Daniel v. State

Although the Ar majority is correct that 3d(b), V.A.C.C.P.,

ticle Section does

not mandate separate punishment that a

hearing held, must be after the trial court adjudicated guilt,

has the defendant’s

nevertheless, had appellant properly and

timely urged in the trial court the com

plaint appeal, he makes on I would hold process

that either due or due course of hearing,

law mandates such appellant’s

have sustained contention. See (Tex.

Daniels v. Dissenting Opin

Cr.App.1981) (Teague, J. McDougal

ion), S.W.2d (Teague, (Tex.Cr.App.1981) J. Con

curring Opinion). right majority

Because the reaches the

result, I concur. nei- holding To its process

ther due course of law nor due timely such a hearing,

mandates when a proper request objection has

made, I dissent. DANIEL,

Larry Ray Appellant, Texas, Appellee.

The STATE of

No. 65357. Texas, Appeals of Criminal

En Banc.

Feb. grounds All

viction. four will error be judgment overruled and the affirmed. “Two confessions were admitted evi- dence, appellant says which the should not been admitted because fail to face, required show their by on as Article V.A.C.C.P., 38.22 that he was advised of rights. his constitutional The record clear- shows, ly appellant does not other- contend, wise before confessions made, were compliance full Arizona, Miranda 384 U.S. 86 S.Ct. (1966), 16 L.Ed.2d 694 and Article However, 15.17 V.A.C.C.P. the confes- satisfy sions requirement do Article 38.22 V.A.C.C.P. that confessions ‘show the face of the statement’ that making before appellant the statement the was warned and advised by magis- either required by trate as Article 15.17 V.A.C. C.P., or he person received from the to whom the warnings statement is made the required and advice Article Sec- 2(a)(l)(2)(3)(4) (5), tion and V.A.C.C.P. pertinent part “Article 38.22 in provides: “ ‘Sec. No written statement made Arnett, Rotan, Norman for appellant. by an accused as a result custodial Ginzel, Frank Dist. Atty., City, Colorado interrogation is admissible as evidence Carroll, Russell L. Asst. Atty., Dist. Sweet- against any him in proceeding criminal water, Huttash, Robert Atty., State’s Aus- unless is shown on the face tin, for the State. statement that: “ ‘(a) accused, prior making statement, either magis- received from a warning provided trate the in Article 15.- OPINION 17 of this code or received from the ONION, Presiding Judge. person to whom the statement is made a warning that: appeal This an is from a conviction for “ ‘(1) under an indict- right he has the to remain silent charging ment punishment, murder. The any and not make statement all at and years’ impris- assessed was 20 any may statement he makes be against trial; onment. used him at his “ ‘(2) any may statement he makes Judge Dally, as a Carl Commissioner for against court; used as evidence court, him in prepared opinion in this “ following portion opin- cause. The of that ‘(3) right he has lawyer to have a adopted opinion as the court: ion prior him advise during and any questioning; “ “The asserts that the trial admitting ‘(4) court erred in confessions in if he is unable employ lawyer, failing request- to submit a right evidence and he has the lawyer to have a ap- jury. pointed ed He also asserts the him prior during advise to and any his con- questioning; insufficient sustain and

“ ‘(5) right he has the face that had been warned terminate time; any rights required by and interview advised of his “ though it accused, Article 38.22 V.A.C.C.P. Even ‘(b) prior during admitted, making statement, knowingly, should not have been admis error, intelligently, voluntarily waived sion not reversible since rights warning prescribed set out in the improper does not admission evidence (a) by of this section.’ Subsection constitute reversible error if the same facts proved by properly are other admitted evi on first made “The confession was State, dence. Porter v. 623 S.W.2d 374 4, 1979; confession was March the second State, v. Perez (Tex.Cr.App.1981); 608 4, 19, March made on March 1979. On (Tex.Cr.App.1980); Brantley v. S.W.2d 634 made, first the after the confession was State, (Tex.Cr.App.1975); 522 519 S.W.2d appellant was released on bail. On March State, 502 (Tex.Cr. v. 746 Gutierrez S.W.2d 19, 1979, he accompanied his father State, v. Wilder App.1973); 583 S.W.2d 349 Building in Department came to the Police State, 538 (Tex.Cr.App.1979); Lovel v. rights again appellant’s The Rotan. were v. Lassere (Tex.Cr.App.1976); S.W.2d 630 explained to His father him. was State, (Tex.Cr.App.1970). 81 458 S.W.2d he made this second confession the is more com was writ- Since second confession Chief of Police. The statement and, complet- properly longhand plete it with more details and it was ten in after was evidence, ed, City the of Police took it to the admission of the the Chief admitted appellant The and typed. Hall to have error. first confession is reversible at the his met the Chief Police father appellant complains that the “Next the typed. City Hall after the statement was specially his re- court refused to submit given handwrit- appellant The was both the quested charge exculpatory on statements. typed ten statement statement appellant timely specially The offered signed typewrit- read. He thereafter the specific enough to direct requested charge confession; ten he remained free on bond desire that a the attention to his court’s thereafter. charge exculpatory be sub- on statements made on “The second confession desig- appellant jury. mitted to the 19, the although made all of March after parts which he nates of both confessions Arizona, v. Miranda warnings required by requested him argues entitled V.A.C.C.P., was supra, 38.22 and Article charge. In first confession: “ in custo appellant made while everyone not ‘The other wet back told appel Since the dy was on bail. since I gun. move started to draw custody not in when he made lant was my I it” drew told him to “hold confession, is not con its admission second him.’ gun and shot 38.22 provisions Article trolled “In the “ confession: second v. S.W.2d Y.A.C.C.P. Thumann 466 jacket ‘The with the blue wetback Cf. Loud (Tex.Cr.App.1971); 738 of the small turned around the door (1958). 195, 256 312 S.W.2d Tex.Cr.R. pulled his Donny’s and he room Place admit properly The second confession pulled and he gun. I him to hold it told though it did not show ted in evidence even gun. my gun and beat his I came with require with the compliance face on its draw, shot, out then I ran him to the V.A. Article 15.17 or 38.22 ments of either Place.’ Donny’s in the back behind C.C.P. testify and of “The did not “Although record shows guilt-innocence fered no evidence making first con before trial court sub phase of trial. The of all his warned and advised fession was self defense. jury mitted them and rights, waived constitutional solely on confession, appellant cites and relies it was written made a (Tex.Cr. State, Bonner v. S.W.2d failed show on because it inadmissible App.1968), quot- have concluded that confession stated well known rule that: ed self defense does not establish as a “ matter of law. In Perez v. ‘Where the state introduces statements 281, we exculpatory, it is Tex.Cr.R. 271 S.W.2d which are upon said,

ordinarily exculpatory incumbent the court to “A is not statement exculpatory instruct exculpates. cannot unless it We read regarded (‘Then statements are as true unless big into such a sentence fellow disproved. apply does not This rule twice.’) him started after me and shot where the testifies accused before requisite to all the elements raise the ’ jury in exculpatory accordance with such (P. 456) issue of self defense.” theory statements and defensive Stephen “See also 163 Tex. (P. 870). fairly jury.’ submitted to Cr.R. appellant The that since he did reasons testify guilt-innocence phase at the “Although is no evidence that portions quoted trial the of the confessions appellant expectation had a reasonable or charge requested. entitled him to the bodily injury, fear of death or serious the exculpatory “A statement is not unless it quoted portions may of the statements exculpates. In similar cases this Court has submitting have been for sufficient the is statement, big ‘The held that a fellow start- sue of the self defense to and the twice,’ after him ed me and I shot was not so, judge they careful trial do did exculpatory and even did not raise the is- show self defense matter of law. A State, of self sue defense. Perez v. 160 charge in exculpatory on statements these Tex.Cr.R. 271 281 S.W.2d In circumstances be tantamount Mendez v. 168 Tex.Cr.R. 327 charging jurors the would have (1959), portion S.W.2d 454 of the defend- acquit appellant, the since the record ant’s confession in introduced evidence any does not include evidence to rebut read: these statements. The statements are not “ ‘Everytime closing I place started the I exculpatory. not err in The court did re always put my pistol, light weight 38 requested fusing charge.” to submit the revolver, in my pocket snub nose back In ground appellant his last error con- I thing and did the Barney same then. by tends the presented the “evidence State (the deceased) then called me and I went support is insufficient to the conviction of

over himto out the we walked back 1 appellant manslaughter.” for together. again door He asked me for dollars, money, some I fifty and told him V.A.C.C.P., 36.14, requires Article no that I trip. needed it for the He jury judge the trial deliver a written put backed off a little his hand in his setting charge distinctly ap- forth the law pocket. I had had trouble with him be- plicable the to the case. In instant ease the pulled my pistol fore so I out and started judge obviously trial considered that the firing range. at him at The close first evidence issue of had raised the face, spun shot hit him in off the manslaughter charged jury the on as he porch, firing kept fell and I at him. object. the did not appellant same. The (327 shot him four about times.’ The convicted 455) p. S.W.2d manslaughter. “This Court said: “ appeal appel For portion the first time ‘He ... contends that lant contention without quoted exculpato- confession raises the instant above ry, it, authority. In disprove any that the citation of absence State failed presented objection, and that it error for of an no error is was fundamental court jury. to fail to so We review. guilt stage It is observed rested of the trial. that the State at the

394 Wilbur, Mullaney v. shooting Donny’s 421 occurred at United States Place, 1881, 44 by described the State as “the boot L.Ed.2d 508 U.S. S.Ct. deceased, alien, legger’s.” (1975), yet Mexican for it had to be decided. But if by satisfy process requirements was shown the State’s evidence to due time, having beyond drunk at had prove State must reasonable extrajudicial beers or so. The two confes of heat of doubt absence by (reflecting sions offered the State provocation prop- that issue when gun) deceased had a other evidence erly raised a homicide evidence justified judge’s the trial submission of prosecution, to me that then it seems manslaughter. issue of finds, effect, properly charged jury proof State failed its burden further, evidence, Still accused death under immedi- did cause appellant shot and killed the shows the passion arising ate influence of sudden deceased, a convic is sufficient cause, sup- greater offense of murder. tion for the ports for the offense of conviction greater offense Proof of a will sustain voluntary manslaughter. for a lesser included offense. conviction (Tex.Cr.App. Diaz v. Practice We are informed Com- 1973); Flores S.W.2d mentary following V.T.C.A. (Tex.Cr.App.1971); McDonald v. § basically 19.04 is that “Section Nielson (Tex.Cr.App.1970); S.W.2d 40 (voluntary) manslaugh- 1856 definition of State, (Tex.Cr.App.1969); 437 S.W.2d 862 of various as- ter” without an enumeration State, 295, 298 Ludwig v. 164 Tex.Cr.R. Then as pects adequate cause. now— State, Tackett (1956); v. 136 S.W.2d 166 manslaughter two constitute “[t]o Mu 445, (1939); 125 S.W.2d 603 Tex.Cr.R. First, absolutely necessary: things are 629, noz v. Tex.Cr.R. 197 S.W. 81 and, second, that that passion; (1917). Appellant’s 871 contention is with adequate passion must arise out merit. requisites are cause. If of these either wanting, cannot be unlawful homicide judgment

The is affirmed. manslaughter.” CLINTON, Judge, concurring. 550, Merka v. 199 82 Tex.Cr.R. S.W. simply that distressing 1123, Court (1918). It is 1125 dichotomy grips with will not come to v. writing for the Court Davis Earlier, provisions of Penal created V.T.C.A. 37, (1913) S.W. 546 70 155 Tex.Cr.R. §§ So, Code, 19.02(a)(1) faced and 19.04. Presiding Judge had characteriz- Davidson the evi- challenge sufficiency proposition” “an ed as uncontroverted conviction support dence to for coexist, “the homicide requisites if the two majority is content manslaughter, not, if do “it manslaughter,” is evidence, which shows the say “the id., degrees,” may be murder in one of deceased, is and killed shot are, same effect 155 S.W. To the at 548. support a for the conviction sufficient State, 67 Tex.Cr.R. 374, e.g., Redman v. murder,” then to greater and offense (1911) 670, and cases cited 149 S.W. purporting line of decisions invoke a therein, opinion in including seminal sus- hold, greater will “Proof of a offense McKinney Tex.App. of- lesser included for a tain a conviction course, is, (Ct.App.1880). point The fense.” of the offense of vol- while some elements may with el- untary manslaughter coincide However, take into account none could murder, there are offense of ements Supreme teachings of predecessor V.A.C.C.P., article 40.03(9), proved.” Its providing that the offense Article 1. See See, e.g., High genesis rule. contrary the State, of the old law and is not verdict 112 S.W. 54 Tex.Cr.R. offense is found of “an when an accused to, grade but of same nature of inferior as. unique requisites voluntary manslaugh- for The record of this cause reflects that committing distinguish ter that was convicted from murder.2 on an offense Accordingly, join I do major- with the charging committing indictment him with ity rejecting appellant’s challenge, appeal, In the offense murder. though I judgment do concur in the of the challenges sufficiency of the evidence. agree I Court. that the evidence majority, blithely erroneously I justified submitting the issue of believe, by stating his contention answers but also that the greater following: “Proof of offense evidence is sufficient to the verdict for will sustain a conviction a lesser includ- judgment conviction ed offense.” It then cites seven decisions voluntary manslaughter. for authority. them, for of this Court None of

however, implicate discuss Section 19.04. course, Of understandable because TEAGUE, Judge, concurring. prior all of the decisions were decided construing decisions this Court January 1, 1974, Penal V.T.C.A., interpreting Sec- Code, contains Section which became trying tion 19.04 resemble one to make effective. square peg fit a round hole. For this rea- My probabili- research reveals that in all son, other, if no I strongly urge that the ty it until was not after 1900 that there Legislature next put session Section became such an offense the offense of belongs—under 19.04 where it Section 19.- manslaughter. Instead, the is- also recommend that this be done killing sue of whether a was done in sud- simple language; language much like den or as a result of spoke God used when he Moses provocation justification either Sinai, Mount language repeated killing killing act or the occurred plains Moses in the Ex. Moab. See acting when the defendant was with sud- 20:1-17; (King Deut. 5:6-21 James Version passion, entitling den thus him have to 1611). of the Bible punishment pro- lesser assessed than that meantime, In the this Court should over- vided for the offense of murder. rule v. Braudrick 572 S.W.2d 709 Legislature I in 1973 the believe that of (Tex.Cr.App.1978, progeny and its egregiously this State acted it enact causing hold that death under the immedi- expressly provided ed Section 19.04 and ate passion arising influence of sudden voluntary sepa manslaughter that awas adequate from an cause “is in the of nature rate and distinct offense from the offense a defense to murder that reduces that of- of murder. The road that this Court has fense the lesser included of offense vol- interpreting in since taken 19.04 Section untary manslaughter.” language This is appears to be one and the same that this voluntary incorrect because the offense interpreted Arti Court took when it former manslaughter separate ais distinct and cle 1257cof the 1925 Penal Code. As most from the offense of It is murder. know, Court, offense interpre of us now this in a lesser included offense the offense 1257c, supra, tation of Art. handed down murder, nor is it either a defense or decisions, some awful that extent the nature of a defense the offense example, Federal Courts intervened. For edict, By Legislative sepa- (Tex. murder. it is a in Galloway v. 420 S.W.2d721 rate and distinct offense and this Court Cr.App.1967), this Court held murder that accordingly. should treat it without malice was not a lesser included "Manslaughter killing, intentionally anis intentional differ- able doubt that he had killed the only by deadly entiated from murder the mental weapon.” status deceased with a State, Pinson v. accused, might proper of the 94 Tex.Cr.R. 251 S.W. guilty manslaugh- case ... find the defendant ter, though they beyond a even believed reason- offense of the offense of murder. How- Because adduced this ever, clearly sufficient rational sitting the Federal in cause for a brethren then appel- trier of fact to have that concluded disagreed, New v. Galloway Orleans see murder, lant committed the offense of I am Beto, (5th Cir.1970), 421 F.2d 284 and held disposition in the able concur that the jeopardy that for purposes double was majority appellant’s makes of assertion separate and distinct But the rul- offense. that evidence was insufficient to sus- ing by the Federal Court did not deter this tain conviction for man- holding only years Court from later three slaughter. presence afor- or absence of malice ethought punish- only went to the issue MILLER, concurring. Judge, ment. See 493 S.W.2d 812 Foster Appellant indicted for murder but was (Tex.Cr.App.1973). Interestingly, this hold- by jury of the offense of volun- convicted ing approximately years came after the Among tary manslaughter. things, other than 1925 Penal Code was enacted and less appellant complains appeal the evi- year one before the 1974Penal Code was jury’s was dence insufficient go into effect. finding that he “caused death under however, man majority, somehow the immediate influence of sudden ages right result, reach the albeit for cause”, arising V.T.C.A. wrong the present reason. Under version § Code, 19.04(a). majority opin- Penal only supra, of Section there is one disposes appellant’s complaint by ion dispose way appellant’s consider saying is a insufficient, contention that the evidence is and since lesser included offense murder apply and that is to what stated is in case sufficient evidence (Tex.Cr. 644 S.W.2d 719 proof greater Jefcoat of- murder and since App.1982), namely: fense will a conviction of a lesser sustain offense, appellant’s ground included here, has found a

... where agree merit. of error without While defendant offense ... reached, I with the result take a different manslaughter it is neces- result, path path to reach the that should sary reviewing] to make [the ago. step years The first taken the evidence determination whether journey a serious reevalua- on this involves the offense sufficient establish relationship murder tion between made, murder. If that determination is as contained defendant, and it is unfavorable to the in the “new" Penal V.T.C.A. in no com- position the defendant is to Code finding jury that plain because the voluntary guilty precursors present the defendant was to the offenses were, though error manslaughter, possibly voluntary manslaughter murder court, standpoint of a reviewing from the under Vernon’s Annotated Penal Code de- Act of actually by error as amended the Murder favorable 1927, fendant, able murder malice and murder with- of which not be with [should 1974, new Penal appeal. out malice.1 In when the complain on to] 1257c, 274, (1925), 1927, 412, p. Leg., Art. V.A.P.C. “Instructions § Ch. & 1. Act 40th malice”, "Murder”, provides: (1925), pro- without issue murder V.A.P.C. § 3b. Art. provisions of this “In all under the cases tried vides: Court, duty Act it shall where be the any person voluntarily kill “Whoever shall mal- facts ice, the issue of murder without within State shall be of murder. this without that murder instruct distinguished every oth- be from Murder shall voluntary committed malice is a homicide by species of cir- the absence er of homicide justification im- or excuse without under negli- which reduce the offense cumstances arising passion mediate a sudden influence of justify gent or or which excuse homicide cause, by is meant adequate an which it from killing.” commonly produce a such cause as would repealed 1257c, Code slaughter Art. murder not a without lesser included offense § malice, 19.04(a), totally enacted but rather was different offense manslaughter, Legislature put peril carried for would State jeopardy every ward the wording identical double murder case since that murder malice/voluntary without would seldom know until trial that the manslaughter is passion murder committed issue sudden was involved in the “under the immediate Secondly, passion case. since arising influence of sudden [a] akin a defense and is an neither element Although cause”. this § exception nor akin to an under had 2.02 many Court rendered decisions on Code, negate the Penal the State need not relationship of murder without malice and passion” “sudden in the indictment. At the Code, with malice under the old Penal time, same is left with the State burden until was not 1978 that we took our first disproving passion” “sudden (and last) beyond a analytical legal close at look reasonable doubt mandated the Unit relationship between murder and Supreme Mullaney ed States manslaughter. This occurred Brau Wilbur, U.S. 95 S.Ct. drick (Tex.Cr.App. S.W.2d709 (1975).3 Thirdly, L.Ed.2d 508 since suf 1978). ficiency of the applies evidence doctrine Braudrick held that under the new Pe- passion”, harmony “sudden is in all nal Code: doctrine that guilty, a verdict of Voluntary manslaughter is a lesser voluntary manslaughter any other included offense of murder. crime, supported by must be sufficient evi passion”2 2. “Sudden is akin to a de- 40.03(9), all, dence. Art. V.A.C.C.P. All in provided fense as in V.T.C.A. Penal pro Braudrick must have seemed like the § Code, 2.03; good time, verbial idea but if the passion” 3. “Sudden is not an element holdings good law, in Braudrick are one if expect that the doctrines of lesser negative, raised evidence offense, proof, included burden of and suf that is the absence pas- of “sudden ficiency of apply the evidence would sion”, becomes akin to an element way in the same murder; the offense of they apply every other crime in the 4. The of sufficiency doctrine of the Penal Code. be There should no need to applies passion”. special “sudden invent extra or rules to accommo only voluntary manslaughter. date Unfor holdings, being early Braudrick an tunately, reasoning under the of Brau attempt interpret a complex area of the drick, holdings is not case. The vastly complicated new and Braudrick should overruled. certainly accomplished several desired re- First, sults. since voluntary manslaughter Voluntary manslaughter is not a lesser murder, was a lesser included offense of included offense of murder con- because it then a tains, malice, defendant could raise the issue as does murder without passion” “sudden and receive a factor. Voluntary manslaughter extra though the indictment plus presence pas- contained a murder of “sudden say voluntary murder count. To man- It simply require- sion.” does not fit the resentment, degree anger, rage, cause”, arising of passion adequate or in terror den from an as person ordinary temper 1257c, a of (1925) sufficient to ren- contained in Art. V.A.P.C. and also reflection, incapable V.T.C.A., der the mind of cool 19.04(a) (1974). § appropriate charge apply in terms in the developed the law to the facts as from the course, legislative making 3. Of enactment “sud- (emphasis supplied) evidence.” passion” den an affirmative defense been has Supreme sanctioned United the States Court. opinion 2. in Hereinafter this the words “sudden York, passion” See Patterson v. New U.S. S.Ct. will be used as shorthand for the phrase 53 L.Ed.2d 281 "under the immediate influence of sud- pro- concept ments of a lesser included the a sup- offense as verdict need not be 37.09, us; for in Art. vided V.A.C.C.P. Since ported by foreign the evidence is all lesser are crea- strictly included offenses the while we are in the comfortable knowl- statute, tures of it therefore should be edge since we this a call lesser includ- However, called lesser included offense. (see para- in previous ed offense discussion our desired result is to be able to include 40.03(9) graph), an Art. mandates affirm- manslaughter voluntary in the court’s ance.6 573 S.W.2d 219 Curtis charge in passion” where “sudden is raised (Tex.Cr.App.1978). make try a murder trial. We therefore Only slightly analysis more elaborate is lesser work as a required the to show that traditional bur- inventing extra included offense the proof apply rules den cannot to “sudden passion” is to a rule that “sudden akin begin premise passion.” We with the raised, (lack and, negative when defense wording proof in the burden the ele- passion) of sudden becomes akin to an application paragraph charge of a court’s voluntary Therefore ment murder. particular should be the same whether the 37.09(1)4 manslaughter “sort of” fits Art. primary crime is offense in the indict- since it contains “less than all now offense, i.e., ment or a lesser included prove dis- necessary” to murder. As facts application paragraph concerning assault is paragraph, must cussed the next we also be wording identical in whether assault manslaughter Art. 37.- voluntary fit into charged or lesser in- primary offense 09(1) 40.- to make it fit into Art. order assault, (of aggravated offense cluded 03(9), V.A.C.C.P., as lesser included of- instance). throughout The is true same all fense. except with offense of the Penal Code sufficiency of the evidence doctrine voluntary manslaughter. When apply passion” because cannot “sudden manslaughter charged is “lesser in- ample if there is states, offense”, charge cluded sub- sup- murder conviction but no evidence stance, (even passion” though a port “sudden you “If that the defendant acted believe had of sudden under the immediate influence erroneously given by judge the trial cause, arising adequate passion from an has returned verdict you or if have a doubt as to reasonable manslaughter), guilty under the whether the defendant acted put in ludi- appellate could be courts of a immediate influence sudden position acquitting defendant crous cause, then adequate you from an arising in the there is sufficient evidence when guilty the defendant volun- We, will find that he is of murder.5 record Braudrick, tary manslaughter.” course, nonetheless the doctrine make supplied) (emphasis sufficiency apply 710-711. of the evidence because 5. Braudrick ing problem lant’s of the offense fense finding established able forced Art. immediate facts insufficient evidence ground is a directly that no required construe lesser by proof perhaps evidence that he was they V.A.C.C.P., charged_” influence of sudden addressing answer error: included offense if: had a reasonable doubt to establish it as a sub silentio of the same cause.” "Specifically, provides complaint ground following appel- recognized that, acting passion aris- of error was less than commission Court, that (1) "An of- argues under jury’s that un- all is 6.Art. the murder was not committed diate influence vision, evidence. “(9) for no other: ed "New same nature adequate the defendant for offense 40.03(9) evidence, Where the verdict trials, ^[******] where the defendant is cause. A verdict is not of inferior states: as, within cases the offense felony, grade following passion arising meaning contrary contrary to the law proved.” under the imme- found to, shall causes, of this but to law and guilty grant- from pro- of were gotten fact that these battles Every other crime in the Penal would is the Code carry jury was an instruction that the fought won under the old Code acquit they if had reason- defendant a forgotten this Court had of 1925. It is that able doubt about an fact neces- affirmative relationship be- solved the riddle sary proven in order to convict without and murder tween murder with defendant of that crime. Yet we sanction (now manslaugh- murder/voluntary malice wording because to do otherwise (the ter) by relegating the of malice lack charge a required lead to court’s that passion”) presence of “sudden status beyond that believed a reasonable factor. mitigating guilty doubt that defendant (1) murder to: him of if convict murder (voluntary man- Murder without malice they beyond believed a reasonable doubt slaughter) is a lesser included offense that he did pas- not act under “sudden of murder under old Penal Code (2) sion”; convict him of man- Galloway 1925. slaughter they if beyond believed a reason- opinion by Presiding (Tex.Cr.App.1967, able doubt that did act under “sudden Onion). Judge Murder with and murder passion”; (3) acquit but to they him if (murder/voluntary without malice man- weren’t sure about passion” the “sudden slaughter) offenses, were not two rather though they beyond issue even believed one were offense with two different reasonable doubt that the defendant other- punishment ranges. Galloway, supra. wise committed murder.7 presence or absence malice was a Braudrick, a panel opinion with one question punishment. Foster judge concurring in the result and no mo- (Tex.Cr.App.1973). S.W.2d In Fos- rehearing filed, tion for en banc has lead to ter, strongly implied the Court that had legal contortion, massive exercises in requested thought charge were defendant at the murder necessary time to be achieve the desired results. punishment What for- without stage, malice at the Jury Charges passion arising Texas Criminal Practice ence of sudden ade- edition, McClung cause, Paul J. page revised quate you guilty will find defendant quandary contains one charged solution to this in the of murder as Count of indict- following believe, you instruction: you ment. If do so or if have thereof, you a reasonable doubt will next con- you beyond "If find from the evidence a rea- guilty sider whether the defendant is of volun- sonable guilty doubt that the defendant is tary manslaughter. voluntary manslaughter, either murder or but you beyond "If believe from the evidence you have a reasonable doubt as to which reasonable doubt the defendant inten- guilty, you offense he is then must resolve tionally knowingly or caused the death doubt in defendant’s favor and find him by shooting said Celestina Sanchez him offense, guilty of the lesser man- believe, you gun, you but further or slaughter.” thereof, course, is, reasonable doubt that the defendant This an additional instruction not any caused the death under required the immediate influ- other lesser included offense passion arising involving ence of sudden any from situation other crime in the Penal cause, you guilty will example special find the defendant Code and is but another voluntary manslaughter. rules that have had to be created to accommo- believe, you you “If past do not so date this Court's or have a treatment of mur- thereof, manslaughter. der/voluntary reasonable doubt In the the defendant instant case, intentionally application paragraphs knowingly or of the court’s caused death by shooting were as of the said Celestina follows: Sanchez him “Therefore, you gun, you if believe with a will from the evidence find the defendant not beyond guilty. a reasonable doubt that the defend- Daniel, ant, did, Larry Ray County, you “If Fisher should find the evidence be- from Texas, March, day yond on or about 4th a reasonable doubt that the defendant 1979, intentionally knowingly guilty or cause the of either man- murder individual, slaughter, you death of an wit: Celestina San- have a reasonable doubt chez, by shooting gun, you you guilty, him with a should which offense he is favor, that, beyond further find a reasonable doubt resolve the doubt defendant’s caused, volun- at the time the death was the defend- find him offense lesser acting tary manslaughter.” ant was not under the immediate influ- proof

would Rave judge the the old Penal Code. burden of proper for trial charge placed upon to so jury. the would thus be the State to disprove passion” beyond “sudden a rea- “There request no mur- was Sufficiency the evidence sonable doubt. of der punishment without malice in the in if only determining would be concern of phase degrees the trial. of mur- Since evidence that the defendant did exist, there was killings der no longer all of “sudden being not act under the influence murder, presence the of absence the lesser passion”. gymnastics of malice only punishment.” relates be omitted) Foster, (Citations offense doctrine could aban- included supra at 813. the of man- doned and issue 413, State, Finally, Hanks v. 542 S.W.2d slaughter be submitted the could still (Tex.Cr.App.1976), put the the Court accomplish if all of jury raised. We would rest, matter stating: Braudrick sought in desired results the “Moreover, requested the comports with our treatment a fashion charge at guilt-innocence stage the in the Penal Code. all crimes of other but punish- trial reurge did not at the ment stage. bar, just At trial at Returning the of this case as time the [pre-1914 Foster, Braudrick, Code], supra; Penal lack malice and supra; the of not (Tex.Cr. did question guilt, affect the Brazile v. Thus, punishment. that of objection no App.1973), there was proper time requested charge to have pas “sudden charging on the issue Court’s on murier without malice was at Al guilt stage of trial. sion” at the omitted) punishment stage.” (Citations more though issue have been would (emphasis supplied) punishment at submitted properly trial,8 at least since it was stage of the This has cases previously held that cannot the defendant submitted 1257c, former interpreting Arts. 1256 and any funda denied complain that was malice, with murder and murder without objec an In rights. the absence mental deciding are instructive Penal presented. trial, no §§ error 19.04, tion involving cases Code 19.02 and Voluntary Manslaughter. and See Murder the evi- complaint that appellant’s toAs McCartney 156, 160 542 S.W .2d jury insufficient dence (Tex.Cr.App.1976). Such instruction would complaint is said finding passion, of sudden well serve the Court here. sufficiency The doctrine merit. without We that, jury should to a just only apply hold therefore should evidence under old issue that a Penal Code of doubt finding beyond a reasonable punishment pas- and one of under sudden did not act defendant requested where raised sub- should be sion.9 a to jury mitted phase punishment atthe in the result. Accordingly, concur trial. It in the should submitted be negative, is, phased so that must beyond believe doubt reasonable the defendant did act under

influence of sudden passion arising from

an just cause under as was done for bifur- (1965), providing 37.07, 8. Art. V.A.C.C.P. (1965). V.A.C.C.P. Art. provid- decision Hanks after, trial cated pre-1925 Under cases, Penal Code passion” in charging "sudden ing for the convicted trial, of suffi- issue phase of the punishment allowed to raise sufficiency the issue of evi- similarly limit- ciency concerning dence passion" “sudden where Code the 1925 application under ed in was sufficient evidence of all the elements without murder concepts murder High murder. 54 Tex.Cr.R. malice. (1908); S.W. 939 Barbee v. Tex.Cr.R. 124 S.W. 961 After enactment

Case Details

Case Name: Daniel v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Feb 15, 1984

Citation: 668 S.W.2d 390

Docket Number: 65357

Court Abbreviation: Tex. Crim. App.