Wooten v. State

• Decision Date: 12 June 2013
• Docket Number: No. PD–1437–12.,PD–1437–12.
• Citation: 400 S.W.3d 601
• Parties: Codiem Renoir WOOTEN, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

400 S.W.3d 601

Codiem Renoir WOOTEN, Appellant

v.The STATE of Texas.

No. PD–1437–12.

Court of Criminal Appeals of Texas.

June 12, 2013.

Danny K. Easterling, Attorney at Law, Houston, TX, for Appellant.

Jessica A. Caird, Assistant District Attorney, Houston, TX, Lisa C. McMinn, State's Attorney, Austin, for The State.

OPINION

PRICE, J., delivered the opinion for a unanimous Court.

A jury rejected the appellant's self-defense claim, convicted him of murder, and assessed his punishment at sixty years' confinement in the penitentiary. At the punishment phase of the trial, the appellant requested a sudden passion instruction. The trial court denied his request, and the Fourteenth Court of Appeals affirmed the appellant's conviction but reversed the trial court's judgment with respect to punishment, finding that the trial court erred by not giving the sudden passion instruction and that the error was “harmful.” ¹ According to the court of appeals, the mere fact that the jury might have found in the affirmative on the sudden passion issue, subjecting him to a maximum sentence of only twenty years' imprisonment, was alone enough to conclude that the appellant had been harmed.² We granted the State's petition for discretionary review to examine both the court of appeals's error and harm analyses. We reverse the judgment of the court of appeals with respect to punishment.

FACTS AND PROCEDURAL HISTORY

In the Trial Court

The appellant was indicted for murder.³ On the evening of August 29, 2009, the victim, Kwasi Johnson, went with Derrick Londow to a Houston strip club called Gator's. At some point during that same evening, the appellant and his two “girlfriends,” one being Brandi Cleveland, also arrived at Gator's. Cleveland, a prostitute, began approaching men in Gator's to offer her services. She eventually approached Johnson and Londow, and Cleveland offered to have sex later that night with the two men for the agreed rate of two hundred and forty dollars.

During the early morning hours of August 30, 2009, Johnson called Cleveland in order to arrange to pick her up for “the date.” Johnson and Londow picked Cleveland up from the home she shared with the appellant and headed to Johnson's apartment. Once they arrived at the apartment, Londow left Johnson and Cleveland, and Johnson then attempted to negotiate a lower price. Cleveland refused the counteroffer, and Johnson offered to drive her home. In the car, Cleveland notified the appellant that Johnson was bringing her home and that “the date” was a “no-go,” alerting the appellant that Johnson had not delivered payment. When they arrived, Johnson brought the car to a halt and Cleveland got out, leaving the front passenger door open. As Cleveland walked up the path to the house, the appellant approached her and confirmed that the deal was a “no-go.” The appellant then continued down the path to Johnson, who was sitting in the car.

At trial, the appellant testified to the events leading up to the shooting and claimed that he acted in self-defense. Upon approaching Johnson's vehicle, the appellant noted that Johnson had placed a gun on the console. As the conversation between the men turned to why “the date” did not happen and why Johnson did not pay Cleveland, Johnson's demeanor became more combative. According to the appellant, he “[h]eard frustration in [Johnson's] voice [,]” Johnson began to speak in a “heightened tone[,]” and Johnson began to display a sort of “aggressiveness” in his speaking. The appellant claimed that, when he pressed Johnson, asking him to give Cleveland something for her time, Johnson told the appellant, “fuck you, fuck that bitch, everything you stand for, I'll kill you.”

A firefight ensued. The appellant's description at trial as to who commenced the shooting was somewhat inconsistent. On direct examination, he testified 1) that Johnson shot him in the abdomen as he was reaching for his gun; 2) that Johnson shot him before he reached for his gun; and 3) that he reached for his gun when he saw the muzzle flash coming from Johnson's car. When the prosecutor confronted the appellant with these three variations on cross-examination, the appellant maintained, “I felt the shot as I was reaching for my handgun.” Asked why he shot Johnson, the appellant replied, “Because I felt threatened for my life, sir. I felt it was self-defense. I felt I was righteous.” Johnson's car and body were found nearby with his handgun still inside the car. The appellant conceded that in his initial interview with the police, he had failed to tell the police that he acted in self-defense, had a gun, or shot the victim; instead, he had fabricated a story about being the victim of a drive-by shooting.

Cleveland, the only other eyewitness to the gun battle, gave testimony that largely substantiated the appellant's description. She testified that she stood close enough to Johnson's and the appellant's conversation to have heard it. However, according to her testimony, she “really wasn't paying attention the whole time” and was mostly focused on her phone. But, after hearing gunshots, she glanced over in time to see a “muzzle flash” coming from inside of Johnson's car, while simultaneously seeing the appellant raise his arm. While ballistic experts and investigators from the Houston Police Department confirmed that a gun battle took place, in which both men fired multiple shots, none could say which party fired first. After the close of evidence, the jury was instructed on the law regarding self-defense. However, it found the appellant guilty of murder, necessarily rejecting the appellant's self-defense claim.

The appellant elected to proceed to the jury for the punishment phase of the trial. After both sides presented punishment evidence, but before closing arguments, defense counsel and the trial judge had the following exchange regarding the submission of a sudden passion instruction to the jury:

[DEFENSE COUNSEL]: I would request a charge on sudden passion ... specifically that [the appellant] stated that once the shooting began that he was overwhelmed by emotions of fear.

THE COURT: Once his shooting began?

[DEFENSE COUNSEL]: Once the shooting began, that he was overwhelmed by emotions of fear, disorientation, confusion, et cetera. And, [Y]our Honor, I would argue that this would substantiate the charge.

* * *

THE COURT: ... Obviously the self-defense has been rejected by the jury so—I just don't see it. I'm going to deny that.

In the absence of a sudden passion instruction, which would have capped the available punishment at twenty years' confinement, the jury assessed punishment at 60 years in the penitentiary.

In the Court of Appeals

The court of appeals reversed the trial court's judgment with respect to punishment and remanded the cause to the trial court for a new punishment hearing.⁴ After determining that the trial court erred not to grant the appellant's request to include a sudden passion instruction in the punishment phase jury instruction, the court of appeals next proceeded to determine whether the appellant had been harmed by the lack of the instruction. ⁵ Because the appellant expressly requested a sudden passion instruction, the court of appeals correctly concluded that the record need only demonstrate “some harm” to warrant reversal.⁶ The appellate court then concluded that, “[i]f the jury had determined that [the appellant] acted out of sudden passion, the offense would have been reduced to a felony of the second degree, which carries a maximum sentence of 20 years.” ⁷ Thus, the court of appeals found harm on the basis that the sudden passion instruction could have resulted in the jury finding that the appellant acted in sudden passion, authorizing a maximum punishment of no more than twenty years, without addressing the likelihood that the jury actually would have found that the appellant's behavior resulted from sudden passion on the facts of this particular case. We granted the State's petition for discretionary review to examine the court of appeals's holding.

THE LAW

Prior to September 1, 1994, whether a defendant committed murder under the immediate influence of sudden passion arising from an adequate cause was an issue that was litigated at the guilt phase of the trial.⁸ If the evidence raised the issue of sudden passion, the question was submitted to the jury, and it had the option of finding the defendant guilty of the lesser offense of voluntary manslaughter.⁹ Because of certain anomalies generated by this framework,¹⁰ the Legislature acted in 1993 to remove the crime of voluntary manslaughter from the Texas Penal Code. ¹¹ Under the current statutory scheme, the question of whether a defendant killed while under the immediate influence of sudden passion is a punishment issue.¹²

Currently, a murder committed under the “immediate influence of sudden passion arising from an adequate cause” is a second-degree felony carrying a maximum punishment of twenty years' imprisonment.¹³ Sudden passion is “passion directly caused by and arising out of provocation by the individual killed” which arises at the time of the murder.¹⁴ Adequate cause 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.” ¹⁵ The defendant has the burden of production and persuasion with respect to the issue of sudden passion. ¹⁶ To justify a jury instruction on the issue of sudden passion at the punishment phase, the record must at least minimally support an inference: 1) that the defendant in fact acted under the immediate influence of a passion such as terror, anger, rage, or resentment; 2) that 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) that he committed the murder before regaining his...