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  • Writer's pictureBrian Foley

Montgomery County Criminal Defense Attorney - Is "in the heat of passion" a real defense?

We have all heard of someone doing something "in the heat of passion." Or at least that was how it was phrased when I was watching movies and TV when I was a kid. It means that someone betrayed you or upset you to such a degree that we basically understand when you overreact. The classic example is catching your spouse in bed with someone else. So is it a real defense? Sort of . . .

Under the Texas Penal Code we call it "sudden passion." And it is technically a defense. No it doesn't mean you get to kill your partner if you catch them in an act of infidelity. But it is mentioned under the Murder Statute.

"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. Doesn't that sound like it was written by lawyers? It could be just about anything with wording that broad. But what it means in reality is catching your spouse sleeping with someone else.

It is only available for the offense of Murder in Texas. So if you slap someone in the face due to Sudden Passion then you can't get a "sudden passion" jury instruction to let you off the hook. What does it do? Lets take a look at the Statute.

Texas Penal Code 19.02 (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.

Murder is normally a 1st degree felony which means that it is punishable by 5-99 years or life in prison. But if you would like to get that punishment range bumped down to 2nd degree you can get it only at the punishment stage if you are under the influence of sudden passion from adequate cause.

What is adequate cause?

"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.

In McKinney v. State the Texas Court of Criminal Appeals held that "An instruction on sudden passion is proper only when the sudden passion was directly caused by and arose out of provocation by the deceased at the time of the offense. Texas Penal Code § 19.02(a)(2) specifically states that passion that is solely the result of former provocation does not qualify." The Court ruled that an argument that took place hours before the murder did not qualify. It has to be immediate. The McKinney case also held that "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."

In summary you can reduce the punishment from a max life in prison to a max of 20 years if the jury finds adequate provocation and sudden passion. But it is very strict in timing and it only applies in Murder cases.


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