Gonzales v. State
689 S.W.2d 900
Tex. Crim. App.
1985
Check Treatment

*1 been honored. It follows that an extraordi

nary writ will issue when is neces not conflicting sary try or decide claims questions require legal collateral controversy for their settlement. See Currie, (Tex.Civ. Porth v. 613 S.W.2d 534 1981, writ); App. Tyler no see also 55 CJS — §§ Mandamus Indeed, presentation mere hold the pure question alone unsettled law constitutes an basis exercise extraordinary authority writ would of our grossly and distort the histori- undermine authority system our cal function holding intolerably justice; such a unique authority role of our erode judges system. gener- within that See trial Dial, supra; v. v. ally Garcia Holmes Denson, supra, the nature of [wherein

jurisdiction of criminal district trial our assayed]. is

courts sum, petitioner’s In we decline invitation principle settled and adhere the well indisput- petitioner’s to establish failure right Respondent deny able have dismiss, constitutes a Codys’ motions to extraordinary failure to this Court’s invoke authority. writ Accordingly, application for writ prohibition denied. ONION, P.J., and McCORMICK and WHITE, JJ., dissent. DAVIS, J., participating.

W.C. GONZALES, Appellant, Texas, Appellee. STATE

No. 63964. Texas, Appeals of of Criminal Court En Banc. 15, 1985. May III, McKinney, Colorado

R. Leonadis City, appellant. *2 Ginzel, City, sitting Atty.,

Frank Dist. en to find his mother in a Colorado chair Carroll, Atty., Russell L. Asst. Sweet- from the bleeding Ap- Dist. a wound in chest. water, Huttash, Atty., pellant pistol Aus- had a Robert State’s in his hands and a tin, pointed for the look on his He State. “mean face.” the Jebby, room,

gun who ran into another at door, and closed the held it while Gonzales way attempted Shortly to force his in. thereafter, Jebby gun wrestled the from OPINION appellant, attempting who was to make a phone phone ripped call. from the McCORMICK,Judge. pair wall in the scuffle and the landed out appeal This is a direct of a conviction yard, Jebby pointed in the back where the punishment murder wherein was assessed gun appellant. Appellant at retrieved a by fifty the jury years’ at confinement. pointed a rifle from bedroom and it at We will affirm. he fled Jebby pickup the scene Jebby truck. testified that he drove direct- Appellant challenges sufficiency the of house, ly grandmother’s to his where evidence, the arguing the trial erred court reported shooting the police. to overruling motion for on new trial ground the the that verdict rendered is Urbanasky, a Joe chemist the De- contrary and to the law evidence. Arti- See partment Safety, testified Public that he by cle V.A.C.C.P. The standard by the the examined blouse worn deceased which we measure sufficiency of evidence performed and tests the to show distance Virginia, established in Jackson v. powder the comparing of the shot resi- 443 U.S. 99 S.Ct. 61 L.Ed.2d 560 the in the due around bullet holes blouse (1979): whether, question “The relevant powder residue from two controlled viewing after light the evidence most opinion, Urbansky’s pis- In test shots. prosecution favorable to the any rational tol distance of four feet and was a between trier of fact could have found the essential away seven feet from the victim when beyond elements of the crime a reasonable fired, impossible it would and have been doubt.” Benson v. 661 S.W.2d and assailant to have had con- both victim (Tex.Cr.App.1982) (Opinion on pistol time it was tact with the at the fired Rehearing). State’s Second Motion for long awful to stretch. due to the distance Richardson, employee Ronald B. guilt stage The State’s evidence at the Section of the Scientific Crime Firearms the trial reveals that Gonzales Laboratory Department the Texas deceased, Forbes, Malva lived to- Safety, opined also testified. He Public gether daughter with their infant and Jeb- body bullet retrieved from the Forbes, that the twenty-year-old Ms. Forbes’ appellant’s Ms. was shot from Forbes January son. On Gon- single He also weapon, action revolver. zales and home Ms. Forbes arrived at their cylin- explained that in order to remove evening arguing. argu- early in the As the handgun, particular the ham- continued, der from ment the deceased told her son gate her, loading hitting to be forward and Jebby that had been mer had Gonzales that, in further testified whereupon stated he was down. Richardson Gonzales fire, manually to gun had going apparently cat that order to shoot a had time, gun ap- cocked each when wandered into the house. Gonzales Forbes, come loading gate would not Jebby who cocked the peared intoxicated pin go permit removal couple arguing in the down to left kitchen bathroom, reserve sheriff's Bobby Sparks, a cylinder. While in bathroom. gun officer, say, testified about Jebby and his heard a shot mother be fired unless that it could not Jebby explained “He kitch- shot me.” dashed to the fully only upset degree to such a that he the hammer was cocked because wanted fully position in the cocked did a transfer to hurt her. up the hammer and the bar come occurred, shooting according ap- firing Sparks explained that the ham- pin. pellant, trying while was remove gun firing pin mer of the did not strike weapon in cylinder from the order to clean *3 directly, so the transfer bar had to be sitting it. He testified that he was at the firing pin hammer raised between the and gun. up kitchen table with the He stood gun

in order for the to be fired. gun up and Ms. with the Forbes stood too. The State called three witnesses to testi- pull cylin- He had the hammer back to the fy previous relationship existing about the try him der out. she reached for to When appellant and the deceased. him, get away pushed gun to the from he V.T.C.A., Code, 19.06. The Section tripped rug fell to- her. She over a and that, victim’s mother testified while she gun ward him. The went off. She was staying appellant daugh- was with and her gun right almost on him when the went during previous year, appellant ter the Jebby’s attempted off. Gonzales to refute threatened the life of the deceased while he immediately version of the events after the Owens, was drunk. Pamela the deceased’s pointed shooting. He testified that he the daughter, previous testified that within the gun Jebby to him that he at Forbes show year couple frequent fights the had had Jebby ran did not think it was loaded and relationship. and difficulties their She attempted Appellant then to his bedroom. appellant recalled an incident had where phone police. Jebby to use the to call mother, giving bloody beaten her her a grabbed appellant from behind as jaw. nose and swollen The victim’s sister him dialing the number and wrestled out couple testified that when she visited the at get gun proceeded door and the back July, argument en- their home him, pointing at away from it Gonzales. shooting pig during ap- sued over which his that he retreated to Gonzales testified pellant got gun, pointed his it at the out Jebby get keys. his car After bedroom to said, your goddamn deceased and “Shut house, left, drove to a friend’s but Gonzales mouth, you.” Ior will shoot went to the no one was home. He then Autry, Autry told that he had home of Jack in his own behalf Gonzales testified and asked Au- accidentally shot Ms. Forbes he did the deceased and related that beat re- try police. to call the When Gonzales beating during oc one incident but Autry, he was turned to the house with kill him. curred after she had threatened to custody by police. taken into According appellant, day on the testimony indicating chemist’s The State shooting very little Ms. he drank but feet was from four seven that the victim was drunk. He and Ms. Forbes Forbes gun when it fired and away from the arguing Jebby leaving were over marihua investigator’s testimony concern- ballistic in his car. Ms. na seed and “roach” butts weapon to ing inability of the murder cursing him he told her to Forbes was so completely fire unless the hammer laid her go to bed. He took her to bed and appellant’s asser- directly contradict cocked something He wanted to do with down. shooting accident that was an tion that gun got up took the hands so he trying to cle- appellant occurred while cleaning He was the chest drawers. significant that weapon. It is also an the gun in Ms. Forbes en the kitchen when at the scene who first arrived said, the officers tered, arguing him. She still with cleaning gun there was no Mexican, I testified goddamn “You son-of-a-bitch they when on the kitchen table articles him like that on you.” hate She talked to arrived, even the screwdriver testified, occasions, at the many gun. using initial the to have been upset he was claims angry time he was V.T.C.A., discrepancies appellant’s practice commentary between the Pe- shooting 19.04, recognized by version of the and the evidence nal this Section State, presented by together State, in McCartney Court 542 S.W.2d testimony Jebby argu- (Tex.Cr.App.1976), quite Forbes about makes it clear prior shooting ment to the and conduct of the definition of cause is afterwards, appellant immediately render it subjective: objective both wholly jury rational for a to conclude that objective “... It is because it views knowingly Gonzales caused through eyes alleged provocation shooting death of Ms. Forbes her with a man; subjective be- gun, charged in the indictment. We cause the fact-finder must view from the mur- hold the evidence sufficient show standpoint in order to ‘the actor’s Compare der. Foster v. 639 S.W.2d condition of the mind of the accused at (Tex.Cr.App.1982). offense,’ the time of is necessi- *4 requirement by tated the mens rea Appellant charge a received emphasized by [V.T.C.A.], Section 19.06 voluntary manslaughter, the court on invol quoted phrase from which the is taken.” untary manslaughter, criminally negli Id. at 160. gent appeal, homicide. He claims on how Appellant seems to contend that be ever, essentially prop that was denied a Hispanic cause he is an farm worker who charge er on the issue of defensive volun living with a Caucasian woman on a tary manslaughter statutory because the granted income be more lati low he should “adequate definition of in cause” submitted insult, etc., degree tude in of sufficient charge of the court is void due to enrage him. Yet rec fails to impermissible vague and unconstitutional ognize that the of the standard reasonable disagree. ness. We man, person ordinary temper, of is em Y.T.C.A., Code, 19.04(c), Penal Section ployed precisely applica to avoid different provides: manslaughter of defend tions the law of “ ‘Adequate Cause’ means cause that races, creed, color, ants of different sex or commonly produce degree a of social status.1 anger, rage, resentment, or in terror a depart from the We see no reason person ordinary temper, of sufficient to Lattimore, expressed by Judge in render the incapable mind of cool reflec- 85 Tex.Cr.R. Zimmerman tion.” (1919): 215 S.W. 101 perceive process We no violation of due law, of the nor “We are not the writers Legislature’s in specifically failure to justified in do we believe we would be person ordinary temper, define the of a going beyond statutory definition standard borrowed from the common law’s words, ‘person ordi- uses the of which “reasonable man” test and introduced to law con- nary temper.’ Our merciful the criminal well a hundred law over incapable rendered of cool cedes to one ago. See, Welsh, Regina v. 11 Cr.Cas. Cox reflection, anything pro- by which would (1869); People, 338 Maher v. 10 Mich. any per- in of mind duce such condition (1862). authority 220 No direct ordinary temper, punish- less son of proposition such a has been cited to us be other- ment for a homicide than would appellant, nor have able to dis- we been inflicted, statutory defini- but the wise any through indicating cover research justified in as we feel tion is as far jurisdictions ordinary most use the man going.” Id. 215 S.W. at manslaughter e.g. test statutes. See 201.3, opined Miller Code, As Associate Justice Model Penal Section comment (Tent.Draft 9, 1959). at 47 No. States: Hart v. United disagreement. concurring opinion Judge writer has no 1. Cf. the of Clinton with which this glance applications ent of sympathy might [voluntary] “While at first of the law manslaughter to defendants of persons different suggest a more lenient rule for races, creed, color, sex or social status.” emotions, mentality or of low unstable P. 903. That does not broad statement the result would disastrous pertinent provisions take into account uncertainty of its application. rule § Code, 19.06, viz: Penal V.T.C.A. by appellant suggested would become a refuge ill-tempered, irresponsible prosecutions voluntary “In all for ... citi- manslaughter, or the zens; the state defendant put upon premium it would lack permitted testimony shall be to offer penalize of self-control and would all to ... relevant facts and circumstanc- man, man, average reasonable show the condition going es man, prudent because restraint time mind accused at the practices dealings with in his States, offense.”1 his fellows.” Hart v. United § (D.C.Cir.1942). 19.04(c) quoted Coupled together, F.2d and the 19.06, portion particularly under- Any dissatisfaction standard’s words, definition of scored render the ade- peculiar to consider the conditions failure quate objective subjec- cause “both subject of the individual defendant is a tive,” Commentary Practice 19.05. Legisla- properly more addressed Thus, a cause is must be whether e.g. Model ture. Section understanding only by measured not “a (Tent.Draft Comment at 47 No. temper” person 1959). ground Appellant’s of error over- *5 considering standpoint of the accused. ruled. Ibid. pro appellant urged note that has We best, One, probably reason “to and al- supplemental appeal, se brief on expressed by Judge depart from hybrid is though appellant not entitled to State, v. Lattimore, in Zimmerman 215 his claim representation, we have reviewed (1919),” 101, 630 is Tex.Cr.R. S.W.[] punishment is that the assessed defective writing that which the that when compliance Article 42.- for want of quotes, Judge Lattimore ad majority V.A.C.C.P., 09(1), concerning indeterminate manslaughter law dressing the then former 1981, sentencing. 67th Amended Acts However, repealed by in it was effect. 810, 291, chapter leg., page section 117 1927, Act,” Leg., 40th ch. “Murder Acts Apparently, September § effective p. 3. That act also inserted only on appellant based his claim penal code new article numbered “a ver- judgment reflecting jury’s relating may proved court’s 1257a what ...” See Mercer jury dict that be sentenced to confinement considered sentence, 657, 13 signed by The 111 Tex.Cr.R. S.W.2d fifty years. (1928). 1257a is the Former article appel- 691 expressly judge, the trial states § Thus, Judge Latti progenitor 19.06. a term of term of confinement is “for lant’s expounding his views without more was (5) nor more than not less than five expression legislative very of the benefit (50) fifty years....” now extant. is The conviction affirmed. Justice Miller of to what Associate As Circuit Court District Columbia CLINTON, Judge, concurring. States, opined in Hart v. United Appeals majority states: “Yet fails (D.C.Cir.1942),suffice to 130 F.2d Lattimore, recognize that, of the rea- he did not Judge standard like say man, counterpart to article person any tem- treat have to sonable § 19.06. per, differ- 1257a or employed precisely is to avoid emphasis cated. is otherwise indi- 1. All mine unless point statutory all is that the § 19.04(c) just aspect

definition in one jury may deciding what consider whether an accused acted under the imme- passion “arising of sudden

diate influence § cause.” Under 19.06 jury may take into should “all account relevant facts and circum- going stances to show the condition of the mind accused at the time of the Appellant offense.” claim that does not jury properly charged Therefore, 19.04(c) respect. latter is not vague facially applied or as for the reasons by appellant.

claimed questioned, Other than the statement made, I join opin- with the observations ion of the Court. Stauffer, Dallas, appellant. John Wade,

Henry Atty. Gregg Dist. Lown, Long Attys., and Ruth Asst. Dist. Dallas, Huttash, Atty., Robert State’s Aus- tin, for the State.

OPINION

MILLER, Judge. *6 post-conviction application This corpus pursuant writ of habeas filed 11.07, Art. V.A.C.C.P. The record reflects parte Perry Ex Gene PRUITT. plea of applicant was convicted on a guilty aggravated for the offense of rob- No. 69375. bery 29.- under V.T.C.A. Texas, Appeals Court of Criminal 03(a)(2). Punishment was assessed En Banc. confinement in the Texas court at Department of Corrections. May 22, 1985. cor- application In his for writ of habeas alleges guilty plea

pus, applicant that his involuntary because of a bro- was rendered bargain. Specifically, applicant plea ken understanding that there was an maintains him, attorney, and the district “good time” attorney that his served eligibility parole considered when his special consideration was determined. This § 15(b), necessitated Art.