Marque Christopher Womack v. The State of Texas--Appeal from 209th District Court of Harris County

Affirmed and Opinion filed May 8, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00679-CR

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MARQUE CHRISTOPHER WOMACK, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause No. 1013047

O P I N I O N

Appellant, Marque Christopher Womack, appeals from his conviction for murder. A jury found him guilty and assessed punishment at 22 years in prison and a $10,000 fine. On appeal, appellant contends that the trial court violated his constitutional rights to due process by placing an impossible burden of proof in the jury charge on punishment. We affirm.

Discussion

At the punishment phase of trial, the trial court instructed the jury on Asudden passion@ pursuant to section 19.02(d) of the Texas Penal Code. Tex. Penal Code Ann. ' 19.02(d). That section provides:

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. 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. The Code defines Asudden passion@ as Apassion 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.@ Id. ' 19.02(a)(2). AAdequate cause@ is defined as Acause 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.@ Id. ' 19.02(a)(1).

On appeal, appellant argues that section 19.02(d) and the trial court=s charge violated his rights to due process by imposing an impossible burden of proof on him, citing the 14th Amendment to the United States Constitution. U.S. Const. amend. XIV. He contends that in finding him guilty of murder, the jury necessarily found that he committed the offense intentionally or knowingly; thus, it would be impossible to convince the same jury that he had acted with sudden passion, i.e., with his mind in such a state as to be Aincapable of cool reflection.@

Although the Court of Criminal Appeals has yet to expressly address the issue, Texas courts of appeals have consistently held that the burden of proof contained in section 19.02(d) does not violate due process rights. See, e.g., Vasquez v. State, 2 S.W.3d 355, 361 (Tex. App.CSan Antonio 1999, pet. ref=d); Green v. State, 971 S.W.2d 639, 644 (Tex. App.CHouston [14th Dist.] 1998, pet. ref=d); Robinson v. State, 945 S.W.2d 336, 341 (Tex. App.CAustin 1997, pet. ref=d). Furthermore, the Court of Criminal Appeals has held that a finding of intentional or knowing conduct does not exclude a finding that the actor was under the immediate influence of sudden passion at the time of the conduct. See Trevino v. State, 100 S.W.3d 232, 240 (Tex. Crim. App. 2003) (A[W]ith sudden passion as a punishment issue, the defendant=s intent to kill has already been affirmatively resolved by the jury and is no longer relevant. Since the defendant killed intentionally, the issue at punishment is whether he did so in sudden passion.@); see also Wilson v. State, 179 S.W.3d 240, 246-47 (Tex. App.CTexarkana 2005, no pet.) (AThe jury had resolved the matter of intent at the guilt/innocence phase; there was no matter of intent before it during the punishment phase.@). Accordingly, we find appellant=s argument to be without merit and overrule his sole issue.

We affirm the trial court=s judgment.

/s/ Adele Hedges

Chief Justice

Judgment rendered and Opinion filed May 8, 2007.

Panel consists of Chief Justice Hedges and Justices Hudson and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).