*1
California,
Chapman
18,
See
U.S.
87 S.Ct.
(1967). In this we conclude that jury’ an average
the ‘minds of would not significantly
have found the State’s case persuasive
less had the
Snell’s admissions been excluded. The
admission into these state- evidence
ments, therefore, was most harmless at
error.” Wainwright,
See also Milton v. 407 U.S. 2174, 33 92 S.Ct. 1. L.Ed.2d beyond conclude reasonable seems
doubt from what to us impact probable on the minds of an
average jury in evi admission improper
dence from Cov- sufficiently
erson’s confession was not
prejudicial petitioner as to constitute
versible error. The State’s case would not persuasive
have been evi less had such
dence been excluded. The admission of was, most, See harmless error.
Carey State, Tex.Cr.App., 455 S.W.2d
217. prayed
The relief for is denied. by
Opinion approved the Court. MAYS, Appellant, McLean, Houston, Kenneth J. lant. Texas, Appellee. The STATE of Vance, Carol S. Atty., Dist. C. James No. Brough, Stewart, Stu Attys., Asst. Dist. Appeals Court of Criminal of Texas. Houston, Vollers, D. At- State’s Jim ty., Austin, for the State. July 17, Rehearing Denied Oct. OPINION
DAVIS, Commissioner.
Appeal
is taken
from conviction for
murder.
Punishment was assessed
jury at
ten
*2
wall.” Deceased
face
turned
to the
is that
the
Appellant’s sole contention
up
had a
“propped
on his left elbow” and
charge
jury
to
failing
court erred in
Appellant had not
in his
hand.
law
stated,
“I
seen
before
appellant
record reflects that
said, “I am tired of
scared.” Deceased
objection to the
presented her written
shit,
me or
your
going
it is
to be
either
complaining of the court’s
charge
court’s
appellant
“gun
you.”
to
According
jury on the law of
failure to instruct
start-
slipped”
picked it
and “I
shooting.”
points
the fact
there is
The State
Ann.P.C.,
1257c,
pro-
Vernon’s
transcription
complete
a
of the court
vides as follows:
only
reporter’s notes and
the testimo
provisions
under the
ny
“In all cases tried
appellant
of
the record
is in
before us.
duty
be the
of this Act
it shall
of
this
has held
While
true that
Court
Court,
present the issue
where the facts
reviewing
pass upon
court cannot
malice, to
complaint
of murder
instruct the
a
court’s
a trial
absent
that murder
malice is a
transcription
re
vol-
court
porter’s notes,1
untary
justi-
homicide committed without
has also held that
fication or
the immediate
accused’s own
is sufficient
excuse under
passion arising
influence of a sudden
issue of murder without malice.
cause,
State,
Lucky
Tex.Cr.App.,
adequate
from an
which it is
v.
495 S.W.2d
919;
State, Tex.Cr.App.,
commonly
meant such
would
v.
473
cause as
S.
11;
State,
produce
degree
anger, rage,
W.2d
Tebo
133
of
resent-
v.
Tex.Cr.R.
ment,
person
ordinary
106
or
in
of
S.W.2d 712. The certificate of
terror
temper
reporter
court
sufficient
render
foregoing
that “the
the mind
reflects
reflection,
pages
of
typewritten
appro-
cool
and in
material contains a
priate
transcript
apply
true and
terms in
correct
of all
Defendant,
law to the
developed
adduced from the
facts as
from the
Mays, in the
in
evidence.”
trial of
cause shown
caption
hereof.”
is
under
obliga
court
no
The testimony
appellant
reflects that
tion to
on the law of murder with
to-
out malice
the evidence
raises the
gether
September,
since
According
State,
Lucky
supra;
issue.
v.
Barrientez
spent
State,
97;
Tex.Cr.App.,
487 S.W.2d
visiting two
sisters and
Ap-
bars.
State, Tex.Cr.App.,
482 S.W.2d
pellant
and the deceased
argued
throughout
day
appellant
about
work-
requires
facts,
The statute
suffi-
Upon
cocktail waitress.
returning
issue,
present
cient to
killing
to their residence on
Leilia Street Hous-
occurred under the immediate influence of
ton that night,
and after
dressed
passion arising
sudden
from an adequate
for bed
“he
[deceased]
cause.
again,
me
and then he knocked
me down on
table
coffee
and broke
statute
everything
Appellant
“such
commonly produce
cause as would
then went
to the bedroom and
resentment,
of anger,
rage,
Deceased
“laying
on the bed with his
terror2 in
person
ordinary temper
State, Tex.Cr.App.,
State, supra (dissenting opin-
Sellars v.
401 S.W.2d
2. In
835;
Tex.Cr.App.,
State,
ion),
Neal v.
following
definitions
from Web-
715;
Dictionary appear
Williams v.
ster’s
1:
footnote
“Anger
general
S.W.2d 459.
term for
the emo-
tional reaction of extreme
incapable
sufficient to
mind
ter
render the
is not
before us for review.
cool reflection.”
The majority
members
ignore
Court choose
this. When
We conclude that
passed by
Legis-
we
follow
rules
appellant supplies adequate
cause to
ignore
lature and
are we to
them?
submit the charge on murder without mal
change
Tn its
al
desire to
the rule that
and the
ice
failure to
*3
leged
not
errors
the court’s
will
quires reversal.
in the
considered
absence
If it be urged that the remainder
ex
statement of
or a
bill of
proper
facts
may
adduced at the
ception,
majority,
saying
harmless,
rendered the error
it should be
question
has
in
to consider
appellant’s testimony,
standing
noted
40.09,
justice
terest of
under Article
Sec
alone,
raise
was sufficient to
the issue of
Nearly
practicing
tion
V.A.C.C.P.
malice,
murder
and if
sufficiency
and
know that
judges
favor,
resolved such issue in her
the maxi-
important
of the
is more
penalty appellant
mum
could have received
jury and to a
instruc
defendant than the
1257b,
would have been five
Article
tions.
has
This
held that the suf
V.A.P.C.
ficiency of the evidence cannot
consider
briefed. White
find no
argu-
merit
the State’s
State, Tex.Cr.App.,
Opinion approved by the Court. fear and terror due state of fact had been knocked over that she by the deceased coffee table and struck DOUGLAS, Judge (dissenting). that was sufficient After the original draft of the opinion, in- in a state of mind defendant to be was called to the attention of . .” cool reflection. majority appellant’s brief was not thirty filed days within did (30) after approval of required by as record raise the issue of 40.09, Section Vernon’s Ann. She testified that approved by C.C.P. The record was deceased. Lounge
trial court argument at Brewster and no- Street Day. approval tice of about her on Christmas given working of the record was appellant’s She further related that she calmed retained counsel. The they fixed late brief went home. He was filed down and later January 1974. Ac- ate upstairs. cording previous holdings, brought her food He our the mat- regarded suggests something neither in- nant definite injury; tensity, manifestation; rage wrong, insult, ais and terror nor an outward implies fear.” loss of state of self-control from violence or intensive emotion; feeling indig- resentment Now, position was Charles “Q. what again and then started you fired the in if coffee table her down on knocked first ? shot room. everything in the broke every- testified, thinking “Me laid back ‘Oh’ and hollered into bed- right, I went was all thing before, down, like he was the wall.” face turned to did What be- that she fired She related scared, did not but she cause she into the bedroom. “A. He went tend to kill him. ‡ ‡ issue does not This evidence Now, went do, then did bedroom what 11, State, Tex.Cr.App., *4 minutes what did do some in a people argued with some accused later shoot threatened to cafe where someone [*] a “A. [*] I bed. him. He left walked into an young men who there alley where he saw he thought bothered rage. him two he of the shoot- the victim earlier. One was was Charles? And where ing. stated he heard McGee they argued. jumped on his cousin and Laying his face “A. on the bed with he told The deceased then McGee turned to the wall.” testified his McGee kick rear. going to that after she further testified afraid that fired he was that he because her, my he “He was tired of bed told and that were attack two was in the with -.” bed doing what he was he did not know that he then pushed face to wall and fixing the deceased was was afraid “a little on his elbow bit” facing him. shoot pistol in saw the his hand. When charge on held that no This Court and, why gun scared “I don’t know In required. malice was murder without slipped gun gun but slipped, when case the in the instant that case and picked shooting” I by the evidence issues raised covered the times, pulled trigger two awas case —self-defense. than this stronger case for heard the man here You present case the case. against everything was thought fight, him? the deceased. and went bed case majority overruling Is the Well, we were both in bed.
“A. State, Tex.Cr.App., 482 S. specifically it should If W.2d 270? shirt, tee “Q. Up against Charles’ judges and the trial done because whether or not know guidance. look to our decisions him ? touching affirmed. judgment should No, if it was touch- I don’t him, we were both but MORRISON, this dissent. J., joins