David Lee SWAIM, Jr., Appellant, v. The STATE of Texas, State, 306 S.W.3d 323

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW DIXON W. HOLMAN, Justice (Retired). Pursuant to Texas Rule of Appellate Procedure 50, we withdraw our March 13, 2008 opinion and judgment and substitute the following. Tex.R.App. P. 50. A jury convicted Appellant David Lee Swaim, Jr. of murder and assessed his punishment at life imprisonment. In two points, Swaim argues that the trial court committed harmful error by failing to include a jury charge instruction on sudden passion and that his trial counsel was ineffective for failing to request an instruction on sudden passion. We will affirm.

Early in the morning on August 16, 2005, Joshua Hall knocked on Swaim’s door looking for someone to drink and socialize with. They had never met before, but Swaim let Hall enter his residence. Both had consumed alcohol during the day, and both either were or soon became intoxicated. Sometime later, an altercation occurred, and Swaim stabbed Hall nine times, killing him. In his first point, Swaim argues that the tidal court reversibly erred by failing to include a sudden passion instruction in its charge to the jury because there was evidence of a heated, verbal exchange between Swaim and Hall.

At the punishment stage of a murder trial, the defendant may raise the issue of whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. Tex. Penal Code Ann. § 19.02(d) (Vernon 2003). 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. In Trevino v.

State, the court of criminal appeals clarified that sudden passion is a “punishment issue” and that “a sudden passion charge should be given if there is some evidence to support it, even if that evidence is weak, impeached, contradicted, or unbelievable.” 100 S.W.3d 232, 238 (Tex.Crim.App.2003). The court clearly pointed out, however, that Trevino had “requested the judge to instruct the jury pursuant to Penal Code

Section 19.02(d),” but “[t]he judge rejected the proposed charge.” Id. at 236. Trevino therefore addressed the propriety of giving an instruction on sudden passion at punishment when such an instruction has been requested by the defendant; it did not address the issue of whether a trial court is required to include an instruction on sudden passion at punishment when there is no request for such an instruction by a defendant Avho claims some evidence exists to support the instruction. See id.; Fair v.

State, No. 03-05-00348-CR, 2006 WL 2032489, at *3 (Tex.App-Austin July 21, 2006, pet. ref'd) (mem. op., not designated for publication) (citing Trevino and stating in parenthetical that “assuming defendant requests charge, charge must be given if ‘evidence raises the issue’ ” (emphasis added)). In this case, Swaim did not assert an objection to the absence of a sudden passion instruction nor did he request that the instruction be included in the charge.

Consequently, neither Trevino nor the other case law cited by Swaim supports his argument that the trial court was required to sua sponte include a sudden passion instruction in its charge to the jury. See Trevino, 100 S.W.3d at 236-38; Fair, 2006 WL 2032489, at *3 (“For sudden passion mitigation to apply, the defendant at the punishment phase must (

i) raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from adequate cause and (ii) prove the issue in the affirmative by a preponderance of the evidence.” (emphasis added)). Recognizing that he did not request a sudden passion instruction, Swaim argues in his petition for discretionary review that “[t]here are certain issues upon which a trial court has the duty to instruct the jury ■without an objection or request from either party.” [Emphasis added.] Swaim cites Huizar v.

State, 12 S.W.3d 479, 483-485 (Tex.Crim.App.2000) (op. on reh’g), for the proposition that a “jury must be instructed at punishment that extraneous offenses must be proved beyond [a] reasonable doubt” and Tubert v. State, 875 S.W.2d 323 (Tex.Crim.App.1994), for the proposition that it is “error to omit [a] sentencing option that would allow [the] jury to send [the] defendant to [a] community correctional facility rather than prison.” Swaim also cites code of criminal procedure

article 36.14, which “places the legal duty and responsibility on the trial judge to prepare for a jury a proper and correct charge on the law.” (quoting Doyle v. State, 631 S.W.2d 732, 738 (Tex.Crim.App.1980)). Tex.Code Crim. Proc. Ann. art. 36.14 (Vernon 2007). Swaim then concludes that “[t]he trial judge therefore had the responsibility of instructing the jury on the proper range of punishment in light of the evidence of sudden passion.” Neither Huizar, nor Tubert, nor any other court of criminal appeals case that we have located, nor

article 36.14 hold or require that a trial court must include an instruction at punishment on sudden passion in the absence of a request by the defendant. Accordingly, we overrule Swaim’s first point. Although Swaim’s second point in his brief to this court states that his trial counsel “was ineffective for not presenting mitigating evidence during the sentencing phase,” his argument under the point is that his trial counsel was ineffective for failing to request an instruction on sudden passion.

To establish ineffective assistance of counsel, the appellant must show by a preponderance of the evidence that his counsel’s representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for counsel’s deficiency, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App.2005); Mallett v. State, 65 S.W.3d 59, 62-63 (Tex.Crim.App.2001); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999); Hernandez v.

State, 988 S.W.2d 770, 770 (Tex.Crim.App.1999). The following witnesses testified on Swaim’s behalf at punishment: Hal Farmer, Swaim’s friend; Jesse Carreon, Swaim’s friend and the father of Swaim’s boss; Douglas Swaim, Swaim’s cousin; Don Christian, a probation supervisor; Scott Allen Tony, Swaim’s brother-in-law; Denise Tony, Swaim’s sister; and Barbara Swaim, Swaim’s mother.

With the exception of Christian, who explained the probation process to the jury, Swaim’s witnesses recounted and opined that Swaim was not a violent person, either when sober or intoxicated, and that they were surprised or shocked to learn' that he had been charged with murder. Swaim argues that this evidence called for an instruction on sudden passion. But none of the evidence “raise[d] the issue as to whether [Swaim] caused [Hall’s] death under the immediate influence of sudden passion arising from an adequate cause.” See Tex.

Penal Code Ann. § 19.02(d) (stating that a defendant may raise the issue as to whether he caused the death under sudden passion), § 19.02(a)(1) (providing “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), § 19.02(a)(2) (providing “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).

The evidence that Swaim directs us to merely detailed his nonviolent character. In his petition for discretionary review, Swaim argues that contrary to our analysis in the memorandum opinion issued March 13, 2008, the evidence raised the issue of sudden passion. Swaim points to evidence that he testified Hall said he “knew how to get ahold of’ his daughter and that he was “in complete shock” when Hall brought up his daughter and his girlfriend.

Swaim also points to the testimony of an investigator who testified that Swaim told him Hall “began talking about [his] daughter” and that Swaim “went into a rage.” In his brief to this court, however, Swaim did not argue that any of this evidence — which was elicited at the guilt phase, not the punishment phase — supported an instruction on sudden passion; instead, he relied only on the testimony of the individuals who testified on his behalf at punishment, which we set forth above. See Marlo v.

State, 720 S.W.2d 496, 500 n. 7 (Tex.Crim.App.1986) (declining to address argument asserted for the first time in petition for discretionary review); Lambrecht v. State, 681 S.W.2d 614, 616 (Tex.Crim.App.1984). Even considering this evidence along with the evidence that Swaim relied on in his brief, Hall’s statement that he lmew how to get in touch with Swaim’s daughter is not, alone, “adequate cause” as defined by the penal code. See Tex. Penal Code Ann. § 19.02(a)(1).

The evidence that Swaim argues raised the issue of sudden passion — identified in both his brief and in his petition for discretionary review — does not rebut the strong presumption that his trial counsel’s decision not to request an instruction on sudden passion fell within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Thompson, 9 S.W.3d at 814. We overrule Swaim’s second point. Having overruled both of Swaim’s points, we affirm the trial court’s judgment. DAUPHINOT, J., filed a dissenting opinion. WALKER, J., concurs without opinion. .

In his brief to this court, Swaim cites Mims v. State, 3 S.W.3d 923, 928 (Tex.Crim.App.1999), for the holding that "if raised by the evidence, the sudden passion issue should be submitted in the punishment phase of an attempted murder prosecution.” Like Trevino, Mims is inapposite. . Swaim did not assert this argument on appeal.