No. 14-14-00610-CR

IN THE

Court of Appeals 

For the Fourteenth Judicial District of Texas 

At Houston 

__________ 

ALAN POZZERLE,

Appellant 

v.

THE STATE OF TEXAS 

Appellee 

_________ 

Cause numbers 1384872 

In the 183

rd Judicial District Court 

Of Harris County, Texas 

_________ 

Appellant’s Brief 

__________

KELLY ANN SMITH

Texas Bar No. 00797867 

P.O. Box 10751

Houston, TX 77206

281-734-0668 

Counsel for Appellant 

ORAL ARGUMENT REQUESTED 

ACCEPTED

14-14-00610-CR

FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS

3/9/2015 4:50:14 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 3/9/2015 4:50:14 PM CHRISTOPHER A. PRINE Clerk
IDENTITY OF PARTIES AND COUNSEL

The Appellant has provided a complete list of all interested parties’ names below, 

under TEX. R. APP. P. 38.1.

The appellant or convicted person:

Alan Pozzerle  Appellant

TDCJ No. 01943752

Estelle Unit

264 FM 3478, 

Huntsville, TX 77320-3320

Counsel for the appellant:

Kelly Ann Smith Counsel on appeal

PO Box 10751

Houston, Texas 77206

Phone: (281) 734-0668

Allen Tanner  Counsel at trial

917 Franklin, Ste. 550

Houston, Texas 77002

(713) 225-1100

Counsel for the State:

Devon Anderson  District Attorney of Harris County

Harris County Criminal Justice Center

Luis Batarse  Assistant District Attorneys at trial

Lisa Collins Harris County Criminal Justice Center

1201 Franklin, Suite 600

Houston, Texas 77002

Telephone: (713) 755-5800

Trial Judge:

Hon. Vanessa Velasquez  Presiding Judge of the 183

rd District Court
2

TABLE OF CONTENTS

Page

IDENTITY OF PARTIES AND COUNSEL .........................................................................1

INDEX OF AUTHORITIES...............................................................................................4

STATEMENT OF THE CASE ...........................................................................................6

ISSUES PRESENTED......................................................................................................6

The trial court erred by refusing the appellant’s request to 

instruct the jury on defense of property as justification for 

William Johnson’s murder..........................................................................6

The trial court erred by refusing to instruct the jury on the 

sudden-passion special issue....................................................................6

SUMMARY OF THE FACTS ............................................................................................7

ARGUMENT: FIRST ISSUE PRESENTED .......................................................................10

The trial court erred by refusing the appellant’s request to 

instruct the jury on defense of property as justification for 

William Johnson’s murder........................................................................10

I. Summary of the argument .............................................................................. 10

II. Summary of the pertinent facts...................................................................... 10

III. The trial court erred by refusing to instruct the jury on 

defense of property as justification for William Johnson’s 

murder................................................................................................................. 11

A. The standard of review ............................................................................ 11

B. Law regarding jury instructions on defensive issues ............................ 12

C. The appellant was entitled to a defense of property instruction 

because it was raised by the evidence that the entire incident 

revolved around his efforts to retrieve his recently stolen mobile 

phone................................................................................................................... 13

ARGUMENT: SECOND ISSUE PRESENTED ...................................................................16

The tr**ial court erred by refusing the appellant’s request to 

instruct the jury on the sudden passion special issue.........................16
3

TABLE OF CONTENTS

(continued)

SECOND ISSUE (continued)

I. Summary of the argument .............................................................................. 16

II. Summary of the pertinent facts...................................................................... 17

III. The trial court erred by refusing the appellant’s request to 

instruct the jury on the sudden passion special issue. ................................. 17

A. The standard of review ............................................................................ 17

B. The law: Sudden Passion........................................................................178

C. The appellant was entitled to a sudden passion instruction ............. 20

PRAYER.....................................................................................................................21

CERTIFICATE OF SERVICE..........................................................................................21
4

INDEX OF AUTHORITIES

Cases

Almanza v. State,

686 S.W.2d 157 (Tex. Crim. App. 1984)

(op. on reh'g)...............................................................................................11, 16, 17, 18

Benavides v. State, 

992 S.W.2d 511 (Tex. App.-Houston

[1st Dist.] 1999, pet. ref'd).............................................................................................. 19

Bufkin v. State, 

207 S.W.3d 779 (Tex. Crim. App. 2006)...................................................................... 12

Kunkle v. State, 

771 S.W.2d 43 (Tex. Crim. App. 1986), cert. denied, 492 U.S. 925 (1989) ................ 13

London v. State, 

325 S.W.3d 197 (Tex. App.-Dallas 2008, pet. ref'd)..................................................... 18

Love v. State, 

199 S.W.3d 447 (Tex. App.— Houston

[1st Dist.] 2006, pet. ref’d)........................................................................................... 12

McKinney v. State,

179 S.W.3d 565 (Tex. Crim. App. 2005)...................................................................... 19

Miller v. State,

815 S.W.2d 582 (Tex. Crim. App. 1991)...............................................................12, 16

Neal v. State, 

256 S.W.3d 264 (Tex. Crim. App. 2008)................................................................12, 18

Ngo v. State, 

175 S.W.3d 738 (Tex. Crim. App. 2005)................................................................11, 17

Rogers v. State, 

105 S.W.3d 630 (Tex. Crim. App. 2003)...................................................................... 12

Shaw v. State, 

243 S.W.3d 647 (Tex. Crim. App. 2007)...................................................................... 12

Swearingen v. State, 

270 S.W.3d 804 (Tex. App.-Austin 2008, pet. ref'd) ........................................11, 17, 18

Trevino v. State, 

100 S.W.3d 232, 242 n. 40 (Tex. Crim. App. 2003).........................................19, 20, 21

Walters v. State, 

247 S.W.3d 204 (Tex. Crim. App. 2007)................................................................12, 13
5

INDEX OF AUTHORITIES

(Continued)

Statutes

TEX. PENAL CODE § 19.02..........................................................................................18, 20

TEX. PENAL CODE § 9.41............................................................................................10, 14

TEX. PENAL CODE § 9.42......................................................................................10, 14, 15
6

TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE

The State accused the appellant of murder. (CR 34). The indictment alleged 

that the appellant caused William Johnson’s death by striking Johnson with a motor 

vehicle and, in a separate paragraph, with a club (CR 34). The appellant pled not 

guilty to the indictments’ allegations, and the case was tried together before a jury and 

the Honorable Vanessa Velasquez, presiding judge of the 183

rd District Court in 

Harris County Texas (RR Vol. II at 5-6). The jury found the appellant guilty of 

murder than assessed his punishment at thirty-five years in prison (CR 91, 98, 99; RR 

Vol. VI at 96; Vol. VII at 4). The appellant filed a notice of appeal, and the trial 

court certified the appellant’s right to appeal (CR 102-3). 

 

ISSUES PRESENTED

1. The trial court erred by refusing the appellant’s request to 

instruct the jury on defense of property as justification for 

William Johnson’s murder.

2. The trial court erred by refusing to instruct the jury on the 

sudden-passion special issue.
7

SUMMARY OF THE FACTS

In April 2013, Alvin Hickman was homeless and lived under a bridge near 

Airline Drive in Houston (RR Vol. IV 84). Sometimes he would stay at the nearby 

Western Inn (RR Vol. IV 87). On April 19th, Hickman grew tired of panhandling and 

went to the appellant’s room at the Western Inn (RR Vol. IV at 89). The appellant 

was looking for his mobile phone. Someone had stolen it and wanted $80 for its 

return (RR Vol. IV at 91-2). Hickman joined the appellant in his van and the two 

went to a nearby convenience store to retrieve the appellant’s phone (RR Vol. IV at 

96-8). The appellant met the phone thief on a street nearby the store (RR Vol. IV at 

100-101). 

Hickman recognized the phone thief as a “hustler” who went by the moniker, 

“G”1 (RR Vol. IV 102). G had the appellant’s phone (RR Vol. IV at 103). Hickman 

saw the appellant get a “a pipe or a stick” before he got out of the van to confront G 

(RR Vol. IV at 104). According to Hickman, the appellant “whooped” G with the 

pipe; “[h]e was tearing him up with the stick” (RR Vol. IV at 104-5). G took off 

running (RR VOl. IV at 106). The appellant got back into the van and drove it into 

G and pinned him against a fence (RR Vol. IV at 106, 107). Hickman got out of the 

van and ran away (RR Vol. IV at 108). Hickman did some drugs and sat under the 

bridge because he was afraid (RR Vol. IV at 109). At some point Hickman went back 

 

1

 The medical examiner identified “G” by fingerprint comparison as William Johnson 

(RR Vol. IV at 172-3). 
8

to try to help G, but G was too heavy and couldn’t walk. So Hickman left him there 

and went back under the bridge (RR Vol. IV at 113). G was still alive and moaning 

(RR Vol. IV at 116, 133). 

Hickman described the appellant’s demeanor as unusual:

But to see a white guy in the hood get out there in the 

paint like that, that was, like -- you know, because he 

was --the guy right here have never disrespected me. 

He don't even do drugs. He don't even drink. But that 

day, he lost it. So, it really tripped me out, you know. 

I'd never seen a bad side to him. Never have. But that 

day, he tripped all the way out.

*********

He was silent. His -- his face, I can't describe it, but he 

was not hisself. He was, like, transformed to 

something else. I don't know what it was, but he was 

not hisself. I had never seen him act like that before, 

never.

(RR Vol. IV at 128-9, 136). 

The appellant testified that he left his mobile phone in his room At the 

Western Inn and when he returned the phone was gone (RR Vol. V at 130-32). The 

appellant felt desperate. He used his mobile phone for work and kept records on the 

phone that translated to two weeks of pay (RR Vol. V at 133). The appellant was not 

affluent. It was very important to the appellant to find the phone (RR Vol. V at 134). 

Eventually someone answered his phone and demanded $80 for the phone’s return 

(RR Vol. V at 134). The appellant phoned 911 for assistance and proceeded to the 

nearby convenience store to retrieve it (RR Vol. IV at 136). Neither the police nor 

the phone thief arrived (RR Vol. V at 136). The appellant called his phone again and 
9

made other arrangements with the thief to meet (RR Vol. V at 137). The appellant, 

who was exhausted and frazzled, took Hickman with him when he went to retrieve 

his phone (RR Vol. V at 138). 

The appellant met up with the complainant in a street near the Western Inn 

and grabbed a floor jack handle before he got out of his van (RR Vol. V at 145). He 

carried the handle for protection because it was a bad neighborhood (RR Vol. V at 

145). The appellant gave the complainant $80. The complainant then pulled a knife 

and the appellant struck him with the floor jack handle in self-defense (RR Vol. V at 

147-8). The complainant took off running with the appellant’s phone (RR Vol. V at 

151). (RR Vol. at 151). Still anxious to retrieve his phone, the appellant went after 

the complainant in his van. Hickman interfered with the steering wheel, and the 

appellant struck the complainant with his van (RR Vol. V at 154). 

The appellant got out of his van and retrieved his phone (RR Vol. V at 155). 

The appellant testified that during the whole incident while he was trying to retrieve 

his phone, his “mind was doing a hundred miles a minute”; he was mad and scared 

when the complainant pulled a knife (RR Vol. V at 156). 
10

ARGUMENT: FIRST ISSUE PRESENTED

The trial court erred by refusing the appellant’s request to 

instruct the jury on defense of property as justification for 

William Johnson’s murder.

I. Summary of the argument

The trial court improperly denied the appellant’s request for a jury instruction 

on defense of property under Penal Code sections 9.41 and 9.42. TEX. PENAL CODE 

§§ 9.41 & 9.42. 

II. Summary of the pertinent facts

After the appellant rested its case-in-chief, the trial court conducted a charge 

conference (RR Vol. V at 192-96). The appellant requested, among other things:

We're asking for a charge under self-defense and also 

a charge under deadly force to protect property under 

9.42 of the Penal Code. . . . 

. . I just wanted to be more specific as to our request 

for deadly force to protect property. We believe it was 

a theft at nighttime for a burglary. So, we're asking for 

that charge.

(RR Vol V at 194, 196). The trial court ruled: 

I'm going to allow the self-defense. I'm not going to 

allow the defense of property. . . . Okay. I looked at 

the section in the Penal Code and I don't think it 

applies. So, I'm going to deny your request.

(RR Vol V at 194, 196). 
11

The next morning, before jury argument, the trial court asked the appellant if 

he had any objections to the charge (RR Vol. VI at 4). The following colloquy 

ensued: 

[THE APPELLANT]: Same ones I made yesterday on

the record, Judge.

THE COURT: That would be with regards to defense 

of property at nighttime?

[THE APPELLANT]: Yes, ma'am, using deadly force.

THE COURT: All right. And I denied that. So, that's 

still denied.

(RR Vol. VI at 4). 

III. The trial court erred by refusing to instruct the jury on 

defense of property as justification for William Johnson’s 

murder

A. The standard of review

This Court should review jury-charge error under the familiar two-pronged 

test set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on 

reh'g); Swearingen v. State, 270 S.W.3d 804, 808 (Tex. App.-Austin 2008, pet. ref'd). 

First, this Court should determine whether error exists. Ngo v. State, 175 S.W.3d 738, 

743 (Tex. Crim. App. 2005). When error exists, this Court should then evaluate the 

harm caused by the error. Id. The harm required for reversal depends on whether 

that error was preserved in the trial court. Swearingen, 270 S.W.3d at 808. When error 

is preserved by timely objection, the record must show merely “some harm.”

Almanza, 686 S.W.2d at 171. Unobjected-to charge error requires reversal when it 
12

resulted in “egregious harm.” Neal v. State, 256 S.W.3d 264, 278 (Tex. Crim. App.

2008). 

B. Law regarding jury instructions on defensive issues

A defendant is entitled, upon a timely request, to an instruction on any 

defensive issue raised by the evidence, provided that (1) the defendant timely requests 

an instruction on that specific theory and (2) the evidence raises that issue. Rogers v.

State, 105 S.W.3d 630, 639 (Tex. Crim. App. 2003). To preserve error, the defendant 

must sufficiently identify the defensive theory for which he seeks an instruction. Id. at 

640. 

A defendant is entitled to an instruction on every defensive issue raised 

regardless of whether the evidence is strong, feeble, unimpeached or contradicted, and 

even when the trial court thinks that the testimony is not worthy of belief. Walters v.

State, 247 S.W.3d 204, 209 (Tex. Crim. App. 2007). This rule is designed to insure that 

the jury, not the judge, will decide the relative credibility of the evidence. Miller v. 

State, 815 S.W.2d 582, 585 (Tex. Crim. App. 1991). When a defensive theory is raised 

by the evidence from any source and a charge is properly requested, it must be 

submitted to the jury. Shaw v. State, 243 S.W.3d 647, 662 (Tex. Crim. App. 2007). 

This Court should review the denial of a requested defensive instruction in the 

light most favorable to the defendant and for an abuse of the trial court’s discretion. 

Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006); Love v. State, 199 S.W.3d 

447, 455 (Tex. App.— Houston [1st Dist.] 2006, pet. ref’d). 
13

C. The appellant was entitled to a defense of property 

instruction because it was raised by the evidence that the 

entire incident revolved around his efforts to retrieve his 

recently stolen mobile phone

Here, the appellant tried his case on a theory of defense of property and self. 

He testified that immediately prior to the altercation, his mobile phone had been 

stolen, and the complainant was holding it in lieu of a ransom. The apparent thief 

spoke to the appellant and demanded $80 for the phone’s return. The appellant 

needed his mobile phone for work and was desperately anxious for its return. He met 

William Johnson in an attempt to retrieve his phone. The meeting was captured on 

videotape and witnessed by Alvin Hickman. The appellant admitted engaging in the 

acts that led to Johnson’s death, but claimed Johnson was alive when he left him. The 

appellant admitted to striking Johnson with a jack handle and his van, but claimed 

Hickman, his accomplice,2turned the wheel and was more responsible than him for 

the van striking Johnson. The appellant recovered his phone. 

The record reflects that the appellant’s case-in-chief was neither complex nor 

lengthy and that the trial court had just heard testimony from the appellant that the 

 

2 Alvin Hickman was an accomplice. An “accomplice witness” is someone who has participated 

with another before, during, or after an offense’s commission. See Kunkle v. State, 771 S.W.2d 

435, 439 (Tex. Crim. App. 1986), cert. denied, 492 U.S. 925 (1989). While the appellant 

testified that Hickman was responsible for the van striking the complainant, the two acted 

together in confronting the complainant. The appellant is responsible for Hickman’s actions

under party liability. Thus, the appellant’s attempts to minimize his responsibility for the van 

striking the complainant do not undermine the evidence entitling him to the defensive 

instruction. That is to say the appellant did admit to conduct that, under the law of parties, was 

sufficient to sustain a conviction for murder and satisfies the “confession-and-avoidance 

requirement. See Walters v. State, 247 S.W.3d 204, 210 (Tex. Crim. App. 2007). 
14

appellant was attempting to retrieve his mobile phone from the complainant. The 

Appellant gave the trial court specific reasons why he believed the Appellant was 

entitled to an instruction on defense of property. Thus, the requested instruction was 

preserved for review.

The appellant was entitled to a protection of property defense under section 

9.41, and a use of deadly force defense under section 9.42. During the charge 

conference the appellant requested an instruction on section 9.42 on use of deadly 

force to protect property. See TEX. PENAL CODE §§ 9.41 & 9.42. Section 9.41 

provides in pertinent part:

(b) A person unlawfully dispossessed of land or 

tangible, movable property by another is justified in 

using force against the other when and to the degree

the actor reasonably believes the force is immediately 

necessary to reenter the land or recover the property 

if the actor uses the force immediately or in fresh 

pursuit after the dispossession and:

(1) the actor reasonably believes the other had 

no claim of right when he dispossessed the 

actor;

TEX. PENAL CODE § 9.41.

Section 9.42, allows a person to use deadly force against another to protect 

tangible, movable property:

(1) if he would be justified in using force against the other 

under Section 9.41; and

(2) when and to the degree he reasonably believes the 

deadly force is immediately necessary:

(A) to prevent the other’s imminent commission of 

arson, burglary, robbery, aggravated robbery, theft 
15

during the nighttime, or criminal mischief during the 

nighttime; or

(B) to prevent the other who is fleeing immediately 

after committing burglary, robbery, aggravated 

robbery, or theft during the nighttime from escaping 

with the property; and

(3) he reasonably believes that:

(A) the land or property cannot be protected or 

recovered by any other means; or

(B) the use of force other than deadly force to protect 

or recover the land or property would expose the 

actor or another to a substantial risk of death or 

serious bodily injury. 

TEX. PENAL CODE § 9.42.

Here, the appellant was justified in using force under Sections 9.41 and 9.42,

and the evidence raised the right to an instruction on the use of deadly force to 

protect property. The appellant and Hickman testified that the complainant 

possessed the appellant’s recently stolen mobile phone and would not return it unless 

the appellant paid him $80. The appellant testified that he desperate, frantic and 

scared because the complainant pulled a knife. Such conduct constituted the 

“imminent” commission of one or more of the section 9.42 enumerated offenses. 

Thus, the evidence—whether strong, feeble, unimpeached, contradicted, or not 

worthy of belief—raised a defensive issue, and the trial court should have instructed 

the jury accordingly. Viewing the evidence in the light most favorable to the 

Appellant, the trial court abused its discretion in refusing to give a section 9.42 

defensive instruction in the jury charge. 
16

The trial court’s refusal to give the jury a defensive instruction deprived the 

Appellant of the ability to present a defense and argue that defense to the jury. He 

was entitled to have the jury rule on his claim of defense of property. By refusing the 

requested instruction, the trial court removed any opportunity for the jury to decide 

the relative credibility of the evidence or the merits of the defense. See Miller, 815 

S.W.2d at 585. Accordingly, the Appellant suffered “some” harm from the trial 

court’s erroneous refusal to give the instruction. See Almanza v. State, 686 S.W.2d 157, 

171 (Tex. Crim. App. 1984) (holding when charging error is preserved for review, 

reversal is required if the error caused “some” harm). 

ARGUMENT: SECOND ISSUE PRESENTED

The trial court erred by refusing the appellant’s request to 

instruct the jury on the sudden passion special issue. 

I. Summary of the argument

The trial court improperly denied the appellant’s request for a jury instruction

on the sudden passion special issue. 
17

II. Summary of the pertinent facts

While the jury was deliberating the appellant’s guilt, the appellant asked the trial 

court to include a jury instruction on sudden passion in its punishment charge:

THE COURT: Mr. Tanner, any objection to the charge

MR. TANNER: Yes, ma'am. We're requesting under 

19.02 the adequate cause, sudden passion –

THE COURT: Okay.

MR. TANNER: -- to be added. We think the evidence 

did show that the Defendant acted in sudden passion 

based on adequate cause. We would like to submit 

that to the jurors where the range of punishment 

would be two to 20.

THE COURT: All right. Well, thank you very much, but 

the Court respectfully disagrees. And I'm not going to 

include that in the charge.

(RR Vol. VI at 31-2). 

III. The trial court erred by refusing the appellant’s request to 

instruct the jury on the sudden passion special issue.

A. The standard of review

This Court should review jury-charge error under the familiar two-pronged test 

set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (op. on reh'g); 

Swearingen v. State, 270 S.W.3d 804, 808 (Tex. App.-Austin 2008, pet. ref'd). First, this 

Court should determine whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex.

Crim. App. 2005). When error exists, this Court should then evaluate the harm 

caused by the error. Id. The harm required for reversal depends on whether that 
18

error was preserved in the trial court. Swearingen, 270 S.W.3d at 808. When error is 

preserved in the trial court by timely objection, the record must show merely “some 

harm.” Almanza, 686 S.W.2d at 171. Unobjected-to charge error requires reversal 

when it resulted in “egregious harm.” Neal v. State, 256 S.W.3d 264, 278 (Tex. Crim.

App. 2008). 

B. The law: Sudden Passion

If a defendant has been convicted of murder, he may argue at the punishment 

stage of trial that he caused the complainant’s death while under the immediate 

influence of sudden passion arising from an adequate cause. TEX. PENAL CODE § 

19.02(d); London v. State, 325 S.W.3d 197, 207 (Tex. App.-Dallas 2008, pet. ref'd). If 

the defendant proves this issue by a preponderance of the evidence, the offense is 

reduced from a first-degree felony to a second-degree felony. TEX. PENAL CODE § 

19.02(d); London, 325 S.W.3d at 207. The Penal Code defines “sudden passion” as 

“passion directly caused by and arising out of provocation by the individual killed ... 

which passion arises at the time of the offense and is not solely the result of former 

provocation.” TEX. PENAL CODE § 19.02(a)(2). “Adequate cause” is defined as 

“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). To be entitled to an affirmative finding on this issue, the 

defendant must demonstrate that “the homicide occurred while the passion still 
19

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.” McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005).

Self-defense and sudden passion are intricately intertwined, and facts that give 

rise to a self-defense issue generally give rise to a sudden-passion issue. Trevino v. State, 

100 S.W.3d 232, 242 n. 40 (Tex. Crim. App. 2003). Because self-defense and sudden 

passion so often arise from the same facts, trial courts are “generally well advised to 

give both instructions.” Benavides v. State, 992 S.W.2d 511, 525 (Tex. App.-Houston 

[1st Dist.] 1999, pet. ref'd). 

C. The appellant was entitled to a sudden passion instruction

In this case, the trial court instructed the jury on self-defense but refused to 

instruct the jury on sudden passion (CR 86-8). A trial court is obligated to instruct 

the jury on sudden passion when the evidence supports such a finding. Id. at 524-25.

As long as the record contains some evidence to support a sudden-passion charge—

even if that evidence is weak, impeached, contradicted, or unbelievable— the jury 

should receive a sudden-passion instruction. McKinney, 179 S.W.3d at 569. 

While the appellant did claim he acted in self-defense, the facts giving rise to 

sudden passion were larger and encompassed more actions than those relating only to 

self defense. There was ample evidence apart from self-defense that he acted out of 

sudden passion. The appellant testified that he needed his mobile phone for work; 
20

that it would cost him a significant amount of money if he could not retrieve it. The 

appellant was far from affluent. He was desperate: his “mind was doing a hundred 

miles a minute” and he was mad (RR Vol. V at 156). 

Hickman testified that he had never seen the appellant act like that before: 

I'd never seen a bad side to him. Never have. But that 

day, he tripped all the way out.

*********

He was silent. His -- his face, I can't describe it, but he 

was not hisself. He was, like, transformed to 

something else. I don't know what it was, but he was 

not hisself. I had never seen him act like that before, 

never.

(RR Vol. IV at 128-9, 136). 

While the jury did reject the appellant’s self-defense claim, the Court of 

Criminal Appeals has held that a “jury's rejection of self- defense at guilt-innocence 

does not necessarily mean that, given an instruction on sudden passion at punishment, 

it would have rejected that theory as well.” Trevino, 100 S.W.3d at 242-43. Given the 

foregoing, especially the fact that the complainant’s theft of his mobile phone caused 

a degree of anger, rage, resentment that rendered the appellant incapable of cool 

reflection, the trial court should have instructed the jury on sudden passion at the 

punishment phase. 

If the jury had determined that the appellant acted out of sudden passion, the 

offense would have been reduced to a second-degree felony, which carries a 

maximum sentence of 20 years. See TEX. PENAL CODE § 19.02(d). Because the jury 
21

assessed the appellant’s punishment at 35 years without the sudden-passion 

instruction, the error in failing to instruct the jury was harmful. The correct remedy in 

such a situation is to reverse the trial court's judgment as to punishment and remand 

the case for a new punishment hearing. See, e.g., Trevino, 100 S.W.3d at 243.

PRAYER

The appellant respectfully submits that he was denied a fair and impartial trial. 

His issues presented should be sustained, and his sentence should be reversed.

__/s/__Kelly Smith_______________

KELLY ANN SMITH

Texas Bar No. 00797867

CERTIFICATE OF SERVICE

Under TEX. R. APP. P. 9.5, this certifies that the undersigned served a copy of 

this brief on the State of Texas at the following address: Devon Anderson, District 

Attorney 1201 Franklin, 6th Floor Houston, Texas 77002.

__/s/__Kelly Smith_______________

KELLY ANN SMITH

Texas Bar No. 00797867

P.O. Box 10752

Houston, TX 77206

281-734-0668 

Kelly.A.Smith.06@gmail.com