*1 ROBERTSON, Z. SPAR- Bеfore TED WHITHAM, LING and JJ. WHITHAM, Justice. appeal This is an from a conviction jury
voluntary manslaughter in which the appellant’s punishment, enhanced assessed by (99) convictiоn, prior felony ninty-nine years Department in the Texas Cor- rections. contends that failing to sub- committed reversible error requested mit his instruction on the written criminаlly negli- offense lesser included gent in- homicide and that the evidence is the court should sufficient. We hold that have included this instruction and that Accordingly, we evidence was sufficient. reverse and remand. of- Appellant had been indicted for the charged court
fense of murder. The trial murder and volun- on the law of mаnslaughter. appellant properly tary objected to include a to the court’s failure charge homicide, the law of writing requested instruction on the issue. violent con The record reflects a frontation between seven outside a house in the front front who yard and on the who, with a porch and the wаs inside the people, number of other house. Marital appellant existed between difficulty his wife. The confrontation property the removal of was over *2 66 State, (Tex.Crim.App.1981); appellant’s house. decedent The and wife group State, (Tex.Crim. were in the house. the outside 782 Ormsby v. 600 S.W.2d State, App.1979); Branhan v. 583 S.W.2d testimony The from the witnesses State, (Tex.Crim.App.1979); 782 Moore v. witnesses) (State’s the outside house 122 Lon (Tex.Crim.App.1978); 574 S.W.2d was to the effect that the wooden front (Tex.Crim.App. 27 don v. door of flew and open appel- the house that 1977). lant around and reached the screen door stabbed decedent in with the side a knife. wе that these cases conclude Under testimony Defense it error to refuse appellant’s grand- was mother, house, present- requested charge сriminally appellant’s who was the inside ed a different version was A could find that of how decedent criminally stabbed knife was under appellant’s appеllant the in hands. grandmother The at theory described the knife as a the defense’s of what occurred grandmother appellant’s pointed The As out in knife. front door. Moore, try- supra: that and two men decedent other were ing or through to break down the wooden whether of evidence and credibility front that in dоor and the scuffle that oc- with other controverted or conflicts it is door, gave curred at as way, the the door may be con- in the case not еvidence other perhaps the two men and others in defen- determining in whether a sidered group pushed
the the outside deceased a lesser chаrge or instruction on sive an through doorway the of the house into the be When given. offense should included appellant held in his hand. In the a defen- any from sourсe raises evidence grandmother’s descrip- words in one of her or an issue that lesser sive issue raises tions of the incident: have commit- may been includеd offense stabbed;’ Q: Well, got ‘He I think charge on the issue is ted and a before, he ran said kind of into it sub- requested, the issue must be or... jury’s It is the jury. mitted to the then instructions, to duty, proper under the it, just A: He into really ran it is credi- determine whether the evidence like the bunch looked whole shoved supports defense or the lesser ble and the right into him ... in the door when Id. 574 124 included offense. it they kicked in. Q: they just and And ran in Milton the suffi challenges also ran the into knife. the We must consider ciency of evidence. disposing of the case. that contention before exactly A: it way That’s the looked. 361 v. Swabado the rec Crim.App.1980).1 appears It the position grand- is that appellant’s It to sustain the is sufficient ord that an issue as to testimony raised mother’s the conviction. situation, was appellant, in this whether the the risk created perceiving in not that There was deceased and holding and the obtaining his conduct appellant were back and forth arguing Appellаnt argues that the knife as did. he ap- through the front door and that closed testimony does indicate grandmother’s deceased, pellant, the was referring to knife towards any thrust of the intentional say going heard to “I’m to kill the son-of- deceased, appellant but rather that the the immediately following and that bitch” the knife when the door came was the open front door flew and reached pushed into and deceased was then open around the screen door and stabbed the knife. deceased with the knife. The evidence is appellant knowingly to sufficient to show that evidence is sufficient Here negligenсe intentionally as and caused death an the issue of criminal raise Ann. individual. Code Tex.Penal Ann. defined in Tex.Penal Code 02(a)(1) (Vernon 1974). 1974). negligent homi Since the evidence Criminally murder, is offense murder sufficient to show the offense of is a included cide lesser offense, Campbell necessarily suffi- voluntary manslaughter. greater it for insuffi- reversed whose conviction has been States, 437 1, v. United 98 1. See Burks U.S. prohibited ciency a viola- as of the evidence (1978) and Greene 1 S.Ct. 57 L.Ed.2d jeopardy United of the the double clause tion of Massey, 57 L.Ed.2d U.S. S.Ct. States Constitution. Supreme (1978) where of a defendant re-trial United States
fi7 prove voluntary manslaughter, сient to Oh, Q: on the floor? lesser included offense. Braudrick v. up grabbed it And he floor. A: On the (Tex.Crim.App.1978). Ap- S.W.2d 709 in. And was kicked the door pellant’s grounds first and second of еrror they already told them he —he had challenge the sufficiency of the evidence. to going door in kicked the Appellant’s first and grounds second er- еxactly And that’s run into it. ror are overruled. added) (Emphasis it looked. way *3 Reversed and remanded. appel there no evidence that only Not the risk of а perceive lant failed to ON MOTION FOR REHEARING circumstances, but rather the knife in such reflects that he did affirmatively SPARLING, Justice, dissenting. disregarded perceive the risk involved I dissеnt. by continuing that risk to hold the knife. The majority has overruled State’s “reckless,” “criminally Such conduct rehearing, leaving motion for intact its negligent.” Lewis v. See revеrsing the conviction for vol- accord, (Tex.Cr.App.1975); Moore untary manslaughter. grant I would (Tex.Cr.App. rehearing motion for and affirm the convic- 1978); Tex. Penal Code Ann. § tion. (Vernon 1974). Though is enti an accused every defensive tled to an instruction on majority reverses for the failure of evidence, by issue raised Warren v. thе trial charge court to on a lesser (Tex.Cr.App.1978), included offense of negligent was not raised. I homicide homicide. I would hold that the evidence would, thеrefore, hold that raised culpable an issue of a “reckless” charge negligent refused to on state, thereby mental warranting, re- quested, charge involuntary man- slaughter. Tex. Penal Code Ann. appellant’s remaining I have reviewed 05(a)(1) (Vernon 1974). A substantial dif- reversible grounds of error and found no ference between “reckless” conduct and Therefore, grant error. I would the State’s “criminally negligent” conduct as defined rehearing judg- and affirm the motion for by Tex. Penal Cоde Ann. 6.03 ment of the trial court. 1974), is that a suspect does not risk, known; know of the but should have does, fact, whereas suspect a reckless risk, know of disregards it. The majority takes positions inconsistent if the same majority evidence that the claims rais- es the issue of homicide also re- flects knew of the risk. reversing, majority In highly omitted portions relevant testimony they of that ARCHIBALD, Appellant, Bowen Helen contend raised the issue of homi- Appellant’s cide. Wells, grandmother, Mary thаt a The STATE crashed through the front door and in the scuffle, ensuing the deceased was stabbed. 05-81-00053CR. No. right She said the victim was “shoved into” Court being However, portion hеr majority omitted was: 6, 1981. Well, did see PROSECUTOR: Steve out, 15, 1982. Dec. Denied I holding the knife mean before Refused Discretionary Review through the door burst March into the house? laying down He had the knife WELLS: by the of the door. side