*1
243
(a)
1982,
Except
pet.).
Cowan,
4.03
as authorized
Sec.
Antonio
no
Act, person
this
commits an offense if
though
court held that even
there had been
knowingly
intentionally
pos-
he
or
...
specific objection
disjunctive
ex
intent
sesses with
to manufacture or de- pression
culpable
mental state in the
in
liver a controlled substance listed
Pen-
charge,
court’s
and the trial court had over
alty Group 1.
objection,
expression
ruled the
such an
disjunctive
reversible error.
(Vernon
Tex.Rev.Civ.Stat. Ann.
Id.,
Moreover,
State,
at 240.
Wilmeth v.
Supp.1988).
1991,
(Tex.App. Tyler
rounding his conduct when he aware
of the nature of his conduct or that the
circumstances person exist. A acts
knowingly, knowledge, or with with re-
spect to a result of his conduct when he
is aware that his conduct reasonably
certain to cause the result. (Vernon 1974). 6.03 Code, VANN, Appellant, Tex.Penal Cherie Field It is well established that where indict v. alleges ment “knowingly an offense was Texas, Appellee. STATE intentionally” committed, it is essential that the charge required court’s contain the No. 13-91-457-CR. culpable mental state “knowing of either Texas, Appeals Court of ly” “intentionally”; an omission “[s]uch Corpus of an essential Christi. element of the offense ren charge fundamentally ders the defective.” 11, May 1993. State, 502, Stidham v. 590 S.W.2d 503 Dissenting Opinion of Chief Justice (Tex.Cr.App.1979). However, numerous 26, Nye March cases have held that it is not fundamental alleges error if the indictment a crime was “intentionally knowingly”
committed
while the submitted to the
states that it “intentionally was committed knowingly.” See, State, Archie v. 615 762, (Tex.Cr.App.1981); 766 Ham State, 699, (Tex.Cr.
mett v. 578 S.W.2d 713 State,
App.1979); Cowan v. 562 S.W.2d
236, State, 240 (Tex.Cr.App.1978); Mott v. (Tex.Cr.App.1976);
543 S.W.2d (Tex.
Perez v. 704 S.W.2d Christi,
App. Corpus 1986); Garcia — (Tex.App. — San
opinion of March and substitute following opinion as the this court. appellant, A who was indicted murder, guilty of the lesser included *3 manslaughter, voluntary of found offense weapon, deadly that she used a and as- punishment years’ ten sessed confine- $10,000 ment and a fine. raises error, eight points complaining of of the evidence, error, sufficiency charge in admitting and errors evidence and ex- cluding other evidence. We reverse the judgment of the trial court and remand the case for a new trial.
This case arises from domestic shoot- ing. Vann, Appellant, Cherie and the vic- tim, Vann, January Mark married in were Shortly midnight May after on 1990, police dispatched officers were to the home, Upon arriving Vanns’ home. at the paramedics, officers found the hysteri- bloody appellant, body cal and and the of single Mark Vann. Mark died from a Vann gunshot perforated wound which his left lung trial, artery. and pulmonary ap- At pellant shooting Vann, admitted Mark contended that from she suffered battered syndrome she shot him wife and that while fearing parties for her life. The contested provocation the issues of self-defense and throughout The trial in- trial. court murder, jury voluntary structed the on manslaughter, involuntary manslaugh- jury appellant guilty ter. found of voluntary manslaughter. Zellars, Hayes, Ronald N. Karen Hous- error, By her first of ton, appellant. for challenges of the evidence Holmes, Jr., Atty., John B. Dist. Linda A. supporting voluntary for her conviction West, Goodhart, Craig Attys., Asst. Dist. manslaughter. argues that a rational She Houston, Huttash, Robert State Pros. jury could not from the evidence conclude Paul, Atty., Matthew W. Asst. State Pros. she shot her under the influ husband Austin, Atty., appellee. for passion ence a rational jury only that she acted in conclude NYE, C.J., Before G. FEDERICO ap self-defense. The contends that State HINOJOSA, Jr. and GILBERTO voluntary pellant failed to HINOJOSA, JJ. manslaughter estopped charge and from raising citing sufficiency points appeal, on OPINION (Tex.Crim. Lee, 778 HINOJOSA, Jr., App.1991), Bradley v. FEDERICO G. Justice. (Tex.Crim.App.1985). petition discretionary On State’s re- provisions Lee, Appeals Criminal view and under the of Tex. the Court of R.App.P. modify judgment the Second Court we reconsider and our reversed the support signal does not Appeals acquies- and reinstated the trial court’s it would ' defendant,
judgment part and sentence. The cence on the of the accused in the requested judgment indicted for pas- trial court’s that sudden charge voluntary manslaughter, and the sion raised. guilty him man By invoking the benefit of the lesser slaughter. appealed, He and the Second included offense at trial in not Appeals him Court of reversed and ordered objecting to its submission to the acquitted grounds the State omitted], an accused will be [footnote produce any failed to that he estopped complaining ap- from then killed the victim while under the influence peal that the evidence failed to establish passion arising adequate from of sudden all the elements of the offense. *4 State, 590, cause. Lee v. 792 S.W.2d 593 (plurality opinion). judges Id. at 853 Three 1990), d, (Tex.App. Worth rev' 818 — Fort result, judges concurred in the two dissent- (Tex.Crim.App.1991). S.W.2d 778 The ed, Judge Miller concurred and noted petition discretionary for review State’s joined plurality opinion. that he also 1) granted grounds: on two a whether at 853. Id. party requests jury charge may who a case, appellant In the instant comes to support insufficient to claim evidence posture this Court a between Lee 2) granted charge, voluntary and whether Lee, Bradley. Unlike Mr. did not manslaughter is a lesser included offense request voluntary manslaughter Overstreet, Judge writing of murder. charge, unlike Bradley, Mr. three-judge plurality, request a held that object did not to its inclusion. While we ing charge a lesser included offense or appreciate might a concern that defendants
failing
object
estops
to its
a
inclusion
log
acquittal
lie
on
behind
achieve
raising
defendant from
a
chal
authority
appeal, we do not find the State’s
Lee,
lenge
appeal.
on
murder and convicted of
man-
position
having
prove
nega-
crous
a
slaughter,
by
the trial court erred
claimed
tive” when
seeks to
defendant
instructing
voluntary
man-
Johnson,
committed murder.
815 S.W.2d
slaughter
timely objection that
over his
hand,
at 710. On the other
as an affirma-
Bradley,
did not raise it.
688
voluntary manslaughter,
tive element of
(plurality opinion).
at 849
S.W.2d
passion
place
threatens
the sudden
issue
reversed,
Appeals
find-
Court of Criminal
reviewing
position
courts
the “ludicrous
in,
ing
passion
to raise the sudden
no evidence
acquitting
a defendant of
Clinton,
Judge
writing for a three-
issue.
manslaughter
there is sufficient evi-
when
plurality stated:
judge
guilty
dence
the record that he is
disposition
to add that this
We hasten
murder.” Bradley,
247 Manslaughter qualify light as a lesser all the evidence in the most favorable included offense of murder under Section to the verdict to determine whether a ra Y.A.C.C.P., (3) per- of Article 37.09 which tional trier of fact could have found the charged mits an offense to be as a lesser essential elements of the crime established included offense if “it from the differs beyond a reasonable doubt. Butler v. State, charged only respect
offense in the 234, (Tex.Crim.App. 769 S.W.2d 239 culpable a less mental state suffices to State, Prophet v. 1989); 836, 815 S.W.2d establish its commission.” (Tex.App. Corpus 1991, 837 Christi no — pet.). apply We also this standard to cases Lee, However, plurality 818 S.W.2d involving circumstantial evidence. Ear 782, language retreated from that State, hart v. (Tex.Crim.App.1991); 616 stated: sen v. 654 knowledge Intent or influenced sud- Carl (Tex.Crim.App.1983) (opin S.W.2d passion amongst den is not included rehearing). ion on is the sole culpable mental states in 6.02. Until judge credibility of a witness and such, Legislature the Texas includes we may any part believe disbelieve all or knowledge cannot conclude that intent or testimony. Sharp witness’s accompanied by passion exists as cert. (Tex.Crim.App.1986), degree a mental state of a lesser of cul- *5 denied, 488 U.S. 109 S.Ct.
pability than knowing. intentional or We (1988). L.Ed.2d 159 therefore adhere prior holdings to our that unless there is some evidence of person A voluntary commits man passion case, voluntary in the slaughter if she causes the death of an manslaughter cannot be considered a individual under circumstances that would (Cita- lesser included offense of murder. constitute murder under 19.02 of the Pe § omitted.) tions Code, except nal that she caused the death above, As shown the Court of Crimi under the immediate influence of sudden Appeals continually nal states a concern passion arising adequate from an cause. that courts should not construe the law to Johnson, 709; 815 S.W.2d at Tex.Penal allow murder defendants to raise the sud 19.04(a) (Vernon 1989). Code Ann. A passion gain den issue to man person intentionally commits murder if she slaughter conviction, thereby avoiding a or knowingly causes the death of an indi conviction, murder subsequently and to or if intends to vidual she cause serious gain acquittal appeal by arguing on bodily injury clearly and commits an act insufficient passion. evidence of sudden dangerous to human life that causes the only We note that this concern attaches to death of an individual. Tex.Penal Code passion the sudden issue. We find no ra 19.02(a)(1, 2) (Vernon 1989). Ann. § object tional reason to consider a failure to evidence, light in viewed most jury charge to a voluntary manslaughter favorable to the shows that the vic- precluding challenging as one from the suf appellant only grabbed tim had or shoved ficiency supporting of the evidence the oth during ten-year marriage, their four times er elements of murder. areWe also mind her, seriously injuring and never never majority ful that a of the Court of Criminal weapons. threatened her with The victim Appeals yet has not ruled that a defendant January to in three moved Houston merely who fails to to a lesser in appellant joined months him. After before estopped cluded offense from Houston, arriving appellant obtained challenging sufficiency of the evidence handgun and learned how to use it from a supporting a conviction for the lesser in Police friend who worked with the Houston Consequently, cluded offense. we have de Department. Sometime after appellant’s point cided to address on the Houston, joined the the victim victim merits. expressly told her that he did not want couple When we review the remain married to her. The then case, counseling of the evidence in a sessions. criminal we view decided to attend trial, place counseling The first session took At testified that she 10, 1990, May the second session on and feared for her life at the moment she shot May 16,1990. Appellant place took told the victim and expert introduced witnesses counselor, Barth, that she Dr. learned testified that who she suffered from bat had six affairs and the victim or seven syndrome post tered wife’s and traumatic knowledge pain. this caused her That eve- Appellant argues stress disorder. that the ning, appellant went to a club to listen á jury testimony could either en believe her jazz band with a man had who befriended find her tirely guilty by reason of both and the victim. victim entirely self-defense disbelieve join meeting. them after a dinner guilty argument find her of murder. This margarita drank a and two and merit; jury may part is without believe glasses p.m. 8:00 one-half of wine between testimony of a witness’ and disbelieve other p.m. evening, appel- During and 11:30 case, In this parts. could believe problems lant discussed her marital with provoked physical that the victim the friend and to move into decided emotionally ly and and that the combina guest bedroom. The victim never arrived affairs, abuse, tion of the victim’s verbal and appellant at the club went home. physical provocation appel rendered incapable of at the mo lant cool reflection belongings Appellant moved some of her killed the ment she victim. The could guest from the master bed- bedroom testimony choose to also disbelieve her took handgun room. She from the feared for her moment she she life at the placed nightstand bedroom master also choose shot victim. The largest of dog the three kennels that opinion testimony appel disbelieve guest put were She on her bedroom. expert incap lant’s she witnesses that prepared ginger nightgown, glass of diet forming necessary able of the mental state ale, alarm, the house set and went bed. *6 murder. to commit A rational could later, Approximately fifteen minutes appellant knowingly and in conclude that returned victim home intoxicated en- tentionally shot the under the victim while guest tered the he bedroom where passion. influence of sudden overrule We appellant. yelled, “Why you He weren’t at point appellant’s first of error. He Cody’s?” then went into the kitchen error, point By her fifth of poured glass of himself a bourbon. complains by the trial admit- court erred Appellant followed the victim into the ting hearsay testimony wit- from a rebuttal her, verbally he kitchen where abused told timely objection. ness over State belong her that she did there and said testimony admissible un- contends telling sick that he was of her him what he exception, of der the state mind Tex. pushed and could The victim not do. 803(3). R.CRIM.Evid. appellant aside out of and walked Appellant poured house. then the contents Hearsay assertion of- out-of-court glass bottle down bourbon fered to the truth of the matter sink. 801(d). Hear- asserted. Tex.R.CRIm.Evid. provided by say except is not admissible as house and The victim re-entered the went statute or the Rules of Criminal Evidence. kitchen, looking for his into the drink. Existing The “Then Tex.R.CRIM.Evid. learning poured Upon had Emotional, Mental, Physical or Condition” drain, the the bourbon down the victim 803(3), exception, Tex.R.Crim.Evid. allows angrier at glass and threw a her. became admission of bedroom, fol- Appellant retreated to the then ex- the victim. sat down statement the declarant’s lowed [a] sensation, mind, emotion, picked telephone isting up bed and state intent, (such as help. grabbed physical the tele- or condition call for victim motive, feeling, design, mental away appellant, plan, from her and while phone health), bed, pain, bodily including from sitting on the shot him but not still memory or of two feet. a statement distance belief
249 prove the remembered or believed friend. He confided in me on several fact execution, it relates to the unless revoca- occasions. At one he did state— tion, identification, or terms of declar- Object Defense Counsel: anything he added). (Emphasis ant’s will. stated. [sic], any existing Prosecutor: 80.33 men- Admitting memory statements of tal state at that time. virtually destroy belief the hear They brought Court: Overruled. have say by allowing mind, rule prova a state of up. objection. Overrule the statements, by hearsay ble to serve as the Prosecutor: What was the content and inferring basis for happening of an you what did talk about? produced event which state mind. pending Witness: We talked about the State, 821, (Tex. Gibbs v. divorce, happy that he in his Crim.App.1991)(citing 33 Goode, WellboRN marriage current and wanted to find a ShaRlot, & Texas Rules of Evidence: Civil way out and visibly upset Cherie was (Texas
and CRIMINAL 803.7 Practice give with him and him wouldn’t 1988)). The may, example, for intro divorce he wanted. He made an added testimony duce that a victim stated an in me, said[, statement to he wouldn’t “]I go tent to place, to a certain but not that surprised be if waiting Cherie was the victim stated he responding ato gun me at home with a and shot me.[”] telephone call. Norton v. 160, (Tex.App. Appellant complains that the trial court — Texarkana d). pet. However, ref' a victim’s sim by admitting erred the following statement ple statement that he does not trust a into “I surprised evidence: wouldn’t be if person may be waiting admissible under Rule Cherie was for me at home with a 803(3). gun Newton v. slip No. and shot me.” We must first deter- op. 18-19, (Tex.Crim. preserved. WL 175742 mine whether error is App. 1992). June The statute which preserve To concerning error the admis- provides that the State and the defendant sion of evidence a comply defendant must permitted “shall be testimony to offer as to 103(a)(1) with Tex.R.Crim.Evid. and Tex. all relevant facts and circumstances sur R.App.P. 52. rounding killing previous and the rela if, rules state that appeal, [T]hese tionship existing between the accused and defendant claims the judge trial erred in *7 deceased,” the Tex.Penal Code Ann. admitting State, evidence by offered the (Vernon 1989), 19.06 does not extend the preserved this error must have been a
rules of permit evidence to a court to admit proper objection and a ruling on that hearsay that is otherwise inadmissible. objection. objection timely; The must be State, Werner v. 711 S.W.2d is, the objected defense must have (Tex.Crim.App.1986); Callaway v. evidence, to the if possible, it before was 818 S.W.2d 828 (Tex.App. — Amarillo actually admitted. If possi- this was not ref’d). pet. ble, the objected defense must have as soon as objectionable nature of the produced witness, The State prompting a evidence apparent became and must have following exchange: evidence, is, moved to strike the to you Prosecutor: When spoke to vic- [the body have it removed from the of evi- night, what was his mood? tim] dence the is allowed to consider. I being Witness: would characterize it as The specifical- defense must have stated depressed and as sad Ias ever saw ly objection basis for the unless the him the entire time I knew Mark. particular ground apparent was from the you Prosecutor: Do know what he was judge context. The trial must have over- sad about? objection. judge ruled the If the refuses long
Witness: We had a objection, conversation on to rule on objection an to topics, various lots personal of his pre- this refusal to rule is sufficient to problems. I my considered Mark best serve error the admission of the evi- court, jury’s surprised waiting if
dence. When the out of be Cherie was for me presence, objections gun hears and at home me.” overrules with shot evidence, objections need not to those We must first determine whether the again be before the when the made is, hearsay, statement was that whether actually presented to the evidence is prove was offered to the matter asserted. jury. predicated upon Error cannot be The statement was not offered to judge’s ruling trial that admits or ex- fact that shot the victim. cludes evidence unless “a substantial appellant’s statement was offered to rebut right party is affected.” defense that she shot the victim in self- 854, 858 Ethington v. defense. The matter asserted was not that (Tex.Crim.App.1991). certainty for a shoot the would hearsay at some future date. The victim
Appellant objected “anything to he only statement asserted that such action stated,” indicating that she clearly thus surprising, implying appellant be hearsay objected testimony. to (under could have an intent to kill unde- objected testimony she com before circumstances) ability fined and her to act plains objection offered. Her of was upon may it, that desire. While Newton allow upon timely, the trial court ruled “he testimony that a murder victim said preserved error is review. asleep she didn’t want fair while [the to the vic The witness testified there he didn’t trust because accused] then tim’s mental condition. State establishing the ac- her” the context asked, you “Do know what [the victim] cused's whereabouts time of the at.the then sad The defense counsel ob about?” recog- that declarant a statement stated,” jected “anything he and the probability nizes a reasonable that someone responded the state of mind State with going waiting gun to shoot with a be exception hearsay rule. Tex.R.CRIM. to the goes beyond the declarant the state 803(3). exception The state of mind Evid. enters the realm of mind and belief. urged by apply the State does not instance, idea communicated and this appel response from which question probability of a future believed is the did not ask the complains. lant The State event, objectiona- which itself would be mental how he knew the victim’s witness in-court dec- speculation, as even as an ble Instead, attempted condition. State may not admit- laration. The statement be go the victim’s mental condition behind 803(3), ted under Rule and the trial court words, In other uncover its cause. ap- by admitting the statement over erred mental condition to used the victim’s pellant’s objection. oc produce of events that events pro existed which curred or conditions court hold that a trial When we condition. This mental duced victim’s trial, in a criminal we must reverse erred hearsay statement precisely the sort beyond a reasonable unless we determine *8 803(3). Gibbs, by Rule See that is excluded error made no contribution doubt that the 837. punishment. to the conviction Tex. R.App.P. 81(b)(2). To determine whether whether must determine We harmless, we focus evidence, merely question, the error was and not leading the con- process Testimony integrity that the vic objectionable. propriety of the rather than on the happy he was not his viction tim stated that State, 790 of the trial. Harris v. way find a out was outcome marriage and wanted to (Tex.Crim.App.1989). We of emotional S.W.2d as a statement admissible nature, However, error’s source and examine the intent to act. state and it, emphasized its collat- the State visibly upset whether appellant that statement weight juror implications, how much divorce is a eral give the victim a would it, placed upon probably have memory or the victim’s belief statement of finding harmlessness will en- pro hearsay. now whether We is inadmissible repeat the error with courage the “I wouldn’t analyze the statement ceed stated, impunity. Briefly question shooting Id. have refrained from the victim might we must answer is whether the error when not under the influence of sudden possibly prejudiced process have the jurors’ passion. jury The could have also deter- deciding the case. Id. at 587-88. mined from the same fight evidence of a appellant reasonably that that believed The State also any contends that error life was threatened and appellant find act- the trial by admitting court committed ed in self-defense. We cannot conclude argues statement was harmless. The State beyond a reasonable doubt that the errone- that the error could not be harmful as the statement, ously hearsay admitted suggest- jury acquitted appellant of murder and ing appellant had some latent desire to kill appellant guilty man- victim, prejudice did slaughter. disagree We with this asser- determining tion. a material issue in the case: appellant shot whether the victim in self- Appellant defended herself at trial as a merely upon defense or acted a desire un- spouse. battered had the follow- der the immediate pas- influence of sudden ing choices: sion. cannot hearsay We conclude that a intentionally knowingly Murder: caus- statement of the victim’s assessment of the ing the or intending death to cause seri- probability appellant could or like- bodily injury ous committing an act ly to shoot him was harmless. find the We clearly dangerous that causes death appellant’s error harmful and sustain fifth person. of a point of error. Voluntary Manslaughter: causing the death of someone under circumstances Having found the evidence sufficient to constituting doing but so under support jury’s verdict, having the immediate pas- influence of sudden found harmful error in the admission of sion. hearsay testimony, we need not address using deadly Self-defense: against force appellant’s points the remainder of of er- person another when reasonably believ- ror. ing the force is necessary protect judgment We REVERSE the of the trial one’s self person against or a third court and REMAND the case to the trial person’s other use of deadly force. court for a new trial. The erroneously admitted state Opinions published. ordered Tex.R.App.P. suggests
ment would or could kill under undefined circumstances.
juryA partial can discern truths and falsi Dissenting opinion by NYE, C.J. any ties from any statement and witness. argues
While the State the evidence can only prove murder, i.e., appellant main DISSENTING OPINION
tained an
provoca
intent to kill
any
without
[MARCH
1993]
tion, the
implies
statement
NYE,
Justice, dissenting
Chief
kill
range
could
under a
of circumstances.
is,
That
implies
the statement
I respectfully
grounds.
dissent on three
kill
regard
could
without
to the actual cir
regard
appellant’s
With
insufficiency
surrounding
cumstances
her act.
point, I do not think that this
need
Court
presented
reach the issue
under Lee and
accept
the statement as
Bradley
appellant’s
because
claim here is
evidence that
could form an in-
*9
kill,
not the same as that
in
tent to
and the
addressed
those
could also add the
appellant’s argument
circumstances of
cases. Even if
glass,
the
were
broken
the
proximity
bodies,
same, I
appellant
of the
the
the
would hold that
thrown tele-
etc.,
phone,
estopped
challenging
evidentiary
and
adequate
determine that
from
the
provocation
appellant
existed for
object
to actual-
since she failed to
to the
ize her intent under the
given. Thirdly, disagree
immediate influ-
I
with the
passion,
ence of sudden
though
might
she
majority’s finding that
of
the admission
19.04(b).
offense. TexPenal
hearsay
constituted reversible er-
evidence
§
Code Ann.
“Adequate
means
ror.
cause”
“cause that
degree
commonly produce
an
of
error,
point
appellant
of
By her first
rage, resentment,
ger,
person
or terror in a
evidence, stating:
complains of insufficient
temper,
of
sufficient to
ordinary
render the
legally insufficient to
evidence is
[t]he
mind
reflection.”
incapable of cool
Brad
in that there is no
support the conviction
849;
ley, 688
S.W.2d at
TexPenal
Code
trier
from which
rational
of
19.04(a).
Ann. §
appellant
concluded that
fact could have
acting
the influence of sudden
under
testimony,
appellant’s
Based on
a fact
adequate cause,
but
passion based
issue
on whether
acted
existed
beyond
concluded
a reasonable
have
under
“immediate influence of
the
sudden
acting
was not
in
doubt that she
self passion arising
adequate
from
cause.”
added).
(emphasis
defense,
(Vernon
19.04
§
TexPenal
Code Ann.
1989). Thus,
point,
addressing
majori-
Bradley,
the first
the
under Lee and
the
ty
Bradley
concludes
analyzes
voluntary
Lee and
and
trial court’s instruction on
man-
challenge
appellant may
that
the sufficien-
slaughter
Appellant’s
proper.
testimo-
because,
cy
although
here
of the evidence
ny also
of
raised the issue
self-defense.
man-
she did not
charge,
Pursuant
to the court’s
the
charge,
request
she did
it
slaughter
acted
would find that
in self-
language appellant
in her
either. The
uses
defense if it
that:
that the
and
first
indicates
Lee
Brad-
reasonably appeared
[appellant]
it
that
implicated
appel-
ley
by
are not
decisions
in
person
danger
or
were
and
life
lant’s claim.
there
in her mind a
was created
reason-
discusses,
ably
majority
the
Lee and
As
death
expectation
able
or fear of
... and
problem
in which
Bradley address
reasonably
believed
the use
[she]
prose-
in a
passion” arises
murder
“sudden
deadly
immediately necessary
force was
cution,
negating
“knowing
thus
protect
against
or
herself
use
[the]
mind
required
state of
intentional”
attempted
deadly
use of unlawful
force.1
Then,
murder.
the defen-
State to
that,
Appellant essentially argues
under
appeal
argue
pas-
dant on
will
facts,
passion” and
“rea-
these
“sudden
proven. Appellant
sion
not in fact
fear of
or
expectation
sonable
or
death
argument
In-
make that
here.
does not
bodily injury”
legally
serious
are
con-
claims that the mental state de-
stead she
interesting
gruent. Appellant makes
passion”
element of
by the
“sudden
scribed
that,
theory
claim
the battered wife
under
legally congruent
mental state of
self-defense,
cannot
she
be convicted
in the self-defense instruc-
“fear of death”
voluntary manslaughter as a matter of law.
jury’s ability
find
attacks the
tion. She
disagree.
I
passion”
acted with “sudden
when
that she
that Mark had threat-
not find that she
self-
testified
did
acted
her,
defense.
ened
had asked
whereabouts of
him
gun, and
she “knew was either
appellant guilty
In order to find
of volun
me.”
that Mark’s
She also testified
manslaughter rather
than
tary
past
night
attacks that
consisted
to find that
caused
jury had
“grabbing,” “pushing,”
“pulling
under the
influ
Mark’s death
“immediate
jury may properly
hair.” The
have
[her]
passion arising from an
of sudden
ence
did
from
concluded that
suffer
Bradley
cause.” See
adequate
that she shot the
syndrome,
battered wife
(Tex.Crim.App.
n. 1
fear
pas-
to a sudden
victim reaction
19.04(a)
1985);
Code Ann.
TexPenal
behavior,
by
victim’s
sion aroused
(Vernon 1989).
passion” must be
“Sudden
reasonably
that she
have be-
provoca
arise
directly
by
caused
out
deadly
use of
force was
lieved that her
deceased
the time
tion
(Ver-
1974).
9.31(a),
non
9.32
§§
Code
See
Ann.
Tex.Penal
*10
necessary
jury’s
say
in this instance.
find-
regarding
statements the victim made
ing is consistent with the facts and the
problems
appel-
law his marital
and his fear of
applicable to this case. This court need not
appellant's
lant. In the face of
adopt
ruling
it does on Lee and Brad-
victim,
physical abuse from the
the trial
ley.
court allowed rebuttal on the issue of
qualities
peaceful
Mark’s
as a
husband.
apply,
Even if Lee and
did
I
Bradley
Sipiala,
The State called Mitch
a friend of
appellant
any
would hold that
com-
waived
He
victim’s.
testified that he went
plaint by failing
object
charge
to
to the
on
drinking
nights
with Mark Yann two
be-
voluntary manslaughter. Dicta in both
shooting.
appellant’s objec-
fore the
Over
opinions
object
indicates that
to
“failure
to
tion, Sipiala recounted that he and Mark
charge
on voluntary manslaughter on the
impending
talked about Mark’s
divorce.
ground that the
support
evidence does not
depressed.
Mark was sad and
He
signal acquiescence
part
it would
happy
marriage,
appellant
with his
but
judgment
accused
the trial court’s
give
would not
him a divorce. The victim
passion
that sudden
was raised.” Bradley
stated,
also
“I wouldn’t
surprised
be
if
v.
jecting to its submission to the ... (such physical intent, condition plan, as appellant estopped from complaining on motive, design, feeling, mental pain or appeal that the evidence failed to establish health), bodily including a state- all elements of that lesser included of- memory prove ment to belief Lee, fense.” State v. remembered or believed unless it fact (Tex.Crim.App.1991). execution, revocation, relates to the case, present identification, the issue of sudden or terms declarant’s passion 803(3) was raised when (emphasis testified will. Tex.R.Crim.Evid. added).
that her night husband abused her that that she feared for her life when the shoot- argues The State that the statement was ing occurred. Under Lee and Bradley, prove not offered to that prove order to the State was re- waiting gun at home awith to shoot the quired negate to “implied element” of Rather, victim. merely was offered passion. This it Ap- failed to do. op show that Mark was the victim in an pellant challenges now of pressive marriage, pos jury’s finding evidence on the on volun- sessive, vindictive, jealous, and and Mark tary manslaughter. Bradley Pursuant feared her. See Whitmire Lee, by failing I would hold that (Tex.App. — Beaumont man- 1990, ref’d). Earlier, pet. appellant had slaughter, appellant estopped from chal- having testified she and Mark were lenging passion the element of sudden divorce, problems, marital that he wanted a here. person and that reached a she had disagree
I majority’s acceptance further with the in the matter if Mark did al ruling hearsay testimony question on the admission of evi- divorce her. The By point, feeling dence. fifth com- mental at the shows victim’s plains erroneously Sipiala. that the trial court al- time he related his mood to testify lowed a witness rebuttal to hear- statement was not offered *11 was, proved fact, waiting at home believed that the statement the fact Rather, asserted, logical gun a to shoot the victim. it would have been for the with guilty offered as a statement the victim’s jury to find the inten The victim feeling. or mental tionally murdering emotions her husband. This the state, “I expressly feel sad and Instead, did it found jury did not do. I my do not depressed because wife manslaughter. guilty It is not agree di get along she will not to a guess judge’s for us to second the able trial However, the statement shows vorce.” ruling. beyond I am further convinced a in fact the victim’s state of that such was that this evidence did not reasonable doubt object to the rele mind. did not forego cause the self-defense as its
vancy of statement. appel that verdict. abuse presented throughout trial was that lant states that “the State did majority her, “grabbed her” “pushed” Mark knew the victim’s not ask how the witness raises “pulled her hair.” While this case condition, go attempted to be- mental profoundly disturbing issues of serious and condition to uncover its yond the mental violence, appearing are reasoning is backwards domestic which cause.” This society, Mark’s state- I simply shocking regularity infers error because our with mind re- evidencing his state of ment was not convinced believe light subsequent events. markable reasonably have be the victim’s mental the witness knew How deadly the use of force was lieved testimony— is clear from his condition justified in this instance. Semaire v. See problems personal with Mark discussed his (Tex.Crim. 612 reasoning, By majority’s we friend. his App.1980). depressed that Mark was must conclude 803(3) I of Rule would hold that because certainty that his he knew a because statement was admissible as victim’s gun waiting at home with a wife was feeling. statement of mental Newton fact, did, in do so. shoot him and that she (Tex. No. 1992 WL to the wit- interpretation contrary This 17, 1992)(not reported); Crim.App. yet June testimony, and one wonders express ness’s Whitmire, I at 371-72. night home that why the victim went judgment. affirm the trial court’s evening shooting. addition, if admission of the state- error, beyond I am convinced ment was not reversible
reasonable doubt that it was majority concludes that
error. While depressed appellant was
Mark was because him, gun
waiting at home to shoot with Had the jury did not so conclude.