Payne v. State

985 S.W.2d 682, 1999 WL 77771

• Court: Court of Appeals of Texas
• Decided: February 3, 1999
• Docket: 01-97-01048-CR
• Status: Published

Opinions

OPINION

O’CONNER, J.

A jury found Stanley Payne, the appellant, guilty of murder and assessed punishment at five years confinement. We reverse and remand.

Background

The appellant owned an agency that provided care to nursing home patients. Virgie Moore, who owned Moorehaven Personal Care Home, hired the appellant’s agency. The complainant, Michael Moore, was Virgie’s son and an employee of the appellant’s agency. On October 25, 1996, the appellant fired Michael. The next day, Michael, the appellant, and the appellant’s fiancee, Joanna Williams, were arguing in the hallway of Moorehaven, possibly over Michael’s termination.

Just before the shooting, Michael had been standing in front of Joanna. According to the appellant and Joanna, Michael had threatened her and tried to kiss her. The appellant pulled out a gun and held it to Michael’s neck. Michael attempted to slap the gun away, and the appellant fired twice. Michael died from a gunshot through the neck. The second bullet struck Joanna in her hip.

Instruction on Accident

In point of error three, the appellant asserts the trial court erred in denying his request for a jury instruction on the voluntariness of his actions.

A defendant is entitled to a charge on the issue of the voluntariness of his acts when warranted by the evidence. Brown v. State, 955 S.W.2d 276, 280 (Tex.Crim.App.1997). A defendant is not entitled to such a charge when the defendant was acting alone when the gun “accidentally” fired, causing injury. See id. at 280; see also George v. State, 681 S.W.2d 43, 47 (Tex.Crim.App.1984). To be entitled to the charge, there must be evidence of an independent event, such as the conduct of a third party, that could have precipitated the discharge of the bullet. See Brown, 955 S.W.2d at 277 (gun discharged when defendant was bumped from behind); Whitehead v. State, 696 S.W.2d 221, 222 (Tex.App. — San Antonio 1985, pet. ref d) (gun discharged when someone grabbed defendant from behind).

The appellant claims the issue of whether the gun went off accidently was raised by his testimony and that of three witnesses. The appellant testified he pointed the gun close to Michael’s head, Michael made a swing at the gun, Michael grabbed the appellant’s arm, there was a brief straggle, and the appellant thought Michael’s hands were still on his wrist when the gun fired the second time. The appellant said the gun discharged the first time when Michael made contact and discharged the second time when Michael pulled the gun downward.

A police officer testified the appellant told him the shooting was an accident. The firearms expert stated the “only way that [he knew]” the gun would unintentionally discharge was if someone was disassembling the gun while it was loaded. Joanna testified the gun went off when Michael hit the appellant’s hand. Johnny Rodriguez, Moorehaven’s janitor and a witness to the shooting, testified the gun discharged when Michael tried to take the gun away by slapping at it.

The State asserts there was no evidence from any source suggesting the gun discharged for any reason other than the appellant’s pulling the trigger. The State relies on testimony that conflicts with the appellant’s version of what happened. The firearms expert testified the gun could accidently discharge only if someone attempted to disassemble the gun while the chamber was loaded. When asked if the gun could acci-dently discharge if it were struck, the expert replied, “No. That’s not reasonable.” The State also relies on the appellant’s statement that he did not tell the police he accidently shot a man.

We do not agree with the State. The evidence raised the issue of whether the appellant’s conduct was voluntary. A defendant is entitled to an affirmative defensive instruction on every issue raised by the evidence regardless of whether it is strong, feeble, unimpeached, or contradicted and even if the trial court is of the opinion that the testimony is not entitled to belief. Brown, 955 S.W.2d at 279. The defendant’s testimony alone may be sufficient to raise a defensive theory requiring a charge. Id. Therefore, the appellant was entitled to an instruction on the voluntariness of his act.

We sustain point of error three and do not address points of error one, two, and four.

We reverse the trial court’s judgment and remand the cause for a new trial.

Justice HEDGES concurring.