Omar Franklin Barnes v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

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No. 04-06-00379-CR
Omar Franklin BARNES,
The STATE of Texas,
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2004-CR-6055
Honorable Maria Teresa Herr, Judge Presiding

Opinion by: Karen Angelini, Justice


Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Steven C. Hilbig, Justice


Delivered and Filed: October 31, 2007



Omar Franklin Barnes was convicted of murdering his wife and sentenced to life in prison. In three issues on appeal, Barnes contends the trial court erred in (1) failing to include a "sudden passion" jury instruction during the penalty phase of the trial; (2) allowing the State to present evidence of an alleged past altercation between Barnes and his wife; and (3) entering a deadly weapon affirmative finding. The State agrees that the trial court erred in entering a deadly weapon affirmative finding. Thus, we will reform the trial court's judgment by deleting the deadly weapon affirmative finding. In all other respects, we find no error and, therefore, affirm the trial court's judgment as reformed. Factual and Procedural Background

In March of 2002, Omar and Sherry Barnes were married in Florida. Soon thereafter, Sherry enlisted in the Air Force and moved to San Antonio where she was stationed. Barnes remained in Florida for a period of several weeks, but then moved to San Antonio to join Sherry. However, before Barnes moved to San Antonio, Sherry became friends with Kimberly Harps. They frequently socialized and sometimes went to dance clubs together.

On the evening of October 19, 2002, Harps was expecting to meet Sherry at a nightclub; Sherry, however, never showed up. While at the nightclub, Harps received three calls from Barnes asking if she knew where Sherry was. Barnes told Harps that he and Sherry had argued and that she had left. Harps responded that she did not know where Sherry was. Barnes then went to the nightclub and continued to ask about Sherry.

The following day, October 20, 2002, Sherry did not report to work. Barnes contacted the police department to file a missing persons report and asked Harps to help him try to find Sherry. Also, on October 20, 2002, Sherry's parents had been expecting a call from her. Sherry, however, never called them. On October 22, 2002, Sherry's father, Jerry Hunter, talked to Barnes and asked what had happened to Sherry. Barnes told him that they had argued about Barnes's failure to get a job and that Sherry had then left.

The police department opened a missing person investigation and, with Barnes's consent, searched the couple's apartment. Police officers found Sherry's military and state identification card, which caused them concern because Sherry was required to keep her military identification with her at all times.

On October 26, 2002, Barnes gave a statement to the police and then returned to Florida. In his statement, Barnes described in great detail his relationship problems with Sherry. According to Barnes, during their time together, Sherry caused problems because she wanted to go out with other men. Also, her family very much disapproved of her relationship with him. According to Barnes, he and Sherry argued and broke up numerous times throughout their relationship. On one occasion they broke up following an incident in which Barnes held Sherry down for ten minutes. According to Barnes, although he thought they were just playing around, Sherry took the incident seriously and began crying. Also according to Barnes, on another occasion, he was accused of a kidnaping and battery when they got into an argument about Sherry going to a barbeque where another man had "disrespected her and cussed her out." They argued at his sister's house, and his sister ended up calling the police and telling officers that Barnes had held a knife to Sherry's throat. After Barnes and Sherry married and moved to Texas, they continued to argue about Sherry going out to clubs. According to Barnes, they also argued about him not trying hard enough to find a job. During some of the arguments, Sherry would leave the apartment and he would follow her. According to Barnes, on the day Sherry disappeared, they argued but then made up throughout the day. At one point, Sherry tried to leave, but Barnes stood in front of her. Sherry then slapped him and walked out the door.

On October 27, 2002, the day after Barnes gave his statement to the police, Sherry's decomposed body was found near some railroad tracks in San Antonio. Meanwhile, Barnes was arrested and incarcerated for a different offense in Florida. While incarcerated, he discussed his role in Sherry's murder with a fellow inmate, Jerry Wayne Goodwin. Goodwin testified that Barnes told him Sherry kept getting mad because Barnes would not find a job. One day they argued and she told him to pack his things and move back to Florida. In response, Barnes "got upset, real raging mad, seen red." According to Goodwin, Barnes said that he choked Sherry until she was dead. Barnes then left the apartment for several hours, but returned later to dispose of Sherry's body.

Sudden Passion Jury Instruction

During the punishment phase of trial, a defendant may argue that he caused the death while under the immediate influence of sudden passion arising from an adequate cause. McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005); see Tex. Penal Code Ann. 19.02(d) (Vernon 2003). "Sudden passion" is "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) (Vernon 2003). "Adequate cause" is "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." Id. 19.02(a)(1). Sudden passion is a mitigating factor that, if found by the factfinder to have been proven by a preponderance of the evidence, reduces the offense from a first-degree felony to a second-degree felony. See id. 19.02(c)-(d).

A trial court should include a sudden passion instruction in the charge if it is raised by the evidence, even if that evidence is weak, impeached, contradicted, or unbelievable. Trevino v. State, 100 S.W.3d 232, 238 (Tex. Crim. App. 2003). "However, the evidence cannot be so weak, contested, or incredible that it could not support such a finding by a rational jury. McKinney, 179 S.W.3d at 569. Therefore, to be entitled to a jury instruction on sudden passion, the accused must prove that there was an adequate provocation, that a passion or an emotion such as fear, terror, anger, rage, or resentment existed, that the murder occurred while the passion still existed and before there was reasonable opportunity for the passion to cool; and that there was a causal connection between the provocation, the passion, and the murder. Id.

In reviewing a case involving a sudden passion jury charge, it is our duty "to look at the evidence supporting that charge, not [at] the evidence refuting it." Trevino, 100 S.W.3d at 239.

Barnes contends he was entitled to a sudden passion jury instruction based on the testimony of several witnesses and on his own written statement. Barnes first points to the testimony of Harps's mother, Triva Williams. Williams testified that Barnes told her he and Sherry had an argument, she slapped him, and she left. Second, Barnes points to the testimony of Samuel James McCosh, Jr., a special agent with the Air Force Office of Special Investigations. According to McCosh, Barnes said he and Sherry had argued, she told him the marriage was over, and she then walked out. Third, Barnes points to the testimony of Roger Howell, a maintenance man employed at the apartments where Barnes and Sherry lived. Howell testified that Barnes told him that he and Sherry had an argument and that she left and was missing. Fourth, Barnes emphasizes the testimony of Jerry Hunter, Jr., Sherry's father, who testified that he spoke with Barnes on the phone after Sherry disappeared. According to Hunter, Barnes told him that he and Sherry had a fight about Barnes not getting a job and that Sherry had walked out of the house. Fifth, Barnes points to the testimony of Sherry's friend, Harps, who testified that Barnes told her that he and Sherry had an argument and that Sherry walked out. Finally, Barnes points to his statement to the police. In his statement, Barnes said that he and Sherry argued, that she slapped him, and that she left.

All these statements were made before Sherry's body was discovered, and in none of these statements did Barnes admit to killing Sherry. However, in his statement to Jerry Wayne Goodwin, Jr., who was in prison with him in Florida, Barnes admitted to killing Sherry. According to Goodwin, Barnes said that he and Sherry argued because he was not working and that she told him to pack his things and move back to Florida. Barnes told Goodwin that he "got upset, real raging mad, seen red" and then choked her to death. Thus, taken as a whole, the testimony Barnes relies on to support his argument that he was entitled to a jury charge on "sudden passion" is that he and Sherry argued over his not finding a job, that she told him to leave, that she slapped him, and that he became so upset and mad he killed her.

The evidence Barnes claims entitled him to a sudden passion instruction in the jury charge does not, in fact, support such an instruction. There was simply no evidence that Barnes acted under the immediate influence of sudden passion arising from an adequate cause.

"The murderous acts of one not of ordinary temper or whose response to the alleged cause is not objectively common in the ordinary, reasonable person does not support" a sudden passion instruction. See Willis v. State, 936 S.W.2d 302, 308 (Tex. App.--Tyler 1996, pet. ref'd) (analyzing former law in which sudden passion entitled defendant to the lesser-included offense of voluntary manslaughter). In other words, a sudden passion instruction "is not available to one whose actual emotional responses are aberrational in this society." Id. If the evidence demonstrates no legally adequate cause, no amount of subjective passion will justify submission of a sudden passion instruction. Id.

In Willis v. State, the defendant contended he acted in sudden passion when he shot an individual because that individual had broken the windows of a car and a van. The court stated that although the defendant may have been in an excited state after the windows were broken, his excitement caused by the breaking of windows was not evidence of sudden passion because the "breaking of one's car windows is not adequate in this society to justify a killing." Id. Likewise, in Corral v. State, 900 S.W.2d 914, 919 (Tex. App.--El Paso 1995, no pet.), the court held that throwing rocks at the defendant and making gang signs are not adequate provocation to justify a killing. See also Mitchell v. State, 191 S.W.3d 219, 224-25 (Tex. App.--San Antonio 2005, pet. ref'd) (holding that where victim hit defendant, put her fingernails into his arm, pulled hair out of his head, pushed him over, and pointed a gun at defendant did not entitle defendant to sudden passion instruction); Carrillo v. State, 889 S.W.2d 501, 503 (Tex. App.--Houston [14th Dist.] 1994, no pet.) (holding that defendant's belief victim might come after him with broken beer bottle and victim's use of offensive Spanish name did not amount to adequate cause); Smith v. State, 881 S.W.2d 727, 735 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd) (holding that victim's actions of cussing at defendant and pulling defendant's hair is not conduct which would ordinarily produce a degree of anger, rage, resentment, or terror in person of ordinary temper).

Similarly, Sherry slapping Barnes and telling him to leave because he had not found a job is not the sort of conduct that would ordinarily produce a degree of anger, rage, resentment, or terror in a person of ordinary temper. The mere fact that Barnes acted in response to Sherry's provocation is not sufficient to warrant a charge on sudden passion. See Trevino v. State, 100 S.W.3d 232, 241 (Tex. Crim. App. 2003). Barnes may have been angry and upset, but Sherry's conduct did not amount to adequate cause. Thus, we conclude that Barnes was not entitled to a sudden passion instruction.

Extraneous Offense Evidence

In his second issue on appeal, Barnes argues that the trial court erred in admitting evidence that he had attacked and kidnaped Sherry six months before her death. Barnes's half-sister, Lynn Savage, testified that while Sherry and Barnes were still living in Florida, Barnes had beaten Sherry at Savage's home after a barbeque, that Barnes may have had a knife, and that Barnes forcefully removed Sherry from Savage's home. Also, in the statement Barnes gave to the police after Sherry was missing but before her body was found, he told the police about the incident at Savage's home.

Barnes contends this evidence was inadmissible because it was offered to show he acted in conformity with his past bad conduct toward Sherry. Further, Barnes contends that the probative value of the evidence is not exceeded by the prejudicial impact to his case.

There are three provisions to consider in determining whether this evidence was admissible. Article 38.36(a) of the Texas Code of Criminal Procedure provides the following:

In all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.


Tex. Code Crim. Proc. art. 38.36(a) (Vernon 2005). Texas Rule of Evidence 404(b) provides the following:

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State's case-in-chief such evidence other than that arising in the same transaction.


Tex. R. Evid. 404(b). And, Texas Rules of Evidence 403 provides the following:


Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.


Tex. R. Evid. 403.


In Garcia v. State, 201 S.W.3d 695, 702 (Tex. Crim. App. 2006), cert. denied, 127 S. Ct. 1289 (2007), the Texas Court of Criminal Appeals held that these three provisions can be applied congruously. Thus, "although Rules 403 and 404 limit the admissibility of some Article 38.36(a) relationship evidence, this does not mean that the statute and the Rules are in conflict with each other. It simply means that the State is prohibited from presenting evidence if the probative value is substantially outweighed by unfair prejudice, confusion of the issues misleading of the jury, considerations of undue delay, or needless presentation of cumulative evidence." Id. at 703. Further, the State cannot present evidence "for the sole purpose of showing that the accused acted in conformity with his bad character and murdered the victim." Id. Thus, "in cases in which the prior relationship between the victim and the accused is a material issue, illustrating the nature of the relationship may be the purpose for which evidence of prior bad acts will be admissible." Id.

The facts in Garcia are strikingly similar to the facts in this case. In Garcia, the accused and the victim were husband and wife. Id. at 697. Over twenty months before the wife was murdered, she and her husband had an argument while they were driving in their car at night on a busy highway. During the argument, the husband stopped the car, pushed the wife out of the car, and drove away, leaving her without her purse or cell phone. The court of criminal appeals held that this "car dumping" incident was admissible to show the relationship between the husband and wife, which was a material issue in the case. Id. at 703-04. More specifically, the "car dumping incident was relevant to circumstances surrounding their relationship immediately preceding the murder, i.e., that they had separated, attempted to reconcile, and sought marriage counseling, but instead were in the process of divorcing." Id.

Likewise, in this case, the relationship between Barnes and Sherry was a material issue. As Barnes indicated in his own statement to the police, he and Sherry had a very difficult relationship. They argued often, many times over Sherry's relationships with other men and, on occasion, over Barnes's difficulty in finding a job. The incident in which Barnes and Sherry argued about Sherry going to the barbeque in Florida was one of many examples that help explain the relationship between Barnes and Sherry.

Furthermore, we cannot say that the trial court abused its discretion in refusing to exclude the evidence based upon Rule 403. See Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007) (explaining that when reviewing a trial court's ruling on the admission evidence, an appellate court applies an abuse of discretion standard of review). Barnes argues that the incident involving the accusation against Barnes for attacking and kidnaping Sherry in Florida had a strong and unavoidable prejudicial impact of character conformity evidence. Such evidence, however, was not overly emphasized in that it was only one of many instances of rather heated arguments between Barnes and Sherry. Thus, the trial court did not abuse its discretion in finding that the probative value of the evidence was not outweighed by the danger of unfair prejudice.


We find no error in the trial court's refusal to give the jury a sudden passion instruction in the jury charge. Further, we find no error in the trial court's admission of evidence of a prior extraneous altercation between Barnes and his wife, Sherry. The trial court did, as the parties agree, err in entering in the judgment an affirmative finding that Barnes used a deadly weapon; therefore, we will reform the judgment to delete such finding. We affirm the trial court's judgment in all other respects.

Karen Angelini, Justice

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