Appellant was convicted of murder, Tex. Penal Code Ann. § 19.02(a)(1) (Vernon 1974), and sentenced to ten years in the penitentiary. By one ground of error, he contends the trial court erred in refusing to charge the jury on the lesser included offense of voluntary manslaughter. We agree, and reverse and remand.
Because our concern is whether the evidence raised the issue of voluntary manslaughter, we will review only the evidence pertinent to that issue. Appellant was convicted of murdering Johnny Cleveland Ross by stabbing him with a knife. On the night of the killing appellant, his sister Mattie Mae Robinson, her boyfriend Lonnie Portee, and a friend named Alice Mae Doss went to the Fun House in Lubbock. Appellant's sister testified that soon after arrival she and Doss joined appellant and Portee in the video arcade room. While appellant was playing Pac-Man, the decedent walked to him and said, "Man, I want to talk to you." Appellant asked the decedent what he wanted to talk about. The deceased told appellant he would find out if he would go outside. Appellant then told the decedent, "Well, man, I'm playing my game." At that time, the decedent slapped appellant across the face with an open hand and struck appellant a second time when appellant tried to stand up. They started fighting but were ejected from the building, along with Portee. Appellant's sister followed them outside and got into a fight with decedent's wife while appellant and Portee were beating on the decedent with a pool cue.
Doss testified that the four of them were around a Pac-Man machine that night when the decedent, in an angry voice, told appellant he wanted to talk to him. She said appellant told the decedent that he would talk when he finished the game. Doss
There was also testimony from a bystander that, as appellant was being ejected from the Fun House, he grabbed a pool cue and told Portee, "That's all right, man, when he come outside he's going to get beat to death."
At the conclusion of the fight between appellant, Portee, and the decedent, appellant and Portee departed and left the decedent lying on the ground. Police and an ambulance were called and the decedent was taken to a hospital but he did not survive the beating. A pathologist who performed an autopsy testified that he found four stab wounds in the decedent, including one that completely punctured the heart, and also observed a virtually amputated hand and various other cuts and bruises.
The issue, then, is whether the foregoing evidence entitled the defendant to a voluntary manslaughter charge. It is axiomatic that an accused is entitled to an instruction on every issue raised by the evidence, whether produced by the defense or the State, and whether unimpeached, contradicted, strong, or weak. Lugo v. State, 667 S.W.2d 144 (Tex.Crim.App.1984); Thompson v. State, 521 S.W.2d 621 (Tex. Crim.App.1974); Steen v. State, 88 Tex. Crim. 256, 225 S.W.2d 529 (1920). The credibility of the evidence and its conflict with other evidence may not be considered in determining whether a defensive instruction on a lesser included offense should be given because it is the jury's duty to determine whether the evidence establishes the lesser included offense. Moore v. State, 574 S.W.2d 122, 124 (Tex.Crim.App.1978). Where the evidence raises the issue, and the accused requests a charge, the failure of the court to submit the issue is reversible error. Bravo v. State, 627 S.W.2d 152, 157 (Tex.Crim.App.1982); Roberts v. State, 590 S.W.2d 498, 500 (Tex.Crim.App.1979).
Voluntary manslaughter, on which appellant requested a charge, is established by section 19.04(a) of the Texas Penal Code Annotated (Vernon 1974) and is defined as the causing of the death of another person under circumstances that would constitute murder, except that the defendant caused the death under the immediate influence of sudden passion arising from an adequate cause. The terms "sudden passion" and "adequate cause" are defined as follows:
Section 19.04(b) and (c) of the Texas Penal Code.
Although we do not find a recent Court of Criminal Appeals case in point, decisions under prior law indicate that an unprovoked assault by the decedent may be sufficient to raise the issue of voluntary manslaughter. See, e.g., McCartney v. State, 542 S.W.2d 156, 160 (Tex.Crim.App.1976); Ray v. State, 515 S.W.2d 664, 666-67 (Tex. Crim.App.1974). The recent Austin Court of Appeals decision in Ruiz v. State, 691 S.W.2d 90 (Tex.App.—Austin 1985, no pet.) is consistent with that view, approving submission of a voluntary manslaughter charge when the defendant shot a bar bouncer after he was assaulted by the bouncer.
The judgment is reversed and the case is remanded to the trial court.