not more than ten years' imprisonment and found that Swearingen had no prior felony convictions. In a separate verdict form, the jury found that Swearingen had no prior felony convictions but, consistent with the sentence it assessed, declined to recommend probation. The district court rendered judgment on the verdicts.

STANDARD OF REVIEW

We review claims of jury charge error under the two-pronged test set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (op. on reh'g). We first determine whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim. App.2005). If error exists, we then evaluate the harm caused by the error. Id. The degree of harm required for reversal depends on whether that error was preserved in the trial court. When error is preserved in the trial court by timely objection, the record must show only "some harm." Almanza, 686 S.W.2d at 171. By contrast, unobjected-to charge error requires reversal only if it resulted in "egregious harm." See Neal v. State, 256 S.W.3d 264, 278 (Tex.Crim.App.2008).

ANALYSIS

Specific verdict form

Swearingen acknowledges that "the issue of Sudden Passion was submitted" through the district court's instruction conditioning the applicable punishment range on the jury's preliminary finding of whether "by a preponderance of the evidence ... the defendant caused the death under the immediate influence of sudden passion arising from an adequate cause." The jury was instructed that if it found in the affirmative, it was to assess punishment within the second-degree felony punishment range. Conversely, the jury was instructed that "if you do not find by a preponderance of the evidence that the defendant committed the offense of murder under the immediate influence of sudden passion arising from an adequate cause," it was to assess punishment in the first-degree felony punishment range. We presume, absent evidence to the contrary, that the jury followed these instructions and that the 65-year sentence it imposed therefore reflects that the jury did "not find" in Swearingen's favor on the sudden passion issue. Thrift v. State, 176 S.W.3d 221, 224 & n. 10 (Tex.Crim.App.2005).

As we explain below, the charge's conditioning of the first-degree felony punishment range on the jury's failure to find unanimously Swearingen did act under sudden passion, as opposed to a unanimous jury finding that Swearingen did not act under sudden passion, was error—the focus of Swearingen's second issue. In his first issue, however, Swearingen contends—tracking his sole specific objection to the punishment charge at trial³—only that the district court erred in failing to submit the sudden passion issue through a verdict form that separately or otherwise "allow[ed] the jury to specifically demonstrate its acceptance or rejection of that issue." His complaint, in other words, is that the jury's sudden-passion finding was subsumed within a broad-form or general verdict on punishment rather than explicitly reflected in the verdict form. We cannot conclude that this form of submission, in itself, was error.

Swearingen emphasizes appellate cases illustrating that some Texas trial courts have submitted the sudden passion issue through a separate verdict form requiring a specific "yes" or "no" finding on that issue alone, see Barfield v. State, 202 S.W.3d 912, 917 (Tex.App.-Texarkana 2006, pet. ref'd), or through alternative verdict forms that incorporate explicit findings on the issue. See Newton v. State, 168 S.W.3d 255, 258 (Tex.App.-Austin 2005, pet. ref'd).⁴ In fact, Barfield, like several other appellate cases, also recognize that a separate yes-or-no sudden passion verdict form, combined with a general instruction that the jury's verdict must be unanimous, is sufficient to ensure that the jury's sudden passion finding is unanimous. Barfield, 202 S.W.3d at 917-18; see Latham v. State, No. 12-05-00146-CR, 2006 WL 2065334, at *8, 2006 Tex.App. LEXIS 6521, at *21 (Tex.App.-Tyler July 26, 2006, pet. ref'd) (mem. op., not designated for publication); Cartier v. State, 58 S.W.3d 756, 759-60 (Tex.App.-Amarillo 2001, pet. ref'd); see also Bradshaw v. State, 244 S.W.3d 490, 497 (Tex.App.-Texarkana 2007, pet. ref'd) (suggesting that separate verdict form on sudden passion could have prevented unanimity problem with jury instructions similar to those here). However, only a single court—a divided Waco Court of Appeals—has held that the sudden passion issue must be submitted through a separate verdict form, or in any particular form.

In Curry v. State, the trial court, as the Waco court noted, "adequately instructed the jury on sudden passion" and submitted seven alternative verdict forms, four of which contained an explicit finding ...