Herrera v. State

Citations: 513 S.W.3d 223; 2016 Tex. App. LEXIS 13817; 2016 WL 7480502Docket: No. 04-16-00138-CR

Court: Court of Appeals of Texas; December 30, 2016; Texas; State Appellate Court

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Homero Herrera was convicted of murdering his wife, Blanca Herrera, on October 9, 2013, and was sentenced to thirty-five years in prison by a Maverick County jury on January 20, 2016. On appeal, Herrera argued that the trial court erred by not including an instruction on sudden passion during the punishment phase. Sudden passion, as defined by Texas law, refers to murder committed under immediate influence of intense emotions provoked by the victim, which must occur at the time of the offense. For Herrera to be entitled to this instruction, evidence must suggest he was under the influence of sudden passion due to provocation, had not regained the capacity for rational thought, and that a causal connection existed between the provocation, passion, and homicide.

The court noted that all parties acknowledged Herrera killed Blanca. Testimony indicated that Herrera had expressed intentions to harm his wife in the days leading up to the murder. Key evidence included descriptions of the crime scene, the severity of Blanca's injuries (which included defensive wounds), and Herrera's own life-threatening injuries. Despite the request for a sudden passion instruction by Herrera's counsel, the court determined that the evidence did not support an inference of sudden passion, leading to the affirmation of the trial court’s judgment.

Texas Ranger Roger Dixon interviewed Herrera two days post-murder at University Hospital, where Herrera was read his Miranda rights and expressed a willingness to talk. During the recorded interview, Herrera revealed that his partner, Blanca, had been in frequent contact with another man, leading him to believe she was having an affair. He described a moment of overwhelming anger that led him to stab her while she was awake in bed. Herrera noted that he did not want to get divorced and had not planned the attack, although he retrieved the knife with the intention to use it. Dr. Jack Gordon Ferrell Jr., a psychologist, assessed Herrera and testified that he was neither incompetent nor insane but exhibited diminished capacity due to significant marital distress, including frustration and arguments. Dr. Ferrell characterized Herrera as schizoid and schizo-typal, indicating social dysfunction and compulsive behaviors. He noted that Herrera felt trapped and acted out, quoting Herrera expressing confusion and a loss of control in his thoughts. During the punishment phase, Dr. Ferrell elaborated on Herrera's escalating frustration leading up to the stabbing, emphasizing that Herrera was unable to manage his emotions and acted impulsively in response to the conflict with Blanca.

If evidence of sudden passion arises, the defendant, Herrera, is entitled to a jury instruction on this matter, regardless of the evidence's strength. An appellate court's focus should be on the evidence supporting the sudden passion charge rather than evidence against it. The trial court is obligated to give the instruction if there is any supporting evidence, even if it is weak or contradicted by the State. If it is assumed that the trial court erred by not providing the instruction, Herrera must demonstrate he was harmed by this omission, which is not automatically presumed from the lack of instruction.

The appellate court applies a two-prong test for jury charge errors, where reversal is warranted if Herrera suffered "some harm" due to the error, as established in prior case law. It must be shown that harm was actual, not theoretical, and the court will review the entire jury charge, the evidence, arguments from counsel, and the trial's broader context. The error must have been likely to injure Herrera's rights. The analysis will focus on whether the jury would likely have accepted Herrera's claim of acting out of sudden passion had the instruction been given.

Sudden passion must derive from circumstances that create an immediate emotional influence. The court will evaluate the evidence overall to assess the likelihood of the jury accepting the sudden passion claim, considering that the jury independently judges the credibility of witnesses and can choose to accept or dismiss various pieces of evidence.

Evidence indicates that Herrera's emotional distress over Blanca's alleged taunting and her affair had been escalating for weeks prior to the incident. Testimony from Herrera's psychologist, Dr. Ferrell, outlined a deteriorating relationship marked by conflict and provocation, leading to Herrera's impulsive act of stabbing Blanca six times. Dr. Ferrell characterized Herrera's mental state as short-tempered and unable to cope with the ongoing turmoil, asserting that he acted out of "sudden passion" during the attack. However, Dr. Ferrell also acknowledged that Herrera's prior threats against Blanca two days before the murder contradicted the notion of sudden passion, as they suggested premeditation.

For the jury to reduce the charge from first-degree to second-degree murder based on sudden passion, they needed to find that Herrera's actions were a direct response to provocation from Blanca. The evidence presented showed a persistent buildup of conflict, with testimonies corroborating Herrera's belief in Blanca's infidelity and her provocations. Despite Dr. Ferrell's later testimony during the punishment phase supporting the idea of sudden passion, the inconsistencies raised during cross-examination regarding Herrera's prior statements undermined this claim.

Ultimately, the jury found Herrera guilty of murder, and the court concluded that even with a favorable view of the evidence for Herrera, it was improbable the jury would have recognized sudden passion had the instruction been provided, leading to the affirmation of the trial court's judgment.