1

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-16-00049-CR

____________________

DENNIS JERMAINE BOOKER, Appellant

V.

THE STATE OF TEXAS, Appellee

_______________________________________________________ ______________

On Appeal from the 252nd District Court 

Jefferson County, Texas

Trial Cause No. 14-20464 

________________________________________________________ _____________

MEMORANDUM OPINION 

A jury convicted Dennis Jermaine Booker of murder and then assessed a 60 

year sentence. Booker appeals his conviction, and in four issues, he argues that (1) 

he received ineffective assistance of counsel; (2) the trial court erred by admitting a 

statement that he made while in police custody about having stabbed the victim, 

Xavier Cane, in self-defense; (3) the trial court erred by denying Booker’s request 

for an instruction on “sudden passion” during the punishment phase of the trial; and 
2

(4) the evidence is insufficient to establish that Booker was guilty of murdering Cane 

beyond reasonable doubt. We overrule Booker’s issues and affirm the final 

judgment.

Background

On the night of August 15, 2014, Cane suffered a fatal stab wound to his chest 

while attending a party at an apartment complex in Port Arthur, Texas. In addition 

to Cane, fifteen or more others, including Booker, Amira Johnson, Elijah Foreman, 

and Demetri Martin, attended the party. Johnson, Booker’s girlfriend, came to the 

party with Booker, but they argued, and she left the party with Cane. The testimony 

in the trial shows that Johnson and Cane were cousins. 

 The testimony also shows that shortly before the fight between Booker and 

Cane occurred, Booker and Johnson had been arguing. Cane confronted Booker

about why Booker and Johnson were arguing. Cane and Booker began to fight, and 

in the course of that fight, Cane’s friends, and Johnson, began to fight with Booker 

and his friends.

During Booker’s trial, Johnson testified that she remembered seeing a kitchen 

knife with a black and grey handle by a box in the kitchen of the apartment. The 

kitchen was very close to where the fight between Booker and Cane occurred. 

During Johnson’s testimony, she identified a handle that did not have a blade as the 
3

knife-handle that she had seen in the kitchen of the apartment before Booker and 

Cane got into a fight. Johnson testified that the knife she saw in the kitchen did not 

belong to Booker and that she had never seen Booker carrying that particular knife. 

Two of Cane’s friends, Martin and Foreman, testified in the guilt-innocence 

phase of Booker’s trial. Martin testified that he saw Cane approach Booker on the 

night of the party after having previously seen Booker arguing with Johnson. 

According to Martin, Cane went up to Booker and asked “what happened.” At that 

point, Booker and Cane started fighting, and Cane was on top of Booker for nearly 

the entire fight. The evidence from the trial indicates that Cane was over six feet tall 

and weighed approximately 296 pounds. Martin was asked whether he saw a knife 

during the fight, but he testified that he did not see anyone with a knife, that he did 

not see who stabbed Cane, and that he did not see Booker stab Cane. However, 

Martin agreed that on the night the fight occurred, he told the police that Sakari 

White, another individual who was at the party, stabbed Cane. Martin explained that 

he told the police that White stabbed Cane because he heard others say that they saw

White with a knife immediately after the fight occurred. The day after the fight, 

Martin spoke to police again. By then, Martin decided that White could not have 

stabbed Cane in the chest because she was behind him during the entire fight, and 

from that position, she “would have stabbed [Cane] in the back[.]” 
4

Foreman, Cane’s friend, was one of the individuals who came to the party 

with Cane. When asked if he witnessed the whole fight between Booker and Cane, 

Foreman testified that he saw the fight start, but that he went outside before the fight 

was over. According to Foreman, he saw someone jump on Cane’s back while Cane

was on top of Booker. Foreman testified that he did not see who stabbed Cane.

Foreman testified that he did not recall seeing anyone with a knife in their hand while 

he was inside the apartment, but he did see a knife in the kitchen near a cake. When 

the fight ended, Cane, his friends, and Johnson, left the apartment and were going to 

a car that was near the apartment complex. Booker and his friends followed Cane’s

group from the apartment when they went to the car. On the way to the car, Martin 

noticed that Cane had blood on his shirt. Shortly after Cane and his friends got into 

the car to leave, Cane’s friends realized that Cane had been stabbed. 

Before Cane’s group departed the complex in the car, Johnson and Foreman 

noticed that White had a pocketknife in her hand. Johnson and Foreman testified in 

Booker’s trial that they saw White use the knife to slash three of the tires of their

car. Martin, who was driving the car, took Cane to the hospital. Cane was between 

Foreman and Joseph in the back seat of the car. According to Foreman, on the way 

to the hospital, he applied pressure to Cane’s chest wound. Cane mumbled during 
5

most of the trip, and he spoke a little about his son. Foreman told Cane to stop talking

because they were trying to get him to the hospital. 

The autopsy that was performed on Cane indicates that he died at 3:39 a.m. 

on August 16, 2014. According to Dr. John Wayne, the pathologist who performed 

the autopsy, Cane had a stab wound to his chest that penetrated his heart. According 

to Dr. Wayne, the chest wound that punctured Cane’s heart caused his death. Dr. 

Wayne did not identify the weapon that caused Cane’s wound. According to Dr. 

Wayne, “[a]ny object that had a sharp edge could have caused [Cane’s] stab wound.” 

Cane’s chest wound was approximately five to six inches deep, and Dr. Wayne did 

not find any blades or metal inside Cane’s body. 

Five of the police officers involved in the investigation of the altercation at 

the apartment between Cane and Booker testified during Booker’s trial. Officer 

Jamarcus Davis, a patrol officer with the Port Arthur Police Department, testified 

that he responded to a call about a disturbance at the apartment complex where the 

fight occurred. According to Officer Davis, when he drove up to the complex, he 

saw a car with three flat tires leaving the complex. Officer Davis testified that when 

he walked up to the apartment that was the subject of the disturbance call he 

received, he saw blood on the sidewalk. Officer Davis explained that when he went 

inside the apartment, he saw several people in the den and kitchen area, and he found 
6

Booker in the bathroom. When Officer Davis found Booker, Booker was washing 

blood off his hands. Officer Davis testified that he did not notice any visible wounds 

on Booker’s hands. Booker told Officer Davis that “he was washing his hands due 

to hitting a wall.” Officer Davis and another officer, Officer Chris Duncan, made 

everyone go outside the apartment. Officer Davis explained that while he was 

involved in the investigation, he was notified that a person at the apartment had gone 

to the hospital with a stab wound and that the person who had been stabbed was in 

serious condition. The police gave Officer Davis the names of two potential suspects, 

and told him that both suspects were believed to still be present at the complex. 

Officer Duncan, another Port Arthur police officer who participated in the 

investigation, testified during Booker’s trial. Officer Duncan explained that he saw

blood on the bottom of the door of the apartment where the disturbance had 

reportedly occurred. According to Officer Duncan, he was advised by a police 

dispatcher that Booker was a potential suspect. At that point, he placed Booker in 

handcuffs. Officer Duncan testified that he did not question Booker, but when he 

placed Booker in handcuffs Booker volunteered: “We were fighting: I stabbed that 

n*****. It was self-defense.”1

 

1 The trial court conducted a hearing without the jury present before it allowed 

the jury to hear Officer Duncan’s testimony about Booker’s statement. In the 

hearing, Officer Duncan testified that Booker made the statement while in custody, 
7

Officer Duncan searched Booker after Booker admitted stabbing Cane, and 

Officer Duncan found the handle of a knife in Booker’s front left pocket. Officer 

Duncan identified the handle of the knife that he took from Booker’s pocket during 

the trial. According to Officer Duncan, the police never located the blade that went 

with the handle. On cross-examination, Officer Duncan agreed that he could not say 

whether Cane’s wound was caused by a kitchen knife. 

Officer Tomas Barboza, an off-duty patrol officer with the Port Arthur Police 

Department, was another of the police officers who responded to the disturbance call 

on the night Cane was stabbed. When Officer Barboza got to the apartment, he saw 

several people seated outside. He also saw that Booker had already been handcuffed. 

Officer Barboza testified that he heard Booker say “He came at me first and that’s 

why I stabbed him.”2

 

but that Booker volunteered the statement even though he did not ask Booker any 

questions. Officer Duncan testified that, “[f]or some reason my audio recorder was 

not working.” The trial court overruled Booker’s objection to admitting the 

statement before the jury in the trial.

2 The trial court also conducted a hearing outside the jury’s presence to 

address the admissibility of Officer Barboza’s testimony about Booker’s statement. 

The trial court overruled Booker’s objection to Officer Barboza’s testimony

regarding what he heard Booker say. Officer Barboza was not asked whether his 

body microphone captured Booker’s statement.
8

Officer Reid Rowe, a patrol sergeant with the Port Arthur Police Department, 

also came to the apartment complex on the night Cane was stabbed. When Officer 

Rowe got to the complex, he saw several individuals handcuffed and sitting outside

the apartment. According to Officer Rowe, he heard Booker say: “We were fighting 

and I stabbed that n****. It was self-defense.”3 Officer Rowe left the apartment 

complex and went to the hospital, where he spoke with Cane’s friends. According 

to Officer Rowe, Cane’s friends thought that White was the person who stabbed 

Cane. However, Officer Rowe explained that he had seen White when he went to

the apartment complex, and White did not appear as if she had been in a struggle,

and he did not see any signs that White had blood on her. Officer Rowe explained 

that upon further questioning of Cane’s friends, he learned that they had actually 

only seen White with a knife outside the apartment and that none of them actually 

saw who stabbed Cane. 

 

3

In the hearing the trial court conducted before admitting Officer Rowe’s 

testimony, Officer Rowe testified that he asked the group seated outside the 

apartment “what’s going on.” According to Officer Rowe, Booker did not respond. 

Officer Rowe testified that while explaining to the individuals outside the apartment 

what the police were doing there, Booker volunteered that he stabbed Cane. Officer 

Rowe was not asked to address whether his body microphone captured Booker’s 

statement. 
9

Officer Eric Thomason was the last officer who testified in the guilt-innocence 

phase of Booker’s trial. According to Officer Thomason, he attempted to speak with 

Cane while the doctors were treating him. However, Cane could only respond to his 

questions with grunts and groans, and Cane was unable to tell him what actually 

happened. 

Following closing argument, the jury found Booker guilty of murder and 

assessed a sixty-year sentence. This appeal followed. 

Analysis

Is the Evidence Sufficient to Support the Verdict?

In his fourth issue, Booker argues the evidence was insufficient to allow the 

jury to conclude, beyond reasonable doubt, that Booker murdered Cane. If Booker 

were to prevail on this issue, he would be entitled to an acquittal. See Brooks v. State, 

323 S.W.3d 893, 898-902 (Tex. Crim. App. 2010). Therefore, because issue four

would give Booker the greatest relief, if sustained, we begin by addressing Booker’s 

fourth issue. See Tex. R. App. P. 43.3; Campbell v. State, 125 S.W.3d 1, 4 n.1 (Tex. 

App.—Houston [14th Dist.] 2002, no pet.) (stating that the reviewing court should 

first address complaints that would afford the defendant the greatest relief). 

When reviewing a legal sufficiency challenge in a criminal case, we review 

all the evidence admitted before the jury in the light that most favors the jury’s 
10

verdict to determine whether any rational factfinder could have found the defendant 

guilty of the essential elements of the crime beyond a reasonable doubt. Jackson v. 

Virginia, 443 U.S. 307, 319 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. 

App. 2007). In a jury trial, the jury is the sole judge of the credibility of the witnesses 

and the weight to afford testimony. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. 

Crim. App. 2012). The jury may make reasonable inferences of fact from the 

evidence as it sees fit, to weigh the evidence, and to draw reasonable inferences from 

the facts in reaching a conclusion regarding the defendant’s guilt. See Hooper, 214 

S.W.3d at 13. We “‘determine whether the necessary inferences are reasonable based 

upon the combined and cumulative force of all the evidence when viewed in the light 

most favorable to the verdict.’” Clayton v. State, 235 S.W.3d 772, 778 (quoting 

Hooper, 214 S.W.3d at 16-17). Circumstantial evidence alone can be sufficient to 

establish a defendant’s guilt. Hooper, 214 S.W.3d at 13.

To prove that Booker was guilty of murder, the State was required to prove 

that Booker intentionally or knowingly caused Cane’s death. See Tex. Penal Code 

Ann. § 19.02(b)(1) (West 2011). The cause of Cane’s death was undisputed, as the 

evidence showed he died as a result of a stab wound to his chest. However, Booker 

disputes whether the evidence was sufficient to establish that he was the person who 

stabbed Cane. In closing argument, Booker criticized the police for not fully 
11

investigating whether White used her pocketknife to stab Cane; pointed out that 

while three officers allegedly heard Booker say that he had stabbed Cane, none of 

them captured the statement on the microphones they were carrying on their 

uniforms that night; noted that the handle of the knife found in Booker’s pocket did 

not have any blood on it, and that the evidence failed to address whether the handle 

was capable of having a blade long enough to cause Cane’s deep stab wound;

observed that on the night the stabbing occurred, both Johnson and Foreman claimed 

that White stabbed Cane; suggested that the weapon actually used to cause Cane’s 

wound was never found; and questioned whether the knife like the one in the kitchen 

could have made a wound like the wound that resulted in Cane’s death. 

Even though Booker criticizes the quality and amount of the evidence before 

the jury, the record contains evidence from which a jury could reasonably infer that 

Booker was the person who stabbed Cane. The two were fighting shortly before 

Cane discovered his wound; Booker had blood on his hands when police first found 

him in the bathroom a short time after the fight occurred; and Booker stated in the 

presence of three police officers that he stabbed Cane. These facts allowed the jury 

to infer that Booker was the person who stabbed Cane. After reviewing the evidence 

in the light that most favors the verdict, we conclude that a rational jury could have 

found beyond reasonable doubt that Booker knowingly or intentionally stabbed Cane 
12

and that Cane’s chest wound caused his death. See Jackson, 443 U.S. at 320; Brooks, 

323 S.W.3d at 896. Therefore, we overrule Booker’s fourth issue.

Did the Trial Court Err by Admitting

Booker’s Statements about Stabbing Cane?

In his second issue, Booker argues that he should receive a new trial because 

the trial court erred when it admitted Booker’s statements indicating that he was the 

person who stabbed Cane. According to Booker, his statements were not admissible 

because the statements were made while he was in custody and before he was warned 

of his Miranda4rights. 

We review a trial court’s ruling on the admission of evidence for an abuse of 

discretion. Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009); 

Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). We will uphold 

the trial court’s decision unless it lies outside the zone of reasonable disagreement. 

Layton, 280 S.W.3d at 240 (citing Montgomery v. State, 810 S.W.2d 372, 380 (Tex. 

Crim. App. 1990)). The test for abuse of discretion is whether the ruling was 

arbitrary or unreasonable. Montgomery, 810 S.W.2d at 380. We may uphold a trial 

court’s ruling on any legal theory or basis that applies to the case. See Martinez v. 

State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002).

 

4 Miranda v. Arizona, 384 U.S. 436, 478-79 (1966).
13

An oral statement made by a person accused of a crime that results from a 

custodial interrogation is not admissible at trial unless the accused was warned of 

his rights, and the accused knowingly, intelligently, and voluntarily waived those 

rights. See Miranda v. Arizona, 384 U.S. 436, 467-68 (1966); see also Tex. Code 

Crim. Proc. Ann. art. 38.22, § 2(a)-(b) (West Supp. 2017). However, when the 

statements the accused made were not made as the result of an interrogation, the 

statements are not excluded based on either article 38.22 or under Miranda. Tex. 

Code Crim. Proc. Ann. art. 38.22, § 5 (West Supp. 2017) (“Nothing in this article 

precludes the admission of a statement by the accused . . . that is res gestae of the 

arrest or of the offense, or of a statement that does not stem from custodial 

interrogation or of a voluntary statement[.]”); Miranda, 384 U.S. at 478 (“Any 

statement given freely and voluntarily without any compelling influences is, of 

course, admissible in evidence,” and “[v]olunteered statements of any kind are not 

barred by the Fifth Amendment[.]”). For example, the United States Supreme Court 

has held that voluntary statements made in custody that are not the product of an 

interrogation are admissible. Rhode Island v. Innis, 446 U.S. 291, 299-300 (1980)

(holding that Miranda did not prohibit voluntary statement that was not made in 

response to a question by police even though the defendant was in police custody). 

To be suppressed, the accused’s incriminating response must have been “the product 
14

of words or actions on the part of the police that they should have known were 

reasonably likely to elicit an incriminating response.” Id. at 303. 

Under Texas law, the defendant has the initial burden to establish that his 

statement resulted from a custodial interrogation. Herrera v. State, 241 S.W.3d 520, 

526 (Tex. Crim. App. 2007). In Booker’s case, there is no evidence that Officers 

Duncan, Barboza, or Rowe would have reasonably anticipated that Booker would 

volunteer the statements they testified that he made and all of them explained during 

the hearings the trial court conducted that Booker was not being interrogated when 

he made the statements that are at issue in his appeal. In deciding whether to admit 

the police officers’ respective accounts about Booker’s statements, the trial court 

was entitled to believe their accounts about the context in which Booker’s statements 

occurred. Officer Duncan indicated that Booker, upon being handcuffed, 

volunteered the statement about stabbing Cane, and that he volunteered the statement

without being asked any questions. Officer Barboza indicated that he heard Booker 

admit that he stabbed Cane when he approached the group where Booker was sitting

and before he asked Booker any questions. Officer Rowe stated that Booker 

volunteered the statement while he was attempting to explain to a group of people 

seated outside the apartment what police were doing there and that Booker made the 

statement even though no specific question had been directed at him. The trial court 
15

was allowed to conclude from the context in which Booker’s statements occurred 

that the officers did not reasonably anticipate getting an incriminating response from 

Booker. “That the suspect was neither expressly nor implicitly questioned by police 

officers at the time the statement was made often determines the voluntariness of a 

statement.” Ramirez v. State, 105 S.W.3d 730, 741 (Tex. App.—Austin 2003, no 

pet.) (citing Stevens v. State, 671 S.W.2d 517, 520 (Tex. Crim. App. 1984); Sanchez 

v. State, 589 S.W.2d 422, 423 (Tex. Crim. App. 1979); Earnhart v. State, 582 

S.W.2d 444, 448 (Tex. Crim. App. 1979); Davis v. State, 780 S.W.2d 945, 947 (Tex. 

App.—Fort Worth 1989, pet. ref’d)).

We hold the evidence authorized the trial court to find that Booker’s 

statements were not the products of custodial interrogations. Therefore, we conclude 

the trial court did not abuse its discretion by admitting Booker’s statements 

indicating that he was the person who stabbed Cane. We overrule Booker’s second 

issue.

Ineffective Assistance of Counsel

In his first issue, Booker argues that he received ineffective assistance of 

counsel. According to Booker, his attorney should have requested the trial court to 

instruct the jury on self-defense, and to instruct the jury that it could consider 

convicting Booker on the lesser-included-offense of manslaughter. Additionally, 
16

Booker alleges that “the totality of trial counsel’s representation constituted 

ineffective assistance of counsel.”

To establish a claim of ineffective assistance of counsel, the defendant must 

show that the performance of his attorney fell below an objective standard of 

reasonableness, and that, but for counsel’s alleged error, the outcome of the 

proceedings would probably have been different. Strickland v. Washington, 466 U.S. 

668, 687-88 (1984). When making an ineffective assistance of counsel claim, the 

defendant bears the burden of developing the facts needed to show that his attorney 

was ineffective under the standards identified in Strickland. See Jackson v. State, 

877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (citing Strickland, 466 U.S. at 689). 

Generally, to prove a claim of ineffective assistance, the defendant must overcome 

the “strong presumption that counsel’s conduct fell within the wide range of 

reasonable professional assistance.” Thompson v. State 9 S.W.3d 808, 813 (Tex. 

Crim. App. 1999) (citing Strickland, 466 U.S. at 690).

In Booker’s case, Booker filed a motion for new trial that alleges a claim of 

ineffective assistance. However, Booker’s motion for new trial does not specifically 

explain why he was claiming that trial counsel’s performance had been deficient. 

Additionally, Booker did not attach any affidavits or exhibits to establish how the 

attorney who represented him in his trial provided a defense that fell below the 
17

standards that apply to attorneys. The record also does not show that the trial court 

conducted a hearing on Booker’s motion. Importantly, because the trial court did not 

conduct a hearing on Booker’s motion, the record presently before us contains no 

response by Booker’s counsel explaining why he chose to handle Booker’s defense 

in the manner that appellate counsel criticizes in Booker’s appeal. 

Booker must prove that there was no professional reason for the specific acts 

or omissions of trial counsel that appellate counsel is criticizing in Booker’s appeal. 

Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 1999). To prove ineffective 

assistance, the “allegation of ineffectiveness must be firmly founded in the record, 

and the record must affirmatively demonstrate the alleged ineffectiveness.”

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing McFarland v. 

State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), overruled on other grounds by 

Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998)). 

The record in Booker’s direct appeal is insufficient to demonstrate that 

“counsel’s representation was so deficient and so lacking in tactical or strategic 

decisionmaking as to overcome the presumption that counsel’s conduct was 

reasonable and professional.” Bone, 77 S.W.3d at 833 (citation omitted). On this 

record, we conclude that Booker has failed to defeat the strong presumption that 

counsel’s decisions during his trial fell within the wide range of reasonable 
18

professional assistance. See Bone, 77 S.W.3d at 833. Because the trial court did not 

conduct a hearing on Booker’s motion for new trial, the record available in Booker’s 

direct appeal does not demonstrate that trial counsel’s performance was the product 

of an unreasonable trial strategy, or that counsel’s performance led to an unreliable 

verdict or punishment. Id. We overrule Booker’s first issue without prejudice to 

Booker’s right to raise his claim in a post-conviction writ. See Goodspeed, 187 

S.W.3d 390, 392 (Tex. Crim. App. 2005); Robinson, 16 S.W.3d 808, 813 n.7 (Tex. 

Crim. App. 2000).

Was Booker Entitled to an Instruction on Sudden Passion?

Following the punishment phase of his trial, Booker asked the trial court to

instruct the jury that it could consider whether he caused Booker’s death under the 

immediate influence of a sudden passion that arose from an adequate cause. See Tex. 

Penal Code Ann. § 19.02(d) (West 2011). The trial court ruled that Booker was not 

entitled to a sudden passion issue.

5

In issue three, Booker argues that he is entitled 

to a new punishment hearing because the trial court refused his request for a charge 

that would have allowed the jury to consider whether he acted in a state of sudden 

passion. See id.

 

5 When it denied Booker’s request, the trial court stated that Booker 

“specifically testified that that’s not what it was. In addition, [Booker] testified that 

he does not believe that he committed the offense.” 
19

If Booker had been entitled to an issue based on the doctrine of sudden 

passion, the jury in his case would have been instructed that if Booker proved that 

he caused Cane’s death under the immediate influence of sudden passion arising 

from an adequate cause, the offense would be punishable by imprisonment for two 

to twenty years, or five to life if enhanced for one prior felony. See id. (“If the 

defendant proves [sudden passion] in the affirmative by a preponderance of the 

evidence, the offense is a felony of the second degree.”). Under the facts in Booker’s 

case, his punishment range was enhanced because he had a prior felony conviction. 

Thus, had Booker proven that he acted under the influence of sudden passion, the 

jury would have been instructed to consider a minimum sentence of five years rather 

than the fifteen year minimum that it considered under the charge the trial court gave 

the jury. See id. §§ 12.33(a) (West 2011), 12.42(b) (West Supp. 2017), 19.02(d).

In reviewing a complaint of charge error, we first consider whether error 

exists. Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013); Ngo v. State, 

175 S.W.3d 738, 743 (Tex. Crim. App. 2005). A punishment phase instruction is 

needed to address a claim of sudden passion only if the evidence supports allowing 

the jury to consider the doctrine. McKinney v. State, 179 S.W.3d 565, 569 (Tex. 

Crim. App. 2005). The Court of Criminal Appeals has explained:

[B]efore a defendant is allowed a jury instruction on sudden passion, 

he must prove that there was an adequate provocation, that a passion or 
20

an emotion such as fear, terror, anger, rage, or resentment existed, that 

the homicide 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 

homicide.

A jury should receive a sudden passion charge if it is raised by 

the evidence, even if that evidence is weak, impeached, contradicted, 

or unbelievable. However, the evidence cannot be so weak, contested, 

or incredible that it could not support such a finding by a rational jury. 

Id. 

We review the evidence in Booker’s trial in the light most favorable to Booker

in determining whether he was entitled to an issue on his claim that he acted under 

the influence of a sudden passion arising from an adequate cause. See Griffin v. State, 

461 S.W.3d 188, 192 (Tex. App.—Houston [1st Dist.] 2014, no pet.). A defendant 

is entitled to a jury instruction on the issue of sudden passion if the record supports 

a reasonable inference that: (1) the defendant in fact acted under the immediate 

influence of a passion such as terror, anger, rage, or resentment; (2) his sudden 

passion was in fact induced by some provocation by the deceased or another acting 

with him, which provocation 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, 

passion, and homicide.” Wooten, 400 S.W.3d at 605 (internal quotations omitted); 

McKinney, 179 S.W.3d at 569; see also Tex. Penal Code Ann. § 19.02(a)(1)-(2)
21

(West 2011). Nonetheless, the mere fact that a defendant acted in response to the 

provocation of another individual is not sufficient to warrant a charge of sudden 

passion. Trevino v. State, 100 S.W.3d 232, 241 (Tex. Crim. App. 2003). Instead, the 

testimony must show that the defendant killed the victim while acting under the 

immediate influence of a sudden passion. Id.

Under the Penal Code, the term “sudden passion” is defined as “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). To 

prove the state of passion was the direct result of an adequate cause, the defendant 

must prove that he acted in response to a “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 testimony in 

both the guilt-innocence and the punishment phases of the trial are reviewed to 

decide if the trial court ruled properly on a defendant’s request for a sudden passion 

issue. See Trevino, 100 S.W.3d at 238; Griffin, 461 S.W.3d at 192. 

In his brief, Booker argues that the heated altercation he had with Johnson, 

followed by Cane’s confronting him about the altercation with Johnson, provoked 

and angered him to the point that he was not capable of coolly deciding how to 
22

respond. However, the testimony from the trial does not show that Booker reacted 

immediately to Cane’s questioning him about his treatment of Johnson by using 

deadly force. And, none of the testimony about the fistfight shows that Booker, 

during the fight, acted in response to a cause that would commonly produce a degree 

of anger, rage, resentment, or terror in a person of ordinary temper that would have 

caused a reasonable person to reach for a knife and stab Cane. Finally, there is 

nothing in the record about Booker’s relationship with Johnson that indicates a 

person of ordinary temper would have stabbed Cane because Cane questioned

Booker about how Booker was treating Johnson. We agree with the trial court’s 

conclusion that Booker failed to introduce evidence that he would have responded 

to Cane’s questioning of Booker with any force at all, much less deadly force. See

Tex. Penal Code Ann. § 19.02(a)(1) (defining “adequate cause”); Trevino, 100 

S.W.3d at 241 (“The mere fact that a defendant acts in response to the provocation 

of another is not sufficient to warrant a charge on sudden passion.”). Additionally, 

nothing in the testimony about the fight itself shows that Booker developed an 

adequate cause that would allow a jury to reasonably conclude that his use of deadly 

force was justified. Id. We hold the trial court properly denied Booker’s requested 

instruction, and we overrule Booker’s third issue.
23

Conclusion

Given our resolution of Booker’s appellate issues, Booker’s conviction for 

murder is affirmed. 

AFFIRMED. 

 

_________________________

 HOLLIS HORTON

 Justice

Submitted on September 11, 2017

Opinion Delivered December 13, 2107

Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.