Convicted of murder on a verdict of guilty returned by a jury which also assessed punishment at confinement for fifteen years, appellant presents seven grounds of errors to achieve reversal of the judgment. Since five of the seven complain about failure of the trial court over objection to charge on one or another issue said to have been raised, a statement of the facts of the matter is required.
The setting of the homicide in question is a Sunday evening in November at Sue's Place in Beaumont. The proprietor, Evie Sue Tillery, is the deceased, and the indictment charges that appellant did then and there knowingly and intentionally cause her death by shooting her with a gun. But the scenario played out by three principal actors is more tangled than that simple allegation.
Appellant, nicknamed and commonly referred to throughout trial as "Dusty," was then a fifty four year old widow who resided in Houston. Buford Coe and appellant had known each other for more than twenty years, he being the "best friend" of a former husband. (The prosecution sought to create an impression with the jury that Coe and appellant were more than just friends of long standing, and that turned
According to appellant she was in Beaumont at the instance of Coe; he had called her at home Saturday night and asked she meet him Sunday at Sue's Place—and bring a thousand dollars along for him. Appellant replied that she could not cash a check for that amount, but would bring what she could. On the way to Beaumont appellant had car trouble; she stopped at a station in Raywood, and while she had the radiator filled and bought a new cap for it, she called to Beaumont and reported the difficulty she was having. Coe and two other friends departed for Raywood to assist, but when they arrived the station attendant told them what he had done to send appellant on her way to Beaumont. Thus appellant got to Sue's Place late Sunday afternoon ahead of Coe and his companions.
Donna Jean Babb had been working at Sue's Place for just over four weeks. When appellant came in Tillery was at her table near the cash register. Appellant went to her and Tillery introduced her to Babb as "Dusty"—"a very old friend." About an hour later Coe, Douglas Taylor and L.T. Hall and perhaps another man arrived and joined appellant and Tillery. Babb served the beer from time to time. There was friendly conversation; they played the "juke box;" others came and went. Then, after some two hours, came trouble.
As Babb related it, appellant showed a ring on her finger to Coe, remarking that it would have been his birthday present if he had been around to get it. She said she had bought it for $1600 at an auction. Coe removed the ring from her finger and put it on one of his own. Soon they started "arguing" about things, and appellant demanded Coe return the ring. He professed an inability to get it off his finger. Tillery produced a bottle of alcohol, but Coe said, "That won't do. I need soap." He went into the restroom. When he returned he claimed not to have the ring; he said, "I misplaced it somewhere." Tillery went to the restroom but did not find the ring. Appellant became "real mad" at this point.
Babb recalled that Coe went outside the place two or three times and on each occasion appellant followed, again insisting that he return her ring. At some point appellant came back inside, yelled to Tillery that she was going to call the police and went to the phone. She was dialing when Tillery ran up and grabbed the phone out of her hand. Babb came along and "slammed it back on the receiver."
Instructed by Tillery to do so, Babb went to the front door and looked through a small upper window to watch appellant and Coe, ostensibly to see if they were departing. Instead, she saw appellant put her purse on the trunk of her car, open it and pull out a snubnosed pistol that Babb believed to be a .38 caliber; appellant pointed the pistol at Coe.
Coe backed inside and soon Tillery, having failed to calm appellant down, returned. Appellant got in her car and started to drive away but stopped and walked to the front door. Tillery "slammed the door in her face" and locked it; Babb went to the back and locked that door. Then Babb called the police. Appellant tried to get in; she went from one door to another and finally kicked on the front door, near its handle.
Tillery stated that she was going to open the front door and tell appellant to leave because the police were on the way. Coe left the table and walked with Tillery. Tillery opened the door with her right hand, pulling it to the inside and to her right. Coe was just behind and "maybe a little bit to the right" of her also holding the door with his right hand. Babb estimated appellant was standing about two feet away, with the pistol. From her location back away from the door near a pool table Babb did not hear anyone say anything.
The State's other witness on its case in chief was a pathologist, who determined the cause of death, viz:
He opined that it was a shot at close range, but was not asked to estimate the distance.
On rebuttal the State called only Douglas Taylor, one of the Coe group. He had worked for Coe and considered him a good, close, personal friend. It was through Coe that Taylor had come to know appellant some two or three years earlier. Explaining that most of the time he was engaged in conversation with one Fred Ellard and helping Hall, who was confined to a wheelchair, go outside from time to time, Taylor did not—or would not—admit to seeing or hearing very much of what Babb had recounted.
Appellant testified that soon after Coe and the others arrived she asked him why he needed the money he had asked for, but Coe replied, "I can't tell you here." He said he would tell her later, and appellant then wanted to leave, but Coe said "Later." Then she related how he noticed the ring, "grabbed" her hand and, remarking that he had always wanted a ring like that, "snatched" it from her finger. She asked for it back; he refused, saying "I'm going to wear it a while." The request and refusal were repeated several times. At one point appellant left the table and went to
As she was driving out, however, she saw Coe and Tillery standing in the doorway.
Coe, said appellant, is "deathly afraid of guns." She went to them.
After the gun discharged appellant was "horrified ... shocked ... scared." She got in her car and drove away, but stopped some distance away to "get control of myself" for she was crying and shaking, and "afraid to drive in that condition." Then she went back to Houston. Once there she returned a long-distance telephone call to Coe who told her that Tillery was dead.
On cross-examination appellant went through the entire transaction again, and she added some details about which Babb had testified: "they" shut the front door "in my face," so she went to the back; she did kick the front door but only once that she recalled. Her defensive attitude at the critical moment is reflected by the following exchange:
However, later on, appellant insisted that she was not pointing the gun at anyone, it was "kind of in the air," she was not looking at the gun but in the eyes of Coe and, finally the concession: "I do not know how it happened, sir. All I know is I was looking him straight in the eye. I did not see, I only felt."
Buford Coe was not called to testify.
The trial court routinely charged the jury on the law of murder, authorizing a conviction if jurors believed from the evidence beyond a reasonable doubt that appellant knowingly or intentionally caused the death of Sue Tillery by shooting her with a gun. As well the court instructed the jury on the law of causation prescribed by V.T.C.A. Penal Code, § 6.04(b)(2)
By proper procedure appellant objected to the charge because the trial court did not include instructions on voluntary manslaughter, involuntary manslaughter, criminally negligent homicide, aggravated assault and assault, and complains respectively of denial of her objections in separate grounds of error. We are of the opinion that certain grounds are meritorious for reasons about to be stated.
Decisions of the Court make clear the following propositions of law generally applicable in determining whether a charge should include instructions on such matters. Collected in, e.g., Moore v. State, 574 S.W.2d 122, 124 (Tex.Cr.App.1978), they are:
Voluntary manslaughter, denounced and defined by V.T.C.A. Penal Code, § 19.04(a), (b) and (c), is "the same as murder `except that he caused the death under the immediate influence of sudden passion arising from an adequate cause,'" Braudrick v. State, 572 S.W.2d 709, 710 (Tex.Cr.App.1978).
Coe and appellant had been engaging in a heated exchange over his taking and refusing to return her ring. Every witness who saw and heard her characterized her emotional mien as "real mad," "mad" or "upset." Tillery tried but was unable to calm her down. Indeed, appellant herself agreed she was upset. Though she started to leave the place, appellant testified she decided to frighten Coe into returning the ring. Confronted with closed and locked doors and, as Taylor observed her through the glass panel, "mad," she kicked once, perhaps twice, near the handle of the front door. When the door was opened, according to both witnesses for the prosecution who heard no words spoken, appellant fired her .38 special revolver.
Considering all relevant facts and circumstances we hold that the evidence was sufficient to warrant an instruction on voluntary manslaughter. Humphries v. State, supra, (stabbing in course of heated argument); Braudrick v. State, supra, (stabbing in escalating bar room brawl); Lucky v. State, 495 S.W.2d 919 (Tex.Cr.App.1973) (shooting shortly after insulting conduct led to heated argument); Parks v. State, 473 S.W.2d 32 (Tex.Cr.App.1971) (stabbing during argument over a dollar debt); and see and compare McGee v. State, 473 S.W.2d 11 (Tex.Cr.App.1971).
We are also of the opinion that the trial court should have submitted to the jury instructions with respect to involuntary
As in Branham v. State, 583 S.W.2d 782 (Tex.Cr.App.1979), appellant's testimony indicated that while she intended to point the gun at another person "she was not aware of the risk which her conduct created," and that "the gun accidentally discharged when she was grabbed;" on the other hand there was testimony indicating "that she perceived the risk of her conduct," id., at 785. "Which of the two inferences regarding the accused's awareness of the risk is correct is a matter to be drawn from the circumstances by the jury," Giles v. State, supra, at 691. See London v. State, 547 S.W.2d 27 (Tex.Cr. App.1977): "A charge on accident was not sufficient to protect appellant's rights because it left the jury with the single alternative of finding him guilty of murder or setting him free," id., at 29; see also Campbell v. State, 614 S.W.2d 443 (Tex.Cr.App. 1981) and cases cited and discussed therein, and Moore v. State, supra, at 124.
Accordingly, grounds of error two, three and four must be sustained, and we need not address the remaining grounds.
The judgment of conviction is reversed and the cause remanded to the trial court.
A: If they had talked loud enough, yes, sir."
Now, however, as the Court En Banc has pointed out:
Williams v. State, 630 S.W.2d 640, 644 (Tex.Cr. App.1982). See also Garcia v. State, 605 S.W.2d 565, 566 (Tex.Cr.App.1980), but with the caveat that the requested charge shown at 567 is not commended—cf. Simpkins v. State, 590 S.W.2d 129, 135 (Tex.Cr.App.1979), and see McClung, Jury Charges for Texas Criminal Practice (Revised Edition January 1981) 242.
In the case at bar appellant objected to "the definition of the court in describing accident" in that "the charge fails to apply the law to the facts of this case." However, overruling of that objection is not brought forward as a ground of error.
In McGee v. State, 473 S.W.2d 11 (Tex.Cr. App.1971) Judge Odom drew from Webster's Dictionary the following definitions of terms arguably germane here, viz:
Id., at 15, n. 1 (Odom, J., dissenting). For further nuances see "Anger," Standard Handbook of Synonyms, Antonyms and Prepositions, Funk & Wagnalls, New York (1947) at 49.