Evans v. State

781 S.W.2d 376, 1989 Tex. App. LEXIS 2667, 1989 WL 126321
Court of Appeals of Texas·Decided October 26, 1989·No. No. A14-88-00982-CR·Published·Cited by 6 cases

Opinions

OPINION

JUNELL, Justice.

A jury found appellant guilty of two murders and assessed punishment at confinement in the Texas Department of Corrections for forty years on each murder, to run concurrently.

Appellant claims three points of reversible error; one by reason of the trial court’s refusal to charge the jury on the lesser included offense of involuntary manslaughter, and the other two alleging improper jury argument. We affirm in part and reverse in part.

Appellant used a tire jack and a knife to kill his wife and a man he believed to be her lover. Appellant’s signed statement at the time of his arrest gives insight to the nature of the offense and provides the basis for reviewing some of appellant’s allegations:

Tonight I came to the Downtown police station after coming from the apartment that I did share with my wife Gayle until recently. Tonight I went over there about thirty minutes before I came to the rear of the police station. We had some problems and had separated.
Tonight I went over to the apartment and I knocked at the door. My wife answered it and I told her that I wanted to talk. She said she had company. I wanted her to come out and talk and she did not want to talk to me. She shut the door in my face. I was upset and I went and got the bumper jack out of the trunk of the yellow Olds car that I drove down to the police station tonight. I walked back and forth in front of the apartment not really knowing what to do. I let myself into the apartment and I just started swinging the bumper jack at my wife and her lover.
I have been involved in a lawsuit since 1985 and I have been doing a lot of work on it. I had pawned my car when we separated another time and stayed in a motel. I had other job offers but Gayle would not help me by giving me rides and she would not help me out with money. It seemed to me that she wanted me out on the street. We had only been apart this time for a week and I just could not take it that she took up with someone else so quickly. I loved her so much.
When I got to the police station tonight I went up to some officers and told them that I had just killed my wife. They called some detectives and then we went to the Homicide Division. We have had problems but I have never hit her before even when she hit me. There has just been a lot of pressure on me lately and I could not handle the thought of losing her.

[378]*378The wife died after receiving several blows to the head and she also had a stab wound in her chest. The man died after three stab wounds in the chest and fourteen blows to the head.

The jury was given a charge with instruction on murder and voluntary manslaughter, but the trial judge refused appellant’s request for an additional charge on involuntary manslaughter. Appellant asserts it was error to refuse to allow the jury to consider involuntary manslaughter as a lesser included offense to those that were charged.

Where evidence raises an issue that a lesser included offense may have been committed, and a jury charge is properly requested, the issue should be submitted to the jury. Moore v. State, 574 S.W.2d 122 (Tex.Crim.App.1978). A charge on a lesser included offense is not required merely because proof of the lesser offense is within the evidence proving the greater offense. Aguilar v. State, 682 S.W.2d 556 (Tex.Crim.App.1985). There must be some evidence in the record that if the defendant is guilty, he is guilty of the lesser included offense, but not the greater offense. Royster v. State, 622 S.W.2d 442 (Tex.Crim.App.1982). The lesser included offense of involuntary manslaughter would be properly submitted to the jury if the evidence showed such an offense could reasonably be the only properly charged offense, looking to all the evidence adduced at trial. See Lugo v. State, 667 S.W.2d 144, 147 (Tex.Crim.App.1984). (Defendant, convicted of murder, was entitled to an instruction on the lesser included offense of involuntary manslaughter involving a lesser included culpable mental state.) This is so regardless of whether the evidence is weak, impeached or contradicted. Bell v. State, 693 S.W.2d 434, 443 (Tex.Crim.App.1985). A defendant’s own testimony, though contradicted, is sufficient to require an instruction on a lesser included offense. Hunter v. State, 647 S.W.2d 657 (Tex.Crim.App.1983).

A person commits involuntary manslaughter when he recklessly causes the death of an individual. Tex.Penal Code Ann. § 19.05(a)(1).

A person acts “recklessly”

... when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.

Tex.Penal Code Ann. § 6.03(c). (Emphasis added.)

Appellant argues that his confession, quoted above, gives evidence of lack of intent to kill as does his oral testimony at trial. Appellant cites Bell v. State, 693 S.W.2d 434 (Tex.Crim.App.1985) to argue that recklessness is a lower culpable mental state necessarily contained within the actual intent or knowledge or state of mind which must be established by the State when proving either murder or voluntary manslaughter. Appellant also urges us to consider the rationale of Lugo v. State, 667 S.W.2d 144 (Tex.Crim.App.1984) to determine whether the jury should have been allowed to selectively believe some of the evidence and reject other evidence in determining whether appellant’s state of mind at the time of the offense met the definition of involuntary manslaughter.

In considering appellant’s argument, we look at the relevant phrasing at the end of the second paragraph of appellant’s signed statement. “I let myself into the apartment and I just started swinging the bumper jack at my wife and her lover.”

We also look at that part of appellant’s testimony on direct examination which is related to his encounter at the apartment with his wife in the company of another man:

APPELLANT: He [complainant] said [to] Gayle [other complainant], tell the nigger [appellant] to get away from the door.
COUNSEL: How did you feel about that?
[379]*379APPELLANT: Anger.
******
COUNSEL: Then what?
APPELLANT: I just started shaking.

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Evans v. State, 781 S.W.2d 376, 1989 Tex. App. LEXIS 2667, 1989 WL 126321 (Tex. Ct. App. 1989).

781 S.W.2d 376 (Evans v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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