## Facts

- Omar Franklin Barnes and Sherry Barnes were married; Sherry moved to San Antonio for military service, and Barnes later moved there from Florida.
- Sherry was expected to meet a friend at a dance club one night but did not arrive.
- Barnes told Sherry’s friend and others that Sherry left their home after an argument about his unemployment and her belief that he was not trying to find a job.
- Barnes gave police a similar account, stating they argued, Sherry slapped him, and she left.
- Sherry’s body was found the next day after Barnes had returned to Florida.
- While jailed in Florida on an unrelated matter, Barnes made incriminating statements to another inmate, including that Sherry told him to pack and return to Florida and that he became very upset and choked her to death.
- Barnes was tried in Texas for Sherry’s murder, found guilty, and proceeded to a jury punishment phase.

## Issues

1. Whether Barnes was entitled, at the punishment phase of a murder trial, to a jury instruction on “sudden passion arising from an adequate cause” under Texas Penal Code § 19.02(d) based on evidence that the killing followed a domestic argument and Barnes’s claimed upset.

## Decision

- The court of appeals held the trial court did not err in refusing Barnes’s requested sudden-passion punishment instruction.
- The judgment of conviction and sentence for murder was affirmed.

## Legal Principles

- In Texas, a murder defendant may seek punishment mitigation under Texas Penal Code § 19.02(d) by proving, by a preponderance of the evidence, that the death was caused under the immediate influence of sudden passion arising from an adequate cause.
- “Sudden passion” requires provocation by the person killed (or someone acting with that person) arising at the time of the offense and not solely from prior provocation.
- “Adequate cause” requires a provoking cause that would commonly produce anger, rage, resentment, or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection.
- A sudden-passion instruction at punishment is required only if there is some evidence that would permit a rational jury to find sudden passion and adequate cause as statutorily defined.
- Evidence of being “very upset” during a domestic dispute, without legally sufficient evidence of adequate cause, does not require submission of the mitigation instruction.

## Conclusion

The appellate court affirmed Barnes’s murder sentence because the evidence described a domestic argument and Barnes’s emotional upset but did not raise a fact issue that the killing occurred under the immediate influence of sudden passion arising from an adequate cause as required for a punishment-phase mitigation instruction under Texas law.


Barnes v. State, No. 04-06-00500-CR, 2007 WL 3171298 (Tex. App.—San Antonio Oct. 31, 2007)