ROBERTS v. STATE

OPINION

CLINTON, Judge.

This is an appeal from a conviction for the offense of murder wherein the jury assessed appellant's punishment enhanced by a prior felony conviction under the ambit of V.T.C.A. Penal Code, § 12.42(c), at confinement in the Texas Department of Corrections for a term of twenty years.

At the outset, we are met with the contention that the trial court erred in failing to submit a charge on the lesser included offense of voluntary manslaughter after the evidence fairly raised the issue. We agree with appellant and, accordingly, reverse the judgment below.

The record reflects that Officers Berryman and Nelson were dispatched to 3514 Beulah in Houston in response to a shooting "call." Upon arriving at the residence, Berryman asked appellant what had happened. Appellant pointed to the deceased lying on the floor and responded that "he [the deceased] was going to go to the kitchen to get a knife, so I went to the bedroom and got my shotgun. And when he came out, I shot him." Appellant was thereafter placed under arrest and given his Miranda warnings.

Mrs. Lula Douglas, appellant's common law wife, testified that appellant and the deceased, her son, spent the entire evening consuming some two cases of beer between them1 and, from time to time, arguing. The nature of the argument surrounded what the deceased felt was an effort by appellant to procure the deceased's wife for appellant's brother and of appellant allegedly being the cause of the deceased having lost both his wife and his pickup truck in the not too distant past. She was out of their presence, however, during events preceding the shooting.

Appellant testified during the offense stage of the trial, recounting the nature and quality of the recurring argument between him and the deceased, particularly the fact that the latter continually told appellant, "Old man, I will get you for causing me to lose my wife and pickup." Appellant also noted that he had had trouble of this sort with the deceased on more than one past occasion, as had other persons who had been the object of his violent temperament.

As midnight approached Mrs. Douglas left to fetch a second case of beer. She returned to find the argument still in progress. At some point the deceased picked up a standing metal ash tray and threatened appellant with it; Mrs. Douglas admonished her son and took the ash tray from him and put it back in its place. After she left the room, suddenly the deceased told appellant that he was going to get a knife and fix him, and left in the direction of the kitchen.2 Appellant ran to his bedroom,3 got his shotgun and was returning to the living room when he saw the deceased coming out of the kitchen "pretty fast." Appellant testified that at that juncture he felt that the deceased could and would carry out his past threats and that he was in fear of serious physical harm and death.4 He fired at the deceased one time, striking him in the breastbone and killing him. Appellant then returned to the living room with the shotgun and sat down.5

The trial court submitted the issue of self-defense to the jury but declined, over appellant's timely objection, to submit a requested charge on voluntary manslaughter. The jury then returned a verdict of guilty of the only offense submitted to them, namely murder.

It was formerly settled that where evidence fairly raises the issue of voluntary manslaughter, and the charge is properly requested, the court is bound to submit such issue to the jury and the failure to do so is reversible error. Ray v. State, 515 S.W.2d 664 (Tex.Cr.App.1974). Indeed, as this Court noted in Ray:

Id. at 667.

Testimony in Ray, supra, showed that the complainant attacked the defendant which led the latter to fear for his life, and this Court held that the issue of assault with intent to commit murder without malice [under our former Penal Code] was raised. The Court has reached the same conclusion in a multitude of cases involving similar fact situations under former penal codes. See, e. g., Armentrout v. State, 515 S.W.2d 297 (Tex.Cr.App.1974); Monroe v. State, 501 S.W.2d 639 (Tex.Cr.App.1973); Lewis v. State, 89 Tex.Cr.R. 345, 231 S.W. 113 (1921).

V.T.C.A. Penal Code, § 19.04 defines the offense of voluntary manslaughter as follows:

Presently the Court continues to be instructed by cases decided under the former manslaughter statutes, McCartney v. State, 542 S.W.2d 156, 1607 (Tex.Cr.App.1976), and the governing principle is stated to be: "The charge on voluntary manslaughter is mandatory only when there is evidence that the defendant acted under the immediate influence of sudden passion arising from an adequate cause." Cerda v. State, 557 S.W.2d 954, 958 (Tex.Cr.App.1977). As Luck v. State, 588 S.W.2d 371 (Tex.Cr.App. 1979) and Medlock v. State, 591 S.W.2d 485 (Tex.Cr.App.1979) demonstrate, however, application of the principle depends upon the particular facts of the cause.

In Luck the Court could not find evidence which would raise the issue of voluntary manslaughter, pointing out that at no time did Luck, who did not testify, indicate in his statement recounted by a police officer, "that he was in fear of the deceased." Medlock, on the other hand, particularly notes her testimony that when the deceased came toward her, saying he was going to get her, "I was scared. I didn't have nowhere to run ... It was my life or Medlock's," and with other circumstances found "sufficient evidence was presented in this case to raise the issue that the appellant may have acted under the immediate influence of sudden passion."

On the point of contrast between Luck and Medlock the instant case easily comes within the purview of Medlock. The gist of the testimony of appellant, supported in some degree by that of his wife, is that, although the tide of the argument rose and ebbed during the late hours, by midnight the deceased had once moved to threaten him with a metal ash tray, desisting only by restraint of his mother, and then subsequently in her absence from the room combined words and deeds that caused appellant to fear for his person and his life and to provoke him into action. Factually, the essential ingredients are similar to those in Ray, supra, that "evidenced an immediate act of the injured party that caused the appellant's agitated state of mind and provoked the shooting," 515 S.W.2d at 667. And, as in Ray, we are unable to say that the acts of the deceased here were not adequate cause for sudden passion as a matter of law. The issue was a factual one for determination by the jury. Id.

The failure of the trial court to submit the charge on voluntary manslaughter left the jury with only the alternatives of finding appellant guilty of murder or freeing him. See London v. State, 547 S.W.2d 27, 29 (Tex.Cr.App.1977). The law does not insist that an accused so situated suffer such extreme options when he points to a more moderate choice which may be made available. Because the trial court, though aware of it, did not provide it,8 the ground of error must be sustained.

For these reasons and the error found the judgment is reversed and the cause remanded.