JOSE MANUEL MORALES, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM in part; REVERSE and REMAND in part and Opinion Filed April 14, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-00182-CR
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JOSE MANUEL MORALES, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 6
Dallas County, Texas
Trial Court Cause No. F07-59841-WX
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OPINION
Before Justices Moseley, Bridges, and Fillmore
Opinion By Justice Fillmore
        A jury convicted appellant Jose Manuel Morales of murder and sentenced him to twenty-five years' incarceration. In four issues pertaining to the guilt/innocence phase of the trial, appellant asserts the evidence is factually insufficient to support the conviction; the trial court erred by failing to grant a mistrial after the prosecutor commented on appellant's failure to testify; and the jury charge improperly instructed the jury on the duty to retreat and failed to instruct the jury that appellant's belief deadly force was immediately necessary was presumed to be reasonable under certain circumstances. We resolve these issues against appellant. Appellant also complains in two issues that the instruction on sudden passion in the punishment phase charge did not require the jury to render a unanimous verdict and trial counsel was ineffective by failing to object to the improper instruction. The State agrees the instruction was improper but argues there was no egregious harm. Because we conclude the error caused egregious harm, we resolve appellant's fifth issue in his favor, reverse the trial court's judgment as to punishment, and remand the case for a new punishment hearing.
Background   See Footnote 1 
 
        Enil Lopez was killed on December 2, 2007 by being shot twice in his back. Lopez was also shot once in his arm. Appellant does not contest the jury's finding he shot Lopez. Rather, appellant argues the shooting was justified because he was defending his brother, Juan Morales (Juan), from Lopez's unlawful use of deadly force during a fight with Juan.
        Porfilio Celis testified he heard a fight behind his apartment. Approximately one hour later, he heard fighting in the front of his apartment. Celis went outside because rocks were being thrown against the wall of his apartment. Celis saw at least fifteen people fighting and asked them to move away from his apartment.
        Celis testified Lopez and Kevin Perez, Lopez's brother, were two of the fighters. According to Celis, Lopez did not have a weapon and Perez had a bat. Lopez was by the wall of Celis's apartment and fighters were throwing rocks at him. Perez was hitting the fighters “from the other gang” with the bat. Celis believes Lopez was trying to get away from the fight and returned to it only because Perez wanted to continue fighting. Some of the fighters employed bats, pipes, rocks, and bottles as weapons. However, Lopez was just “fistfighting.”
        Celis testified Lopez knocked his opponent down and got on top of him. Lopez was hitting his opponent when appellant approached Lopez, kicked him to one side, and shot him. According to Celis, Lopez's opponent had escaped and Lopez was on the ground when appellant shot him. Celis heard approximately three shots. Celis believes appellant shot Lopez because Lopez was winning the fight.
        Celis admitted he had been drinking pisco, a hard liquor, for several hours before the fight. However, Celis was with his family and was not drinking “a lot.” Celis denied being drunk and testified he remembers everything that happened.
        Perez testified that on the day of the fight, he began drinking liquor and beer in the morning. Later that day, he “bumped shoulders” with Tomas Ferreira in a little field behind the apartments. Ferreira, appellant, Eric Cortez, and Juan were members of the Kirby Block gang. Perez was a member of the Manett Boys gang. Perez had trouble with Ferreira on previous occasions over their gang memberships. After “bumping shoulders,” Perez and Ferreira traded insults about the different gangs. Ferreira then wanted to fight Perez. Lopez intervened in the argument and told Ferreira to “pick on someone his own age.” Lopez and Ferreira then had a fistfight, and Lopez won.
        Perez testified that he continued to drink in front of his apartment and became drunk. Lopez was also drunk. Arturo Cantu, Perez's friend and a member of the Manett Boys, came by Perez's apartment. As Perez and Cantu were leaving the apartment complex, they saw a group of Kirby Block members in the street. After the parties “exchanged words,” a guy swung at Perez and the fight started. According to Perez, there were more than twenty people in the fight. Perez had no weapons when the fight started, but Cortez pulled bats out of his car for the Kirby Block members. After being hit with a bat, Perez took it away from the other fighter and started hitting people with it. Perez did not see Lopez or Cantu with a bat. According to Perez, Lopez did not have any weapons.
        Perez testified Ferreira pointed a gun at him. He hit Ferreira in the hands with the bat, and the gun flew somewhere. Perez then heard four or five gun shots. Everybody “took off” after the shooting, and Perez saw Lopez trying to walk. Lopez fell down, and Perez knew his brother was dead. Perez got upset and started breaking windows in the apartment complex with the bat. Perez initially told the police that Ferreira shot Lopez. Perez admitted this was not a true statement and that he did not see who shot his brother.
        Cantu testified he went to Perez's apartment on the night of the fight. Cantu had been drinking and using cocaine during the day. Perez had been drinking all day, and Lopez has been drinking that evening. Cantu is a member of the Manett Boys and was in the fight. Cantu testified he did not have any weapons and was just fistfighting. He did not see any bats or pipes, but recalls a couple of bottles breaking. Somebody starting shooting, and Cantu left the fight. A friend told Cantu that he was bleeding, and Cantu realized he had been shot in the left leg.
        Trey Lockhart testified he was in his apartment when he heard a “racket” that sounded like a fight. Lockhart looked out his apartment window but could not see the fight because of the trees. Lockhart heard four or five gunshots. He then saw four Hispanic males running through the little field beside the apartments. He recognized appellant, Juan, and Cortez. Lockhart could not identify the fourth man. Lockhart heard one man say, “I blast that fool.” Something that looked like a handgun was passed to the man Lockhart did not know. Lockhart testified he told the police that Juan was the person who passed off the handgun.
        Rosio Garcia testified she had just left her mother's apartment with her five children and her sister when she saw twelve or fifteen people, including Lopez and Perez, fighting in the street. At first, there were no bats or pipes, and everybody was fistfighting. Lopez was fighting appellant and won the fight. Garcia then saw appellant leave the fight and go towards his apartment. Lopez began fighting Juan. Neither Lopez nor Juan had a weapon. Juan lost the fight and was knocked to the ground.         According to Garcia, Lopez then went into the apartment complex and came out with something “small and thin like a broomstick.” Eight to ten fighters jumped on Lopez and started hitting and kicking him. At this point, Garcia saw Cortez and Juan get bats out of Cortez's car. Lopez dropped to the ground and “lots of guys” began kicking Lopez and hitting him with the bats. Appellant returned and went up to the crowd that was beating Lopez. Appellant shot Lopez three times and then raised the gun and fired three more times. The crowd scattered following the shooting. According to Garcia, Juan was hitting Lopez at the time appellant shot Lopez. Garcia admitted she did not tell the police in her original statement that appellant fought Lopez.
        Norma Ortiz testified she is the manager of the apartment complex where Lopez was killed. Ortiz heard voices outside her apartment and went outside. She saw a number of people fighting and throwing bottles. Ortiz saw Lopez try to get Perez to leave the fight, but Perez refused to leave. Perez was hitting the street with a bat. Ortiz did not see appellant, but saw Juan. According to Ortiz, both Lopez and Perez were hitting Juan. Juan slipped on some water and fell to the ground, and Lopez started hitting Juan in the back “real hard” with a red pipe. After Perez threw the bat into a sign close to Ortiz, Cortez pushed his mother, Jetzabel Soria, to the ground. Ortiz turned to assist Soria and heard gunshots. According to Ortiz, Juan was unable to defend himself and would have been killed if appellant did not help him. However, Ortiz did not see the shooting and does not know if Lopez had the pipe when he was shot. Ortiz did not see Garcia while Lopez was beating Juan and believes Garcia did not come downstairs until after the shooting.
        Soria testified she is Cortez's mother. Juan is a friend of Cortez's. At approximately 11:00 p.m., Soria's daughter told Soria that she heard noise outside the apartment and Cortez was outside. Soria then went outside the apartment and saw Perez hitting the curb in front of the apartment with a bat. Perez was cursing and asking people to fight him. Soria saw Juan, but did not see appellant. Juan fell down, and Lopez began hitting him with a red pipe. Perez threw the bat, and Soria fell, or was pushed, down. The apartment manager helped her up. Soria then heard gunshots. According to Soria, Cortez was beside her the entire time and was not fighting. Soria admitted she did not tell the police Lopez was hitting Juan with the pipe.
        Brenda Cortez (Brenda) testified she is Cortez's sister. After she heard noises outside her apartment, she opened her window and saw a big crowd. She told her mother something was going on and Cortez was outside. Brenda followed her mother outside and saw Lopez and Perez throwing things. A piece of metal almost hit her mother, and Brenda went back inside. Brenda looked out her upstairs window and saw Lopez beating Juan with what looked like a shiny stick. Lopez was swinging the stick constantly, violently hitting Juan in the upper body and face. “People” were trying to get Lopez off Juan, but could not do so. Brenda believes “they” shot Lopez because it was the only way to stop him. Brenda admitted she never told the police what she saw.
        At the scene, the police found eight cartridge casings, fired bullets, a baseball bat, a tire jack handle, and a knife. Detective John Palmer testified he took pictures of Juan on December 3, 2007. Juan had no visible injuries. Palmer believes if Juan was beaten with a tire iron on December 2, there would have been visible injuries. Palmer admitted he did not see Juan without a shirt.
        The jury convicted appellant of murder and sentenced him to twenty-five years' confinement.
Sufficiency of the Evidence
 
        The trial court instructed the jury that the use of deadly force by appellant could be justified if used in the defense of a third person. In his first issue, appellant argues the evidence is factually insufficient to support the jury's implied finding against this justification defense.
        When conducting a factual sufficiency review of the evidence supporting the jury's rejection of a defense, we view all of the evidence in a neutral light. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008); Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). A defendant has the burden to produce some evidence to support his justification defense. Zuliani, 97 S.W.3d at 594. Once the defense is raised, the State bears the burden of persuasion in disproving the defense. Id. This burden of persuasion does not require the State to affirmatively produce evidence refuting the claimed defense; rather the State is required only to prove its case beyond a reasonable doubt. Id. When the jury determines the defendant is guilty, there is an implicit finding against the defensive theory. Id. The evidence is factually insufficient to support the rejection of a defense (1) if the State's evidence, considered alone, is too weak to support the finding, or (2) when the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. Id. at 595.
        In a factual sufficiency review, we are permitted to substitute our judgment for the fact finder's when considering credibility and weight determinations, but only to a “very limited degree.” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact finder's determination concerning what weight to give contradictory testimony. Lancon, 253 S.W.3d at 705, 706; Marshall, 210 S.W.3d at 625.
        To justify the use of deadly force to protect another, an actor must show that he reasonably believed (1) the third person would be justified in using deadly force to protect himself against another's use or attempted use of unlawful deadly force, and (2) his intervention was immediately necessary to protect the third person. Tex. Penal Code §§ 9 .31(a), 9.32(a) (Vernon Supp. 2009), § 9.33 (Vernon 2003); Hughes v. State, 719 S.W.2d 560, 564 (Tex. Crim. App. 1986); Kennedy v. State, 193 S.W.3d 645, 653 (Tex. App.-Fort Worth 2006, pet. ref'd). However, a defendant does not have to prove that the other person was actually using or attempting to use unlawful deadly force; he is justified in using force to defend against danger as he reasonably apprehends it. Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996). A person claiming defense of a third person stands in the shoes of the third person. Hughes, 719 S.W.2d at 564. Thus, the use of force to protect a third person is justified in any situation in which the third person would apparently be justified in using force to protect himself. Id.
        In this case, Celis testified Juan had escaped from Lopez prior to the shooting and, when appellant shot Lopez, Lopez was lying on the ground. Garcia testified Lopez was on the ground being hit and kicked by a number of people, including Juan, when appellant shot Lopez. Ortiz testified Lopez was hitting Juan with a red pipe and would have killed Juan if appellant had not helped Juan. However, Ortiz did not see the shooting and does not know if Lopez still had the pipe when appellant shot him. Soria testified Lopez was hitting Juan with a pipe, but admitted she did not tell the police about it. Brenda testified Lopez was beating Juan violently with a shiny stick and Lopez was shot because it was the only way to get him to stop. Brenda did not tell the police what she had seen. Palmer testified Juan had no visible injuries the day after the fight.
        There was considerable variation in the testimony about Juan's and Lopez's conduct during the fight and about what they were doing at the time of the shooting. The resolution of this conflict required a determination by the jury of the credibility of the witnesses. We are bound to defer to the jury's determination. Lancon, 253 S.W.3d at 706. Applying the appropriate standard of review, we conclude the evidence is factually sufficient to support the jury's rejection of appellant's justification defense. We overrule appellant's first issue.
Comment on Failure to Testify
 
        In his fourth issue, appellant asserts the trial court erred by denying his motion for mistrial after the prosecutor commented on appellant's failure to testify. We review a trial court's decision to deny a motion for mistrial for an abuse of discretion. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007); Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). We must uphold the trial court's ruling if it was within the zone of reasonable disagreement. Archie, 221 S.W.3d at 699. “Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required.” Hawkins, 135 S.W.3d at 77. An instruction to disregard will generally cure any harm from an improper jury argument. Id. at 77, 84. In determining whether improper jury argument warrants a mistrial, we balance (1) the severity of the misconduct or the magnitude of the prejudicial effect; (2) the measure adopted to cure the misconduct; and (3) the certainty of conviction absent the misconduct. Archie, 221 S.W.3d at 699; Ramon v. State, 159 S.W.3d 927, 929 (Tex. Crim. App. 2004).
        During closing arguments in the guilt/innocence phase of the trial, the prosecutor argued:
So clearly, you have the evidence that he shot Emil Lopez three times in the back, no question.
 
Now, the only question was was it justified. Was it justified? From his viewpoint, you know, this charge is erroneous, but at the end of the day, when [sic] it really comes down to is, from his viewpoint, was he entitled to defend his brother. That's what we're talking about here, isn't it? That's what we're talking about. From his viewpoint.
 
Recalling the evidence that was submitted during the trial, from his viewpoint, does the evidence support that he should get self-defense.
 
Appellant did not object to this argument, and the prosecutor continued:
 
When you are recalling all of the witnesses, all the witnesses that Mr. Garza called, all the witnesses that they brought, and you're trying to apply it to this charge, I want you to ask yourself, what evidence did we have about his viewpoint? What evidence did we have about his viewpoint?
 
The trial court sustained appellant's counsel's general objection to the argument and instructed the jury to disregard “the last portion of the State's argument.” After an off-the-record discussion, the trial court denied appellant's motion for mistrial.         The prosecutor then continued to argue:
Ladies and gentlemen, again, when you are calling witness after witness - all I'm asking you is what credible - the only three people you heard that actually say they saw the shooting - remember, you got to put yourself in the position of this defendant prior to firing.
 
What evidence was there presented in this case that led you to believe that it was immediately necessary for him to fire three times into the complainant's back at the time he did it? What evidence have you heard? What evidence was presented?
 
You got three witnesses, that was it, that say they actually saw the shooting. You got Ms. Morales [sic], who clearly told you that Juan Morales was nowhere near - remember Ms. Morales [sic] said that he was on the ground, they kicked him, they knocked him off, and then he was trying to get up and the defendant shoots him. From that viewpoint, what did you hear? That it was immediately necessary to shoot him? No.
 
Then you heard from Rosio. Rosio specifically told you that Juan Morales was nowhere near Mr. Lopez at the time this defendant shot him three times in the back. What evidence have you heard? What has been presented? Absolutely nothing that would support, from his viewpoint - from his viewpoint - that it was immediately necessary to shoot this man like a dog. You heard nothing, absolutely nothing that would support self-defense. That's the issue here.
 
Appellant did not object to this argument.
        Even if the prosecutor's argument was improper, we conclude any error was harmless. The trial court immediately instructed the jury to disregard the comment. See Hawkins, 135 S.W.3d at 77, 84. Further, without objection, the prosecutor argued both before and after the complained-of statement that appellant had presented no evidence that from his viewpoint it was necessary to shoot Lopez to protect Juan. “Where the same evidence or argument is presented elsewhere during the trial without objection, no reversible error exists.” McFarland v. State, 845 S.W.2d 824, 840 (Tex. Crim. App. 1992), reversed on other grounds, Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994); see also Greenwood v. State, 740 S.W.2d 857, 860 (Tex. App.-Dallas 1987, no pet.). We overrule appellant's fourth issue.
 
Charge Error
 
        In his second, third, and sixth issues, appellant argues the trial court erred by instructing the jury on a duty to retreat, by not instructing the jury that appellant's belief deadly force was necessary was presumed reasonable under certain circumstances, and by not requiring the jury to unanimously determine that appellant did not act under sudden passion. Our first duty in analyzing a jury-charge issue is to decide whether error exists. Sakil v. State, 287 S.W.3d 23, 25 (Tex. Crim. App. 2009). If error exists and if the defendant objected to the error at trial, we must reverse if there is some harm to the defendant from the error. Id. at 25-26; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). If, however, the defendant did not object to the error at trial, we reverse only if the error is so egregious and created such harm that the defendant was denied a fair and impartial trial. Sakil, 287 S.W.3d. at 26; Almanza, 686 S.W.2d at 171.
A.
 
Duty to Retreat
 
        The trial court instructed the jury:
Therefore, a person may act against another in defense of a third person, provided he acted upon a reasonable apprehension of danger to such third person, as it appeared to him from his standpoint at the time, and that he reasonably believed such deadly force by his intervention on behalf of such third person was immediately necessary to protect such person from another's use or attempted use of unlawful deadly force, and provided it reasonably appeared to such person, as seen from his viewpoint alone, that a person in the situation of the person being defended would not have had a duty to retreat.
 
A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described herein.
 
In his second issue, appellant asserts the legislature deleted the duty to retreat from the penal code and, therefore, the trial court erred by instructing the jury on the duty to retreat.
        Prior to September 1, 2007, section 9.32 of the penal code provided the use of deadly force was justified only “if a reasonable person in the actor's situation would not have retreated.” See Act of May 16, 1995, 74th Leg., R.S., ch. 235, § 1, 1995 Tex. Gen. Laws, 2141, 2141-42 (amended 2007) (current version at Tex. Penal Code Ann. § 9.32 (Vernon Supp. 2009)). Effective September 1 2007, the legislature deleted the requirement that a reasonable person in the actor's situation would not have retreated. However, the legislature also added to both sections 9.31 and 9.32 of the penal code the provision that “[a] person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as required by this section.” Tex. Penal Code Ann. §§ 9.31(e); 9.32(c).
         A jury charge that tracks the language of the relevant statute is sufficient and, therefore, not erroneous. Casey v. State, 215 S.W.3d 870, 886-87 (Tex. Crim. App. 2007) (trial court did not err by including word “victim” in charge because charge “set forth the law applicable to the case by tracking the language of the statute”); Martinez v. State, 924 S.W.2d 693, 699 (Tex. Crim. App. 1996) (instruction that tracks statutory language “as it is set out by the Texas Legislature will not be deemed error on the part of a trial judge”); Riddle v. State, 888 S.W.2d 1, 8 (Tex. Crim. App. 1994) (“A jury charge which tracks the language of a particular statute is a proper charge on the statutory issue.”). Here, the language of the charge states the penal code's language regarding when a person does not have a duty to retreat almost verbatim. See Tex. Penal Code Ann. §§ 9.31(e), 9.32(c). Therefore, there was no error in the charge, See Casey, 215 S.W.3d at 887; Martinez, 924 S.W.3d at 699; Riddle, 888 S.W.2d at 8. We overrule appellant's second issue.
 
B. Presumption of Reasonableness
        In his third issue, appellant contends the trial court erred by not sua sponte instructing the jury that appellant's use of deadly force is presumed reasonable under certain circumstances. A trial court “has an absolute sua sponte duty to prepare a jury charge that accurately sets out the law applicable to the specific offense charged.” Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007). A trial court generally has no duty to sua sponte include in the jury charge an instruction on a defensive issue. See Bennett v. State, 235 S.W.3d 241, 243 (Tex. Crim. App. 2007) (“Defensive instructions must be requested in order to be considered applicable law of the case requiring submission to the jury.”). However, when a rule or statute requires an instruction under the particular circumstance, that instruction is law applicable to the case, and the trial court must include the required instruction, even if it is not requested. Oursbourn v. State, 259 S.W.3d 159, 180 (Tex. Crim. App. 2008).
        In 2007, the legislature amended sections 9.31 and 9.32 of the penal code to include the presumption the actor's belief deadly force was immediately necessary is reasonable if the actor:
(1) knew or had reason to believe that the person against whom the force was used:
(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;
(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or
 
(C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;
 
(2) did not provoke the person against whom the force was used; and
(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.
 
Tex. Penal Code Ann. §§ 9.31(a); 9.32(b). Although appellant did not request the trial court include an instruction in the charge on this presumption, he asserts section 2.05(b)(1) of the penal code required the trial court to sua sponte include the instruction in the charge.   See Footnote 2         
        Because appellant claimed he was defending Juan, he stands in Juan's shoes for purposes of the presumption. See Hughes, 719 S.W.2d at 564. Therefore, appellant was not entitled to an instruction that his use of deadly force was presumed reasonable unless there was sufficient evidence that Juan was entitled to the presumption. Juan would not be entitled to the presumption if he was engaged in criminal activity, other than a Class C misdemeanor violation of a traffic law, at the time appellant used the deadly force.
        Pursuant to section 42.02 of the penal code, a person commits a criminal offense if he knowingly participates in a riot. Tex. Penal Code Ann. § 42.02(b) (Vernon 2003). A riot includes an assemblage of seven or more persons resulting in conduct that creates an immediate danger of damage to property or injury to persons. Id. § 42.02(a)(1). The offense is at least a Class B misdemeanor. Id. § 42.02(e)-(f).
        Appellant argues the evidence established only that Juan was at the scene and defending himself against an unlawful attack and that even if Juan has been engaged in rioting prior to the shooting, he was not engaged at the time appellant used the deadly force. However, the evidence was undisputed that more than seven persons, including Juan, were involved in the fight. Further, it was undisputed that some participants in the fight were using weapons. Celis testified without contradiction that the fighters were throwing rocks at his apartment. Also without contradiction, Ortiz testified Perez threw a bat that hit her sign, and Brenda testified a “piece of metal” almost hit her mother. Perez testified he was hit with a bat and that he tried to hit other fighters with a bat. The evidence was undisputed the conduct of the participants in the riot, including Juan, created an immediate danger of damage to property or injury to persons.
        Because there was insufficient evidence to establish Juan was entitled to the presumption that the use of deadly force was reasonable, appellant was not entitled to an instruction on the presumption. Therefore, an instruction on the presumption was not law applicable to the case, and the trial court did not err by failing to include the presumption in the jury charge. See Tolbert v. State, PD-0265-09, 2010 WL 935377, at *4 (Tex. Crim. App. Mar. 17, 2010). We overrule appellant's third issue.
C. Sudden Passion
        In his fifth and sixth issues, appellant complains the punishment phase charge did not require the jury to reach a unanimous verdict on the issue of sudden passion and trial counsel was ineffective by not objecting to the charge. If a defendant is convicted of murder, he may argue that he caused the death while under the immediate influence of sudden passion arising from an adequate cause. Tex. Penal Code Ann. § 19.02 (Vernon 2003). If the defendant establishes sudden passion and adequate cause by a preponderance of the evidence, the offense level is reduced from first degree to second degree, and the punishment range is correspondingly reduced. Id.
        Following the application paragraph, the charge on the issue of sudden passion stated: “An affirmative 'yes' answer on the issue submitted must be unanimous, but if the jury is not unanimous in reaching an affirmative answer, then the issue must be answered 'no.'” The jury is required to reach a unanimous decision on whether the defendant acted under sudden passion. Sanchez v. State, 23 S.W.3d 30, 34 (Tex. Crim. App. 2000). The charge in this case did not require the jury to unanimously decide adversely to appellant on the issue of sudden passion and, therefore, was erroneous. Id.; London v. State, No. 05-07-00983-CR, 2008 WL 5102975, at *8 (Tex. App.-Dallas Dec. 5, 2008, pet. ref'd).
        Appellant's counsel did not object to the erroneous charge. Therefore, we consider whether the error caused appellant egregious harm by depriving him of a fair and impartial trial. Almanza, 686 S.W.2d at 171. “The actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.” Id.
        The evidence was conflicting on whether appellant acted under sudden passion.   See Footnote 3  Specifically, Ortiz, Soria, and Brenda testified Lopez was beating Juan violently with a tire iron immediately before the shooting. Celis, however, testified appellant kicked Lopez off Juan and then shot Lopez in the back while he was laying on the ground. Garcia testified appellant lost a fight with Lopez and then headed towards his apartment. By the time appellant returned, a number of people, including Juan, were hitting and kicking Lopez. Appellant joined the group and shot Lopez three times. Closing argument by both the State and appellant focused on sudden passion. The State argued there was nothing sudden about appellant's actions and that he shot Lopez in cold blood. Appellant's counsel argued appellant acted under sudden passion after seeing Juan being beat with a tire iron.
        After the jury rejected the sudden passion special issue, both the State and appellant declined to poll the jury. Accordingly, there is no evidence in the record that the jury unanimously decided appellant did not act under sudden passion. London, 2009 WL 5102975, at *8-9.
        The State argues appellant could not have been egregiously harmed by the improper instruction because the evidence was so weak, contested, or incredible to support a sudden passion finding that the jury should not have even been charged on the issue. However, whether the evidence presented regarding sudden passion was substantial and convincing or weak and not persuasive is an issue solely for the jury, not this Court, to decide. Because there was evidence and argument that appellant acted under sudden passion and the record does not reflect the jury was unanimous in rejecting the sudden passion special issue, we conclude the error caused appellant egregious harm. London, 2008 WL 5102975, at *9. We sustain appellant's fifth issue. In light of our disposition of appellant's fifth issue, we conclude his sixth issue asserting his trial counsel was ineffective by not objecting to the erroneous charge is moot. See Tex. R. App. P. 47.1.
Conclusion
 
        Having resolved appellant's fifth issue in his favor, we reverse the trial court's judgment and remand the case for a new punishment hearing. See Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2009).
 
 
                                                          
                                                          ROBERT M. FILLMORE
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
090182F.U05
 
 
Footnote 1 We limit our recitation of the evidence to that necessary to address appellants's complaints on appeal.
Footnote 2 Section 2.05(b)(1) of the penal codes provides:
 
When this code or another penal law establishes a presumption in favor of the defendant with respect to any fact, it has the following consequences:
 
(1) if there is sufficient evidence of the facts that give rise to the presumption, the issue of the existence of the presumed fact must be submitted to the jury unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact.
 
Tex. Penal Code Ann. § 2.05(b)(1) (Vernon Supp. 2009).
Footnote 3 “'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).