Rivas v. State, 473 S.W.3d 877, 883 (Tex. App.-San Antonio 2015, pet. ref'd) (citing Tex. Penal Code § 19.02(d) and Trevino v. State, 100 S.W.3d 232, 240 (Tex. Crim. App. 2003)). "[M]urder committed under the 'immediate influence of sudden passion arising from an adequate cause' is a second-degree felony carrying a maximum punishment of twenty years' imprisonment." Wooten v. State, 400 S.W.3d 601, 605 (Tex. Crim. App. 2013) (quoting Tex. Penal Code 19.02(d)); Herrera v. State, 513 S.W.3d 223, 224-25 (Tex. App.-San Antonio 2016, no pet.). "Sudden passion is 'passion directly caused by and arising out of provocation by the individual killed' which arises at the time of the murder." Wooten, 400 S.W.3d at 605 (quoting Tex. Penal Code § 19.02(a)(2)); Herrera, 513 S.W.3d at 225.

A defendant must prove that the killing occurred "while the passion still existed and before there was reasonable opportunity for the passion to cool." Moncivais, 425 S.W.3d at 407; see McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005); Herrera v. State, 513 S.W.3d 223, 228 (Tex. App.-San Antonio 2016, no pet.) ("Sudden passion requires the circumstances be such as to give rise to an immediate influence of sudden passion.")

(internal quotations omitted) (citing Wooten, 400 S.W.3d at 605); accord Herrera v. State, 513 S.W.3d 223, 225 (Tex. App.-San Antonio 2016, no pet.).

See Saunders, 817 S.W.2d at 689 ("Much of the impetus for our holding in Almanza was a perceived need to avoid the tyranny of hard and fast rules.").See, e.g., Ross v. State, 133 S.W.3d 618, 624 (Tex. Crim. App. 2004) ; Herrera v. State, No. 04-16-00138-CR, 513 S.W.3d 223, 229, 2016 WL 7480502, at *5 (Tex. App.—San Antonio Dec. 30, 2016, no pet. h.) ; Mendoza v. State, 349 S.W.3d 273, 283 (Tex. App.—Dallas 2011, pet. ref'd).Trevino v. State, 100 S.W.3d 232, 243 (Tex. Crim. App. 2003) (per curiam).

A rational jury could have concluded this gave appellant adequate time for cool reflection. See Herrera v. State, 513 S.W.3d 223, 228 (Tex. App.-San Antonio 2016, no pet.) ("Sudden passion requires the circumstances be such as to give rise to an immediate influence of sudden passion."); see also Perez v. State, 323 S.W.3d 298, 306 (Tex. App.- Amarillo 2010, pet. ref'd) (factfinder may choose to believe all, some, or none of the testimony presented).

A defendant must prove that the killing occurred "while the passion still existed and before there was reasonable opportunity for the passion to cool." Moncivais, 425 S.W.3d at 407 (citing McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005)); see Herrera v. State, 513 S.W.3d 223, 228 (Tex. App.-San Antonio 2016, no pet.) ("Sudden passion requires the circumstances be such as to give rise to an immediate influence of sudden passion.")

(1) the defendant acted under the immediate influence of a passion such as terror, anger, rage, or resentment; (2) his sudden passion was in fact induced by some provocation by the deceased or another acting with him, which provocation would commonly produce such a passion in a person of ordinary temper; (3) he committed the murder before regaining his capacity for cool reflection; and (4) a causal connection existed between the provocation, passion, and homicide. Griffin v. State, 461 S.W.3d 188, 192 (Tex. App.-Houston [1st Dist.] 2014, no pet.) (internal quotations omitted) (citing Wooten, 400 S.W.3d at 605); accord Herrera v. State, 513 S.W.3d 223, 225 (Tex. App.-San Antonio 2016, no pet.). 4

Citing Herrera v. State, the State argues that Kitchens was not harmed because of the evidence that Kitchens prepared himself for the encounter with Desoto by checking to make sure his gun was in his desk, which was inconsistent with sudden passion and made it "extremely unlikely" that the jury would have found sudden passion. 513 S.W.3d 223, 229 (Tex. App.—San Antonio 2016, no pet.) (finding no harm when trial court failed to include requested sudden-passion instruction, noting evidence that defendant anticipated and prepared for altercation). The State also argues that Kitchens was not harmed because the jury's fifteen-year sentence is within the punishment range had the jury found that he acted under sudden passion.