*4 BUTTS, TIJERINA, Before CANTU and JJ.
CANTU, Justice. appeal This is from a conviction for TEX.PENAL ANN. 19.- murder. CODE § (Vernon Supp.1986). Appellant was in- murder, capital dicted for but was found guilty of lesser offense of murder. punishment years’ The at 80 assessed confinement. grounds first of error five
complain by actions the trial court overruling special his requested instruc- tions on lesser included offenses. The charged murder, murder, capital on manslaughter, intent voluntary transferred Appellant requested in- self defense. aggravated caus- structions assault aggravated ing bodily injury, as- serious deadly weapon, involuntary sault man- slaughter, criminally homicide, negligent conduct, reckless all of were denied. at trial Department
The evidence established that at Police members to first re- p.m. approximately 11:00 evening spond home, to the call to the Vicenzio 23, 1983, appellant December shot offi- officer Ramirez arrived on the scene first. cer Ramirez of the Gilbert San Antonio When Sanchez talking arrived Ramirez was Department. Police Officer Ramirez died to the Cantus next to their truck. Some- short time Testimony later. concerning the shouted, body “Here he comes.” Sanchez leading up events to Ramirez' death estab- appellant running observed down the street lished that earlier in the evening of the carrying a rifle. Sanchez and Ramirez ran shooting, appellant nephew, Tony truck; for cover behind the officer Ramirez Vicenzio, had attended a party Christmas to the ran back left of the vehicle. Ra- appellant where drinking. The two officer, mirez identified himself police as a men returned to Vicenzio’s home where appellant drop gun. and shouted at began argue. argument Sanchez, devel- According to neither he nor Ra- oped physical fight, into a which ended weapons, mirez fired their but relative, Guzman, when another got Juan twice, striking fired the second shot Ra- by allegedly kicking appellant involved and mirez in the neck. Ramirez returned fire firing pistol a .25 caliber into the air. at same time fired his second Appellant running shot. continued down According trial, ap- at the street. fired several Sanchez times at pellant, angry kicking him, at Guzman for appellant, and then called for medical as- left the vowing Vicenzio home to return sistance for Ramirez. get “and even.” went to his own *5 down, house two doors and loaded his shot- area, Several more officers arrived the gun. He then returned to the Vicenzio began searching appellant and with began kicking home and on the door. Oth- dogs. Appellant apprehended nearby, er relatives at the Vincenzio home warned shortly shotgun and the located thereafter appellant police the had been called neighbor’s under some near a bushes go and told him Appellant to home. re- house, appellant indicated he where had home, again turned to his own after vow- put it.
ing get to even. Appellant testified on his own behalf at Puente, appellant,
Isidro a friend of of According trial. to his version the facts present appellant’s at home. Puente testi- appellant grabbed shotgun and ran to- his appellant fied that returned home and un- intending wards the house Vicenzio shotgun. Appellant appar- loaded his then Appellant shoot at the truck. stat- Cantus’ lights ently cars, saw car the Vicenzio drive- police ed that he did not see the but shotgun, way. He reloaded the and ran thought lights parking were those shouting “Well, the Vicenzio home towards belonging to another relative. He of a car going nobody, just I to hurt I am ain’t police also testified that he did not hear the going the house.” to shoot at Puentes identify themselves. appellant appeared very angry
stated that appellant According testimony, his upset. and gun was aware that Guzman had a earlier visiting and Dora Cantu were at the Joe evening. in the He therefore maintained police home. After the had been Vicenzio returned to the that he was afraid when he they attempted called to leave. The Can- Appellant Vicenzio home. claimed that police cars arrive so tus saw got to the truck when he close Cantu’s in the parked partially their truck street Appellant him. testified someone fired at po- house and the appellant’s between the off, stating: gun just that his went were marked police lice cars. The vehicles just, maybe I I ... and all of a sudden such, lights parking were as but their fired, at the same went down and but on. scared, got I got time I scared. real and shooting I at me. I According testimony of officer didn’t know who was Sanchez, just jogging, jogging San Antonio continued all the Richard one way know, (a) here I firing. and A person don’t commits offense maybe again I again. load and I fired assault as person commits defined in Sec- don’t remember. I just And continued person: tion 22.01 this code and the running and I hear some shots after me. (1) bodily injury to causes serious And I way continue jogging all another, including person’s spouse; through They here. fired at me at close * * * * * * range right here. all I And the sudden might down, have went I I don’t know. (4) deadly weapon. uses got just scared and it went I off. had specially re submitted my finger on my trigger, just and it went quested aggravated instruction assault off. And I jogging I continued and by causing bodily injury serious might again, did fire I don’t remember. following paragraph represents ap When apprehended, was later plication of the law to the facts. my he asked the get officers “Did I broth- Now if find from evidence According er-in-law?” at tri- beyond a reasonable doubt that on or al, when injured was told he had day about the 24th of December police officer, surprise “had a look of Bexar, County Texas, State of to him.” Pimentel, Defendant did Gustasvo inten- grounds of first two error tionally knowingly recklessly or or com- complain the trial court’s refusal sub- mit an assault on Esquivel Gilbert Ra- mit to requested instructions wit, weapon, mirez use of a.deadly aggravated by causing assault serious by shooting gun, thereby him with a bodily injury aggravated assault him, bodily injury upon inflict alleged as deadly weapon as lesser included offenses. indictment, you will find the de- capital murder, In addition to the trial guilty aggravated fendant assault as charged court on the lesser includ- charged in the indictment.... ed offenses of voluntary murder and man- requested We note that the instruction in- slaughter, as well as on the law trans- correctly purports on aggravated ferred intent self defense. trial *6 “charged assault as the indictment.” If court, however, refused to submit instruc- aggravated assault was in the it case was involuntary manslaughter, tions on crimi- capital as a lesser included of offense mur- nally negligent homicide, aggravated as- being subject der and not of virtue bodily injury, aggravated sault serious of the indictment. by deadly weapon assault and reckless con- duct as lesser included offenses. think, crucially, More the re we quested permitted instruction would have Appellant argues appeal spite on that aggra of to convict for the offense of his admissions that he shot officer Ra- 22.01(a)(1) a vated assault under without mirez, § repeated denials that he intended finding bodily injury inflicted was to kill or shoot Ramirez or anyone else may serious. A trial court a re refuse aggravated suffice to raise assault as a quested incorrectly instruction when it lesser included offense. applicable states the law. Goldman v. provides Texas Penal Code section 22.01 State, 603, 160 143 Tex.Cr.R. S.W.2d 523 pertinent part: (1942); State, 514 905 Mutscher v. S.W.2d (a) A person commits an if the offense (Tex.Crim.App.1974). person: error one Ground of number is overruled. (1) intentionally, knowingly, or reck- lessly another, bodily injury causes Appellant’s requested ag- instruction on including person’s spouse; ... gravated by deadly weapon assault was provides Texas Penal 22.02 in correct form but Code section submitted nevertheless in pertinent part: overruled.
770 State, Sanchez v. App.1967);
In order for a lesser
691
included of
S.W.2d
1985, pet. granted).
charge
submitted,
(Tex.App.
to be
797
Paso
fense
the lesser
—El
must
proof
included offense
be within the
did not raise the
Since
evidence
issue
actually charged
of
offense
there
guilty only
aggrava-
must
evidence that
if the
be
defendant
is
assault,
ted
it
not error
refuse a
guilty
guilty,
only
he is
of the lesser of
charge
Appellant’s
on that
offense.
State,
fense. Moreno v.
702
636
S.W.2d
ground of
two is
error number
overruled.
(en banc);
Aguilar v.
(Tex.Crim.App.1986)
ground of error com-
third
State,
(Tex.Crim.App.1985)
Q: put And three of them in again? it The did trial court not err in re charge fusing involuntary on man A: I don’t if know there were three or slaughter as lesser included Ap offense. I don’t two. know. pellant’s ground third of error is overruled. Q: You you put know at least two there, you, don’t Gus? Appellant’s ground of error number four complains of the trial court’s refusal Yes, A: sir. A: That A: A: Q: Okay. A: Q: Q: Well, you know one shot hit the Q: mean, shotgun you chamber. truck and one shot hit Gilbert maybe it came off. twice, right? [*] When did I I I I was know fired one shot and I don’t know is what [*] jogging twice, So now; that because you you [*] right? now, yes, with lower it down? know you sir. [*] don’t say. my finger I don’t know. you fired the you? [*] fired that Ramirez, know, [*] gun vides: 07(a). the trial court’s refusal to the death of an individual gence. TEX. PENAL CODE ANN. ground less conduct. homicide as a lesser included offense. His charge he TEX.PENAL (d) respect conduct or the result gence, A person A ought of error number person or is to circumstances commits an offense if he causes to be aware CODE ANN. § criminally negligent, acts on with criminally negligent of his five of a surrounding criminal criminal conduct when complains 6.03(d) substantial negli- negli- § reck- with pro- 19.- A: I my When heard first shot at close unjustifiable risk that circum-
range. got I I scared and went down the result will stances exist or occur. gunmy just off. went must such a nature and The risk be of
******
degree
perceive
it con-
that the failure
gross
from the stan-
stitutes
deviation
Now,
Q:
...
that is not an automatic
ordinary person
dard of care that an
shotgun, is it?
circumstanc-
would exercise under all the
No,
A:
sir.
standpoint.
es as viewed from the actor’s
Q:
you
For
to shoot it more than one
neg
of the offense of
essence
you
time
have to chamber another
ligent
is that an intentional act
homicide
shell?
Esparza
produced an unintended result.
A: Sir?
(Tex.Crim.App.1975).
Q:
once,
you
shotgun
If
shoot that
earlier the evidence raised
As mentioned
again you
to shoot it
have to cham-
guilty only
the issue that the
was
right?
ber another shell
specie murder or of no offense at
of a
Yes,
A:
sir.
raising
Only
element
murder to
all.
Q:
pump
You have to
it?
seriously
dispute
as
capital murder was
Yes,
A:
sir.
appellant’s
any
commit
of-
intent to
[******]
fense at all.
Thus,
under the instructions
to an
jury, appellant
was entitled
the evidence raised
We conclude that
capital
acquittal or conviction of murder or
testimony
appellant through his defensive
murder.
aware of an
not establish that
did
may
nevertheless con- While it
be conceded that
lesser
unjustifiable risk and
risk,
is,
proof
disregarded the
included offenses were within
sciously
murder,
shotgun
capital
there was no
pointing
shooting the
at
murder and
all,
if
Moreover,
guilty
at
truck.
there is no evidence
guilty only
guilty only of invol- was
of a lesser offense included
appellant,
guilty,
greater
charged.
offense
Bravo
untary manslaughter.
See
*9
State,
(Tex.Crim.App.
testimony
v.
S.W.2d
The defendant’s
alone
1982) (en banc);
State,
Daywood v.
157 may
to raise a defensive theo
be sufficient
266,
(1952).
Tex.Cr.R.
Ground of error number six charge by jury may acquit ered that a if the appel- trial court’s refusal to submit there is a reasonable as to whether lant’s doubt requested charge on the voluntari- engaged voluntarily the defendant ness of his conduct. conduct which he is accused. Appellant following requested the in- jury: struction to the be submitted Therefore, appears it that no error com- person You are instructed that a denying charge in on involuntary occurs only voluntarily- mits an if offense he the conduct where evidence does not raise conduct, act, engages including in an an merely but reiterates the involuntariness possession. omission or Conduct is not position that did not intend defendant’s he involuntary merely rendered the because resulting State, injuries. the v. Williams person did not intend the results of his State, 681 supra; George v. S.W.2d 43 Now, you if conduct. the believe from (en banc). (Tex.Crim.App.1984) beyond evidence a reasonable doubt the by Defendant killed the deceased obtaining the admits to shooting gun, him with a but if fur- shotgun, loading purported it in with the evidence, ther believe the from or have a it, jogging a dark tent to fire down street shooting reasonable doubt that the finger trigger with on the and dis his discharge shotgun the accidental of a weapon. fact that the charging Defendant, in the hands of De- then the shotgun “just went off” not render does fendant ‘not guilty.’ would be involuntary require so act as 6.01(a) pro- TEX.PENAL CODE ANN. § in recognized George thereon. As vides: State, supra, appellant voluntarily v. A person an commits offense he engaged up very in conduct second
voluntarily conduct, including in engages “just shotgun claims the went when he act, omission, possession. an or State, off.” also v. Dockery See (Tex.Crim.App.1975). arguing giving request- In of the upon ed solely instruction relies opinions Appellant relies on this Court’s testimony that did not intend to (Tex.App. in 696 S.W.2d Joiner anyone gun shoot went “just pending) pet. —San Antonio off.” (Tex. 696 S.W.2d Whitehead 1985, pet. pending) App. Antonio in any We are not directed to evidence — San pointing out the between the similarities supporting proposition record charges in requested cases and those shooting involuntary. act instant case. A an af defendant entitled to holding perceive We Joiner v. every is firmative defensive instruction on be inasmuch as possibly State to erroneous sue regardless raised the evidence involuntary conduct is limit- strong, feeble, the evidence unimpeached, whether it is shooting ed bare assertion that the contradicted, or court to a even if the trial evidentiary support is of is not was accidental without opinion holding entitled to for such assertion. Under belief. *10 State, stating personal opinion. If he supra, compelled we are George v. gives done it he should have done could have to conclude Joiner argument. support for it. objection I sustain the THE COURT: will Whitehead, hand, on the other discloses argument. type to that shooting precipitated by was an jury in- Attorney: Will be Defense question in
other individual and that a disregard that? structed legitimately was raised for voluntariness State, jury resolution. Garcia v. jury I instruct the THE COURT: will Cf. (Tex.Crim.App.1980). are not of counsel evidence. statements they can in They you are assist by Under circumstances shown arriving appropriate conclusion at an evidence was not entitled to a Arguments upon based the evidence. instruction on the voluntariness of his either side do not consti- of counsel on not, conduct and the trial court did there- tute evidence. fore, declining err in to include it in its Honor, as we Attorney: Your Defense State, jury. George su- ask for required to do now we’ll are of error six is overruled. pra. Ground mistrial. complains of the trial Appellant next Denied. THE COURT: overruling his motion for mistrial court’s urged prosecutor injected new after the argument must fall Proper jury facts, unsupported by evi- and harmful general summa four areas: within one of dence, brought to wit: that he “could have evidence; reasonable deduction of the tion Depart- in Antonio Police the entire San evidence; argument answer from you that Pimentel has a ment to tell Gus counsel; pleas for law en opposing reputation.” bad State, 693 S.W.2d forcement. Franklin v. (en banc). (Tex.Crim.App.1985)
Appellant called seven witnesses at
at
guilt/innocence phase, and five more
asser-
State’s
Appellant argues that the
testify
good
he had a
punishment to
brought in the entire
have
tion that it could
veracity,
reputation for truth and
to tell the
Department
Antonio Police
San
being
peaceful
abiding
and law
citizen.
reputation
a bad
appellant has
jury that
permissible areas
does not fall within
State,
contrast,
offered no charac-
The
Franklin, supra. See
argument under
at
ter witnesses of its own and no evidence
493 S.W.2d
Alejandro v.
also
punishment phase. During sum-
all at the
(Tex.Crim.App.1973).
punishment phase, appel-
mation at
pointed
lawyers
out the State’s fail-
lant’s
in
acknowledges that an
any reputation testimony.
ure to offer
disregard improp
by the court to
struction
following
transpired:
The
then
raised
any
cures
error
argument usually
er
Attorney: The evidence of the
Neverthe
State’s
misconduct.
prosecutorial
by
you right
is before
types
trial of this case
of error in
less,
certain
urges that
he
evidence of Gus
being
as
as the
incapable
now
well
cured
arguments are
have come in
friends who
has
disregard.
Pimentel’s
The rule
an instruction
in his behalf. The
and testified
of a trial
prompt
here
action
been stated
attorney
you
disregard
has told
that we
directing
defense
judge
say he had a bad
bring
people
a reversal
argument
can
obviate
improper
will
I
I
argu
to.
am sure
reputation if we want
where the
cases
except in extreme
brought in the entire San
obviously
have
of an
could
facts
injected new
ment
to tell
Department
nature,
language
Antonio Police
or where
harmful
reputa-
has a bad
that Gus Pimentel
that its harm
inflammatory in character
so
tion.
with
not be remedied
ful effect could
State, 95 Tex.Cr.R.
Galloway
drawal.
object to that.
Attorney:
Defense
I will
(1923).
They can
in he
bad
has
charac-
prosecutor
apologize
for the
to
to the de-
They
bring
people
in
ter.
can
that will
presence
jury
ceased’s wife in the
of the
that, people
say
controvert
that will
the
failing
subpoena
long
poten-
for
list of
to
a
And,
know,
me,
I
opposite.
don’t
to
tial witnesses from whom he could have
now,
right
your
as I told
on
last
deceased,
proved
good reputation
the
of the
verdict,
spirit
the
of
law is more
the
it necessary.
but didn’t think
important
than the
of
letter
the law.
We
argument
believe that the
com
spirit
bring
And the
of the law
can
plained
is of the kind
clear
about
that was
character,
people
in
to
he
show has bad
ly calculated to inflame the minds
the
when Gus Pimentel’s
in
to
brings
people
jury
suggest
and of such character as to
say
good
being
that his character is
for
impossibility
withdrawing
the
im
the
peaceful
abiding.
To
law
me those
pression produced in their minds. See Ca
important things.
positive
are
are
Those
State,
(Tex.Crim.
vender v.
601
547 S.W.2d
things....
App.1977).
in support
position
The State
of its
relies
State,
supra;
Franklin v.
Gillis v.
From
was
the record it
shown that
State, 694
(Tex.App.Fort
S.W.2d 245
appellant had never before been arrested
1985,
State,
Durant v.
pet.);
Worth
688 except
impres
for the instant offense. The
1985,
(Tex.App.—Fort Worth,
S.W.2d 265
improper argument
sion created
the
was
ref’d).
pet.
support
None
these cases
the
Depart
that
entire San Antonio Police
the State’s contention
ar
that the instant
appellant in
negative
ment knew about
gument was invited.
argument was
manner. Such
violative
appellant’s right
to
his
believe,
confront
accusers
as did the trial court
We
knowledge.
test
and to
the source of their
argument
that
improper.
was
States,
Ginsberg v.
See
United
257 F.2d
question
we must answer is whether the
(5th Cir.1958);
Richardson v.
950
court's instruction to disregard cured the
Cf.
State,
(Fla.Dist.Ct.App.1976);
prejudicial
So.2d
effect.
Roach,
63, 102
State
N.C.
S.E.2d
State,
In McNaulty v.
138 Tex.Cr.R.
(1958).
(1939)
prosecution
S.W.2d 987
ar-
gued
objection,
put
over
“we
could have
prosecuting attorney
permit
A
is
many more witnesses that would have tes-
argument
in his
draw
ted
final
to
from
tified
same facts
that
witness
all
facts
evidence
inferences which are
to that
did
put
testified
we
not
on.” The
reasonable,
legitimate,
may
but
fair
Appeals recognized
Court of Criminal
argument
get
not
before the
use
such
an assertion could not
cured
be
jury,
directly
indirectly,
or
either
evidence
charge of the
A
or-
court.
reversal was
Jordon v.
which
outside
record.
dered.
(Tex.Crim.App.1983)
again
upon
habitation
within the
be viable
limits of
retrial.1
city
incorporated
and town
knowing
ground
alleg-
of error twelve
that said habitation
located on proper-
overruling
es
court error in
trial
ty belonging to Freddie Diaz. The Court
compel
motion
State to elect
Appeals
of Criminal
found that:
sought prosecution
mental state
culpable
it
object
Since the
failed to
under.
charge or move to force the State to
*12
alleged
in-
appellant
The indictment
that
elect,
general
and the jury returned a
the death
tentionally
knowingly
and
caused
[appellant’s
verdict
...
contention was
jury
of
Ramirez. The
was autho-
Gilbert
without merit.]
charge
in the
to convict if it found
rized
Thus,
at 487.
argued by appellant
Id.
as
intentionally
knowingly caused
appellant
or
herein,
Vasquez opinion suggests
the
that
Appellant
that
objected
Ramirez’s death.
committing a
when different
of
sin-
means
disjunctive
the
submission varied from the
gle
indictment,
alleged
offense are
in an
indictment,
allegations
conjunctive
in the
disjunctive
proof of
submission and
either
the effect
a
and that
was to authorize
a
permissible
is sufficient
absent mo-
theory
alleged
on a
not
in the
conviction
compel
tion to
election.
Alternatively, appellant
indictment.
moved
There is
or
no statute
decision
required
the State be
to elect its theo-
that
requires
elect or
which
the
to
which
State
ry
as
prosecution
of
either intentional or
gives
right
compel
to
a defendant the
elec
knowing.
appellant’s
The court declined
(Tex.
State,
v.
Moreover,
under the
is silent as to whether
standard for
examined
determining
composing
jury charge
grand jury
error in a
the list
re
which
reversal,
quires
as set out in
indicted him and other
Almanza v.
members of the
State,
jury (Tex.Crim.App.1980). records determine “to whether grand juries county in this have [Bexar] Appellant admits that the trial been selected and treated accordance deny hearing court him con did not but with the law.” tends of access the record for that denial any allegation Thus there was never that preceding years ten the hear rendered grand juries in accord- were not selected ing meaningless. agree. Appel We do not ance with law but to examine a desire apparently lant refused to avail himself possible for records violations. proffered indicting records of grand trial appellant’s jury. court re- In of some denied the the absence show quest inspect grand ing ap jury for the that earlier records relevant lists were previous years, appel- pellant ten agreed but to let can claim no harm from denial of persuaded
those records. Nor are
that numerous character
we
that
fact
witnesses
28,
States, 420
good
Test v. United
U.S.
95 S.Ct.
as to appellant’s
reputa-
had testified
749,
(1975),
by-
L.Ed.2d
United
Womack
at the
This case
reversed because
States,
(D.C.Cir.1964);
ed not to do or believed were not
needed, this permissible would have been argument.
as answer invited Saying brought
could have “the entire San An-
tonio Department” Police going was too
far, however.
Whether this error was harmful error
which the instruction did cure is not
question. I would find this was error trial court’s did cure. instruction invited, While an answer was State’s Rangel, Antonio, Raymond appel- San for beyond answer appropriate went limits. lant. However, cautionary instruction Jr., Garcia, Millsap, Sam Eduardo J. necessity court obviated the for reversal Hernandez, Mary Shaughnes- E. F. Edward inject- this case. There facts were new III, Antonio, sy, Attys., Crim. Dist. San ed, language and the so inflamma- not appellee. tory its harmful nature could not be remedied the instruction. I would hold CADENA, C.J., Before and REEVES correctly grant trial court refused to a TIJERINA, JJ. mistrial. OPINION I respectfully
For these reasons dissent.
REEVES, Justice. guilty, found after trial, weap- unlawfully carrying bench Imposition sen- premises. on on licensed was suspended placed tence (3) probation years. for three error, ground In his sole alleges that the evidence is insufficient Alejos AGUILAR, Jr., Appellant, appel- Particularly, sustain conviction. *15 lant asserts the evidence is insufficient to pistol “carrying” that he was show Texas, Appellee. STATE fact, only momentary had shows that he pistol. possession of the No. 04-85-00126-CR. Viewing light most the evidence Texas, Appeals
Court of shows favorable to the San Antonio. em- security Max Castillo was officer pool at in San Antonio ployed Bananas hall May 1986. question. date in Bananas had a on the permit issued the State the sale beverages. infor- Responding alcoholic occurring, mation that an altercation interior the establish- Castillo left the parking lot. He saw ment went to holding man a .32 caliber revolver at one man’s head. drew another Castillo drop the re- weapon and told man dropped or The man threw volver. ground on the near a truck. revolver down