OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
MILLER, Judge.
This is an appeal from a conviction for murder. After a trial by jury, the court assessed punishment at 16 years.
On direct appeal, appellant contended in his sole ground of error that the trial court erred in refusing to instruct the jury on the lesser included offense of involuntary manslaughter. The Corpus Christi Court of Appeals held that the evidence did not raise the issue of involuntary manslaughter and affirmed the conviction. Lugo v. State, 653 S.W.2d 513 (Tex.App.—Corpus Christi 1983). We granted appellant's petition for discretionary review in order to review that holding.
The record reflects that in the early morning hours of December 7, 1980, appellant shot and killed his wife of ten years during an argument at their home. According to the testimony of the victim's two teenage daughters, the couple had been out earlier in the evening and had come home arguing. At about 2:00 a.m., appellant's wife came into the girls' bedroom and stated that appellant had tried to choke her and that she was throwing him out of the house. She screamed at appellant to pack his clothes and leave. Appellant had begun to pack and appellant's wife was still in the bedroom when the girls heard a noise like a gun being cocked. Appellant walked into the bedroom carrying the victim's 30-30 rifle. Appellant's wife grabbed the rifle, tried to pull it away from appellant, and told him, "I knew you had it somewhere." Sometime during the struggle, one of the girls asked appellant not to shoot their mother and he responded "Why not. She doesn't love me no more. She's running me out of the house...." When appellant's wife stopped pulling on the gun and released it, she was immediately shot in the abdomen. As she fell to the floor, she dropped a set of keys she had been holding. One of the girls testified that appellant was holding the rifle, at his side, level, and was pointing the gun at the victim. After the shot was fired, appellant dropped the rifle and called the police. He was described as remorseful, upset, and crying. Appellant's wife died two hours later.
Appellant testified that when he and his wife returned to their home they started arguing about his decision to loan a car to one of his daughters. Eventually, the couple had gone to bed with the argument apparently abandoned. Appellant's wife, however, awakened him at about 2:00 a.m., told him "I don't trust you," and ordered him to leave the house. She said she wanted her rifle and she wanted the keys to the house. He denied having tried to choke her. While he was packing his clothes, he found the rifle and decided to give it to her in exchange for the keys to the car which were on the key ring she had taken with her. When he walked into the other bedroom, he told her he would give her the gun if she would give him the keys to the car; instead, his wife grabbed the rifle, jerked on it, then turned it loose and the gun "went off." Appellant testified he did not intend to kill his wife, he had neither cocked the gun nor loaded it, and he had believed the rifle was empty because his wife always kept it unloaded. He also testified that he had been aware that the rifle, if loaded, was dangerous and could kill someone, and that he should have checked to make sure it was unloaded.
The trial court in the instant case instructed the jury on the law of murder, the law of criminally negligent homicide, and the law of accident. Appellant objected to the trial court's failure to submit a charge on the law of involuntary manslaughter.
The Court of Appeals held that the appellant's testimony negated the intent required by involuntary manslaughter. Lugo, supra at 515. The court, in effect, held that if the appellant's testimony in any way denied an element of the lesser included offense, the appellant waived any right
It has long been recognized in Texas that a defendant is entitled to a charge on a defensive theory regardless of whether the evidence supporting the defensive theory is contradicted. As was explained by the Court of Appeals in Liskosski v. State, 23 Tex.App. 165, 3 S.W. 696, 698 (Tex.Ct.App.1887):
See also, Jones v. State, 33 Tex.Cr.R. 492, 26 S.W. 1082 (Tex.Cr.App.1894), and Arnwine v. State, 49 Tex.Cr.R. 5, 90 S.W. 39, 40 (Tex.Cr.App.1905).
Moreover, in an opinion written by this Court more than sixty years ago, the same reasoning used by the Court of Appeals in this case was soundly rejected. In Steen v. State, 88 Tex.Cr.R. 256, 225 S.W.529 (Tex. Cr.App.1920), the State argued on Motion for Rehearing that the defendant's testimony "negatived" the intent necessary to require a charge on the lesser included offense of manslaughter. The Court held that:
See also, Cantu v. State, 101 Tex.Cr.R. 386, 276 S.W. 432, 435 (1925); Fletcher v. State, 114 Tex.Cr.R. 276, 23 S.W.2d 369 (1930).
Fifty years later in Thompson v. State, 521 S.W.2d 621 (Tex.Cr.App.1974), this Court once again addressed this issue. The defendant in Thompson was convicted of assault with intent to murder a peace officer. The officer testified that the defendant pointed a gun at him and fired. The defendant testified that he did not shoot toward the officer and that he did not intend to endanger anyone. The trial court refused to instruct the jury on the law of aggravated assault. The State argued on appeal that no such instruction was necessary because the defendant testified that he did not fire the gun at the officer. Thus, the defendant was either guilty of the offense charged or, as he testified, he was guilty of no offense. This Court found the State's reasoning to be incorrect for the following reason:
Over the years, we have continued to follow the reasoning of Steen, supra, and Thompson, supra, by holding that:
The language of Moore, supra, was quoted with approval in Schoelman v. State, 644 S.W.2d 727 (Tex.Cr.App.1983). See also Ormsby v. State, 600 S.W.2d 782 (Tex.Cr. App.1979); Montgomery v. State, 588 S.W.2d 950 (Tex.Cr.App.1979); Torres v. State, 585 S.W.2d 746 (Tex.Cr.App.1979); Branham v. State, 583 S.W.2d 782 (Tex.Cr. App.1979); Swain v. State, 583 S.W.2d 775 (Tex.Cr.App.1979); Duson v. State, 559 S.W.2d 807 (Tex.Cr.App.1977).
In determining whether evidence has been presented which raises the issue of a lesser included offense, the language in a few opinions of this Court has implied that a defendant's testimony can "negate" such evidence, see Simpkins v. State, 590 S.W.2d 129 (Tex.Cr.App.1979), or that we will consider only the testimony of a defendant in reaching that determination, see Brooks v. State, 548 S.W.2d 680 (Tex.Cr. App.1977). In light of the foregoing we find such an approach to be erroneous and expressly disapprove of same. We will continue to consider all the evidence presented at trial in order to determine whether an instruction an a lesser included offense should be given.
We now address the merits of appellant's contention. Article 37.08, V.A.C. C.P., provides that in a prosecution for an offense with lesser included offenses, the jury may find the defendant not guilty of the greater offense, but guilty of any lesser included offense. Furthermore, Article 36.14, V.A.C.C.P., requires that the trial judge deliver to the jury a written charge distinctly setting forth the law applicable to the case. Thus if the evidence adduced at trial raises an issue that a lesser included offense may have been committed, the trial judge must include a proper instruction on the lesser included offense. Moore, supra.
Since involuntary manslaughter requires a lesser culpable mental state on the part of the defendant, it is by definition a lesser included offense of murder. Brooks, supra. See Article 37.09, V.A.C. C.P. Criminally negligent homicide is, in turn, a lesser included offense of involuntary manslaughter. Ormsby, supra.
The distinction between involuntary manslaughter and criminally negligent homicide is simply one of degree. Salinas v. State, 644 S.W.2d 744 (Tex.Cr.App.1983). Involuntary manslaughter occurs when a person recklessly causes the death of another, V.T.C.A. Penal Code, Sec. 19.05(a)(1); criminally negligent homicide occurs when a person causes the death of another by criminal negligence, V.T.C.A. Penal Code, Sec. 19.07. A person acts with "recklessness" when he or she "is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur"; a person acts with "criminal negligence" when he or she "ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur." V.T.C.A.
In Moore, supra, the Court reemphasized that the difference between "recklessness" and "criminal negligence" lies in whether the defendant perceives the risk of harm which his conduct creates.
This Court has frequently dealt with issues similar to the case at bar. Thus, a review of some of the holding in previous cases is helpful.
In Giles v. State, 617 S.W.2d 690 (Tex.Cr. App.1981), the defendant confessed that he had pointed a gun at the deceased and it "went off." The panel opinion, authored by Judge Odom, found that:
In Schoelman, supra, a panel opinion written by Judge Clinton, the defendant claimed the jury should have been charged on several lesser included offenses of murder, including involuntary manslaughter and criminally negligent homicide. The defendant testified:
It was held that since criminal negligence arises when one points a loaded gun at another, and since the distinction between involuntary manslaughter and criminal negligence depends solely on which of the two inferences regarding the accused's awareness of the risk is correct, both issues, "recklessness" and "criminal negligence," should have been submitted to the jury for resolution. Schoelman, supra at 734.
In Salinas, supra, the defendant testified that he had cocked the gun and was reaching
In the instant cause, the State's witnesses testified that prior to appellant's entrance, they heard a noise similar to the sound of a gun being cocked. Appellant then walked into the room with a rifle and a struggle ensued over its possession. The victim was shot shortly after she released her hold on the rifle. One witness testified that appellant held the rifle, level, and pointed in the direction of the victim. Appellant testified he took the rifle into the bedroom in order to exchange it for car keys. He testified he told his wife he would give her the gun if she would give him the keys. His wife immediately, started pulling on the gun and when she turned it loose, it "went off." He stated he assumed the gun was unloaded, but did not check it and had not cocked it. He also testified he did not intend to kill his wife.
The sole issue at trial concerned appellant's intent. The State's position was that its evidence showed that appellant intentionally pointed the rifle at his wife knowing it was loaded and then knowingly and intentionally shot her. We find that the jury as the trier of fact could have reasonably rejected the appellant's testimony that he was unaware that the rifle was loaded; it could have reasonably believed the witness's testimony that the appellant cocked and pointed the rifle at the victim and thus could have inferred from such action that the appellant knew the rifle was loaded; and it also could have reasonably believed appellant's testimony that he did not intend to kill his wife. Accordingly, the jury could have reasonably concluded that appellant's action in pointing a loaded rifle at his wife in an attempt to persuade her to relinquish the keys to a car constituted a conscious disregard of "a substantial and unjustifiable risk."
Considering all of the evidence presented at trial and not solely the appellant's testimony as advocated by the opinion of the Court of Appeals, we find the holdings in Giles, Schoelman, and Salinas, supra, to be controlling. The trial court erred in refusing to instruct the jury on the law of involuntary manslaughter.
The judgments of the Court of Appeals and the trial court are reversed and the cause is remanded.
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