Moore v. State

694 S.W.2d 528, 1985 Tex. Crim. App. LEXIS 1425
CourtCourt of Criminal Appeals of Texas
DecidedJuly 17, 1985
Docket68090
StatusPublished
Cited by378 cases

This text of 694 S.W.2d 528 (Moore v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moore v. State, 694 S.W.2d 528, 1985 Tex. Crim. App. LEXIS 1425 (Tex. 1985).

Opinions

OPINION

CAMPBELL, Judge.

This is an appeal from a conviction for murder. See V.T.C.A. Penal Code, Sec. 19.02(a)(1). Appellant has filed three briefs alleging four grounds of error. He challenges the sufficiency of the proof of venue, sufficiency of the evidence generally, the court’s charge on voluntary manslaughter, and the effectiveness of counsel at trial and initially on appeal. Having found no merit in any of appellant’s claims, we affirm.

The record reflects that appellant and three eyewitnesses testified to the actual shooting. Appellant, the deceased and the three eyewitnesses had all been drinking beer all evening, and apparently the deceased and his sister (an eyewitness) had been drinking most of the day. On March 6, 1979 the appellant met the deceased at a local cafe known as Pepper’s. Appellant had known the deceased most of his life and had never had any prior problems with him. Appellant testified that early in the evening of March 6, 1979 the deceased asked to borrow a dollar from appellant. Appellant and the deceased went out back behind the cafe/bar to discuss the loan. Appellant testified he explained to the deceased that he would loan him a dollar but all he had were twenty dollar bills; as appellant was returning his bills to his pocket, the deceased grabbed a twenty. For the next two hours appellant and the deceased intermittently “went out back” of the bar to discuss the pilfering of appellant’s money. While words were exchanged they do not appear to have been heated words, nor was there any physical altercation.

After a third confrontation, appellant left the bar and went to his home and got a shotgun. After deceased reneged on his promise to return appellant’s money, appellant got in his car and drove out to a highway to lay in wait for deceased. Deceased had obtained transportation home from one Walter Jones, along with the deceased’s sister and one Mary Baldwin. It is undisputed that appellant flashed his lights at Walter Jones’ vehicle, causing him to pull over to the side of the road. Walter Jones exited from his vehicle and met appellant in front of Jones’ truck. Appellant explained that he wanted his money. Jones checked with the deceased who denied that he owed appellant any money. All three passengers testified that the deceased denied the pilfering of appellant’s money. Jones offered to pay appellant ten dollars that evening and the rest the following day after work. Appellant refused the offer. Jones returned to his vehicle at which time appellant was on the passenger side of the truck pointing his shotgun at deceased. Jones yelled at appellant not to shoot in his truck. Appellant claims he saw the deceased make a downward movement as if to get a weapon. All three passengers testified that the deceased made no movement. Appellant shot deceased in the face at point blank range. The deceased died shortly thereafter.

There was no testimony that any words were exchanged between appellant and the deceased at the time of the shooting. Appellant testified that he knew the deceased had recently been paroled from prison, that the deceased had been to prison twice, that the deceased was known to carry a weapon and was generally a bully. Appellant testified that he was in fear when he shot deceased. Other testimony generally supported appellant’s characterization of the deceased.

[530]*530In his first ground of error appellant challenges the sufficiency of the evidence to support proof of venue. Venue need only be proven by a preponderance of the evidence. Black v. State, 645 S.W.2d 789 (Tex.Cr.App.1983). Two of three eyewitnesses testified that the offense occurred in Liberty County. We find the testimony of two eyewitnesses to be more than sufficient. This ground of error is overruled.

In his second ground of error appellant challenges the sufficiency of the evidence to support his conviction. As shown ante, appellant admitted shooting the deceased. He claimed self-defense. The jury was properly charged on self-defense. When this Court reviews the sufficiency of the evidence, we do so by viewing the evidence in the light most favorable to the jury’s verdict. The appellant admitted killing the deceased, ergo the only issue for the jury to decide was self-defense.

The three eyewitnesses testified that the deceased did nothing to precipitate the shooting. The issue of self-defense was a fact issue and was decided against appellant. See Farris v. State, 640 S.W.2d 284 (Tex.Cr.App.1982) (rev’d. on other grounds), wherein we found the evidence to be sufficient. Ground of error number two is overruled.

By way of two supplemental briefs filed by different counsel, retained subsequent to the filing of the initial brief, appellant challenges the effectiveness of counsel at trial and on appeal and challenges the court’s charge on voluntary manslaughter. We will address the jury charge issue first.

Appellant argues that the trial court committed fundamental error in failing to charge1 on the negation of sudden passion within the charge on murder. Appellant relies upon Cobarrubio v. State, 675 S.W.2d 749 (Tex.Cr.App.1984).

In Cobarrubio, supra, this Court found that if voluntary manslaughter was raised by the evidence [emphasis added], then the trial court must instruct the jury, in the charge on murder, that in order to convict the defendant of murder, the jury must find beyond a reasonable doubt, the absence of sudden passion.

This Court in Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), substantially altered the law governing jury charge error. No longer will certain errors require automatic reversal. Instead, each case must be reviewed individually to determine whether the error alleged was so egregiously harmful that appellant has been deprived of a fair and impartial trial. In making this determination we review “the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the arguments of counsel and any other relevant information revealed by the record of the trial as a whole”. Almanza, supra at 171; Bonfanti v. State, 686 S.W.2d 149 (Tex.Cr.App.1985).

Appellant’s testimony and the evidence at trial, at most, raised the issue of self-defense. Testimony raising the issue of self-defense does not necessarily raise the issue of voluntary manslaughter. Luck v. State, 588 S.W.2d 371 (Tex.Cr.App.1979). Appellant testified that he was in fear of the deceased. However, fear alone does not raise voluntary manslaughter, as it does not necessarily demonstrate “sudden passion arising from an adequate cause.” Daniels v. State, 645 S.W.2d 459 (Tex.Cr.App.1983). Prior provocation or anger is not alone sufficient to raise the issue of voluntary manslaughter. Hobson v. State, 644 S.W.2d 473 (Tex.Cr.App.1983).

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Bluebook (online)
694 S.W.2d 528, 1985 Tex. Crim. App. LEXIS 1425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-state-texcrimapp-1985.