Scherer v. State

712 S.W.2d 555, 1986 Tex. App. LEXIS 7588
Court of Appeals of Texas·Decided May 22, 1986·No. No. 01-85-00565-CR·Published

Opinion

SAM BASS, Justice.

Appellant was prosecuted for murder, convicted by a jury of voluntary manslaughter, and sentenced to five years confinement, probated for five years.

We reverse and order dismissal.

Appellant, the husband of the complainant’s ex-wife, testified that the complainant began threatening him after his marriage to the complainant’s ex-wife. The complainant threatened to kill appellant and bum the appellant’s house. Periodically, [556]*556the complainant would come to the appellant’s house shouting, cursing, and beating on the door. As a result, appellant had boards placed over the windows of his house for protection.

Appellant’s wife told appellant about the complainant’s violence toward other people. Appellant’s 18-year-old step-daughter, Crystal, also related incidents to appellant, and appellant remembered Crystal telling him of her fear of the complainant. Among the incidents related to appellant were that the complainant pistol-whipped a girlfriend, that he broke the wrist of another girlfriend, and that he beat someone on the highway with a tire tool.

Gloria, appellant’s wife, testified that she was the ex-wife of the complainant, and described several beatings that she received from the complainant during her marriage to him. In one incident, the complainant kicked her in the ribs with his boots. After their divorce, the complainant came to her apartment and attempted to strangle her.

Gloria further testified that the complainant had threatened to kill her and appellant, and told her that she would never have her baby. As a result of these threats, her husband was scared of the complainant.

Crystal testified that she witnessed numerous threats by the complainant towards appellant: “Usually he would start in cussing him and then he would just let out that he was going to kill him.” She believed the complainant was capable of those threats because he was a violent man.

On May 16, 1984, Crystal’s employer called appellant and his wife and indicated that there was a problem with Crystal at work. Appellant and his wife picked Crystal up and took her to Baytown Hospital. Appellant’s wife informed the complainant about Crystal’s hospital admission. According to Crystal, the complainant arrived after her mother and stepfather’s (appellant’s) departure. The complainant then took Crystal to appellant’s home.

When no one responded to the complainant’s knock, the complainant beat on the bedroom window and threatened to kill appellant. Appellant testified that he was awakened by the beating on the window. Appellant’s wife called the police. Appellant stated that he did not open the door because he was afraid the complainant “would tear (his) head off.” The complainant then left with his daughter, Crystal, and went to his home.

On May 17, 1984, appellant worked until noon, then went to the hospital to check on Crystal. After discovering Crystal had deft, he went to his own home. Appellant fell asleep on the living room floor with his three-year old son; he was awakened by a noise at the back door and saw the complainant walk around the comer. Appellant got up, walked around the comer into the hallway, and saw Crystal in her room taking clothes from the closet. The complainant was standing in the doorway. Appellant spoke to Crystal, and the complainant told appellant to “shut up” and called him a “son of a bitch.”

The complainant then grabbed appellant by the throat and pushed him to his knees. Crystal jumped on her father (the complainant) and pulled him away. At this point, appellant testified he was “scared to death.” The complainant turned to Crystal and appellant crawled into his bedroom. Appellant took the shotgun from his bedroom and walked to the door with the shotgun barrel pointed to the floor.

Appellant told Crystal to call the police and repeatedly told the complainant to leave. Instead, the complainant began cursing and threatening to kill appellant, and began advancing toward appellant, threatening to kill him. Appellant raised the barrel of the shotgun. When the complainant reached for the gun, appellant fired, and the complainant started to spin. Appellant fired two more shots and the complainant hit the ground. Appellant testified that he was in fear of his life and of his three-year-old son’s life.

Appellant’s testimony of the incident was partially corroborated by Crystal.

[557]*557Deputy Hall, of the Harris County Sheriffs Department, testified that upon entering the living room, she observed evidence of a struggle. She heard appellant say words to the effect that he had to shoot the complainant to protect himself and his family-

Ulrich, of the Department of Public Safety, testified that an examination revealed that the three shotgun shells in evidence were fired from the same shotgun in evidence, and that in order to fire a second shot the forestock would have to be pumped before pulling the trigger. No examination had been conducted to determine firing time.

Parungoa, an Assistant Medical Examiner of Harris County, testified that he found buckshot wounds of exit on the anterior side of the chest; shotgun wounds of entrance on the left side of the abdomen; buckshot wounds of exit on the right side of the abdomen; grazing shotgun wounds on the left side of the left eye; buckshot wounds of entrance on the right forearm; and a shotgun wound of entrance on the left upper side of the back. He was of the opinion that death resulted from a close range shotgun wound of the abdomen and the back, and that the gun was fired within six feet of the deceased.

In his first ground of error, appellant alleges that the trial court erred in instructing the jury on the lesser included offense of voluntary manslaughter, in that there was no evidence of sudden passion arising from adequate cause.

Similarly, appellant’s second ground of error alleges that the evidence is insufficient to support the jury’s verdict because there was no evidence of sudden passion arising from adequate cause.

The trial court charged the jury on the issues of self-defense, murder, and voluntary manslaughter.

“When evidence from any source raises a defensive issue or raises an issue that a lesser included offense may have been committed and a jury charge on the issue is properly requested, the issue must be submitted to the jury.” Moore v. State, 574 S.W.2d 122, 124 (Tex.Crim.App.1978). (emphasis added).

Voluntary manslaughter differs from murder in that the actions causing the death occur under the immediate influence of sudden passion arising from an adequate cause. Stevens v. State, 671 S.W.2d 517, 523 (Tex.Crim.App.1984).

Tex.Penal Code Ann. 19.04 (Vernon 1974) provides in pertinent part that:

(a) A person commits an offense if he causes the death of an individual under circumstances that would constitute murder under Section 19.02 of this code, except that he caused the death under the immediate influence of sudden passion arising from an adequate cause.

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Scherer v. State, 712 S.W.2d 555, 1986 Tex. App. LEXIS 7588 (Tex. Ct. App. 1986).

712 S.W.2d 555 (Scherer v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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