Fisher v. Texas

827 S.W.2d 597, 1992 Tex. App. LEXIS 1139, 1992 WL 95086
CourtCourt of Appeals of Texas
DecidedMarch 31, 1992
DocketNo. 04-90-00108-CR
StatusPublished
Cited by8 cases

This text of 827 S.W.2d 597 (Fisher v. Texas) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fisher v. Texas, 827 S.W.2d 597, 1992 Tex. App. LEXIS 1139, 1992 WL 95086 (Tex. Ct. App. 1992).

Opinion

OPINION

CARR, Justice.

A jury convicted appellant, Thomas Fisher, of murdering his girlfriend, Barbara Baughman, by drowning her. The victim’s body, allegedly dismembered and disposed of, was never entirely recovered. The trial court assessed punishment at imprisonment for thirty years. Appellant now appeals the conviction with three points of error. We affirm the judgment.

In his first point of error, appellant contends that the jury instruction had a fundamental defect because it failed to require the State to disprove sudden passion, an issue allegedly raised by the evidence.1 The record, however, reflects that the jury received no instruction on voluntary manslaughter and that appellant never requested such an instruction.2 In addition, appellant did not object to the charge as given or request an instruction requiring the State to prove the lack of sudden passion. Because appellant did not make a proper objection to the charge at trial, we can reverse the judgment only if the alleged error was fundamental and caused egregious harm. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (opinion on rehearing).

An accused is entitled to an instruction on sudden passion when the evidence shows that he acted under the immediate influence of sudden passion3 arising from adequate cause.4 See Tex. Penal Code Ann. § 19.04 (Vernon 1989) (voluntary manslaughter statute).5 Appellant contends that the following testimony of witness [599]*599Caesar Marquez raised the issue of sudden passion:

Q. Okay. Did Thomas — Thomas told you, Thomas Fisher, the defendant, told you he killed Barbara Baughman. Now, did he tell you what happened? A. He did.
Q. Okay.
A. He mentioned that she got upset with him because he took too long to go get his baby, his girl, his little baby on Saturday night. Okay. And when he got back she was very angry at him and she pulled a gun on him. And she said that she was going to kill him. And then he said that he grabbed her and I guess he took the gun away from her and he said, you are not going to kill anybody. He says, I am going to kill you.
So, he said that he got a cord, an electrical cord and, you know, strangled her. But then he let her go before she died and that she was gasping for air and she came back alive, literally, and then he dragged her to the bathtub that was already full of water for the baby to bathe and he drowned her.

We find that although this testimony reflects that appellant might have reacted to the victim’s conduct, it does not establish that appellant acted under such a degree of anger, rage, resentment, or terror that rendered his mind incapable of cool reflection. See Tex. Penal Code Ann. § 19.04(c) (Vernon 1989); see also Gonzales v. State, 717 5.W.2d 355, 357-58 (Tex.Crim.App.1986) (accused’s contention that he was scared of deceased was insufficient to raise issue of sudden passion). We further find that the rest of the record lacks any evidence raising the issue of sudden passion. Accordingly, we overrule appellant’s first point of error.

In the next two points of error, appellant collectively contends that the evidence is insufficient to support his conviction.6 Appellant, relying on Self v. State, 513 S.W.2d 832 (Tex.Crim.App.1974), argues that his conviction cannot stand because the State failed to establish the corpus delicti of the crime of murder. Appellant specifically argues that the State presented no evidence to establish that the victim’s body was found and identified. We reject appellant’s arguments because (1) Texas law no longer requires the discovery and identification of the deceased’s body to obtain a murder conviction; and (2) in this case portions of the victim’s body were found and adequately identified.

Texas law does not require that THE VICTIM’S BODY BE FOUND AND IDENTIFIED

The 1925 Texas Penal Code contained a statutory provision relating to the victim’s body in a homicide prosecution. That provision, article 1204, provided as follows:

No person shall be convicted of any grade of homicide unless the body of the deceased, or portions of it, are found and sufficiently identified to establish the fact of the death of the person charged to have been killed.7

This provision, however, did not survive the implementation of the revised Texas Penal Code, which took effect on January 1, 1974. See Act of June 14, 1973, 63rd Leg., R.S., ch. 399, § 3, 1973 Tex.Gen. Laws 995 (current criminal homicide statutes at Tex. Penal Code Ann. §§ 19.01 — 19.07 (Vernon 1989 and Supp.1992)). We find that by repealing article 1204, the legislature effectively rejected the requirement that the body of the deceased be found and identified. With the repeal of article 1204, the corpus delicti requirements in a murder prosecution reverted to those established by law for all other crimes. Williams v. [600]*600State, 629 S.W.2d 791, 796 (Tex.App.—Dallas 1981, pet. ref'd).8

Appellant recognizes the repeal of article 1204, but he contends that the State must still prove that the body of the deceased was found and identified. Appellant’s contention is faulty for two reasons:

(1) his position conflicts with the established principles of ascertaining legislative intent as set forth in the Code Construction Act. See Tex. Gov’t Code Ann. §§ 311.002, 311.021, 311.023 (Vernon 1988) (Code Construction Act); and
(2) appellant relies on five opinions from the Court of Criminal Appeals that do not squarely address the ramifications of the repeal of article 1204. See Baldree v. State, 784 S.W.2d 676 (Tex.Crim.App.1989), cert. denied, 495 U.S. 940 [110 S.Ct. 2193, 109 L.Ed.2d 521] (1990); Soffar v. State, 742 S.W.2d 371 (Tex.Crim.App.1987), cert. denied, 493 U.S. 900 [110 S.Ct. 257, 107 L.Ed.2d 206] (1989); Dunn v. State, 721 S.W.2d 325 (Tex.Crim.App.1986); Streetman v. State, 698 S.W.2d 132 (Tex.Crim.App.1985); Nathan v. State, 611 S.W.2d 69 (Tex.Crim.App. [Panel Op.] 1981).

Appellant erroneously relies on Baldree for the proposition that if the State fails to produce the body of the deceased, the evidence is legally insufficient to support the conviction. Baldree does not so hold because that issue never arose in that case. In Baldree the bodies of the victims were found and identified, and the appellant in that case did not challenge the sufficiency of the evidence to support the conviction. Appellant’s misreading of Baldree is apparently based upon the Baldree court’s citation to Self v. State,

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827 S.W.2d 597, 1992 Tex. App. LEXIS 1139, 1992 WL 95086, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fisher-v-texas-texapp-1992.