1. “Whether the majority opinion fails to defer to the strong presumption that trial counsel’s decision not to pursue a sudden passion instruction fell within the wide range of reasonably professional assistance?”
2. “Whether the majority opinion’s harm analysis improperly disregards the effect of the jury’s rejection of appellant’s theory of self-defense?”
The estranged boyfriend of Hart’s daughter showed up uninvited across the street from the family home, parked his car, removed his shirt, and loitered about smoking a cigarette. Hart confronted him. The two men exchanged words, and Hart shot him six times as the victim ran for cover. Hart told police that he thought he heard a gun shot and so returned fire. Hart’s own surveillance cameras captured him approaching the victim’s body after shooting him and placing a second gun in the victim’s hand. He was charged with murder and argued self-defense. The jury rejected this and convicted. At punishment, the trial judge asked defense counsel if he wanted a sudden-passion jury instruction but counsel said he did not think it was supported by the evidence. No charge on sudden passion was included.
On appeal, Hart argued that counsel was ineffective for not asking for the instruction. A majority of the court of appeals panel agreed. It reasoned that counsel’s subjective belief that the evidence did not raise the issue could not form the basis for a sound trial strategy. The dissent argued that the majority did not consider whether it could be objectively reasonable to decline to pursue a sudden-passion instruction. It noted that the punishment theory that the defense actually pursued, i.e., showing Hart to be a protective father trying to shield his daughter from a persistently problematic boyfriend, was a reasonable alternative strategy; it faulted the majority for focusing on whether Hart would have been entitled to the instruction instead of whether it might be reasonable not to pursue it.
The State argues that, without a record of why counsel acted as he did, the court of appeals erred in not deferring to the presumption that counsel was competent and had a legitimate, undisclosed strategy. The evidence of sudden passion, particularly the provocation by the victim at the time of the offense, was weak and would not have convinced the jury that it had inspired extreme emotion or would do so to a reasonable person. The State argues it was not objectively unreasonable at the punishment phase to cultivate the image of protective father rather than a man suddenly provoked to extreme rage or terror. It also contends the court of appeals erred in not factoring in to prejudice the jury’s rejection of self-defense and the existence of the surveillance footage. Unlike the caselaw the court of appeals relied on, the jury in this case could not have both reasonably rejected self-defense and believed the defendant acted under sudden passion.