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 them
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.
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,
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, 160
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.
For these reasons and the error found the judgment is reversed and the cause remanded.
Also, he testified that the arrangement of the house and its egresses were such that he could not retreat because he had "nowhere to go."