*1
сausing
capable of
complainant
shotgun
to
was
driven
was sufficient
However,
bodily
in-
injury.
In this
establish the intent murder.
death or serious
to
stance,
presented
present
testimony
the State
no
or evi-
the State failed to
evidence
Thus,
shotgun
majority
shot
errs
dence that the
fired
this issue.
causing
capable
firеd
holding
the evidence is sufficient.
bodily injury
death or serious
the com-
to
of this State
long
It has
been
law
testimony
is
or
plainant. There
also no
of assault with
to constitute the crime
us-
shotgun,
evidence in the record that a
attempt
there must be
intent
ing any
shot,
type of
and fired from
present ability to effectuаte
plus actual
fifty
proximately
in the direction of
feet
State, 46
Tex.Cr.R.
intent. See Scott
traveling
miles
50 and 60
vehicle
between
(1904).
put it
To
another
gun. complainant testified that pellets the shot fired consisted of Evi-
and not lead balls. See Scientific Cases, supra, page
dence in Criminal how, un- 125. I unable am to understand COBARRUBIO, Appellant, Martinez Joe cause, the der the of this circumstancеs shotgun capable pellets fired from the were Texas, Appellee. The STATE of injury to causing bodily death or serious they incapable complainant, were No. 63801. bodily injury causing death serious Appeals Court Criminal tell could complainant, pray how En Banc. of- they the intended have effeсtuated fense? Jan. make it of this should Decisions Court Sept. Denied specific anyone
obvious to that before bodily inju- intent cause death or serious act of
ry may the mere be inferred from firing shotgun at or
the accused must ad- person,
direction of another fired the shot
ditionally be established *2 McGill, Lubbock, W. for appel-
Dennis lant. Montford, Atty.
John T. Dist. and Earl Harcrow, Lubbock, Atty., Asst. Dist. Rob- Huttash, Atty., ert State’s and Alfred Walker, Atty., Austin, Asst. State’s State.
OPINION CLINTON, Judge.
Appeal is taken from a conviction for punish- murder1 in which thе assessed years ment at 40 confinement. We con- front outset error the trial injure rights which was calculated accused, 36.19, V.A.C.C.P., Article are therefore constrained to reverse the conviction obtained. during evidence reflected that
altercation the
struck in his
deceased was
by apрel-
head
one of four shots fired
pistol.
lant
awith
.25 caliber automatic
According
appellant’s testimony,
he was
way
country
try
on his
his
out
pistol
new
when he
de-
confronted the
ceased,
quarreled
who had
a cousin of
Encountering
days
few
before.
provocative
conduct,
language,
аppel-
prepared
lant
he
testified
to defend him-
self;
the deceased kicked him the stom-
ach,
twice in the
face.
a dazed
state, appellant pulled
pistol
his
and fired
in the direction of the deceased.
19.02,
(1)
provides
knowingly
1. V.T.C.A.
in rele-
Penal
causes
part:
individual;”
vant
death of an
"(a)
person
A
commits an offense if he:
raised,
dispro-
must be
then it
request
issue is
Apparently
without
and a reason-
included
appellant,
trial court
ven
on,
alia,
includ
acquittal
inter
the lesser
requires
instruction
on the issue
manslaughter2 in
ed offense of
allows convic-
charge and
on murder
did, however,
jury chargе.3 Appellant
manslaughter.7
only for
tion
*3
containing
re
object
paragraphs
the
*
*
*
*
*
*
spective applications
law of murder
of the
voluntary
manslaughter
and
to the facts
causing
that
death
therefore hold
We
ground
improper
the case
each
on the
that
influence of sudden
‘under the immediate
ly applied
facts. These
the law
passion arising
an
cause’
from
sustained.
objections should
to murder
is in
nature of a defense
709,
572 S.W.2d
to the lesser
Braudrick
that reduces that offense
(Tex.Cr.App.1978),
710
Court examined
voluntary
man-
offense of
included
4
relationship
between murder and vol-
slaughter, and
the Stаte need
that
observing
untary manslaughter,5
the lan-
a
prove
beyond
reason-
such influence
§
Code,
guage
V.T.C.A. Penal
19.04
voluntary man-
to establish
doubt
voluntary
“creates
man-
illusion that
[an]
by
slaughter, but that
the evi-
if
slaughter has one
element not
additional
prove
ab-
must
dence
State]
[the
found in murder.”6 In order
conсlude
beyond
rea-
such
a
sence
influence
to
”
manslaughter is a
voluntary
that
lesser
murder.
sonable doubt
establish
murder,
in the
offense included
572
at 711.
S.W.2d
the Court effaced
“illusion” as follows:
the “element” of
With the nature of
distinguishing
“The
feature between
mind,
passion” in
becomes
manslaughter
murder and
voluntary
only
proving
thаt
parent not
the burden
beyond
proven
not a
that must
a
fact
be
placed
must
the lack of sudden
be
voluntary
doubt to
reasonable
this
upon
prosecution, but also that
manslaughter, nor is
that
it a fact
must
placed
in the
must be so
burden
by
disproven
to establish
State
charge applying
law of murder
murder in the absence of some evidence
raising an issue as
fact.
If
to the facts of the case.8
to that
2. V.T.C.A.Penal
3.
4.
5.
App.1981):
den
manslaughter
cated.
[Emphasis
Humphries
See
See
“Sec.
All
submission
slaughter,
der,
den
that
death of an individual under circumstances
death under the immediate influence of sud-
“A
"[W]e find
739.
19.02 of this
persоn
passion,
emphasis
n.
n.
would
even
19.04,
ante.
original]
ante.
commits an
over
a lesser included offense of
no error was committed
constitute
is murder
of a
etc.”
supra,
is mine unless
Code, 19.04(a), provides:
appellant’s objection,"
Braudrick,
except
from an
suggests
plus
murder
that
acting
if he
otherwise indi-
supra,
under Section
he
from a sud-
caused
causes
(Tex.Cr.
at 710.
cause.”
by the
id.,
man-
mur-
8.For
McClung,
tice
part:
from
ant,
the
ingly
day
reasonable
day
indictment.
immediate
shooting
ingly
killing
in evidence in
and believe
shooting
reasonable
Now,
If
(Jan.
defendant,
defendant, AB,
of_,
of_,
an
in so
cause
cause
[******]
Jury Charges
1981)
if
examрle
him with a
him with a
find from the
you
deceased,
influence of
acting,
doubt that on
the death of an
from
47,
AB,
19_in_County,
19_in_County,
death
48,
the facts
case that
was not
did
did
gun,
gun,
if he
which states
for Texas Criminal
"4.
of an
5.
a
intentionally
intentionally
but
proper charge
did,
evidence
and circumstances
or about the -
individual,
individual,
acting
evidence
you
acted under the
about
defendant, in
will
further find
the defend-
pertinent
or know-
or know-
the_
find the
beyond
CD,
Texas,
CD
Texas,
in the
Prac-
see
case,
Thus,
In the instant
slaughter.
jurors
court instructed
followed the
pertinent part
as follows:
indeed,
court’s instructions to the letter—
presume they
.
believe
we must
did—the
evidence
State’s
.[If]
.
doubt,
beyond a reasonable
burden
proof
significantly
on or
diminish-
day
about the
May,
23rd
in the
ed and
denied
opportunity
County
of Lubbock and
State
guilt
have the
determine his
on the
alleged
indictment,
the defend-
interpreted by
issue of murder as
the Court
ant,
COBARRUBIO,
JOE MARTINEZ
Braudrick, supra.
Under these circum-
did then
and thеre
stances,
precipitated
this error
a denial of
knowingly eause the
death of
individu-
process
due
law in
the most fundamental
al,
Gutierrez, by shooting
Javier
him sense.
gun,
the de-
judgment
of conviction is reversed
fendant, JOE MARTINEZ COBARRU-
*4
eause
remanded to the trial
BIO,
charged
guilty murder as
of
court.
indictment.
you
Unless
so
a reason-
CAMPBELL,J., concurs in result.
doubt,
ifor
a
reasonable
doubt as whether
guilty
defendant is
McCORMICK,Judge, dissenting to the
of
acquit
then
will
him of
denial of State’s Motion for Leave to File
murder and next consider whether he is
Motion
opin-
without written
guilty
voluntary manslaughter.”
of
ion.
jury
Thereafter the
was for the first time
submission,
Court,
On original
this
rely-
in
instructed
thе abstract
on
law of
ing
State,
v.
Braudrick
753 So, mur- although quite an element of paragraph charge applying der, case.” passion” of murder to the facts of the this of “sudden does law issue to murder and as fact seem to be defense the novel on to make went proof is to treated a matter of burden holding charge worded that where the like a defense. issue of sudden defensive paragraph on murder and deleted from the Brаudrick, that, according to I submit manslaughter placed only passion” then not an element likelihood that paragraph there existed a application that must be affirmatively jury would answer fact, if read paragraph murder. we murder even consider never closely, panel we see that the Braudrick passion. the defensive issue of sudden charge which approved therein the court’s long general It has rule that a charge is identical to the before essence charge reviewing court read the should today.1 of sudden us Since the absence State, Doyle v. whole. S.W.2d (statutory) passiоn is not an element Rehearing). (Tex.Cr.App.1982)(Opinion on murder, proper review of the court’s rule, however, applicable This is not when Doyle charge is to read it as a whole. of the offense is omitted an entire element whole, supra. Taken as a application paragraph. Doyle requires to con- as worded (where culpable mental supra as well as sider all the elements murder charge). state was omitted from the *5 is passion. There no the defense of sudden original opinion on submis- Court’s error, in less fundamental error much State, supra, in sion relied on Braudrick v. in charge instant case. analysis its the “elements" of murder in present is To hold that error voluntary manslaughter. Brau- jury charge given presumes drick, panel of this found that the Court in a portions charge of the vacuum. reads acting fact that the accused “not un- was that in I would show the Court pas- der the immediate influence of suddеn jury as follows: arising adequate an 17 the court instructed the sion from cause” was implied an element of as distin- con- your “In deliberations (see guished statutory from a element V.T. charge aas whole....” sider this C.A., 19.02) Penal Section and must Clearly, reading upon proved only be where the evidence adduced whоle, in- complete finds and correct one at trial raised the issue that the accused law of murder jury structions on the to But, acting such an influence. under voluntary manslaughter. opinion in the author of the Court’s Brau- opinion position of the If we extend the to that the fact drick also went on write end, logiсal original to its on submission acting that the defendant was “under the every to hold that in this Court would have influence of sudden aris- immediate every to include case failure ing from cause” is in the na- paragraph applying in the the evidence that reduces ture of a defense to murder facts manslaughter. рrimary the law the "Here, circum- although all the facts and implied and believe from element mur- 1. defendant, case, charged paragraph of in the murder evidence in the der was not stances in instruction, did, deceased, adequately killing if he acted voluntary manslaughter paragraph. That influence of sudden the immediate charged: portion cause, of the instructions you or from if " a reasonable ‘Now as to whether a reasonable doubt defendant October, day or about 29th a sud- the immediate acted under influence 1974, Texas, County, the defend- in Aransas den ant, Braudrick, did then and Les Newton will find ” knowingly cause the added)’ manslaughter. (Emphasis individual, Smith, by stab- of an death bing K.W. 710, State, supra, 711. Braudrick v. knife, further him with a but of a ease would be fundamental It error. would also follow that in instances where Ivery WILLIAMS, Appellant, submitting
trial court is the offense of murder and the lesser included offense Texas, Appellee. The STATE of involuntary mаnslaughter, absence reckless conduct should also be submitted No. 64651. paragraph applying the law of mur- Appeals Court of der Criminal reasoning facts. This could also En Banc. applied criminally negli- cases where gent being homicide is submitted as the 4, Jan. 1984. lesser included offense of murder. Such Denied Mаrch 1984. reasoning taken its extreme would total- ly disrupt the current format for the sub- Rehearing July On jury charges. mission of Rehearing Denied Oct. speculative conclusion made submission assumes juries past never read the paragraph applying so, the law to the facts. If this is
why just doesn’t this court take the final
leap away every portion and do
charge except paragraph applying
law to the facts. say wrong
This not to that the Court saying acceрtable it would be
include the passion” absence paragraph applying law murder *6 However,
to the facts. are other
proper ways submitting the defensive
issue
submitted in the instant case contains one acceptable ways. those
Finally, this Court has held that it give
fundamental error for failure
charge on defensive theories. Hawkins
State, 660 (Tex.Cr.App.1983); (Tex.Cr.
White v.
App.1973); Paredes v. 500 S.W.2d (Tex.Cr.App.1973). If these cases are
correct, how can it be fundamental error to
charge on defensive theories? reasoning I find
Because that the submission erroneous rehearing grant- feel
and I should be
ed, I must dissent to the Court’s denial of
the State’s motion for file a leave to motion rehearing. DAVIS, J., joins
W.C. in this dissent.