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Click here for the full text of this decision FACTS:The appellant, Gerry Don McKinney, was convicted of murder and the jury assessed a sentence of 40 years’ confinement and a $10,000 fine. On appeal, appellant argued that the trial court erred in failing to include an instruction regarding sudden passion in the jury charge. The court of appeals held that the trial court did not err in refusing to submit a charge on sudden passion to the jury during the punishment phase of the trial and affirmed the trial court’s judgment. HOLDING:Affirmed. Appellant’s testimony indicates that he had time to deliberate over his actions. He testified that upon returning home, he sat down at his desk for a while and then decided to retrieve his pistol. It appears that appellant had time to consider how to deal with his son, and by retrieving his gun, he was preparing himself to respond to the altercation he was anticipating. 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. Although an accident defense during the guilt phase of the trial does not preclude a sudden-passion instruction at punishment, there must be some evidence to indicate that the appellant acted under the influence of sudden passion, even if that evidence is contrary to other evidence in the case. Appellant argues only that “evidence supporting a sudden passion instruction in this case can be found independent of, and in addition to, Petitioner’s own testimony.” However, appellant failed to indicate what this evidence is, and the court is unable to find such evidence in the record. The court of appeals was correct in affirming the trial court’s decision to deny a sudden-passion instruction, the court concludes. Appellant’s second ground for review asks whether evidence of provocation by the decedent precludes a sudden-passion charge at the punishment phase of the murder trial. Part of the definition of “sudden passion” is that the passion is caused by and arising out of provocation by the individual killed. Therefore, evidence of provocation by the decedent not only does not preclude a sudden-passion charge, but evidence of provocation by the decedent is required for a sudden-passion charge. It is necessary, but not alone sufficient because there are additional factors that are required to show that the defendant was under the immediate influence of sudden passion. While there may be some evidence in this case that appellant acted in self-defense, the issue of provocation by the appellant was not raised, so a “provoking the difficulty” instruction was not given and was not warranted in this case. Appellant’s discussion of the “provoking the difficulty” does not apply to provocation in the context of sudden passion. As a result, the issue is not applicable to the determination in this case. OPINION:Meyers, J.

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