*1
proceeds.
for division of the
The
Douglas
trial
The mere fact that
deeded his
Douglas,
court rendered an order for
but
in the property
interest
to Deborah does
$10,-
reduced the amount of the
to
award
prior agreement.
the
change
not
Consider-
appeals reversed,
375. The court of
hold-
ation
recited
the deed was
and as-
$10
the
that
Deborah resisted
motion sumption
note,
of a
not cancellation of the
arising
enforce based on
claim
after
prior agreement.
argue
Deborah did not
at
case,
the
of
close
the divorce
hearing
the
Douglas
that when
deeded his
evidence
the trial court
should
dismissed the
property
gave up
interest in the
to her he
proceeding.
enforcement
any proceeds
his claim to
In-
of the sale.
stead,
argued
she
entered into a
seeking
If Deborah is
to show that
agreement
pro-
new
for
division
the
the
of
entered,
she
not
did
consent
the decree
ceeds at that time.
change
she
presented any
should have
agreement
the
to the
circumstances
trial
clearly
jurisdic
The trial court
prior
signing
court
to the
of the decree.
tion to consider
defense of the
Deborah’s
parties may
The
have entered into a new
agreement
deed
a new
in determining
and
agreement
parties
after
agreed
the
to the
to,
to,
whether
or how enforce the divorce
$12,500
March,
award in
this
new decree. The trial court found no new
agreement and the
property
deed
the
Therefore,
agreement.
the trial
cor
court
prior to
Deborah were
the date the divorce
rectly ordered enforcement of the decree.
signed
decree was
on November
Douglas
complains
the
also
trial
agreed
While
judgment
consent
an
must
$10,375.
court’s reduction of his award to
agreement
exist
the time
the
becomes
agree with Douglas
We
that the trial court
court,
judgment
Burnaman v.
should not have reduced the
award.
Heaton,
150 Tex.
Allen v.
Deborah testified that a new contract had Douglas
been entered when deeded the however, court,
property to her. The trial alleged refused to enforce Deborah’s new Lindsey SMITH, Jr., Monroe Appellant, agreement that the house would be sold for price parties best Texas, The STATE Appellee. split residue all third after 25%/75% Thus,
parties paid were off. there No. 66448. finding implied by the trial court that there Court of Appeals Texas, Criminal agreement. was no valid new Construc En Banc. tion General Labor Union v. Ste 22, 1986. Oct. phenson, 148 Tex. (1950). support There is evidence
finding Douglas testified there since agreement.
was no new
ing off down the street with the victim following behind on foot. According to Thompson, appellant appeared to be angry telling the victim to meet him at Thompson corner. related further that he did not see what went on at the corner. Instead he left Denton’s house and drove to *3 a store away purchase some four blocks to cigarettes. Thompson some testified that leaving he was making store after purchase, he the appellant, saw accom- panied by Lynn Micki Thompson and Roy Alexander, up drive pickup. Thompson appellant say, heard going “I’m dark,” get him before apparently refer- ring to the Thompson victim. Botsford, Austin, returned to Colvin, David Emmett Denton’s house. When he arrived Dallas, the vic- appellant. for tim was there and asked him if he would Huttash, Austin, Robert Atty., State’s give Thompson him a ride. drove the vic- for the State. tim to his mother’s house. The victim Thompson
asked to wait for him while he thereafter, went Shortly inside. the victim Thompson came out and asked give him OPINION a ride to Thompson Lake Tawakoni. McCORMICK, Judge. agreed began and the two men thirty mile drive to the lake. As the two men A jury appellant found guilty of murder lake, approached they passed appel- punishment and assessed his at seventy- driving lant’s truck opposite di- years. five Thompson appellant rection. saw that Evidence adduced at trial showed that accompanied by Roy Thomp- Alexander. the victim was shot by appellant and killed son passed appel- also noticed that as he approximately p.m. at 2:00 May lant, brakes, appellant hit his turned his body His was found law enforce- pickup following around and started later, ment authorities an hour or two tied Thompson’s being car. After followed trough to a metal feed which had been half, approximately a mile and a the victim deep anchored in the bottom of a hole in a Thompson pull told his car into a side Appellant’s creek. theory at trial was that stop. Thompson road and did so. The he had acted in self-defense. Because a pulled up followed and his truck detailed testimony rendition of the is neces- approximately lengths one or two car be- sary appellant’s grounds for resolution of Thompson’s hind car. The victim exited pertinent we now summarize the Thompson’s began walking car toward testimony. appellant’s pickup. appel- In the meantime Thompson David day testified that on the got stepped lant out of his truck and offense, visiting he was his brother- Thompson front of his door. related that in-law, approximately Johnnie Denton. At appellant say, “By you he then heard God up 10:00 a.m. drove to Denton’s Thompson want some of this?” then heard house, awhile, away visited drove and then rapid four shots in succession and looked thirty ap- returned minutes later. Just as up appellant holding pistol. and saw returned, pellant a fire broke out the Thompson related that the victim did not Thompson go house next door and weapon anything left to have a and had not said extinguishing appellant. Immediately and assist in the blaze. He after the shoot- just ing, appellant pointed gun Thompson returned in time to see driv- Roy Alexander drove and then he and anything off him that he said told purchase his head some beer. (appellant) would blow to Lake Tawakoni anyone, lake, Alexander and Appellant they made both way off. back from the On the body help load the victim’s Thompson appellant recognized as a car which passed told Appellant the truck. the back in- with two Thompson belonging to David body going dump Thompson he was related that he inside. dividuals he and “Calloway bottom” and then in the were thought the two individuals Thompson off. immedi- drove Alexander Denton. Ac- Thompson and Johnnie David the murder to the authori- ately reported appellant, he looked in his rear cording to Thompson that the Finally testified ties. Thompson David mirror and saw that view p.m. at around 2:00 shooting occurred pulled over lights on and had had his brake personnel arrested enforcement point Law At that of the road. to the side Alexander a short time appellant and both down, made a U-turn appellant slowed appel- preparing to leave later as were the side Thompson’s car down followed Alexander led authorities to lant’s home. pulled as he Appellant related that road. *4 body and the murder location of the the car, im- Thompson’s the victim up behind weapon. passenger side mediately jumped out of the coming him. started towards of the car and prior to the appellant testified put his truck in reverse Appellant met the tried to of the offense he had never date out, spin him and to although he had heard of his tires started victim and back being Appellant reputation point for violent. escape. his At that and he could not morning of the offense related that on the pistol kept grabbed the loaded he appellant driving highway to- as he was down the pickup. stepped the in his truck and out of house, a car driven Denton’s wards Johnnie pointed and the step He took one backward to be the victim by a man he later learned standing some pistol the victim who was at him the road. few tried to run off front of the eight feet from the five to turned onto Denton’s minutes later as he appellant, the victim According to pickup. street, standing some friends of his he saw in holding a knife one already who was pulled corner. He over and on the street pocket and hand, into his back reached talking his sitting in his truck was said, your goddamn going to blow “I’m up and the victim walked friends when stepped backwards Appellant head off.” Appellant the him who he told asked was. victim When the the victim advanced. as began and curs- his name the victim victim victim. stop, appellant shot the According to threatening him. ing him and it was David According get out of the victim told him to appellant, dispose of the victim’s Thompson’s idea to started pickup. he refused and the When Appel- “Calloway bottoms.” body in the off, pulled out a knife the victim to drive Roy Alexander that as he and lant related then Appellant cut arm. and dispose creek to driving to the were As he house. drove to Johnnie Denton’s Appel- deputy sheriff. body they passed a appel- driveway, pulling into Denton’s was stop they should told Alexander lant him. running towards the victim lant saw Alexander shooting but report the fight, appellant decided wanting to Not him to told pistol and picked up appellant’s into the his truck out and backed leave the they reached driving. When keep on pursuing him. the still street with victim body. The disposed of the Alexander creek able to elude the away and was He drove appel- to drive to proceeded men then two he then related that Appellant victim. they hid the way, the home. On lant’s he Grocery West Side where to the drove log. weapon under murder Thompson. Micki Roy Alexander and met grounds of second In his first and Thompson seeing David Appellant admitted first, court erred argues that the store, making any threats but denied at the qualifi- objections to overruling his by leaving the After concerning the victim. second, Petty and Dr. S. of Charles Thompson cations store, dropped Micki overruling by his testi- He spent motion strike the cal School then two mony Petty. Petty, Dr. Dr. Chief years internship residency clinical County, Medical Examiner for Dallas was Mary Imogene Hospital Bassett in Coo- testify concerning autopsy called to pertown, New York. Thereafter he moved performed Although on the victim. Dr. spent years special- three Boston Petty was asked to detail his educational 1955, ty training pathology. In he background, employment history, his his moved New Orleans where he worked chief duties as medical examiner and custo- first as instructor and then as Assist- records, prosecutor neglect- dian Pathology Professor ant at the Louisi- prac- ed to if his ask doctor license to ana School of University State Medicine. properly Ap- tice had medicine filed.1 During tenure, serving this he was also pellant’s objection deficiency pathologist coroner for Parish argues overruled. now that this of Orleans. In he was as an hired was fatal omission State’s case. assistant medical examiner for the State Cordero v. In Tex.Cr.R. years posi- Maryland. After nine in that 174, (1956), argument a similar Indiana, tion, Indianapolis, he moved to prove was made the State failed to taught professor where he as a of forensic expert their witness licensed pathology. Dallas moved to registered State Texas or accepted position Medical Chief county practiced. license in the where he County Examiner for Dallas and Director Court, on Silva v. relying This County Investiga- Dallas Criminal 887, (1948), Tex.Cr.R. Laboratory. serving in tion He was still found that since the record showed that the capacities time in Au- those at the of trial graduate Baylor doctor was Medical *5 gust 1979. of College practiced and had medicine for nine sufficiently qualified years he was to testi- a suffi We find that above was Silva v. fy expert. as a medical showing Petty’s competency cient of Dr. to supra, stated: concerning autopsy performed testify “ We think mere fact did ... that he Although on the victim. it would have not have a license not would authorize prosecutor preferable been for the to have testimony. to the court exclude his entire concerning filing asked doctor objection It occurs to us that the went license, case his we find that the instant weight than testimony more to to did re the failure do so not constitute inadmissibility. However, its Appellant’s sec versible error. first and question of whether not a witness is grounds of are ond error overruled. sufficiently qualified express opin- an ground In his third expert question involving ion as on a argues that the court abused its discretion knowledge scientific is a matter for the has overruling court to determine after witness his for continuance. motion study of 27, 1979, pre- stated the time devoted to the August the date set for On science, training that branch trial, attorney appeared appellant’s without experience. the court is satisfied When inquired the court appellant. When then he is qualified, that the witness is appellant, whereabouts defense permitted testify, unless it is shown court counsel informed the with court his discretion that the abused on initially appear notice to had received 888. respect thereto.” 215 S.W.2d at notice August 27 and had received a then coun- September on 11. Defense case, appear Petty Dr. In the instant testified super- inferred second notice that the graduated the Harvard Medi- sel that he from trial, arti- office. These two which maintained an time of Article 4498 1. At the 4498.1, Leg., required physician repealed by Acts 67th 1st and Article V.A.C.S. cles were C.S., 6(a), Aug. with the district clerk to file his medical license p. ch. eff. § county every he resided and in in which murder case. This is a appel- “THE COUET: had told first notice and ceded the I just any not like other case. Septem- This is reset to that the trial lant Mr. and tell appear suggest you have to call Smith he did not 11 and thus ber get informed counsel off the August 27. The him that he better his wife on court send customary bring for the court to somebody to him down job that it was parties that the charged notices so imagine out two a man here. I can’t reached the if the case was not my know that giving excuse that murder the second it would be reached first week a ve- and I don’t have at work wife’s coun- instructed defense The court week. hicle. and have him come sel to contact (sic) got just I ahold “ME. FLYNT: would be for- immediately or else his bond 1:00. minutes to him at eleven feited. is, course, point Of “THE COUET: informed the court that Defense counsel (sic) him. At that you got ahold go immediately ready trial he was working ought to have started point he ready September 11. The on but would get down he could out a deal where appellant to file a motion court instructed here. ready. if he could not be for continuance produce say, I I can “ME. FLYNT: Like following oc- a short recess the After morning. o’clock in the him at 9:00 curred: going But we’re to need “THE COUET: Flynt, approach the “THE Mr. COUET: pretrial. chance for to have a you get in contact with bench. Did my I motions. “ME. FLYNT: don’t your man? your you get back to office When No, FLYNT: sir. “ME. your 12:00 and minutes to seventeen way? Is he on his “THE COUET: gone to lunch best secretaries have all No, “ME. FLYNT: sir. put do is it on the machine you can “THE is he? COUET: Where and come back as her to draw it ask Saline. “ME. FLYNT: He is Grand you can. quickly as only and she His wife has the vehicle willing number one perfectly to be “Be to—she works at bank went think docket. I don’t your next transpor- He had no means of Canton. lot, not since the asking a whole that’s by my office dictat- tation. I went my own.” confusion was *6 for Continuance on ed a Motion morning the case was when The next secretary, I my machine because he announced that called for trial office, got it was seventeen back to presented a ready for trial and not was get 12:00. I did not ahold minutes to mo- The for continuance. written motion (sic) minutes to of him until eleven grounds for following as alleged the tion said, to come way He I have no 1:00. continuance: you get come me. unless “II. said, at 1:00 o’clock “I I’m due back said, in- I I’m I’m late as it is. go safely cannot “That defendant be forming court that we’ll both for date above mentioned trial on the morning. a.m. in the there at 9:00 reasons, That defend- to-wit: following Well, any you don’t have setting “THE COUET: this a notice ant received 1979, pretrial 27, motions? August and that cause for thereafter, notice that Mo- another going I’m to have a received FLYNT: “ME. 10, 1979 having September it I’m set for Continuance. his cause was tion for 11, for enough 1979 September I typed right pretrial now. didn’t naturally assumed that get trial; it done. Defendant time first superceded the notice the second very I’m my fault. “Judge, this is go to cause that said notice and thought I it was set for sincere. 11, Defend- 1979. September on trial I’m sincere. 11th. 850
ant’s counsel found out at 11:15 a.m. on specifically “That Defendant waives August, right speedy the 27th it was trial and states that expected week, any tried that and de- same will not be an issue at time in only p.m. proceeding. fendant learned at 12:50 on day expected that same that same was process “That Defendant was in the trial; go to that Defendant announced preparing change a motion for of venue 10, ready September for trial for 1979. assumption on the that said case was That Defendant has had not 10, going September 1979, to trial on prepare time to on such short notice with concerning secured no affidavits said mo- the exception that same would be heard change tion for of venue. 11, September on 1979. That Defendant co-counsel, “That defendant’s John only has from 3:30 in the afternoon of Fisher, Dallas, Texas, had no notice of August, prepare the 27th of 1979 to mo- said setting p.m. until after on 8:00 Au- present prior tions to to this court to 9:30 1979, gust 27, and is not available for August, a.m. on the 28th of 1979 and to trial at this time.” secure his witnesses and to interview Testimony in support adduced of the mo- same. tion for continuance showed that the notice “That Defendant has never been fur- advising appellant August 27th trial nished a list of the State’s witnesses nor setting July was mailed on has Defendant been furnished a list subsequent notice mailed on July was (sic) any necessary not other information 27, 1979. The record also reflects that for the defense of this case. defense on counsel retained June “That this case of major is a case importance involving life possible sen- trial court overruled mo- tence and that same should be continued prior tion for continuance selection. September per 1979 as the second A motion for is ad continuance notice to as of Defendant. That 1:20 dressed to the discretion of the trial court 28, 1979, a.m. August Defendant has not grant and the failure such motion is (3) major located three witnesses for his showing error absent abuse of testify defense to that Defendant was discretion. Hernandez prior to threatened the commission of S.W.2d 397 Tezeno v. said offense the deceased and (Tex.Cr.App.1972). testify would further that defendant left We find no abuse of discretion the in premises after said threats and stant case. retained on Counsel immediately deceased commenced to two the case for months at time of follow him. obligation trial. It counsel’s to famil attorney “That Defendant’s made prac iarize himself the local rules of known to the Court that was set question tice. If counsel had a as to how Wednesday, August 29, criminal case *7 letters, interpret setting the two he Texas, 1979, County, in that he has Wood should have contacted the court for an cases, (3) (2) (1)
three two civil and one explanation. ground official This of error criminal, August 30, set on 1979 Dal- is overruled. Texas, (3) County, las and cases three set ground In his fifth 31, County, August in Wood Texas on argues trial court erred re- which continued none of have been charge fusing that David prior and in nature all of which cases are Thompson accomplice witness. He setting originally to the received in this Thompson’s asserts that conduct after cause. him shooting accomplice witness. made (3) “That Defendant has three witness- accomplice An is someone es in who are not witness the State Oklahoma before, participated who with another dur- this time. available at
851 crime; over- one records to the defense. The court after the commission of a request. Appellant appellant’s now accomplice who cannot be ruled is not an witness in re- the trial court erred for the offense with which contends prosecuted State, prosecutor supply charged. Harris v. fusing order the 645 accused is He asks that (Tex.Cr.App.1983); Fergu appellant with these records. 456 S.W.2d State, the trial (Tex.Cr.App. appeal be abated order that son v. 573 516 S.W.2d supple- 1978). court can secure these records deemed an accom witness appellate ment the record. of the crime plice because he knew witness it or concealed it. but failed to disclose even 39.14, V.A.C.C.P., provides that Article State, (Tex.Cr. v. 51 Villarreal 576 S.W.2d discovery defendant is entitled to before a State, supra; App.1979); Ferguson v. to his case the defendant of matters related State, (Tex.Cr. Easter v. 223 536 S.W.2d cause, materiality and that good must show App.1976). presence Mere at the scene of pos- “in the requested such information is compel does not the conclusion the offense session, custody or control of the State accomplice witness. that the witness is an agencies.” any of its State, (Tex.Cr.App.1985); v. Brooks presumably While such records State, ey v. 580 S.W.2d Arn in the cross-ex would have been beneficial State, v. su Easter (Tex.Cr.App.1979); 839 Thompson of David show amination pra. deceased, of the ing the violent character According Thompson’s testimony showing no such there has been part shooting only played he in fact exist. Under this state of records helped body the deceased’s move then, find are constrained to the record by appellant. Appellant ordered to State, Thompson 612 S.W.2d no error. Thomp State, the other hand testified that it was (Tex.Cr.App.1981); Martinez v. 925 body son’s idea to hide deceased’s Thomas (Tex.Cr.App.1974); 223 507 S.W.2d Calloway There is no river bottom. State, 218 482 S.W.2d Thompson State, testimony which indicates that (Tex.Cr. 400 Garcia v. 454 S.W.2d played any part in of the Alexander, the commission App.1970). Roy As to offense. there was no evidence ad testify. Since reflects that he did not record anything at trial to other than Therefore, regarding duced show his crimi any record presence Thompson’s at the scene been relevant to history would not have nal carrying body his aid in prosecution. offense and the instant truck, the trial v/e hold that instant case to Reed v. Compare refusing did not err in to instruct the court State, (Tex.App. Corpus 644 S.W.2d — accomplice jury that he was an witness. Reed, refused). petition Christi (Tex.Cr. Russell v. complaint on made a similar the defendant App.1980); Kerns v. com court sustained Reed’s áppeal. This fifth (Tex.Cr.App.1977). Appellant’s Reed plaint noted that this was because ground of error is overruled. use for the evidence and had shown the The trial, existence of such evidence. Immediately prior shown the exceptions in bill of contained a request that the furnish record made an oral State presented the custodian Reed him National Crime Information which with the Department, Police (N.C.I.C.) for the Victoria criminal records of David records Center department had a de- who testified Thompson, Roy Alexander and the through which computer terminal Appellant argued that he needed ceased. National Crime gain access to the purposes of could criminal records for these records, as its as well Center prosecutor re- Information *8 cross-examination. an reflecting contacts of file for the own indéx such records were sponded that Depart Police with the Victoria agencies, individual use of law enforcement exclusive Furthermore, also Reed records, defendant be ment. if he had such he would copy his had a of that the State disclosing pointed such out by law from restricted record, indicating criminal that the State other relevant information contained in the capacity had the to obtain such records. trial record. With this framework in mind Reed, judge in denying trial after turn the instant case. request discovery, defendant’s ordered charge The court’s reads as in follows of custodian the records to obtain pertinent part: requested printouts N.C.I.C. and these ma you “Now if should find and believe part appellate terials were made a from the beyond evidence a reasonable record. day doubt on or about the 13th If had demonstrated that such May, Texas, in County, Rains existed, compelled records we would be defendant, Smith, Jr., Lindsey Monroe ground his sustain of error. We do intentionally did knowingly or cause the feel it is our supplemen- burden to order a death of one Dewayne by Leonard Harris appellant requests. tation of the record as shooting gun, him with a as set forth in adequate opportunity per- indictment, you then will find the exceptions fect a bill of done in guilty defendant of murder. Reed and demonstrate the existence of you beyond “Unless so find a reason- carry such records. His failure to his bur- doubt, you if able or have a reasonable proof den of mandates that we overrule thereof, you acquit doubt will the de- ground of error. murder, fendant of the offense of consider guilty whether he is of the less- error, In ground ap his seventh voluntary manslaughter. er offense of pellant alleges that the evidence is insuffi “A person voluntary commits man- support cient to Specifical conviction. slaughter intentionally knowing- if he that, ly, argues since the indictment individual, ly causes the death of ex- alleged he killed DeWayne “Leonard Har cept that he caused the death under only ris” but the deceased was referred to passion immediate influence of sudden by at trial the names of “Leonard Harris” arising from an cause. Harris,” and “Leonard D. the State failed “ prove they in person. were fact the same passion’ passion ‘Sudden means di- disagree. We may middle name or initial rectly by arising prov- caused out Thus, disregarded. a failure or mistake by ocation the individual killed or another proving in the middle killed, name the victim acting person pas- with the which alleged in the indictment is neither material sion arises at the time of the offense and State, Harrington nor fatal. solely provoca- is not the result of former S.W.2d 621 Martin v. tion. “ (Tex.Cr.App.1976). ‘Adequate cause’ means cause that commonly produce degree error, grounds In two resentment, anger, rage, in or terror complains of fundamental error in the person ordinary temper, sufficient to charge. In Almanza v. incapable render the mind of cool reflec- (Tex.Cr.App.1985), we reevaluated the tion. doctrine of fundamental error in the court’s you find from the evidence Almanza, “Now charge. holding Under our beyond on or longer a reasonable doubt that charge will error in the court’s Rather, May, day about the 13th mandate automatic reversal. Texas, defendant, trial, objection County, Rains the absence of an at rever Jr., Smith, Lindsey Monroe did then and sal will not occur unless error was so knowingly egregiously intentionally harmful that as a result of the there cause Harris, Dewayne a fair and of Leonard was denied death individual, shooting him impartial making trial. this determina tion, reviewing gun, you find and believe court is to review the further n charge, from the facts and circumstances entire the evidence adduced all defendant, trial, case, in the arguments any of counsel and evidence *9 retreated, deceased, did, you will if he acted un- uation would killing the against plea the defendant on this of sudden find the immediate influence der cause, arising adequate justification. from passion defined, or if terms have been as those a reasonable doubt as to
you have presumed defendant is to be inno- “The not the defendant acted un- or whether guilt by legal cent until his is established a the immediate influence of sudden der doubt, a reasonable beyond evidence cause, arising from an passion you and in case have a reasonable doubt guilty will find the defendant you then guilt after consider- as to the defendant’s manslaughter. voluntary you, and these all evidence before you beyond so find reason- “Unless a instructions, (em- you acquit him.” will doubt, you or if have a reasonable able added) phasis thereof, you acquit the de- will doubt Initially contends say by your verdict ‘not fendant and fundamentally defective because charge is guilty.’ not instructed that could appellant unless each element not convict “Therefore, you even if believe from proven beyond a reason- of the offense was beyond the evidence a reasonable doubt doubt. able shot Leonard De- the defendant inquiry Essentially our under Al- alleged, wayne gun, as Harris with First, two-pronged. we must is manza evidence, from the you further believe charge. present if determine error thereof, a reasonable doubt you have if must determine If we find then we the defendant that at the time he did so unnecessary find it “egregious”. it is We reasonably believed that Leonard De- respect to prong with to reach the second using attempting to wayne Harris was In Eckert v. appellant’s contention. him, against deadly force use unlawful (Tex.Cr.App.1981), we were 623 S.W.2d believed, reasonably and that he charge and a similar a similar faced with alone, standpoint from his viewed found no error. argument appeal. We degree of force the use of force and the “ requirement that the ... There is no pro- immediately necessary to used were applied by the proof should be burden against Dewayne tect himself Leonard sepa charge each element court’s deadly attempted use or use of Harris’s reading and distinct manner. rate force, person in the and that a reasonable paragraph in the [application] the entire situation not have re- defendant’s requires charge as a whole context treated, you will find the defendant not every element find each and that the guilty. beyond a reasonable the offense of doubt_” “However, you from evi- believe State, 623 S.W.2d Eckert v. that, beyond a reasonable doubt dence added) (material in brackets at 362-363. place question, at the time and also Adams See reasonably did not believe defendant in the find no error (Tex.Cr.App.1979). We using or Dewayne Harris was Leonard error is over- ground This instant case. deadly force attempting to use unlawful ruled. him, the defendant did against or that brief2, appel supplemental In his second the use of reasonably believe that trial court committed argues that the lant degree force used were force and the failing place, error protect himself fundamental immediately necessary to charge paragraph of the application use or Dewayne Harris’s from Leonard murder, issue of defensive regarding force, deadly or that attempted use of relies on Co Appellant passion. sit- sudden person in the defendant’s reasonable grounds interest reviewing in the these We are supplemental briefs three has filed justice. ground of error. new contains a each which *10 854 State, (Tex.Cr.
barrubio v.
It has been held that more than a
conclusion.
required
bare claim of “fear” is
to show
A review of the evidence in the
passion.
State,
sudden
Moore
694
v.
instant case shows that the issue of volun
528,
529
Dan
tary manslaughter was not raised. There
State,
iels v.
(Tex.Cr.App.
S.W.2d 459
fore, appellant
“egregious
did not suffer
1983);
State,
process
by
of law or the Fifth Amendment
testimony
cussed in
There is no
Sanchez.
permitting
post-ar-
cross-examination as to
affirmatively
the record which
shows
silence
a
rest
when
defendant chooses to
appellant
given
was
his Miranda
Supreme
take the stand. The
fur-
Court
warnings, prior to the time about which he
entitled,
ther held that a state is
in such
questioned by
prosecutor.
As not
situations,
judge
jury
to leave to the
however, appellant
ed above
voiced
ob
its
under
own rules of evidence the resolu-
jection
questioning
to the
at trial. Further
post-arrest
tion of the extent to which
si- more,
disagree
appellant’s
we
asser
may
impeach
lence
deemed
be
a criminal
tion that such error is fundamental.
It is
testimony.
defendant’s own
every right,
well settled that almost
consti
statutory, may
by
tutional and
be waived
State,
In the recent case of
v.
Sanchez
State,
object. Borgen
the failure to
672
v.
(Tex.Cr.App.1986),
recent case of Polk v. Appellant’s reformed, conviction as is af- (Tex.Cr.App.1985), this Court held the firmed. following: fact, “Where the is the trier of TEAGUE, J., dissents. may
trial court
properly
enter that
CLINTON, Judge, concurring.
finding
have made an affirmative
again
Once
there is attributed to Daniels
concerning the defendant’s use or exhibi-
(Tex.Cr.App.1983),
deadly weapon
tion of a
or firearm dur-
a holding that was not made: “that more
ing the commission of the offense unless:
than
required
a bare claim of ‘fear’ is
1)
deadly weapon
or firearm has
passion.” Maj. Opinion,
show sudden
pled
(using
been specifically
as such
(All
mine).
emphasis is
‘deadly weapon’)
the nomenclature
*12
(Applies
the indictment
where the ver-
attempting
Daniels we were
to clarify
‘guilty
charged
dict reads
significance
of a
statement
Luck
omitted]);
indictment.’
State, 588
371 (Tex.Cr.App.1979),
S.W.2d
[citation
that accused
“he
never indicated
was in
2)
‘1)'
pled
not specifically
where
,
deceased,” id.,
fear of the
because
firearm,
deadly weapon
above as a
pointing
counsel for Daniels
was
his
weapon pled
per
deadly
se a
testimony that he had
“afraid that
been
weapon
firearm; or,
or a
going
to kill
[the deceased]
[him].”
3)
special
a
issue is submitted and an-
Regarding the observation in Luck “as a
affirmatively,
swered
omit-
[footnote
factual one rather than a statement of le-
Because we find the trial was with- authority
out to make the affirmative find-
ing of deadly weapon, we order the af- finding judg-
firmative stricken from the