Murder was the Case that They Gave Me (Part 5)

killer-hand-1-1153640-m.jpgAnd since I practice in Sherman I have to mention the favorite statute of a great murder prosecutor, Grayson County’s own Kerye Ashmore. Texas Penal Code section 6.04(b), the law of “transferred intent”, states that “A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that: (1) a different offense was committed; or (2) a different person or property was injured, harmed, or otherwise affected.” This allows a murder conviction theory, in a shooting case in which a person shoots into a car or crowd and hits a person he was not intending to shoot, in its most simplistic form. It could also cover an arson case in which a homeless person dies when a structure believed to be empty is burned down by the actor, causing the homeless person’s death.

The sudden passion defense is outlined in Texas Penal Code section 19.02(d): “(d) 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.” For whatever reason, in paragraph (a) of the same section two key terms of section (d) are defined: “(1) ‘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.(2) ‘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.” Thus, it cannot be a previous provocation of the individual killed that causes the sudden passion. It has to be in the moment, and something that would make someone of “ordinary temper” incapable of reflecting cooly. Traditionally, this is the spouse that walks in on their spouse in the act of adultery, but it is not limited to this.

When I was in law school in Houston, a well known dentist raised this defense to the murder of her husband, whom she found not in the act of adultery but leaving the hotel with his mistress. The jury stated that her lack of sudden passion was evident in the fact that she backed up over her husband to make sure she killed him, after first running him over with her car.

If you or someone you know is being investigated or prosecuted for a crime, call Board Certified Criminal Law Specialist Micah Belden at 903-744-4252.