Mays v. State

513 S.W.2d 846, 1974 Tex. Crim. App. LEXIS 1838

• Court: Court of Criminal Appeals of Texas
• Decided: July 17, 1974
• Docket: 48526
• Status: Published

Opinions

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for murder. Punishment was assessed by the jury at ten years. .

Appellant’s sole contention is that the court erred in failing to charge the jury on the law of murder without malice.

The record reflects that appellant timely presented her written objection to the court’s charge complaining of the court’s failure to instruct the jury on the law of murder without malice.

The State points to the fact that there is not a complete transcription of the court reporter’s notes and that only the testimony of appellant is in the record before us. While it is true that this Court has held that the reviewing court cannot pass upon a complaint to a trial court’s charge absent a complete transcription of the court reporter’s notes,¹ this Court has also held that an accused’s own testimony is sufficient to raise the issue of murder without malice. Lucky v. State, Tex.Cr.App., 495 S.W.2d 919; McGee v. State, Tex.Cr.App., 473 S.W.2d 11; Tebo v. State, 133 Tex.Cr.R. 61, 106 S.W.2d 712. The certificate of the court reporter reflects that “the foregoing 39 pages of typewritten material contains a true and correct transcript of all testimony adduced from the Defendant, Bernice Mays, in the trial of the cause shown in the caption hereof.”

The testimony of appellant reflects that she and the deceased had been living together since September, 1971. According to appellant, December 25, 1972, was spent visiting two sisters and going to bars. Appellant and the deceased had argued throughout the day about appellant working as a cocktail waitress. Upon returning to their residence on Leilia Street in Houston that night, and after appellant dressed for bed “he [deceased] got up and started fighting me again, and then he knocked me down on the coffee table and broke up everything in the living room.” Appellant then went to the bedroom and got into bed. Deceased was “laying on the bed with his face turned to the wall.” Deceased “propped up on his left elbow” and had a gun in his right hand. Appellant had not seen the gun before and stated, “I got scared.” Deceased said, “I am tired of your shit, it is either going to be me or you.” According to appellant the “gun slipped” and “I just picked it up and started shooting.”

Article 1257c, Vernon’s Ann.P.C., provides as follows:

“In all cases tried under the provisions of this Act it shall be the duty of the Court, where the facts present the issue of murder without malice, to instruct the jury that murder without malice is a voluntary homicide committed without justification or excuse under the immediate influence of a sudden passion arising from an adequate cause, by which it is meant such cause as would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection, and in appropriate terms in the charge to apply the law to the facts as developed from the evidence.”

The trial court is under no obligation to charge on the law of murder without malice unless the evidence raises the issue. Lucky v. State, supra; Barrientez v. State, Tex.Cr.App., 487 S.W.2d 97; Bryant v. State, Tex.Cr.App., 482 S.W.2d 270.

The statute only requires facts, sufficient to present the issue, that the killing occurred under the immediate influence of a sudden passion arising from an adequate cause.

The adequate cause in the statute is “such cause as would commonly produce a degree of anger, rage, resentment, or terror² in a person of ordinary temper sufficient to render the mind incapable of cool reflection.”

We conclude that the testimony of the appellant supplies adequate cause to submit the charge on murder without malice and the failure to give such charge requires reversal.

If it be urged that the remainder of the testimony adduced at the trial may have rendered the error harmless, it should be noted that appellant’s testimony, standing alone, was sufficient to raise the issue of murder without malice, and if the jury had resolved such issue in her favor, the maximum penalty appellant could have received would have been five years. Article 1257b, V.A.P.C.

We find no merit in the State’s argument that appellant’s written objection to the charge referred only to testimony “that she [appellant] was in a state of fear and terror due to the fact that she had been knocked over a coffee table and struck by the deceased,” and failed to mention the incident in bed immediately preceding the shooting.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

1 . Sellars v. State, Tex.Cr.App., 401 S.W.2d 835; Neal v. State, Tex.Cr.App., 384 S.W.2d 715; Williams v. State, Tex.Cr.App., 397 S.W.2d 459.

2 . In McGee v. State, supra (dissenting opinion), the following definitions from Webster’s Dictionary appear in footnote 1:

“Anger is the general term for the emotional reaction of extreme displeasure and suggests neither a definite degree of intensity, nor an outward manifestation; rage implies loss of self-control from violence or emotion; resentment is a feeling of indignant displeasure at something regarded as a wrong, insult, or injury; and terror is a state of intensive fear.”