Cobarrubio v. State

675 S.W.2d 749, 1983 Tex. Crim. App. LEXIS 886

• Court: Court of Criminal Appeals of Texas
• Decided: January 12, 1983
• Docket: 63801
• Status: Published

Opinions

OPINION

CLINTON, Judge.

Appeal is taken from a conviction for murder¹ in which the jury assessed punishment at 40 years confinement. We confront at the outset an error in the trial which was calculated to injure the rights of the accused, Article 36.19, V.A.C.C.P., and are therefore constrained to reverse the conviction obtained.

The evidence reflected that during an altercation the deceased was struck in his head by one of four shots fired by appellant with a .25 caliber automatic pistol. According to appellant’s testimony, he was on his way to the country to try out his new pistol when he confronted the deceased, who had quarreled with a cousin of appellant a few days before. Encountering provocative language, then conduct, appellant testified he prepared to defend himself; the deceased kicked him in the stomach, then twice in the face. In a dazed state, appellant pulled his pistol and fired in the direction of the deceased.

Apparently without a request from appellant, the trial court included an instruction on, inter alia, the lesser included offense of voluntary manslaughter² in the jury charge.³ Appellant did, however, object to the paragraphs containing the respective applications of the law of murder and voluntary manslaughter to the facts of the case on the ground that each improperly applied the law to the facts. These objections should have been sustained.

In Braudrick v. State, 572 S.W.2d 709, 710 (Tex.Cr.App.1978), the Court examined the relationship between murder ⁴ and voluntary manslaughter,⁵ observing the language of V.T.C.A. Penal Code, § 19.04 “creates [an] illusion that voluntary manslaughter has one additional element not found in murder.”⁶ In order to conclude that voluntary manslaughter is a lesser offense included in the offense of murder, the Court effaced the “illusion” as follows:

“The distinguishing feature between murder and voluntary manslaughter is not a fact that must be proven beyond a reasonable doubt to establish voluntary manslaughter, nor is it a fact that must be disproven by the State to establish murder in the absence of some evidence raising an issue as to that fact. If the issue is raised, then it must be dispro-ven to establish murder, and a reasonable doubt on the issue requires acquittal on the murder charge and allows conviction only for voluntary manslaughter.⁷

* * * * * *

We therefore hold that causing death ‘under the immediate influence of sudden passion arising from an adequate cause’ is in the nature of a defense to murder that reduces that offense to the lesser included offense of voluntary manslaughter, and that the State need not prove such influence beyond a reasonable doubt to establish voluntary manslaughter, but that if raised by the evidence [the State] must prove the absence of such influence beyond a reasonable doubt to establish murder. ”

572 S.W.2d at 711.

With the nature of the “element” of “sudden passion” in mind, it becomes apparent not only that the burden of proving the lack of sudden passion must be placed upon the prosecution, but also that this burden must be so placed in the paragraph of the charge applying the law of murder to the facts of the case.⁸

In the instant case, the court instructed the jury in pertinent part as follows:

. . .[If] you believe from the evidence beyond a reasonable doubt, that on or about the 23rd day of May, 1978, in the County of Lubbock and State of Texas, as alleged in the indictment, the defendant, JOE MARTINEZ COBARRUBIO, did then and there intentionally and knowingly eause the death of an individual, Javier Gutierrez, by shooting him with a gun, then you will find the defendant, JOE MARTINEZ COBARRU-BIO, guilty of murder as charged in the indictment.

Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt as to whether defendant is guilty of murder, then you will acquit him of murder and next consider whether he is guilty of voluntary manslaughter.”

Thereafter the jury was for the first time instructed in the abstract on the law of voluntary manslaughter and the definitions of “sudden passion” and “adequate cause.” The application paragraph concerning voluntary manslaughter essentially tracked that suggested by McClung, Jury Charges for Texas Criminal Practice (Jan. 1981) 47, 48. See n. 8, ante.9

With the defensive issue of sudden passion deleted from the paragraph on murder and placed only in the voluntary manslaughter paragraph as it is here, there exists a decided likelihood that a jury would affirmatively answer the murder paragraph, never having considered the defensive issue of sudden passion which would reduce the offense of murder to the lesser included offense of voluntary manslaughter. Thus, if the jurors followed the court’s instructions to the letter — indeed, we must presume they did — the State’s burden of proof was significantly diminished and appellant was denied an opportunity to have the jury determine his guilt on the issue of murder as interpreted by the Court in Braudrick, supra. Under these circumstances, this error precipitated a denial of due process of law in the most fundamental sense.

The judgment of conviction is reversed and the eause is remanded to the trial court.

CAMPBELL, J., concurs in result.

1 . V.T.C.A. Penal Code, § 19.02, provides in relevant part:

"(a) A person commits an offense if he:

(1) intentionally or knowingly causes the death of an individual;”

2 . V.T.C.A. Penal Code, § 19.04(a), provides:

“A person commits an offense if he causes the death of an individual under circumstances that would constitute murder under Section 19.02 of this Code, except that he caused the death under the immediate influence of sudden passion arising from an adequate cause.”

3 . Humphries v. State, 615 S.W.2d 737 (Tex.Cr.App.1981):

"[W]e find no error was committed by the submission of a charge on voluntary manslaughter, a lesser included offense of murder, even over appellant’s objection," id., at 739.

4 . See n. 1, ante.

5 . See n. 2, ante.

6 . “Sec. 19.04, supra, suggests that voluntary manslaughter is murder plus acting from a sudden passion, etc.” Braudrick, supra, at 710. [Emphasis original]

7 . All emphasis is mine unless otherwise indicated.

8 .For an example of a proper charge see McClung, Jury Charges for Texas Criminal Practice (Jan. 1981) 47, 48, which states in pertinent part:

"4.

Now, if you find from the evidence beyond a reasonable doubt that on or about the_ day of_, 19_in_County, Texas, the defendant, AB, did intentionally or knowingly cause the death of an individual, CD by shooting him with a gun, and that the defendant, in so acting, was not acting under the immediate influence of sudden passion arising from an adequate cause, then you will find the defendant guilty of murder, as charged in the indictment.

******

5.

If you find from the evidence beyond a reasonable doubt that on or about the - day of_, 19_in_County, Texas, the defendant, AB, did intentionally or knowingly cause the death of an individual, CD, by shooting him with a gun, but you further find and believe from the facts and circumstances in evidence in the case that the defendant, in killing the deceased, if he did, acted under the immediate influence of sudden passion arising from an adequate cause, or if you have a reasonable doubt as to whether he so acted under the immediate influence of a sudden passion arising from an adequate cause, then you will find the defendant guilty of voluntary manslaughter."

See also Texas Criminal Pattern Jury Charges, CPJC 19.02(VM) at 119-120.

9 . A notable departure, however, was an alternative paragraph authorizing appellant’s conviction for voluntary manslaughter if the jury found “sudden passion,” etc. and an "intent to cause serious bodily injury” coupled with commission of “an act clearly dangerous to human life that caused the death of the deceased.”

Because the indictment did not allege murder under § 19.02(a)(2), it was improper for the court to authorize a conviction for voluntary manslaughter under that theory. Appellant’s specific objection on this ground was also improperly overruled; this error should be avoided in the event of a retrial. See and compare Garcia v. State, 574 S.W.2d 133 (Tex.Cr.App. 1978).