BRADLEY v. STATE

OPINION ON DISCRETIONARY REVIEW GRANTED ON MOTION OF THE COURT

CLINTON, Judge.

Appellant was prosecuted for the offense of murder and convicted by a jury of the "lesser included offense" of voluntary manslaughter. The jury also found two enhancement paragraphs to be true, and appellant's sentence was assessed at mandatory life imprisonment pursuant to V.T. C.A. Penal Code, § 12.42(d), prior to amendment in 1983. The Dallas Court of Appeals affirmed the conviction in an unpublished opinion.

V.T.C.A. Penal Code, § 19.04 has been made to wear a number of different hats. The Legislature has designated voluntary manslaughter as an offense in its own right. Id., § 1.03(a), provides that "[c]onduct does not constitute an offense unless it is defined as an offense by statute...." Since § 19.04(a) begins: "A person commits an offense ...," it must be concluded that the Legislature intended the conduct set out therein to constitute an indictable offense, of which every element must be proven beyond a reasonable doubt to justify conviction. One of those elements is that the accused "caused the death under the immediate influence of sudden passion arising from an adequate cause."1

In the context of a prosecution for murder, however, the Court has taken the "sudden passion" element and transformed it so that it "is not an element of voluntary manslaughter, but is instead in the nature of a defense to murder that reduces that offense to voluntary manslaughter." Braudrick v. State, 572 S.W.2d 709, 710 (Tex.Cr.App.1978). Thus, "sudden passion" became a defensive issue, and voluntary manslaughter, sans the sudden passion "element," became a lesser included offense of murder. This construction has given rise to a number of conceptual advantages, but not without some degree of "legal contortion." See Daniel v. State, 668 S.W.2d 390 (Tex.Cr.App.1984) (Miller, J., concurring). We granted review on our own motion in this cause with a view to straightening out some of the contortion.

Specifically, we granted review to determine whether the trial court erred in instructing the jury on voluntary manslaughter in view of appellant's timely objection at trial that the evidence did not raise it. We also granted review to address the related question of whether voluntary manslaughter is properly to be considered a lesser included offense of murder.

I.

We begin with the observation that the Court in Braudrick erred when it interpreted "sudden passion" to be "in the nature of a defense to murder ..." It has not been generally regarded a defense in this State. See Daniel v. State, 668 S.W.2d at 395 and 399-400 (Teague, J., and Miller, J., respectively concurring). And there is nothing in the penal code or in the code of criminal procedure remotely suggesting that the Legislature intended it to be one. While we understand the reasoning behind that construction, finding that in some circumstances voluntary manslaughter may be a lesser included offense to murder would have sufficed.2 Such is our holding today.

II.

The State contends that both of the questions set out ante have been addressed and resolved in Braudrick v. State, supra, and Paige v. State, 573 S.W.2d 16 (Tex.Cr.App. 1978), and urges that we leave the holdings of those cases intact.

The Paige Court reasoned:

From this language the State argues that, regardless of whether sudden passion is raised by the evidence, so long as the evidence supports a conviction for murder under V.T.C.A. Penal Code, § 19.02,4 a charge and conviction on the lesser included offense of voluntary manslaughter is allowable. This is so because proof of a greater offense will sustain a conviction for a lesser included offense. See also Daniel v. State, 668 S.W.2d 390 (Tex.Cr.App.1984).

The problem with the State's argument is that it assumes that voluntary manslaughter may be considered a lesser included offense in every murder case. This assumption does not logically follow from the Court's reasoning in Braudrick v. State, supra.

In Braudrick the Court stated:

572 S.W.2d at 710, 711. See also Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).

Thus, when the evidence raises the issue of "sudden passion," its negation becomes an "implied element" of murder. Sudden passion is, in essence, a circumstance surrounding the forbidden conduct, see V.T.C.A. Penal Code, § 1.07(a)(13)(A), the existence of which the State must refute beyond a reasonable doubt.

Article 37.09(1), V.A.C.C.P., reads:

Should the evidence raise "sudden passion," the absence thereof would constitute a "fact" which is engrafted upon the elements of murder under § 19.02, and must be established beyond a reasonable doubt before a murder conviction can be obtained. A charge on voluntary manslaughter becomes necessary to authorize a conviction in the event a jury finds the State has established all of the elements of § 19.02, but has failed to establish the "fact" that sudden passion was absent.6

Until sudden passion is raised, however, its absence does not become an element of murder, implied or otherwise. See Braudrick v. State, supra. Hence, there is no "fact" the lack of which will reduce the offense to voluntary manslaughter pursuant to Article 37.09(1), supra. In short, unless there is some evidence of sudden passion in the case, voluntary manslaughter cannot be considered a lesser included offense of murder.7

Whether we will treat voluntary manslaughter as a lesser included offense in the instant case, then, is contingent upon whether we find the evidence presented an issue as to sudden passion. We turn now to an examination of the evidence.

III.

The State sought to establish intentional murder. To this end statements were introduced which had been taken from appellant and his girlfriend, Diane Wallace, on the night of the shooting. Appellant proceeded on a theory of selfdefense. Wallace testified in his behalf. As she was the only eyewitness to the killing, we glean our summary of the facts from her testimony, noting inconsistencies with other evidence as we go.

Appellant lived in an apartment located in a house at 5500 Gaston Avenue, in Dallas. On the evening of January 16, 1982 appellant and Wallace were there. At about 9:00 o'clock the deceased, Daniel Lopez, arrived and proceeded to kick in the door to appellant's apartment.8 Lopez entered the apartment, "slung" a knife across the room and demanded to be told the whereabouts of "Sheila."9 Lopez threatened to kill appellant if he failed to comply. After also kicking in appellant's bathroom door, Lopez crossed the hall to Billy McDowell's apartment and broke in there.10 Appellant followed. Wallace listened as Lopez and appellant argued for four or five minutes and then she too crossed the hall. She found Lopez raiding the icebox, and appellant trying to prevent him. Appellant demanded that Lopez leave. Lopez then sat on the couch with the knife in his lap and again threatened to kill appellant.11 Appellant crossed back to his own apartment and obtained a sawed off shotgun. Wallace encountered appellant on his way back to McDowell's apartment, where he told her, "Don't worry, Diane, I'm not going to shoot him. I'm ... I'm just going to scare him so he'll leave."

Appellant then entered McDowell's apartment and ordered Lopez to leave. Lopez got up from the couch and moved toward the door. Before reaching the door, however, Lopez turned and advanced toward appellant, "walking real fast," and reaching toward his back pocket. Appellant backed up approximately five feet until he was against the wall. Lopez grabbed for the gun. Appellant pulled the trigger, shooting Lopez in the chest.12 After the shooting appellant appeared scared and told Wallace, "I didn't mean to shoot him, but ... I had to. He might have killed one of us." Appellant found the knife, with the blade open, on the couch.

There was no testimony from any source to indicate appellant became enraged, resentful or terrified immediately prior to the shooting. Had the evidence shown appellant in fact seemed enraged or terrified before acting, it would have been proper for the trial court to submit the issue to the jury to decide whether Lopez' behavior constituted adequate provocation to produce such a degree of anger or terror, "viewed objectively through the eyes of an ordinary man." Hobson v. State, 644 S.W.2d 473 (Tex.Cr.App.1983). The evidence simply does not show that such a passion did arise.

The fact that the evidence raises the issue of and the court charges on the law of selfdefense (as it did in this cause) will not entitle an objecting accused to a charge on voluntary manslaughter unless there is evidence that the killing occurred under the immediate influence of sudden passion arising from an adequate cause. Daniels v. State, 645 S.W.2d 459 (Tex.Cr. App.1983); Medlock v. State, 591 S.W.2d 485 (Tex.Cr.App.1979). By the same token, just because the evidence may raise an issue of self defense does not mean an accused must be subjected to a charge on voluntary manslaughter over objection, where the evidence does not even suggest he was overcome by a sudden passion and therefore acted while incapable of cool reflection. Unlike our holding in Humphries v. State, 615 S.W.2d 737 (Tex.Cr.App.1981), here we find no evidence to support the charge given by the court on voluntary manslaughter.

We therefore conclude that, on the facts of this case, voluntary manslaughter should not have been charged as a lesser included offense of murder over the objection of the accused. Thus, we cannot resort to the rule that proof of a greater offense will sustain a conviction for the lesser included offense to justify appellant's conviction in this case. Furthermore, because voluntary manslaughter was not available to be charged as a lesser included offense to murder, the evidence must establish every element of § 19.04, as an offense in its own right. Because the evidence did not raise, much less prove beyond a reasonable doubt, the element of sudden passion in this case, appellant's conviction must be reversed and a judgment of acquittal entered. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).13

IV.

We hasten to add that this disposition of the case hinges on the fact that appellant vociferously objected to the inclusion of the voluntary manslaughter charge. Failure to object to the charge when given on the ground that the evidence does not support it would signal acquiescence on the part of the accused in the trial court's judgment that sudden passion was raised.

By invoking the benefit of the lesser included offense charge at trial in not objecting to its submission to the jury,14 an accused will be estopped from then complaining on appeal that the evidence failed to establish all the elements of the offense.

The judgment of the court of appeals is reversed. The cause is remanded to the trial court with instructions to enter a judgment of acquittal.

TEAGUE, CAMPBELL and WHITE, JJ., concur in result.

ONION, P.J., and W. C. DAVIS, J., dissent.

MILLER, Judge, concurring.

While logic and legislative intent compel me to join the majority opinion, I must reiterate that the relationship between murder and voluntary manslaughter has been hopelessly muddled by the 1974 Penal Code. As I explained in my concurring opinion in Daniel v. State, 668 S.W.2d 390, at 399, the legislature, in a vain attempt to ensure the 1973 Penal Code was "dress right, dress",1 abandoned the tried and true method of delineating murder and voluntary manslaughter that had evolved under the former penal code. Until such action is retracted, neither the bench nor bar nor, most importantly, the citizenry, will be served.