*1 512 urges
“The State next
(1978);
Greene Massey,
to L.Ed.2d 1
v.
437
the close proximity
consider
19,
2151,
U.S.
(1978);
98 S.Ct.
was not shown knew
the smell of exper marihuana and such may presumed.
tise not be Armstrong State,
v. 542 (Tex.Cr.App. S.W.2d 119
1976). Moreover, the evidence revealed plastic bags containing the sub stance were tarp covered and that Jerry BOYETT, Appellant, Lavon one of them had to be torn to determine Therefore, its contents. deputy’s ex v. pertise in recognizing appearance Texas, Appellee. The STATE of well as the odor of marihuana cannot be imputed appellant. to this No. 65967. “We conclude that the evidence is in- Texas, Appeals Court of affirmatively sufficient to link Criminal lant to the En Banc. contraband seized. There is showing no that the Trail Duster was his 26, June vehicle, nor any attempt was there Moreover, connect with the owner.
there is no evidence gestures of furtive contraband, attempt
toward the no
escape, smoke, no evidence of marihuana
no evidence that the was under
the influence of marihuana or other
drugs, incriminating and no statements
at the time of the arrest.”
Also see Johnson v.
(Tex.Cr.App.1981); Sinor v. 612 (Tex.Cr.App.1981); Naquin
S.W.2d 591
State, 607 (Tex.Cr.App.1980); S.W.2d 583
Heltcel v.
(Tex.Cr.
App.1979).
We cannot conclude that a rational trier
of the facts could have found the essential alleged beyond
elements of the crime
reasonable doubt. Carlsen v. 444, (Tex.Cr.App.1983) (Opinion Rehearing). That conclusion necessi-
tates that this case be reversed with in- acquittal
struction an be entered as to Burks v. Unit- appellant McCullough. States,
ed 437 U.S. S.Ct. *2 (Tex.Cr.App.
1984). degree judged of harm must be of the entire charge, the evi dence, including the contested issues evidence, weight probative argument of counsel and other relevant informa *3 Almanza, tion shown in the supra. record. 20, 1978, May appellant On stopped by the home of Lavonne and Zelman Hart. Appellant stepfather. was Lavonne’s La- husband, Zelman, vonne testified that her time, was not at home at the and her two children and three of her chil- foster wife, present. Appellant dren were and his mother, son, Lavonne’s asked Lavonne’s Wade, spend night could with them and agreed. their two children. Lavonne Lavonne testified was not feel- that she Conroe, A. McDougal, appel- Michael for ing day appellant well that and started lant. picking backyard on her. ran into the She Wilborn, Jr., appellant and her. tried to Atty. Carroll E. Dist. followed She and Andress, Jerry Atty., jump fence, E. Asst. Dist. pulled Liber- over a but he her down. ty, Huttash, Austin, Atty., Robert State’s managed get up, jump to She over for the State. fence, go attempt in an into the house get away appellant. Appellant
to from at- tempted jump fell to over the fence and down. of Lavonne’s foster sons Two OPINION helped up ought him and told him he DAVIS, Judge. leave, W.C. eventually which he did. Several appel- the State’s witnesses testified that Appellant was indicted for A murder. drinking lant had been or was drunk when jury found him of the lesser included stopped by May he on Lavonne’s house voluntary manslaughter. offense of punishment years’ at assessed twelve Lavonne testified that her husband ar- confinement. asserts two early morning home the next from a rived error, grounds contending trip did not tell him out of state. She fundamentally court’s to the appellant. In the about the incident with defective, erroneously and that evening day, Zelman called May of that overruled his motion for new trial. sending two appellant and told he was Appellant argues is fun- up boys pick of the foster Wade. over damentally defective because it does not during phone Appellant testified that include instructions stated in the converse to kill him conversation Zelman threatened which would allow the to find again. The two if he ever touched his wife lant after of the each boys appellant’s house and drove to charged offenses. brought Shortly after Wade home. the Hart’s appellant drove over to returned
The standard which we review He sent them house with his two children. appellant’s claim of fundamental error is that he wanted to tell Lavonne and Zelman egregious whether “the error is so out to talk to to talk to them. Zelman went created such harm that ‘has not ” two of the Lavonne and impartial had a fair and trial.’ Almanza while Gutierrez presented. error be through the kitchen would boys watched them window. open passen- to the walked over Zelman to the on The court’s truck, leaned on it ger door includes instructions guilt/innocence sitting on appellant, talked to who was murder, voluntary manslaughter, involun- The State’s witnesses
the driver’s side. criminally negligent tary manslaughter and testified that slid over toward instruction It also included an homicide. truck, right passenger side of the raised accident, stating that the defense of on the arm, draped over the back which been the death should seat, Zelman. of the and fired one shot at the result of an accident while Zelman fell to the and died soon pos- struggling were lant and Zelman Appellant’s got children into afterward. the law gun. applying After session the truck and left. He later murder, voluntary man- facts for police. in to the turned himself *4 involuntary manslaughter, and slaughter, differ- Appellant’s version is somewhat find, stated, you so or the “Unless punched that Zelman him ent. He testified thereof, you you if a reasonable doubt have grabbed gun off of the in the face and the whether or not the defend- should consider Appellant that he dash of the truck. said included offense ant is of the lesser gun keep Zelman from grabbed the to of [offense named].” shooting him and that he never even had an contends this “amounts to Appellant trigger. gun the He said the his hand on it does not instruction to convict because struggled off as he with Zelman. went of a acquit Appellant to instruct the Allen, city Larry police officer for the considering guilt greater offense before Cleveland, May of testified that on the nor does it instruct of a lesser offense police depart- appellant came into the doubt Jury if it has a reasonable said, myself “I turn ment and am here to is of to whether had it just in. I killed Zelman Hart. He Appellant con- offense therein defined.” intoxi- coming.” Allen said instruct- should have tends day appellant The next cated at the time. ed the that: police statement gave a written believe, defend- you if do not so ... [the fight he and Zelman had a which he said if greater or ant is of offense] gun off. and the went thereof, you a reasonable doubt you have Appellant was recalled to the witness say by your acquit the defendant and will and admitted that he had lied when stand not so guilty’ ‘not if do verdict but previously under oath that he he testified believe, reasonable or if have a had a drink since December of had not thereof, you acquit the defend- will doubt proceed greater of ant offense] [the error must first determine whether We the defendant to consider whether presented charge. If error is exists guilty of [lesser offense]. evaluated in of it must then be agree We with Almanza, supra. Ap- set forth standard case should charge given in the instant on the lesser pellant requested instructions jurors explicitly instructed more have voluntary manslaugh- included offenses believe, they had or if they did not manslaughter criminal- ter, involuntary guilt appellant’s doubt reasonable The record is un- ly negligent homicide. acquit appel offense, they should greater written submitted clear whether to consider whether proceed lant and included or charges which were requested of included guilty of the lesser lant was instruc- designed the whether Willson, Forms Criminal fense. See S. decide the case Although we do not tions. 1977). If (Texas Practice Ann., Chapter 93 issue, charges were on charge under a reviewing were not charges, no we requested written lant’s own standard, fundamental error such error In his second of error However, might well be reversible. contends that the trial erroneously court given, although instruction not a model motion for overruled his new trial which charge, essentially jurors newly instructed the to was based on discovered evidence. 40.03(6), acquit, specifically using hearing without the word Art. V.A.C.C.P. At the “acquit”, by stating jurors if the appellant’s had a motion for new trial Lillian Allen, guilt Larry reasonable doubt as to the Warner testified that in- officer, greater vestigating lant to the should her told he had found a gun person next consider the lesser included offense. on the of the deceased. Allen properly jur- hearing This instruction informed the testified at the and denied ever appellant’s requested making in- ors to consider such a statement and said that the already structions on lesser included The deceased offenses. been taken to the jury apparently hospital understood the instructions when he arrived at the scene of the correctly appellant guilty shooting. only gun since Allen said the he recov- voluntary appellant’s gun appellant’s of the lesser included offense of ered was from manslaughter, acquitting thus of mur- house. adequate- der. The read as a whole counsel, Appellant’s Krueger, trial L.J. ly jurors acquitting instructed the about spoken testified that he had with Warner
appellant and about
the lesser
subpoenaed
testify
her for trial
requested by appellant.
included offenses
relationship
about Lavonne Hart’s
with one
testify
of her
She did not
be-
husbands.
part
con
second
*5
question-
cause the court ruled the line of
charge
tention is that the
does not instruct
Krueger
ing inadmissible.
said that he
acquit
the
if it has a reasonable
present
had
at
asked Warner
she
been
doubt as to whether
is
of
shooting
anything
the
and if she knew
any
page
the
offense. The last
of
about the case. She told
no. Warner
jurors,
you
instructs the
“In case
have a
Krueger,
talked to
said she had
but
guilt
reasonable doubt as to defendant’s
anything about
the evi-
never discussed
after
all the evidence before
testimony.
dence or her
instructions,
and these
will
practice
him.” The better
is to instruct the
Appellant argues that
tes
Warner’s
jury that if it has a reasonable doubt as to
timony
part
required
the four
test
meets
whether a defendant is
of
upon
granting
for the
of a new trial based
charge,
find the
fense defined in the
it will
overruling
newly discovered evidence.
not
the
location
defendant
better
newly
upon
motion for new trial
of a
based
for such an instruction is after the last
not constitute an
discovered evidence will
charge.
included
in the
lesser
offense
of discretion unless the record shows
abuse
However,
giv
we hold that the instruction
(1)
to the mov-
the evidence was unknown
essence,
is,
en
in
the same as that
trial; (2)
the defendant’s
ant before
that
given and
now contends should have been
it
not due to want
failure to discover was
adequate
the
when read as a whole
(3)
diligence
part;
that its materi
ly
instructs the
on this issue.
bring
probably
as
ality was such
would
trial;
result on another
Although
charge given
certainly
is
a different
about
(4)
merely
competent,
it was
not
charge,
light
in
of the evidence
not a model
corroborative,
cumulative,
or im
collateral
clearly supports a conviction even
which
murder,
Byrd v.
605 S.W.2d
light
peaching.
entire
Van
whole,
(Tex.Cr.App.1980); Hernandez
v.
read as a
and in
verdict
(Tex.Cr.App.1974).
finding appellant guilty of a lesser included
must be
the new evidence
charge did not To be material
we hold that the
true and of such
impartial
probably
to be
deprive appellant of a fair and
shown
probably produce a different
perfect,
weight
ade-
as to
charge,
trial. The
while not
supra;
Byrd,
trial.
jury.
result at another
Van
quately instructs the
(Tex.
We note first that since
We one Judge, address other concurring. by appellant, requires raised review asserts one of error State, the instant case. 656 Carter v. charge that “the jury funda- [to was] S.W.2d 468 The amend- mentally defective because it does not in- ed contains a recitation that “the clude instructions stated in the converse finding Court makes an affirmative that which would jury allow the find deadly weapon, used Defendant ...” guilty lant not after considering each in the commission of the offense. The charged majority offenses.” The correctly charges indictment caused concludes charge that the was not funda- Hart, shooting “by the death of Zelman mentally I only defective. concur because gun.” Appellant him with a was convicted there was no error in charge, much less charge voluntary manslaughter under a Thus, fundamental error. majori- how the jury which stated that believed ty apply can invoke and Almanza v. alleged in the lant committed murder “as 157, 686 (Tex.Cr.App.1984), S.W.2d 171 es- indictment, doing but that so he caused capes me. the immediate influence of death under decisions, it past passion arising adequate upon Based this Court’s a sudden from an cause,” not have been error overrule they should convict him of volun- would now sub- tary manslaughter. requested See, mits appeal. on direct example, 424,
Wilson v. 140 Tex.Cr.R. (1940). instance,
In this after each named of-
fense, was instructed as follows: find,
“Unless so or if have a rea- thereof, you
sonable doubt should consider
whether or not the defendant
the lesser included offense of [offense order, In descending
named].” was
direct instruction to the they that if
had a reasonable doubt as to whether the of the named
it should him of that offense and
next consider whether he was
next lesser included offense.
In Wilson v. supra, this Court
held: “The required court was not to wind
up every paragraph of with the
instruction that unless so found or if
they had a reasonable doubt thereof to
acquit him.” instance,
In this
sufficiently instructed the upon the doubt,
law of reasonable presumed and it is followed the court’s instruc indeed, tions to the they must have letter —
because guilty of the voluntary
lesser offense of manslaughter, greater
rather than the offense of murder.
E.g., Cobarrubio v. (Tex. Cr.App.1983).
I concur. *7 Giraud, Worth,
Sharon E. Fort for lant.
Tim Curry, Atty. Dist. and Russell Saun- ders, Worth, Atty., Asst. Dist Fort Robert Huttash, Austin, Atty., State’s for the parte Ex Charlotte Yvonne SMITH. State. No. 69439. Texas, Appeals Court of Criminal En Banc. OPINION
June DAVIS, Judge. W.C. post application
This is a conviction corpus, pursuant writ of to Art. habeas 11.07, V.A.C.C.P.