Keasler, J., delivered this concurring and dissenting opinion.

I join sections I and II of the Court’s opinion but dissent to sections III and IV. I believe the error in the charge was harmless.

The State’s argument is persuasive. While it will not always be the case that evidence of self-defense renders harmless the failure to give a sudden passion charge at punishment, it is also true that a jury’s rejection of self-defense could, in a particular case, demonstrate that the defendant was not harmed by the failure to receive a sudden passion charge.¹ As the majority recognizes, this case involved two competing theories at guilt-innocence. The State argued that Trevino shot Michelle in cold blood and staged the crime scene afterwards to make it look like self-defense. The defense, on the other hand, argued that Trevino and Michelle struggled and that Trevino shot Michelle in self-defense. Indeed, the defense made clear during closing argument that if the jury were to find that the crime scene was staged, it would have to conclude that Trevino did not act in self-defense. On the other hand, if the jury were to conclude that the crime scene was not staged, it would have to find that he did act in self-defense. Under all the specific facts of this case, the jury’s rejection of self- defense at guilt-innocence necessarily constituted a rejection of sudden passion. As a result, I cannot believe that Trevino suffered any harm whatsoever in the denial of the charge.

I would reverse the judgment of the Court of Appeals and reinstate the trial court’s judgment of conviction.

DATE DELIVERED: February 26, 2003

PUBLISH

¹ See Chavez v. State, 6 S.W.3d 56, 65 (Tex. App.– San Antonio 1999, pet. ref’d) (stating that except in rare instances, when the State’s evidence is sufficient to overcome a claim of self-defense, it will also be sufficient to show the absence of sudden passion).