COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00351-CR

GREGORY RENALDO THOMPSON APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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Appellant Gregory Renaldo Thompson appeals his conviction for murder. 

We affirm the trial court’s judgment.

I. BACKGROUND

Appellant and Paula West married in 1996. The relationship was rocky, 

and the couple separated and reunited three times before West left Appellant for 

 1

See Tex. R. App. P. 47.4.
2

the last time in March 2010. In June 2010, West began dating Terry Ross, with 

whom she previously had a business relationship.

In December 2010, West filed for divorce from Appellant. West stated that 

Appellant “constantly threatened . . . that he would hurt [West] or kill [her].” 

Indeed, Appellant told West’s nephew that if Appellant saw Ross and West 

together, West’s family “was going to be singing a sad song.”

On January 23, 2011, Ross called Appellant with West listening in without 

Appellant’s knowledge. During the call, Appellant angrily threatened Ross: “I will 

[expletive] you up and leave my family alone.” Two days later on January 25, 

2011, West and Ross called Appellant and Appellant again threatened Ross. 

When West mentioned the divorce petition, Appellant stated, “If I go to court 

Monday and go downtown Fort Worth and find out you filed that divorce, that’s 

going to be the worst thing you’ve done.”

The same day, West spent the night with Ross at his home. Her car, 

which she had owned during her marriage to Appellant, was parked in Ross’s 

driveway next to Ross’s truck. At 1:15 a.m. on January 26, West’s cell phone 

rang, but she did not answer when she saw Appellant was the caller. Appellant 

left an irate voicemail: “I don’t know what crazy game you’re playing.” West 

decided she should leave and spend the night at her sister’s house.

Ross went outside to warm up West’s car. When West’s car would not 

start, Ross came back inside to tell West that he was going to jump her car 

battery. After Ross returned outside, West heard an angry voice outside near 
3

Ross’s driveway say, “[Expletive] you mother [expletive].” She called 911 and 

reported that Appellant was involved in a disturbance outside Ross’s home. 

West stepped outside but saw nothing and only heard her car and Ross’s truck 

running. West went back inside and locked the door.

Although West admitted she never told Appellant she and Ross were 

dating, she averred that Appellant had seen Ross and West together. Appellant 

testified at trial and denied ever threatening Ross or knowing that Ross and West 

were dating. Appellant admitted that he had parked his 18-wheeler truck on a 

highway service road near Ross’s house at the time of the murder.2

 He asserted 

he was walking to Ross’s house to spend the night there, which he occasionally 

did. Appellant stated he was unarmed at the time.3

 As Appellant approached 

Ross’s house and saw Ross working on his truck, Appellant averred that Ross 

attacked him with no provocation. Appellant testified that during the ensuing fight 

Ross brandished “some kind of object” and that Appellant bit Ross’s hand 

struggling for control of the object. Appellant claimed that Ross began choking 

Appellant at some point and that Appellant grabbed Ross around his throat “to try 

to figure out why he’s doing this.” Appellant finally was able to wrest the object 

away from Ross (which Appellant noticed was a box cutter), backhanding Ross 

to knock him away, and he then went back to his truck. Although he was not 

 2

Appellant was a long-haul truck driver.

3

Appellant, however, was known to routinely carry a “little pocketknife.”
4

angry when he approached Ross’s house, Appellant testified that he was scared, 

upset, and confused about being attacked. Once Appellant got to his truck, he 

saw that his leg was cut and bleeding. Appellant, however, “drove away” and 

headed to Oregon where he was scheduled to make a truck delivery. Along the 

way, Appellant admitted that he threw away the clothes he was wearing (and, 

presumably, the box cutter) because they were bloody.

When the police arrived at Ross’s home, they found Ross dead and lying 

in the street. Ross’s throat had been slashed from ear to ear, completely 

severing his trachea, carotid artery, and jugular vein. In short, Ross almost had 

been decapitated. Ross had defensive cuts on his hands, and his right forearm 

had been severely gashed, severing the muscle. One of the investigating police 

officers believed that “there was a lot of rage involved in that killing.”

Appellant was arrested in Utah on January 27, 2011. He had a deep stab 

wound on his leg as well as scratches and bite marks. Three of his teeth were 

loose from the fight. He was later indicted for Ross’s murder. After the 

conclusion of the guilt-innocence phase of trial, the court instructed the jury on 

the defense of self-defense.4

 The jury found Appellant guilty of murder, implicitly 

rejecting self-defense, and the trial proceeded to the punishment phase before 

 4

Unlike sudden passion, which is treated like an affirmative defense, selfdefense is a defense under which the defendant has the burden of production but 

the State has the burden of persuasion. See Zuliani v. State, 97 S.W.3d 589, 

594 n.5 (Tex. Crim. App. 2003); Dudzik v. State, 276 S.W.3d 554, 557 (Tex. 

App.—Waco 2008, pet. ref’d); see also Tex. Penal Code Ann. §§ 2.03, 9.31 

(West 2011).
5

the same jury. Before the trial court charged the jury on punishment, Appellant 

timely requested an instruction on sudden passion, which the trial court denied. 

The jury assessed Appellant’s punishment at sixty years’ confinement. Appellant 

appeals and argues in his only point that the trial court erred by refusing to 

submit at punishment Appellant’s requested special issue on sudden passion 

arising from an adequate cause.

II. SUDDEN-PASSION INSTRUCTION

During the punishment phase, a defendant may raise the issue as to 

whether he caused the death of an individual “under the immediate influence of 

sudden passion arising from an adequate cause.” Tex. Penal Code Ann. 

§ 19.02(d) (West 2011). If the defendant can prove the issue of sudden passion 

by a preponderance of the evidence, the offense is a felony of the second degree 

rather than of the first degree. Id.; Trevino v. State, 100 S.W.3d 232, 237 (Tex. 

Crim. App. 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). “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). The defendant has the burden of production 

and persuasion with respect to the issue of sudden passion. Wooten v. State, 
6

400 S.W.3d 601, 605 (Tex. Crim. App. 2013) (9–0 decision); see Tex. Penal 

Code Ann. § 19.02(d).

A jury instruction on sudden passion should be given if the evidence at 

least minimally supports an inference that (1) the defendant acted under the 

immediate influence of an emotion such as terror, anger, rage, or resentment; 

(2) his sudden passion was in fact induced by the victim’s provocation, which 

would commonly produce such a passion in a person of ordinary temper; (3) he 

committed the murder before regaining his capacity for cool reflection; and (4) a 

causal connection existed between the provocation, the emotion, and the 

murder. Wooten, 400 S.W.3d at 605. The evidence must be viewed in the light 

most favorable to the requested defensive instruction. See Bufkin v. State, 207 

S.W.3d 779, 782 (Tex. Crim. App. 2006). Even if the evidence is “weak, 

impeached, contradicted, or unbelievable,” a sudden-passion instruction is 

warranted as long as the evidence is not “so weak, contested, or incredible that it 

could not support such a finding by a rational jury.” McKinney v. State, 179 

S.W.3d 565, 569 (Tex. Crim. App. 2005); See Trevino, 100 S.W.3d at 238. 

Therefore, a defendant’s testimony alone is sufficient to raise a defensive issue 

requiring an instruction in the charge. Shaw v. State, 243 S.W.3d 647, 662 (Tex. 

Crim. App. 2007), cert. denied, 553 U.S. 1059 (2008). Importantly, evidence that 

the defendant acted in response to provocation with no evidence that the 

defendant was acting under the immediate influence of sudden passion at the 
7

time of the murder is insufficient to support a sudden-passion instruction. 

Trevino, 100 S.W.3d at 241.

III. APPLICATION

A. ERROR

Appellant argues that his “version of events did evoke the emotion of terror 

sufficient to render his mind incapable of cool reflection”:

[Appellant] had no idea that [Ross] and [West] were an item. 

He had no reason to believe that his wife was inside the residence. 

His state of mind at the onset of [Ross’s] attack is equally 

understandable to anyone. Perplexed, frightened, and terrified are 

adjectives that seem appropriate. When he realized that [Ross] was 

trying to kill him with a box cutter[,] the jury could have easily 

believed that Appellant’s fear and terror were sufficient to render his 

mind incapable of cool reflection because of [Ross’s] unprovoked 

attack. Appellant’s testimony was sufficient to raise the defense of 

sudden passion arising out of an adequate cause. The jury had a 

right to consider this defensive issue when assessing Appellant’s 

punishment.

Indeed, “[s]elf-defense, if the defendant’s fear rises to the level of terror sufficient 

to render the mind incapable of cool reflection, could give rise to a . . . mitigation 

instruction.” 6 Michael B. Charlton, Texas Practice Series: Criminal Law § 10.2 

(2d ed. 2001). The State retorts that Appellant’s evidence shows that he was 

“capable of appraising and reflecting on his situation” and that his emotions were 

not sufficiently high to justify a sudden-passion instruction.
8

Viewing the evidence supporting the sudden-passion argument,5 Appellant 

sufficiently raised the affirmative defense. Appellant was unaware of Ross and 

West’s relationship and had not previously threatened Ross. Appellant would 

stay with Ross from time to time, even going so far as to assist Ross with the rent 

on the home. When he approached Ross’s house unarmed on the night of the 

murder, West’s car was in the driveway parked next to Ross’s truck. Ross ran at 

Appellant, hit Appellant in the face, and attacked him with a box cutter. A 

physical struggle ensued, with Ross attempting to choke Appellant. During the 

fight to gain control of the box cutter, Appellant’s leg was cut, but he did not know 

if Ross was hurt. Appellant pushed Ross away while gripping the box cutter and 

then ran away.

Although Appellant stated that, during the fight, he was attempting to 

determine why Ross was attacking him, this testimony does not equate to the 

“cool reflection” needed to negate the need for a sudden-passion instruction. 

This case is distinguishable from Daniels, which the State cites in support of its 

argument that Appellant was not subject to sudden passion. Daniels v. State, 

645 S.W.2d 459, 460 (Tex. Crim. App. 1983). In Daniels, the defendant testified 

that he was afraid the victim was going to kill him and he knew he had to kill the 

victim to escape the attack but that he was “in full control.” Id.; see also Wooten, 

400 S.W.3d at 607 n.33 (discussing Daniels).

 5

See Trevino, 100 S.W.3d at 238–39 (“[A]n appellate court’s duty is to look 

at the evidence supporting that charge, not [at] the evidence refuting it.”).
9

Here, Appellant was not capable of cool reflection under the facts as 

viewed in the light most favorable to the presence of sudden passion. Appellant 

was not in control of the situation. Indeed, he did not know why Ross was 

attacking him or if Ross was hurt in the struggle. He was unaware Ross and 

West were romantically involved, but West’s car was in Ross’s driveway early in 

the morning. Appellant testified he was scared, upset, and confused. After 

Appellant ran away, he attempted to continue hauling a load to Oregon. Once he 

determined his cell phone was not working, he stopped in Utah and called his 

uncle from a truck stop who informed Appellant, to Appellant’s surprise, that he 

was being sought for capital murder. By this point, police officers arrived at 

Appellant’s location and arrested him. See, e.g., Trevino, 100 S.W.3d at 239 

(considering appellant’s demeanor after murder as supportive evidence to justify 

sudden-passion instruction). An unprovoked, violent attack with a box cutter is 

sufficient provocation to induce the requisite emotional state in a person of 

ordinary temperament to justify a sudden-passion instruction. See Moore v. 

State, 969 S.W.2d 4, 11 (Tex. Crim. App. 1998) (holding evidence that murder 

occurred during violent fight, including victim’s attempt to run appellant over with 

a car, sufficient to raise sudden passion); cf. McKinney, 179 S.W.3d at 570–71 

(holding victim shouting at and pushing appellant before appellant shot victim 

insufficient evidence of sudden passion); Reese v. State, 340 S.W.3d 838, 842 

(Tex. App.—San Antonio 2011, no pet.) (finding no adequate cause when 

appellant shot victim “after she walked away from the truck and then backed 
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away from appellant with her hands raised when he approached her with the 

gun” because not common response by an ordinary person).

Further, Appellant’s claim that any injury to Ross was accidental does not 

preclude a sudden-passion instruction. See Trevino, 100 S.W.3d at 240 

(“[Appellant] was entitled to the sudden passion charge at punishment because 

there was some evidence supporting that charge regardless of whether it 

conflicted with other evidence including some evidence of an accidental 

shooting.”). Likewise, the jury’s implicit rejection of the self-defense instruction at 

guilt-innocence did not, ipso facto, deprive Appellant of the right to a suddenpassion instruction at punishment. See id. at 242–43. Appellant’s evidence may 

have been weak and, arguably, could have been impeached by the State’s 

evidence, “[b]ut a defendant is entitled to the sudden passion charge even if the 

evidence is weak and even if it is contradicted by the State’s evidence.” Id. at 

239. The preponderance of the evidence at least minimally supports the 

inference that Appellant caused Ross’s death while under the immediate 

influence of sudden passion arising from an adequate cause; thus, the trial court 

erred in failing to so instruct the jury at punishment. See id. at 237.

B. HARM

Although we have found error, our inquiry does not end because we must 

determine whether that error harmed Appellant. See Wooten, 400 S.W.3d at 

606. A trial court’s failure to include a requested sudden-passion instruction 

does not, standing alone, equate to a showing of harm. Id.; see also Trevino, 
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100 S.W.3d at 241 (“[A]ccording to the court of appeals, the mere fact that 

[Appellant] should have received the charge necessarily means that he was 

harmed by the failure to get it. This statement is essentially a conclusion that 

harm results per se, an approach that we have rejected.”).6

 Therefore, we must 

review this non-structural error for the requisite harm. See Payne v. State, 11 

S.W.3d 231, 232 (Tex. Crim. App. 2000) (holding jury-charge error to be nonstructural).

Because Appellant timely objected to the omission of the sudden-passion 

instruction in the trial court, the error requires reversal if it was “calculated to 

injure the rights of [the] defendant,” which means no more than that there must 

be some harm to Appellant from the error. Tex. Code Crim. Proc. Ann. art. 36.19 

(West 2006); Trevino, 100 S.W.3d at 242 (quoting article 36.19 and Almanza v. 

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)). In other 

words, a properly preserved error will require reversal as long as the error is not 

harmless. Almanza, 686 S.W.2d at 171; see Wooten, 400 S.W.3d at 606 

(holding harm analysis of trial court’s failure to include sudden-passion instruction 

governed by article 36.19). In making this determination, “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 

 6

Appellant suggests that the length of his sentence is sufficient to 

demonstrate harm. This argument also erroneously would truncate the required 

harm analysis.
12

counsel and any other relevant information revealed by the record of the trial as a 

whole.” Id.; see also Wooten, 400 S.W.3d at 606 (reiterating harm from 

exclusion of sudden-passion instruction must be determined “by the record as a 

whole”). As such, “we focus on the evidence and record to determine the 

likelihood that a jury would have believed that the appellant acted out of sudden 

passion had it been given the instruction.” Wooten, 400 S.W.3d at 606. 

“[B]urdens of proof or persuasion have no place” in this inquiry. Warner v. State, 

245 S.W.3d 458, 464 (Tex. Crim. App. 2008).

As stated above, the court of criminal appeals has instructed that a jury’s 

rejection of self-defense alone does not mandate a conclusion that the jury would 

also reject sudden passion. Trevino, 100 S.W.3d at 242. As in Trevino, there 

could be evidence, which was not discredited by the rejection of a self-defense 

claim, that supports a claim of sudden passion. But if a jury rejects a claim of 

self-defense, the record as a whole also could demonstrate that Appellant was 

not harmed by the failure to receive a sudden-passion instruction. See Wooten, 

400 S.W.3d at 608–10.

The facts of the present case are more consistent with the facts of Wooten. 

In Wooten, the appellant claimed that he acted in self-defense and, “[o]nce the 

shooting began, that he was overwhelmed by emotions of fear, disorientation, 

[and] confusion.” Id. at 604. The court of criminal appeals reasoned that

the same evidence raised both issues, and the jury’s rejection of the 

evidence adduced to show immediate necessity necessarily 

indicates that it would not have looked favorably upon the 
13

appellant’s claim either that he subjectively experienced the requisite 

degree of fear or that an adequate cause for such a degree of fear 

existed.

Id. at 610 n.45.

Here, the record reveals two competing theories of the murder: (1) Ross 

attacked Appellant with a sharp weapon with no provocation versus (2) Appellant 

brought a sharp weapon to Ross’s house to confront him about his relationship 

with West. Appellant’s son and West both testified at punishment that Appellant 

was abusive and violent, even going so far as to choke West “often” during the 

marriage. Ross, West, and West’s nephew heard Appellant threaten West and 

Ross. Appellant was known to routinely carry a knife. Although Ross’s injuries 

were severe and gruesome, Appellant stated he did not know if he cut Ross 

during the struggle. It is important to note that, during its deliberations regarding 

Appellant’s guilt, the jury specifically requested to see the post-mortem pictures 

of Ross’s wounds and the pictures taken of Appellant’s wounds after he was 

arrested. These pictures show that Appellant certainly was not as severely 

injured as Ross. After this violent fight in which he was injured, Appellant 

decided to continue with his business and drive to Oregon. When Appellant 

called his uncle, and later his mother, he did not tell them that Ross had attacked 

him.

Under the facts of this case, by finding Appellant guilty of Ross’s murder, 

the jury necessarily rejected Appellant’s claim of self-defense. Therefore, the 

jury had to have disbelieved Appellant that his use of deadly force was necessary 
14

to defend himself. As the court of criminal appeals concluded in Wooten, it is 

“highly unlikely that a jury that had already rejected the appellant’s claim that he 

reasonably believed that deadly force was immediately necessary to defend 

himself would nevertheless find in his favor on the issue of sudden passion.” 400 

S.W.3d at 609. Thus, the record does not show that Appellant suffered any harm 

as a result of the trial court’s failure to give the jury a sudden-passion instruction 

based on Appellant’s assertion that fear and the absence of cool reflection 

controlled his actions. We overrule Appellant’s point.

IV. CONCLUSION

Having overruled Appellant’s sole point, we affirm the trial court’s 

judgment.

LEE GABRIEL

JUSTICE

PANEL: GARDNER, WALKER, and GABRIEL, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: September 19, 2013