*1 Further, trial of this case. has State
failed to show that it exercised due dil- THOMAS, Appellant, James Marvin igence Appellant’s presence to obtain for trial while he in was incarcerated another jurisdiction.” Texas, Appellee. STATE Id., Therefore, at 159.1 if the State was No. 65334. 4(1), relying failed to show “such § ” ‘reasonable,’ delay relying and if Texas, Appeals Court of Criminal 4(9), diligence.” it failed to show “due § En Banc.
Id., at 160. 9, Oct. 1985.
Notwithstanding obvious in conflicts rea soning 11, Taylor Rehearing conclusions between Denied Dec. 1985. Slaughter, majority of this Court de by refusing petition
clines to resolve them discretionary review the latter. Par (Tex.App.—
ish v. 1982) PDR,
Fort Worth no also conflicts Taylor. Although we have informed bench bar that such conflict is one exercising
reason the Court will consider grant
its discretion to petition or refuse a review,
for discretionary Tex.Cr.App.Rule
302(c)(1), majority explain does not how
Slaughter may and Parish reconciled Taylor.
Perhaps the majority intends that
opinion Powell, parte of this Court in Ex (Tex.Cr.App. delivered day), job
this will do the point that at one
it invites the reader to “see” Parish. How-
ever, since Parish did not touch “due dil- 4(9),
igence” under only assumed § proceedings in Dallas County “caused delay” County Tarrant it found “not case,”
unreasonable on the facts of this
Parish, supra, at brings the latter
little to the task.
Accordingly, for given reasons above and my dissenting opinion Powell, I
protest further emasculation of the Act day majority
before the comes when a will
finally hold it unconstitutional.
Therefore, I dissent.
TEAGUE, J., joins. Emphasis original opinion. 1. is in All other indicated. emphasis throughout is mine unless otherwise *2 namely,
the test is met in the instant case: that the lesser included offense must be proof necessary in the included establish charged. Criminally negligent the offense a lesser included offense of homicide is *3 37.09(1) (3), Art. murder. See & V.A.C. C.P.; Code, 19.02(a)(1) Penal V.T.C.A. Sec. 19.07; & Sec. Schoelman (Tex.Cr.App.1983); Kuyken (Tex.Cr.App. dall v. 1981). prong The second of the test is that there evidence in the record must be some guilty guilty that if the defendant is he is only Royster, supra. of the lesser offense. presented To determine if such evidence is we turn to the evidence in the instant now Bennett, Jr., case. Normangee, Byran Mac L.
Russ, Hearne, appellant. for wife, Beth, Roy Bishop May oper- and his Paschall, Atty., John C. Dist. D.E. Har- ated a restaurant in Hearne called “Dena’s ris, Franklin, Huttash, Atty., Co. Robert Lester, Betty Cafe.” a waitress at Austin, Atty., State’s for the State. cafe, 1977, February, testified that in sev- people, including appellant,
eral created a they disturbance the restaurant. As left, they quiet were told to down and OPINION cursing they refrain next time came from March, 1977, appellant the cafe. to DAVIS, Judge. W.C. again those with him were warned to be Appellant was A indicted for murder. they to quiet in the cafe or would be asked jury manslaugh- convicted him voluntary of They to leave. decided leave. punishment ter and assessed at fifteen 28, Shortly midnight April on before years’ confinement. The case tried in 1977, wife, and Bessie Tem- County appellant, his change Madison after a of venue County. Appellant pleton Robertson raises into Dena’s Cafe. Lester walked grounds error, contending four sorry testified that she told them she was in refusing charge jury court erred to they but she could not serve them because on that ven- As from the restaurant. had been barred proved, dying ue was not declaration the restaurant the three left inadmissible, and that misconduct said, “I’ll come back and turned around occurred. my goddamn place apart with I’ll tear this (sic) get the son-of-a-bitch bear hands and Appellant charged with murder May it.” Lester called Beth and that owns voluntary manslaughter. convicted of He May Beth happened. her had request his inclusion of a told what contends that Roy there in a few charge on the lesser included offense of told her that would be criminally negligent homicide was errone- minutes.
ously denied. Bishop into the restaurant a Roy walked later and chatted with several few minutes A lesser included of Lester an- in the restaurant. customers required fense is if the evidence meets the asking phone call from swered a two-step Royster test enunciated Bishop heard Bishop. Lester speak to to (Tex.Cr.App.1981) come not allowed to (opinion rehearing). prong The first tell time, anymore ha- Bishop saying, your into the cafe because he had “You had now his wife on different Bishop, rassed two occasions my grabbed it’s time.” He threw Bishop the cafe. while at Lester said that jammed across the a car and him hood of appear angry after the con- did gun in his then side. held versation. wrist, Bishop by pointed at him him he forced across as backwards Lopez, Elizabeth at “The a waitress Pitt lot, parking over car. Hearne, that sometime Grill” testified Bishop McCarver said that did resist during evening April the late hours two, appellant. McCarver followed morning into the early hours of 29, 1977, urging appellant Ap- down. appellant, wife, put the April and Bes- Templeton pellant sie The Pitt told him to McCar- came into Grill. call the sheriff. Appellant told her kicked he had been out ver went back the restaurant and into *4 upset Dena’s. She he said seemed and police. called the get Roy he would Lee he said before McColley that he Charles testified had night Templeton was out. made a Bessie appellant inside the been restaurant when call, to phone appellant asked if he wanted though excitedly, came inside and rather Roy, appellant talk to and handed McColley angrily, Bishop. not asked for phone, appel- phone. talking After on the just finished his meal outside and went as finishing left the lant restaurant without police. came call the McCarver inside to Templeton His re- his meal. wife and him go told to outside be- McCarver mained there. McColley appellant gun. cause had a went long Lester testified after Bish- Bishop’s holding and appellant outside saw spoken appellant, op phone had to holding with one and his other wrist hand asking appellant “busted in the front door” McColley against Bishop’s chest. hand Bishop.” Bishop appellant, “a to went gun fire. He saw smoke and heard the go him to Bishop, told him he was and told ap- Bishop struggle with said that did not talk McCarver outside to with him. John gun either the time the pellant before or at drinking cafe at had been coffee inside the McColley to McCarver to yelled went off. appellant time asked to leave. had been appellant call an ambulance had because appellant still there returned He was when Bishop. shot just he and followed two outside. differs Appellant’s version of events Bishop over truck and pickup went to his stating He he would somewhat. denied pick-ax obtained a stick that looked like a Bishop being angry and when “get” denied He except shorter. handle it was he served in he was told would not be up, appellant, to stick walked over held the Dena’s to He said back to Dena’s. went him in and told he did not want they Bishop and that when went talk to anymore restaurant he had because Bishop carrying ran at him what outside Bishop’s and caused trouble had harassed Appellant pick-ax like a handle. fine, looked Appellant told him that was wife. car, Bishop if he came told him that across the street to his sat testified walked minutes, Bishop also for a and then started walk- kill few near he would him and gas the cafe Texaco ing past toward a said, son-of-a-bitch, you me see “You let Bishop placed then the club back station. now.” goddamn place upside down turn the in his truck. to his he ran back Appellant was scared so it, not do to could so. car and tried start but A few minutes later wife truck and pickup back to his Bishop went Grill, Templeton, returning from the Pitt he saw when got out of the car Ap- Bishop over to and McCarver. walked He Templeton approaching. his wife his to pellant yelled to wife and she went get help to going to his wife told purse He reached into her and took him. gun for her Appellant car and he took gun. started toward out her start put gun hip pock- He or the result of his conduct when he protection. ought et. of a be aware substantial unjustifiable risk that the circumstances telling him Bishop approached appellant, occur. The risk exist or the result will you put your “I never foot on or near told degree must of such a nature and did, I my premises again you and if perceive it constitutes a the failure going you.” Appellant kill did not see a gross deviation from the standard hands, weapon Bishop’s he could not but person ordinary care that an would exer- Bishop’s Appellant see left hand at first. under all the circumstances as cise pocket, pointed out it at took the of his standpoint. viewed from the actor’s Bishop, stop, and told him to that he had a gun. Bishop approach continued to him. criminally The difference between Bishop Appellant professed to fear involuntary homicide man backing up. yelled started He for someone slaughter culpable is the mental re state to call the sheriff. testified that quired to each establish offense—criminal car, up Bishop as he backed toward his negligence for the former and recklessness continued toward him raised. with his arms for the latter. Lewis v. Bishop grabbed at him and The difference be hand, pushed him back with one at which tween homicide and gun discharged. Appellant time the said culpable murder is also the mental state he did not know how the fired and said *5 required for each. Because of the close he feared for his life. He also testified in risk awareness distinction between Bishop, that he did not intend to shoot that two, comparing recklessness and criminal it was an accident and that it was in self- negligence determining is instructive in defense. negli whether evidence raises criminal reviewing appellant’s contention In gence. requested charge that criminally his on Lewis, supra, In that reckless we said negligent given, homicide should have been Code, by conduct as defined V.T.C.A.Penal governed by long we are the rule that as as 6.03(c)involves, Sec. any evidence from source raises a defen creation, is, conscious risk the actor sive issue or raises an issue that a lesser surrounding of the risk his con- is aware committed, may included offense have been thereof, duct or the results but con- jury charge and a properly on the issue is risk_ sciously disregards that Crimi- requested, the issue must be submitted to inattentive risk negligence nal involves jury. State, Ormsby v. 782 600 S.W.2d is, creation, ought to be the actor (Tex.Cr.App.1980); State, Moore v. 574 surrounding his con- aware of the risk The credi results thereof. At the heart duct or the bility of the evidence and whether it is is dis- of reckless conduct conscious controverted or conflicts with other evi regard by risk created the actor’s may dence not considered in be determin conduct; negligence key to criminal ing charge given. whether such a should be in the failure of the actor to Moore, is found supra. risk. perceive the Criminally negligent homicide is defined Lems, supra, at 553. Code, 19.07(a): Penal V.T.C.A. Sec. person “A commits an offense if he have often been Two factors that by causes the death of an individual crim- upon, singly either or to incorrectly relied negligence.” inal a requiring sole for gether, as the basis Code, 6.03(d) Penal defines are criminally negligent V.T.C.A. Sec. homicide charge on negligence: gun criminal pointed a loaded a defendant whether weapon acci another and whether person negligence, A acts criminal dentally discharged. Schoelman v. criminally negligent, respect or is (Tex.Cr.App.1983); Giles v. 727 surrounding conduct 644 S.W.2d circumstances 850 disregard resulting may it. The harm not intended, is (Tex.Cr. but the defendant have been 547 S.W.2d
London v. degree some be- responsible to nonetheless Dockery v. 542 S.W.2d App.1977); a disregarded he risk. cause (opinion on rehear (Tex.Cr.App.1976) points someone ing). Every case which Dockery require gun at another does not a loaded (opinion, rehearing) (Tex.Cr.App.1976) criminally homi that a up off of the floor and the defendant raised allegation of given. Nor does the cide be holding discharged. We held a discharge necessarily raise the accidental sufficient to raise crimi- this evidence to be circumstances issue. The attendant nally negligent homicide. The value of can defendant’s mental state which the the rationale is Dockery is limited because collectively examined inferred must be on the dis- entirely clear as focused criminally negli light of the definition and in- voluntary action tinction between Code, Penal See V.T.C.A. gent conduct. acts. tentional or unintentional Giles, supra, 6.03(d). respect In this Sec. London Schoelman, supra, are overbroad be supra, for the App.1977) Dockery, relied on of a they rely only upon cause discharge weapon of a idea that accidental being to raise weapon as sufficient loaded homicide. constitutes homicide. Other evi not raise discharge alone does Accidental raising issue of whether dence Rather, every case must be the issue. of the risk must be was aware defendant particular facts and light of its examined required. charge is such presented before if the defend to determine circumstances risk his conduct unaware of the ant was knows a that a defendant Evidence created. loaded, guns and he is familiar with points potential injury, and that their London, not indicate sur- supra, does another, person who is gun at indicates as the defend- rounding circumstances such conduct and of a risk created aware guns or whether familarity with ant’s *6 Simpkins v. disregards the risk. Cf. loaded when gun the was defendant knew (Tex.Cr.App.1979). it, point- whether pointed so as to show he person anticipate a third That he does not is conduct gun at another ing a loaded him, weapon to dis- bumping causing the a aware created defendant was particular a must charge, a consideration that be is conclu- opinion The harm or death. risk of deter- the other evidence to examined with find that jury could sorily states that “[a] in point- of the risk involved mine awareness How- gun at another. As men- pointing shotgun a loaded at Finister.” ing a loaded ever, case, the the the awareness of should be previously, such a this action tioned likely It is not more necessarily starting point. altered. It seems risk is not guns, who Lew- is familiar with necessarily risk creation. who inattentive defendant loaded, points it at Rather, gun and and who is, supra. risk is realized knows a is the disregarding consciously part person, is because another actual harm results. Just loaded pointing a “involuntary” does a risk that may conduct be the conduct— cause harm may weapon and at responsibility relieve a defendant of another — Simp- reckless.2 See is at least Similarly, death and entire action.1 culpability the kins, supra. risk and may aware of a a defendant be another, gun at pointing a loaded (Tex.Cr.App. state that George 1. Cf. itself, negligence. criminal 1984) constitutes where a defendant's and of we held that wherein contain voluntary, simply the fact that his does not handling gun opinion is of a The Giles hammer may slipped off of the determine have which to enough thumb “involuntarily” information from actions in render the does not ought have but did to the defendant whether voluntary. unjustifiable risk perceive a substantial at another. gun to be loaded he knew pointing a Schoelman, mentioned, supra, and both 2. As incorrectly Giles, opinions panel supra, are discharge weapon in is Moore v. 574 S.W.2d tal of the those cases. Illustrative Moore, panel The in The also cited defendant firearms, unfamiliarity noted the defendant’s with unfamiliar with had Moore was guns. agree We that Branham was cor- shotgun thought never seen the before and decided, rectly but reiterate that the em- grabbed it was unloaded. The defendant phasis placed should not be on the acciden- shotgun person, from another intend- the although discharge gun, tal that is a deceased, ing gun to scare the and the circumstance that should be considered. discharged. These factors entitled the de- Rather, showing all of the circumstances charge to a fendant the defendant’s mental state and aware- unfamiliarity homicide. The defendant’s death, given ness of risk of harm or the guns, testimony that the defend- circumstances, must be reviewed. thought gun ant the was unloaded raised ought the issue that while the defendant discharge taken in When the accidental harm or have been aware of the risk of conjunction with the defendant’s belief did, grabbing gun death in the as she she loaded, the was not the inference is perceive it. failed to perceive raised that Branham did not a risk injury thought or death what she Simpkins, supra, the Contrast wherein course, gun. an unloaded another, Of where argued defendant went to his regarding evidence car, raises two inferences According shotgun. and obtained a risk, the accused’s awareness of the testimony, struggled his own he with sever- jury should instructed on inferenc- both people gun discharged, killing al Schoelman, supra.3 es. pre- one with whom the defendant had viously argued. reviewing In the defend- (Tex. Salinas ant’s contention that a should have gun, Cr.App.1982) grabbed the defendant given negligent been homicide this deceased to lie on the cocked and told the Court noted that the defendant inwas room, hurried out of floor. As he Army, qualified range had on the rifle defendant reached for doorknob Army, weapons danger- knew were killing gun discharged, the deceased. ous. We held that this evidence did not said that was not defendant show that the possessed req- defendant A anyone discharged. pan when it culpable uisite mental state for el held that the defendant of this Court i.e., ought defendant presumed to be aware of the risk of have been aware of a un- substantial and loaded, exhibiting injury or death justifiable Rather, risk. the evidence pistol. The evidence in the instant cocked *7 showed that particular this defendant knew Salinas, case is not even as “accidental” as the risk of harm or death involved with Branham, su and unlike the defendant guns disregarded and it. The case instant unloaded, pra, gun the was who believed similarly analogous. appellant did not know whether or not it loaded. was
In Branham v. (Tex.Cr.App.1979), panel a of this Court We must determine whether testimony held that the defendant’s that “guilty only” prong Roy- meets the unloaded, thought gun she the was test, keeping in mind that evidence ster gun, she did not intend to fire the that her the and that any source raises issue Moore, finger trigger, not on the and that the credibility was considered. is not gun accidentally discharged testimony she was supra. when In the instant case the criminally grabbed by party a third raised was familiar with the shows that panel or four times gun, homicide. The relied he had fired it three London, question, Dockery, supra, night and of the offense supra, and before the or not it unsure whether noted the common thread was the acciden- and that he was Lugo 144 (Tex.Cr.App. App.1985); and 3. Cf. Bell v. 693 1984). 1985); (Tex.Cr.App. Aguilar S.W.2d that the level of aware- appellant and his wife instant case shows loaded. Both was gun concerning the risk appellant’s that in order to fire the two ness in mind testified First, necessary. it had to be a steps injury were of or death involved cocked; secondly, trigger gun approaching the had to be “as- possibly loaded at an pulled. Appellant sailant,” did not recall ever cock- the perceived was such that he Indeed, that he intended to ing gun the and denied risk of harm his conduct created. he it at all. He said Roy fire it or that fired if that he feared that appellant stated gun pushed Roy he dis- that when He gun appellant would be shot. took the testified, charged. on cross-exami- He also possibility evidently aware of was nation, acted in self-defense gun. that he exhibiting injury or death in a loaded an accident. that it was Salinas, supra; Simpkins; Kuykendall v. that his evidence Appellant contends Moore, supra. Branham, supra; and cf. We criminally negligent homicide. raised familiar with Simpkins, appellant Like was appel- that even if the believed find gun, gun went off and claimed does not testimony, testimony lant’s But, appel- struggled Bishop. as he requisite culpa- possessed that he show “accidental” than lant’s actions seem less guilty, if mental state so that ble may have This evidence those Salinas. negligent homi- guilty only criminally on involun- entitled cide. not raise manslaughter it does tary but gun Appellant was familar with homicide. The court who unlike the defendant Branham give appellant’s refusing err in did not unloaded, appellant thought gun was requested charge on loaded. whether or not was was unsure is over- ground of error homicide. in Simpkins, the defendants Like ruled. Salinas, Lewis, supra, appellant supra, and alleges that the State Appellant next gun pointed it at the de- exhibited predicate for admis- lay proper trigger, failed to finger on the ceased with his in that there “dying of a declaration” possible to fire it and harm sion knowing it was Bishop was con- proof that struggle, as insufficient ensuing In the was the deceased. and held no approaching death pointed scious of by appellant, described 38.20(1), Art. V.A.C. Roy recovery. as See Roy, stop, hope told him to and then raised, ap- disagree. him with his arms We approached C.P. hands, Roy away both
pellant pushed in the chest Bishop was shot holding gun. Appel- including the hand lodged through his heart and passed bullet finger on the lant admitted that his testified lung. Dr. Kennamer right in his cocking the recall ever trigger, but did not and un- very near death Bishop was defense, gun. The thrust of into the brought when he conscious through his witnesses demonstrated admin- After Kennamer emergency room. testimony, his own was self-defense intra- blood, and other oxygen, istered accident, risk in unawareness of not an fluids, Bishop regained conscious- venous exhibiting possibly loaded under transported by ambulanced ness and *8 fact, testified In circumstances. could that the bullet hospital so to another he was Roy of and that that he was afraid that while Kennamer said removed. be gun away from Roy if took the afraid that Bishop was con- hospital enroute to this This appellant. Roy shoot would condition. in critical pain and was siderable of the risk an awareness testimony reflects if he Kennamer repeatedly asked Bishop use or involving the injury of or death told it.” Kennamer or “make would live circum- gun under the exhibition of know, he but that that he did not him offense. stances of the Ken- for him. he could would do best Bishop volunteered Salinas, namer testified that su Simpkins, Like of the circumstances in the statement about evidence Lewis, supra, the pra, and 853 said, answer, wound, shooting “He have to of the the crit- when he didn’t the nature me, just gun up me shoot he held the ical condition he was in from the time of death, of shooting and shot me.” It is to the admission this until his about five “dying appellant objected. later, Bishop declaration” that hours we find that was con- approaching of death and held no scious Kennamer said that due to the nature of hope recovery. predicate for of admis- wound, pain the considerable suffered dying of the declaration was suffi- sion by Bishop, Bishop’s anxiety ground overruled. cient. The of error is repeated questioning nature of the about it,” whether he would “make Kennamer Appellant alleges next that his motion Bishop ap- aware of his believed granted for new trial should have been proaching hope death and held no of recov- because misconduct occurred. ery. day Juror Allen Parten testified that one during
The declarations must be made un
the trial of
case
approaching
men,
Art.
der a sense
death.
eating lunch with two other
neither of
38.20,
long
has
held
V.A.C.C.P. This Court
whom was
in the case.
involved
One
may
mind
that the declarant’s state of
be
men said that he had heard that
proved by express language of the declar- had killed two other men before the shoot-
ant, may
or
be inferred from
circum
ing in the instant case.
case,
the nature
stances of
such as
correctly
argues that the
him,
injury,
opinions
medical
stated to
against jurors conversing
rule
unau
State,
or his conduct. Herrera v.
682
strong
persons
thorized
about a case is so
313,
(Tex.Cr.App.1984);
S.W.2d
320
Fam
injury
presumed.
to the accused is
480,
State,
141
bro v.
139 Tex.Cr.R.
S.W.2d
State,
v.
In the instant case
did not
directly
does not
concern the
stant case
specifically acknowledge
approaching
itself,
is,
face, prejudicial to
case
on its
death,
case
but the circumstances of the
However,
appellant.
Parten stated that
ap
Bishop
indicate that
aware of his
anyone else
the state
did not tell
about
proaching
Terry
death. See
ment;
state
(1941)
he did not consider the
where
Tex.Cr.R.
S.W.2d
it was
“in
ment and did not know whether
that he was
bad
the declarant stated
true;
influ
the statement did not
shape”
approaching death.
and that
and conscious of
reaching
him at all in
a verdict
Bishop’s repeated questioning
wheth
ence
about
Although the state
deciding punishment.
Kennamer’s
going
er he
to live
*9
appel
prejudicial to
reflect an ment on its face seems
reassuring
less than
answer
lant,
injury is rebutted
presumption
him.
the
of
upon
awareness
that death was
was not
that he
and
Parten testified
question
because
upon
oft-repeated
Based
this
any
statement,
way by
changed
County.
influenced in
the
did ue
to
was
Madison
In his
deliberations,
not consider it in his
and did
ground
last
of error
contends
jurors.
not inform the other
This suffi-
prove
State failed to
venue in
ciently
presumption
rebutted the
injury
of
County,
county
Madison
in which the
that flowed from the statement.
case was tried.
Appellant
alleges
also
two other areas of
Appellant made a motion for
jury
regarding
misconduct
statements
alia,
stating,
instructed verdict
inter
First,
by
jurors.
made
juror
other
Church-
jurisdiction
proved
venue and
were not
jury
well testified that when the
retired to
county.”
proper procedure
“this
This is a
jury
guilt
room to deliverate on
State,
to raise the issue of venue. Black v.
innocence, juror Arlen Drake stated that
(Tex.Cr.App.1983).
judge
is no
determines the issue and there
it, therefore,
jurisdictional ques-
becomes a
overruling
motion
abuse of discretion
Taylor v.
81 Tex.Cr.R.
tion.”
McCartney,
supra, and
for new trial.
(1917).
855 indi- otherwise State, throughout unless 158 Tex.Cr.R. changed. Soliz v. Cf. Williams, (1953); su- 662, 811 cated] 258 S.W.2d the issue on pra. The order is irrelevant to 1 Code, 22.05(b)." V.T.C.A.,Penal Section See evi- not be admitted as trial and should course, 22.05(b)presumes reckless- Of § may prejudice the dence in the case as it danger knowingly pointing a ness v.
jury against
the accused. Cf. Goode
in the direction of another—
firearm at or
220,
State,
analyze earlier the Court DAVIS, J., participating. raising not the issue TOM G. search for “other evidence of of ... the risk.” P. 849. [awareness] CLINTON, Judge, dissenting. pointed pistol here at Since (Tex.Cr. Bishop, 644 744 under his awareness Salinas v. S.W.2d Salinas are left to wonder presumed. risk is We App.1983), proposed opinion on which the has lost the rationale of Salinas relies, whether partly is an unusual one. Indict- vitality. its murder, alleged jury convict- ment him court also ed of that. The trial Nevertheless, question by raised the real charged homicide is majority opinion for this Court complained that “accident.” Accused involuntary man- fact whether the charge should have involun- included ipso by raised evidence means slaughter is tary manslaughter. panel composed A of criminally negligent homicide facto only judges agreed two and reversed the not, is not charge on the latter and thus Af- judgment; rehearing sought. required. says: reciting opinion
ter certain facts the Dockery v. 542 S.W.2d Since involuntary “The distinction between Motion for (Tex.Cr.App.1976) (Opinion on manslaughter and point has held that Rehearing), the Court simply degree, of the differ- homicide is person is pistol at another ing a loaded negli- ence recklessness and between “ought to to indicate” that one “sufficient * * * Here, gence. may presume we a risk of that his act creates be aware” was aware of the risk degree it consti “such a nature loaded, injury by having a or death from the standard gross deviation tute[s] it,1 although 6.03(d),” id., pistol exhibiting at cocked prescribed care Sec. discharged the time it London v. 648. Accord: Therefore, shooting the de- if the specifically (Tex.Cr.App.1977). aware of in, having as results Therefore, weapon discharges ceased. and death risk, his conduct was e.g., aware of the been Giles State, 644 involuntary App.1981), and Schoelman reckless and a (Tex.Cr.App.1983),evidence given. manslaughter have been should criminally negli the issue of See, 691 that act raises S.W.2d at Giles v. gent here homicide.1 [my emphasis conclusion progeny. it devaluates the Dockery So majority and its 1. The does not like *11 holdings ing Prior in or not a Dockery of the Court the issue of whether defend- London, supra, Judge left little for ant was aware of the risk must be Giles, presented charge Odom to write the in about for Court such is re- before supra, pointing quired.” on the matter of a loaded being at another sufficient to indicate course, today, Until that last sentence ought requisite to be aware of the na- has not been the law. Nor should it be. 6.03(d). ture and decree of risk under § Upholding legislative objective a to deter Then, in having also written Dillon v. people pointing guns from loaded at other (Tex.Cr.App.1978), people, pro- et al Giles Schoelman “[u]pon consideration of recklessness perfectly nounce sound law. Often de- negligence, is versus criminal whether one by pointing fense an accused is that when a requisite simply aware of a risk or should weapon at another he did not intend or aware, have been is a conclusion to be that; in know this or when one claims through drawn inference from all the cir- whatever fashion that he was not aware of fact,” id., by the trier of cumstances risk, the the factfinder should to left having proposition withstand the ought free to find that he to have been Judge rehearing, test of Odom no doubt 6.03(d). under § Giles, justified repeating felt in it in Strictly speaking, under Penal V.T.C.A. shown; Judge at 691. There is no dissent Code, 6.03(d) negligence” “criminal is not § panel, W.C. Davis was on the as well as a “mental state” the sense of such men- Judge passed also McCormick. Since Giles will, processes thought, design tal as or colors, rehearing flying stare decisis perception. Rather it is aimed at what one practically dictated be followed Schoel- of,” “ought is “a to be aware and that man, and it was. unjustifiable risk”—a risk substantial year ago A little more than a this Court degree of “such a nature and unanimously approved in Lugo both gross perceive it constitutes failure (Tex.Cr. 148-149 of care that an deviation from standard (It App.1984). quoted substantially also ordinary person would exercise under all language excerpted the same ante from the circumstances as viewed from the [sub- Salinas.) however, Today, majority ject’s] standpoint.” Thus the forbidden opinion charitably characterizes them as “weighed against element is an conduct opinion “overbroad.” The does not men standard, objective ordinary that of the Lugo. tion man,” culpability. determine prudent Commentary following 6.03. Practice § rejecting In and other Schoelman it, along decisions cited and discussed appro- the issue is thus raised an When thereafter, opinion says: charge criminally negligent homi- priate on given. “The from cide should be That the evidence attendant circumstances may issue of whether the which the defendant’s mental state can also raise an collectively accused in fact aware of but conscious- be inferred must be examined risk does not mean light criminally ly disregarded of the definition of the same * * * negligence longer re- that criminal is no negligent homicide. this Giles, Schoelman, involuntary man- su- case. An instruction on spect supra, and given. they rely slaughter should also be Converse- pra, are overbroad because involuntary man- weap- ly, charge that a only upon of a loaded giving rule out criminally slaughter given is will not being on as sufficient to raise negligent homicide. criminally negligent homicide. evidence rais- Other exhibiting entirely in a manner that Dockery is a loaded "because the rationale clear,” ordinary prudent is substan- man understands P. 850. But rationale is obvious: that risky. has newly tially unjustifiably The rationale imposing responsibility criminal de- enough follow with- resulting for the Court to criminally conduct been clear fined since; death, opinion must Legislature sought people hesitation ever so to deter out Dockery. followings by pointing criticize the killing or otherwise also each other a mere risk is not Putting aside that Moore problem created is enough, the Simkins It remains for the to de App.1978).2 recognize that in context this its failure to “[wjhich from the circumstances termine 6.03(d) expressing an obli- part of regarding § inferences the accused’s the two logical conse- gation, expectation an Giles, correct,” of the risk is awareness *12 commonly by to understood quence held be 691; Moore, 124. supra, supra, at ordinary prudent person; an its failure is “every majority opinion The asserts that coupled that with its insistence evidence partic- light examined in of its case must be must indicate that an accused then and However, ular facts and circumstances.” “culpable mental “possessed” there if to that there is its thesis seems be negligent state for homicide.” it, there cannot be a lack of so “awareness” simply “possess” what one One cannot becomes a search for the review exercise to be “ought” “ought” to understand or And evidence of “awareness.” when goes Evidence more to the na- aware of. analyzing the instant factual situa- gets to degree of the risk that death ture and meticulously to opinion undertakes tion from the conduct shown than would result compare one facet or another or contrast “ought” perceive. to what one to Nash v. presence with its or absence vis a vis one (Tex.Cr.App. 664 S.W.2d my or more earlier cases. view 1984). Lopez v. are and the thesis and exercise erroneous (Tex.Cr.App.1982). Viewing those circum- analysis against any militates clear rule accused, standpoint from the of the stances emerging ever from them. objectively a factfinder must make a value majority opinion says import The failing per- in judgment as to whether to analogous in evidence the instant cause is grossly deviated ceive that risk accused (Tex. to Simkins v. ordinary that an from the standard of care thesis, Cr.App.1979). The as the as well prudent person have exercised. would exercise, certainly says: is. Simkins Commentary; see Practice Graham agree “We that if the facts raise the homicide, negligent issue of then a in a homicide Though not articulated charge agree given. must be We also discharge case where death results a ... on accident would be in the facts showed gun, a a case where inadequate protect appellant’s rights. midnight accused drove his car at that near However, in the evidence this case did speed through a red an excessive rate of not raise the issue of this lesser included deceased, light being a car driven into offense. No evidence indicates jury could Judge wrote that the McCormick culpa- appellant possessed requisite “the assay in terms of whether the risk mental state for
ble injury great so as com- possibility of i.e., aware of ought that he to have been result of pared any possible beneficial unjustifiable a and risk. The substantial finding in that he appellant’s conduct” qualified had appellant testified that he unjustifiable risk “took a substantial and range Army in and that on the rifle so, then, If it was for by his conduct.” dangerous. He weapons ordinary he knew were “an jury to decide whether brief, ‘Obviously, the in his reasonably prudent person, also stated carrying gun toward position, ought realized to have been aware ” (em- [by his con- risk.’ was created people a crowd of created a of risk] [kind Lopez, at 941. phasis original opinion) duct].” awareness, majority general still left at issue favorably and in the 2. Moore is viewed opinion, although admitted risk and acted the accused there she was aware of the “whether instance,” “guns dangerous particular are disregard she was aware that that one should in this conscious id., carefully.” always treat a at 124. said, however, merely indicated Court risk, Essentially, expresses unjustifiable Lopez the unwrit- substantial ought Dockery ten rationale for and its follow- facts also that he to have establish ings: possibility injury, might harm and risk been aware that the result death in a loaded at another person. the death of another The risk person great comparison any degree is so must be of such a nature and possible doing beneficial result of so that perceive gross the failure to it constitutes a evaluated “awareness” the risk must be of care deviation from the standard that an why by the factfinder. That is Giles and ordinary person under all would exercise effect, hold, all the others that “it is circumstances, are to viewed which allege permissible indeed for the State to standpoint. from the accused’s See V.T. prove acts—‘conduct’—for the identical C.A., Code, 19.07(a) Penal Sections manslaughter criminal- voluntary both 6.03(d). *13 homicide, the distinc- ly negligent only for presented The fact that the evidence ‘required culpabil- tion between them is the might also establish that the accused com- offense,” Graham, ity’ elements of each intentionally knowingly or or mitted the act (emphasis original). in supra, at 104 recklessly preclude the facts from will not London, Relegating Dockery, Giles giving committing the accused also rise to printed on to mere words
Schoelman sum, negligently. In the facts the act in pages reports in the their stead might very well establish that the accused requiring the bench and the to find and bar guilty intentionally committing the majority lays follow whatever rule the act, act, knowingly committing the reck- is, my judgment, a down this cause act, lessly committing negligently the or policy seriously undermines blunder of case, committing the act. If that is the legislative considerations of which trier of fact to make then is left the public in the interest.3 in- the accused acted the decision whether recklessly, negli- or tentionally, knowingly,
Accordingly, I dissent. gently. elementary that in a mur It is now law
TEAGUE, dissenting. Judge, case, any source der if the evidence opinion erroneously the majority Because support an instruction on the offense would affirms the trial court’s decision that criminally negligent which is a Thomas, appellant, was not James Marvin murder, see offense of lesser included on the jury entitled to have the instructed (Tex.Cr. State, 443 Campbell 614 S.W.2d v. homicide, I offense of State, App.1981); Ormsby v. 600 S.W.2d compelled am to dissent. State, 574 (Tex.Cr.App.1980); 782 Moore v. appel- I why I will first state believe then, upon (Tex.Cr.App.1978), 122 S.W.2d jury instruct- lant was entitled to have the judge the trial must request objection, ed on the offense of that offense. Refusal instruct the on homicide. reversible error. to do so will constitute State, 442 v. 622 S.W.2d Royster criminally negligent homi- The offense of State, supra; Campbell v. Wat App.1981); the facts establish cide is committed when (Tex.Cr.App. 605 S.W.2d by his conduct son v. that the accused has created unfamiliarity guns alleged but premium with apply factfinder must 3. Under the statute the gather some evidence person” requires State to ordinary also the “an that standard of care reason, claiming “familiarity." the one premises. In Thus of be unfamiliar sibility in the would have exercised whether one is respon- guns greater a guns with bears personally “familiar” with care risk and to exercise evidentiary to be aware of proper To focus the is not a inquiry test. legisla- though Ultimately premises. with an accused is familiar on whether ordinary to look to determination is guns of a risk of tive “awareness” to determine person. prudent only puts at another a loaded I 1980); anything and therefore didn’t think we supra; Roberts v. Ormsby v. pay anything,” and the bill needed to (Tex.Cr.App.1979); unpaid. (Tex.Cr. went v. Jackson App.1977); Day v. 28, 1977, April night question, On State, 504 (Tex.Cr.App.1976); Brayer Me others, appellant, again went to the Day cafe, waitperson: “I’m were told but (Tex.Cr.App. wood you I sorry, can’t serve all.” 1952). party then commenced to leave. and his appellant told exiting Before from the cafe making In the determination whether following, which was stated wife the appellant was entitled to an instruction per- “If enough loud for others to hear: criminally included offense of lesser upside place son came in and turned the homicide, the facts must be down, get probably he would served.” light in the most favorable toward viewed issue, deciding his contention. Appellant, party, then went to with his testimony truth of the Grill, the Pitt another restaurant located weight testimony of his witnesses and waiting for their order to Hearne. While issue, given testimony are not at to be filled, Templeton telephoned Bessie sup and it matters not that the evidence speak Bishop Dena’s Cafe order to *14 feeble, porting appellant’s claim is im why they out had been refused to find peached, Campbell or contradicted. evening. speaking After service that supra; supra; Ormsby v. her to let him talk to Bishop, Bishop told supra; Roberts v. Warren appellant. Templeton then turned the tele- Rodri spoke with phone appellant, over to who (Tex.Cr.App. guez v. Bishop. Bishop appellant: “What asked 1977). ago you come down here for awhile did Appellant responded: raise hell for?” appellant’s The facts most favorable to any Bishop “Roy, I didn’t raise hell.” then Bishop, contention reflect the de- appellant: “Why you just told don’t come ceased, operated and his Dena’s Cafe wife get we’ll talk it and it down here and about During February, appel- in Hearne. “Fine, straight.” Appellant Bishop: told lant, others, the cafe to eat. went to I’ll and we’ll talk about it.” right be down they process leaving, As were Appellant then drove vehicle back Bishop’s thought appellant: wife told “I Cafe, he was informed that Dena’s where going there I to call for awhile was to have Appellant then left Bishop was not there. down, ya’ll you getting too loud at were vehicle, at the cafe and started toward his your reflect table.” The record does not pick han- Bishop, which time armed with a anyone party in his re- dle, 16 to 18 inches approximately March, sponded During to the statement. running appellant, ex- length, came toward others, to the appellant, with went son-of-a-bitch, let me see claiming: “You waiting for cafe to drink coffee. While place upside down you turn the Goddamn coffee, Bishop’s to their their wife came “Roy, I Appellant Bishop: told now.” you’re and stated: “If as loud here table Bishop here for this.” didn’t come down before, going you this time as were I’m not swinging pick handle then commenced you.” able to serve One member hitting appel- appellant, and succeeded at “Well, all party responded: I wasn’t pick handle. times with the lant several my thirsty anyway and wife for coffee house, backing to- get I to the then commenced Appellant is sick and need to back vehicle, managed to finally Bishop’s asked who just go.” so we’ll wife ward his Bishop then commenced Appellant of it. going pay get for the coffee. inside bat, telling glass with his on the “pecking we did not replied: “I said that receive (recklessness, [appellant] going consciously disregarded what he was to do it [to 6.03(c), i.e., telling appellant, supra), After “You Sec. it raises the issue son- him].” of-a-bitch, involuntary manslaughter. you if ever come near or around Which of regarding my place you, I’ll kill two inferences the ac- again, of business son-of-a-bitch, cused’s awareness of the risk is correct you just my as sure as name is a matter drawn the circum- to be from Bishop,” Bishop then went across the street, jury. stances Dillon v. “just watching [ap- stood there pellant].” Appellant tried to start his car not start.
but would
facts,
From the above
it should be obvi-
anyone
openly
ous to
that when
thereafter,
appellant’s wife and
Soon
displayed and exhibited his wife’s loaded
Appel-
Templeton
came to
car.
risk,
pistol,
ought
he created
to have
previously hap-
lant told them what had
been
result-
aware
risk could have
pened
Bishop. Appel-
him and
between
in Bishop’s
ed
death. The created risk was
pistol
purse. Ap-
lant’s wife had a
in her
degree
appel-
of such a nature and
pellant
gun,
told her:
me the
I’m
“Give
perceive
lant’s failure to
it constituted a
go
here as
I
going to
around
lot
best
gross
from the standard of care
deviation
go
can and
down to
service station
un-
ordinary person
that an
would exercise
help.” Appellant
if I can call for
then
see
der all the circumstances as viewed
left.
appellant’s standpoint.
station, appellant
Enroute to the service
clearly
entitled to have
again
by Bishop. Appel-
confronted
included
jury
instructed on
lesser
Bishop: “Roy,
got
gun,
I’ve
lant told
offense of
stop,”
pointed
pistol
and thereafter
judge
trial
reversible
committed
Bishop. Bishop,
appears
who
to have been
refusing
error in
to instruct
time,
walking
unarmed at the
continued
compare
that offense. Also see and
appellant, uttering epithets all the
toward
*15
State,
(Tex.
727
v.
644 S.W.2d
Schoelman
Appellant then
retreat-
while.
commenced
State, supra;
Cr.App.1983); Campbell v.
car,
ing
in the direction of his
backwards
State,
State, supra;
v.
Branham v.
Giles
Bishop
pursuit.
in
with
With
(Tex.Cr.App.1979);
A of The fact that an Simpkins close v. accused be reck- however, preclude being should make it obvious to less does not him from also Thus, anyone panel criminally negligent. regardless the used an incorrect of firearms, reaching familiarity standard of review in its conclu- one’s which might important deciding sion that the defendant in that cause was whether the reckless, not entitled to an instruction on the offense accused if the facts also re- of homicide. Rather flect or indicate that the accused created a light risk, viewing ought than the evidence in the most to have been aware of cause, risk, favorable to the defendant disregard and acted conscious instead, risk, panel, contrary results, to this of that and a death which decisions, past Ormsby court’s see criminally negli- constitutes the offense of gent Moore should be instruct- 122 (Tex.Cr.App.1978), ed on the offense of light fact, up viewed evidence most favor- homicide. It is then to the trier of prosecution. court, appellate able to the It is obvious to me and not some to decide majority opinion the author of the guilty criminally whether the accused is cause, repeats instance, that same error in this but homicide. In this how- ever, approval this time does so with the majority jury’s has assumed the majority of this responsibility making Court. that decision. cause,
The issues that are before us are wheth- Under the facts of this when er, viewing light light the evidence in the most viewed most favorable to the appellant, appellant, favorable to the facts of this the trier of fact could have found cause reflect or indicate that cre- either that was aware of the risk unjustifiable ated a substantial and by pointing pistol risk that he created at of, and, ought that he Bishop appel- have been aware or it could have found that so, if do the appel- ought facts most favorable to lant have been aware of sub- lant also reflect unjustifiable or indicate that he con- stantial and risk that sciously disregarded Bishop might the risk that he cre- death of occur as a result of Bishop. ated. I find appellant pointing pistol that the facts most favorable questions regarding answer both the Which one of the two inferences *16 however, majority, appellant’s affirmative. The of the risk is dis- awareness agrees. a matter to drawn from the correct was by jury, by circumstances and not rejecting appellant’s contention that majority of this Court. he was entitled to an on crimi- instruction cause, nally negligent homicide, presented it is obvious to In this the evidence to interpreta- majority jury capable me that of this Court has was of various tions, hypnotized by jury only required become the erroneous con- but the was case, following questions: appel- clusion that in if Did a murder the ac- answer the intentionally knowingly cused cause Bish- is shown to be familiar with fire- lant arms, then, death, Bishop’s slight, regard- op’s no matter how or did he cause death facts, acting the immediate influence less of the he cannot ever receive a while under adequate jury passion arising from an instruction on the lesser included of- of sudden cause, killing Bish- appellant’s fense of homicide. If or was act law, done, ass, accidentally justified or was he truly op this is the then the law is an reasonably be- only killing Bishop and such flies in the face of because he what my dissenting opinion by many pages. causes to be shortened immediately necessary to it was lieved that against Bishop’s of un-
protect parte himself use Ex David Allen VIVIER. force? lawful No. 69505. however, given jury, Texas, Appeals of Court of Criminal decide, they if found that
opportunity En Banc. intentionally or know- appellant did not act Nov. 1985. pulling the ingly, whether act of pushing Bishop holding it while unjustifiable risk created a substantial and because of his
that someone would be shot and, further,
act, given oppor- was not appellant ought to
tunity to decide whether of, consciously dis-
have been aware but
regarded that he created when he the risk Thus, pistol Bishop.
pointed the given opportunity to de-
jury was not guilty
cide whether criminally negli-
lesser included offense deciding
gent merely rather than guilty of murder or volun-
whether he was manslaughter, guilty because of
tary or not self
accident or defense. light
Viewed in the most favorable
appellant, that was since evidence
presented to the would have shown “guilty only of the of homicide,”
fense of see
Royster v. S.W.2d App.1981), greater and not the offenses Land, Hemstreet, appel- Sugar Hal manslaughter, appel voluntary murder or lant. criminally negli requested charge lant’s McGrath, Atty. Dist. and R.W. James S. given gent have been homicide should Beaumont, Fisher, Robert Atty., Asst. Dist. the trial judge jury, the trial to the Austin, Huttash, for the Atty., State’s jury de failure to so instruct the judge’s State. trial. deprived appellant of a fair nied and holding, I re majority’s contrary To the
spectfully dissent.
OPINION PER CURIAM. *17 habeas for writ of application an
This is 11.07, Art. V.A.C.C.P. corpus pursuant convicted guilty and was Applicant pled as- County. The court rape Jefferson in the Texas years at 25 punishment sessed appeal No Department of Corrections. was taken. the trial contends applicant now case in this jurisdiction have did not
court