OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW
Appellant was convicted by a jury for the offense of murder. V.T.C.A., Penal Code § 19.02. The jury assessed a term of 25 years in the Texas Department of Corrections. The Austin Court of Appeals reversed appellant's conviction, finding the evidence insufficient to sustain a murder conviction. The court of appeals also found that the jury charge was "fundamentally defective," see Cobarrubio v. State, 675 S.W.2d 749 (Tex.Cr.App.1984), and ordered "the judgment of conviction for murder reversed and the indictment for murder dismissed." However, since the court of appeals further found the evidence sufficient to show voluntary manslaughter or any other lesser included offense, that court held that the dismissal of the murder indictment was "without prejudice" to further prosecution for a lesser included offense." Lawrence v. State, 699 S.W.2d 229 (Tex.App.—Austin, 1983).
We granted the State's petition for discretionary review to determine the correctness of the court of appeals holding that the evidence was insufficient to prove appellant guilty of murder. We will also review the court of appeals holding that the charge to the jury on the law of murder is "fundamentally defective." We conduct this latter review because of this Court's recent decision in Almanza v. State
A detailed recitation of the facts is necessary to the disposition of the case. Appellant and the deceased were live-in lovers. On August 1, 1979, at approximately 2:30 p.m. they met at the Hitching Post Bar in Killeen. They drank together until approximately 4:30 p.m., at which time they returned to their apartment and appellant fixed dinner for the two of them. They then returned to the Hitching Post. Sometime between 7:30 and 8:00 p.m., the couple went to the Waterhole No. 3, another drinking establishment.
At approximately 9:30 p.m. the appellant left the bar to pick up her son from a baby-sitter. After taking care of her son, she returned to the Waterhole. When she walked into the bar, she observed the deceased dancing with another woman. According to an employee of the bar, appellant knocked the woman to the floor. Appellant claimed she merely pushed the woman and the woman stumbled and fell. A bartender testified that appellant, shortly after the altercation with the deceased's dancing partner, was very angry and upset and repeatedly threatened to "shoot his peter off." Appellant specifically denied being very angry or upset and also denied making any threats to harm the deceased.
Appellant pleaded with the deceased to leave the bar. Both deceased and the appellant then left the Waterhole and drove to their apartment. The deceased refused to go into the apartment; appellant replied that she was going to go with deceased if he was going out. Both parties then returned in separate vehicles to the Hitching Post. It being near closing time, the bar owner refused to serve the deceased and asked appellant to drive deceased home. In the owner's words, deceased was stumbling, falling-down drunk.
Appellant drove deceased home. She testified that the deceased was hostile and angry because appellant refused to apologize to "the woman." Appellant enlisted the assistance of Paul Miller, a next door neighbor, in getting the deceased out of the car and into the house.
According to appellant's testimony, she was cleaning up when the deceased grabbed her and threw her on the couch
Miller and Graves both testified that when they entered the apartment appellant was on the couch and the deceased was standing five to seven feet away from appellant. Appellant yelled "Paul, keep him away from me" and Paul Miller grabbed the deceased. Martha Graves heard the deceased say "shut up, or I'm going to knock your damn head off."
Neither the eyewitnesses nor the investigating officers noticed any bruising on appellant the night of the offense. A police officer, who was a personal friend of appellant and the deceased, noticed a large bruise on appellant at around 10 p.m., some twenty hours after the shooting and alleged beating. A doctor who examined appellant 5 days after the shooting found bruising that was consistent with the appellant having been injured 3-7 days before the examination.
Appellant attempted to paint a picture of the deceased as a violent man; however, no other testimony supports this view. The neighbors both testified that the evening of the homicide was the first time they had heard any fighting between appellant and the deceased. Other witnesses who frequented the same bars as deceased described the deceased as easy-going and non-violent, although sometimes boisterous. Appellant's ex-husband testified he saw the appellant with scratches on her neck 2 days before the homicide. There was no evidence indicating that the apartment was in disarray as one would expect if there had been an altercation, and no one ever saw the deceased strike the appellant, either on the night in question or anytime before that night.
II. SUFFICIENCY OF THE EVIDENCE TO RAISE THE ISSUE OF VOLUNTARY MANSLAUGHTER AND NEGATION OF THE SAME BY THE STATE
Appellant was charged with murder in a two paragraph indictment, each paragraph alleging a different manner of committing murder. See V.T.C.A., Penal Code § 19.02(a)(1) and (a)(2). This Court has held that if the issue of sudden passion is raised, then the State must disprove beyond a reasonable doubt the existence of sudden passion. Bradley v. State, 688 S.W.2d 847 (Tex.Cr.App.1985). Additionally, this Court has repeatedly held that evidence from any source may raise the issue of sudden passion. Gonzales v. State, 546 S.W.2d 617 (Tex.Cr.App.1977). Testimony that the defendant was extremely mad or upset can raise the issue. Schoelman v. State, 644 S.W.2d 727 (Tex.Cr.App.1983). Moreover, in some instances, the evidence can raise both self-defense and voluntary manslaughter. Medlock v. State, 591 S.W.2d 485 (Tex.Cr.App.1980). While former provocation, standing alone, will not suffice, see V.T.C.A., Penal Code § 19.04(b) supra, former
If we were to look at only the appellant's testimony, we would find no issue of sudden passion. Appellant denied being angry or upset at the deceased. She claimed simple fear, and in fact, denied having any recollection of the shooting. This testimony does not raise sudden passion. However, other witnesses testified that the appellant was in fact very angry and upset at the deceased's behavior earlier in the evening. This shows former provocation and, when coupled with the decedent's alleged beating of appellant immediately preceding the shooting, is sufficient to raise the issue of sudden passion. Thus, the State was required to prove beyond a reasonable doubt that appellant was not acting under the immediate influence of sudden passion. Bradley, supra.
Although we find there was sufficient evidence to raise the issue of voluntary manslaughter, there was more than sufficient evidence to convict appellant of murder. Appellant herself refuted any claim of voluntary manslaughter. Indeed, during closing argument, appellant's attorney argued that the facts presented a classic case of self-defense.
When reviewing sufficiency of the evidence questions, this Court will not substitute its judgment for that of the jury. This Court has previously found that:
We find the evidence more than sufficient to support the jury's verdict.
Although the State does not challenge the court of appeals' finding that the jury charge is fundamentally defective, we find we must review this holding in view of this Court's recent decision in Almanza, cognizant of the fact that neither the State nor the court of appeals had the benefit of our holding in Almanza in the case sub judice.
III. THE JURY CHARGE—"COBARRUBIO ERROR" IN LIGHT OF ALMANZA
The court of appeals found that the trial court fundamentally erred when it failed to require the jury to find, beyond a reasonable doubt, the absence of sudden passion before it could convict appellant of murder. That court relied on this Court's holding in Cobarrubio, supra.
Prior to our holding in Almanza, this Court had not had the opportunity to determine if "Cobarrubio error" was fundamental under our State law.
Today we repeat what Judge Clinton opined in Almanza:
Under this Court's holding in Almanza, a determination of whether "fundamental error" exists in a jury charge requires a case-by-case analysis. This Court no longer recognizes per se reversible jury charge error, having overruled Cumbie, supra. By failing to object in the instant case, the appellant is charged with showing actual egregious harm. We quote from Almanza:
In Almanza, we made it quite clear that in each case of unobjected-to jury charge error, this Court must weigh the evidence:
Almanza at 173-174, citing Davis v. State, 28 Tex.Ct.App. 542, 13 S.W. 994, 995 (1890), writ of error dism'd, 139 U.S. 651, 11 S.Ct. 675, 35 L.Ed. 300 (1891).
Judge Clinton opined in Cobarrubio, supra, that the failure of a trial court to charge in accordance with Cobarrubio "precipitated a denial of due process of law in the most fundamental sense," 675 S.W.2d at 752, and perforce constituted fundamental error. We cannot accept this position as being consistent with this Court's holding in Almanza. Such an application of the doctrine of fundamental error ignores the necessity of a finding of actual egregious harm as Almanza requires. To the extent that Cobarrubio held that jury charge "error precipitated a denial of due process of law in the most fundamental sense," Cobarrubio at 752, it is overruled. "Cobarrubio error" will be assayed in light of our holding in Almanza.
Judge Teague, along with the court of appeals, posits his argument that, Cobarrubio error is fundamental error of federal constitutional dimension, [emphasis added] primarily on Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). Cf. Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). In Mullaney, the Maine statute prescribed that a defendant prove by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation in order to reduce murder to manslaughter. The Supreme Court held that "the due process clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly raised in a homicide case." Mullaney, supra at 704, 95 S.Ct. at 1892. The Maine statute was thus found to be infirm, the burden not being placed on the State to prove every element of its case beyond a reasonable doubt. See In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
In this state, the burden is on the prosecution in Sec. 19.02, supra, a fact that we confirmed only recently in Bradley, supra. See ante, p. 215. Thus, we find that the Texas murder statute and the holding in Bradley, supra, are harmonious with the holding in Mullaney, supra.
Even if we concede, as does our brother Teague, that the error in the instant case was of federal constitutional dimension, we know of nothing in the law that saves appellant from her failure to object to the charge. Our state law provides that any such objection or refusal of any specially requested charge "shall be made at the time of the trial." Art. 36.19, V.A.C.C.P. It is this failure by the appellant that is the backbone of the holding in Almanza, supra.
We conclude that when a review of the entire record shows, as here, that voluntary manslaughter is an incidental theory of the defense, the subtle deletion of the State's burden of proof on the absence of sudden passion in the murder application paragraph cannot realistically be construed to inure to the defendant's egregious harm. Under these circumstances, we cannot say that the unobjected-to jury charge error was "so egregious and created such harm that [appellant] has not had a fair and impartial trial."
The judgment of the court of appeals is reversed and the judgment of the trial court is affirmed.
TEAGUE, Judge, concurring and dissenting.
The majority correctly reverses the holding that the Austin Court of Appeals made in its unpublished decision of Lawrence v.
The court of appeals, in holding that the evidence was insufficient, found that because the issue of sudden passion was raised by the evidence, and because the State failed to disprove sudden passion beyond a reasonable doubt, that this necessitated its holding that the evidence was insufficient. I agree with the majority opinion that "If there is any evidence that establishes guilt beyond a reasonable doubt, and if the trier of fact believes that evidence, [this Court is] not in a position to reverse the judgment on sufficiency grounds." The facts that are set out in the majority opinion are clearly sufficient to support the verdict of the jury, i.e., that the evidence is sufficient to establish beyond a reasonable doubt that appellant intentionally or knowingly caused the death of the deceased, as alleged in the indictment. The court of appeals erred in holding that the evidence was insufficient to support the verdict of the jury finding appellant guilty of the offense of murder, as alleged in the indictment.
In the trial court, the question of what constitutes an adequate cause to kill by the accused, when he is then acting under the immediate influence of sudden passion, is an issue of fact for the trier of fact. Roberts v. State, 590 S.W.2d 498 (Tex.Cr.App. 1979). However, on appeal, where the defendant has been convicted of the offense of murder, and the evidence at trial raised the issue of adequate cause or sudden passion, an attack on the sufficiency of the evidence falls under the following rule: "[I]f the issue of sufficiency is raised on appeal and a jury has found a defendant guilty of the offense of murder, as alleged in the charging instrument, and the issue of adequate cause was raised and rejected by the jury, this Court will make two determinations: (1) whether the evidence was sufficient to establish the offense of murder and (2) whether the evidence was sufficient to disprove the issue of adequate cause." Jefcoat v. State, 644 S.W.2d 719, 725 (Tex.Cr.App.1983).
In this instance, the evidence that was presented to the jury, or that might have been presented to any rational trier of fact, was clearly sufficient to establish beyond a reasonable doubt that appellant committed the offense of murder as stated in V.T. C.A., Section 19.02(a)(1), and as alleged in the indictment in this cause. The evidence is also sufficient to establish beyond a reasonable doubt that the State disproved the issue of adequate cause or sudden passion.
Thus, the majority opinion correctly holds that the evidence is sufficient to support the jury's verdict. I concur.
However, the majority errs in holding that the trial court did not commit Federal constitutional error in its instructions to the jury in this cause.
Because the majority errs, I must respectfully dissent, and must once again fulminate over this Court's invocation and application of Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), which I have dubbed "Almanza the Terrible," to the issue that is before us, namely, whether the failure of the trial court to properly place in its instructions to the jury on the offense of murder the fact that the State had the burden of proof to disprove the lack of sudden passion constitutes such a deprivation of appellant's rights under Federal Constitutional law causes this conviction to be reversed. It should be obvious to any intelligent person that Almanza v. State, supra, is so full of evil that it should be expressly overruled before it gives birth to too many more illegitimate children.
Perhaps, however, we can hope that the present majority of this Court is only going through an era of aggressive majoritarianism, and perhaps also we can hope that it is only imitating what the present majority of the Supreme Court of the United States has been doing in recent times, i.e., that
I find that the court of appeals correctly held that the failure of the trial court in its instructions to the jury to place the burden of proof on the State to prove the lack of sudden passion, in the paragraph of the charge applying the law of murder to the facts of the case, was error of Federal Constitutional dimension.
The majority errs in invoking and applying to this cause what it stated and held in Almanza v. State, supra, concerning deprivation of an accused's rights under State law because of instructions to the jury by the trial judge.
In all due respect to the author of the majority opinion, and contrary to his statement that "Prior to our holding in Almanza, this Court has not had the opportunity to determine if `Cobarrubio error' was fundamental under our State law," I must point out that in Jenkins v. State, (Tex. Cr.App. No. 64,000-64,004, February 16, 1983) (Now Pending on State's Motion for Rehearing for almost three years), not only did this Court have the opportunity "to determine if `Cobarrubio error' was fundamental error," but it made that determination without a single dissenting opinion, and held that such error was fundamental error.
In this instance, the error in the trial court's instructions to the jury did not properly place the burden of proof; thus, the appellant was deprived of his Federal, if not State, constitutional right to receive a fair trial.
What can be more egregious in a trial court's charge to the jury than this kind of error? What is more violative of due process or due course of law than the error in the charge that is before us?
In Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), also see Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983), the Supreme Court held that "the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case." 421 U.S., at 704, 95 S.Ct., at 1892, 44 L.Ed.2d, at 522.
To me at least, this requires that a jury must be properly instructed by the trial court when the evidence raises the issue of sudden passion.
In all due respect to the majority, if it does not intend to subscribe to decisions of the Supreme Court, when they control the disposition of an issue, it should say so in bold print and not pussy foot around. Before it does so, however, I caution it to read the provision of Article VI of the Federal Constitution, which provide that when the Supreme Court has decided an issue on Federal Constitutional grounds, such decision is the Supreme Law of the Land; "and judges in every State shall be bound thereby."
The error in the trial court's charge is error of Federal Constitutional dimension, and not, at this time, error of State Constitutional dimension.
Believing that I have stated enough, and without further fulminating over the subject or elongating this opinion, I will cease writing.
I respectfully concur and dissent.
DISSENTING OINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW.
In the Austin Court of Appeals not only was it the State that suggested fundamental error in the charge, but also, and probably for that reason, the State opted not to reply to the ground of error raising sufficiency of evidence, so Justice Smith did not discuss it in great detail. After alluding to
The court followed that factual recitation with its legal conclusions:
In Part I the majority opinion presents its own elongated factual version, editorializing somewhat along the way.
In that fashion the developing salutary policy of this Court to give deference to factual findings made by a court of appeals is shattered, and we are treated instead to the old saw that "this Court will not substitute its judgment for that of the jury." Yet it will substitute its judgment on the facts for that of a court of appeals.
The majority opinion says while the evidence is sufficient to raise the issue of voluntary manslaughter, "there was more than sufficient evidence to convict appellant of murder." Of course there is: voluntary manslaughter includes elements of murder plus sudden passion; otherwise the court would not have charged on voluntary manslaughter and it would not be in the case. When it is in the case, that evidence shows murder does not ipso facto rule out sudden passion. The majority opinion undertakes to demonstrate that by her testimony appellant did not prove sudden passion. But "when the evidence raises the issue of `sudden passion,' its negation becomes an `implied element' of murder," Bradley v. State, 688 S.W.2d 847, 851 (Tex. Cr.App.1985). So what and where is that evidence by which the State disproved sudden passion beyond a reasonable doubt?
The charge failed to authorize the jury to find whether the State had discharged its burden to disprove an implied element of murder. Therefore, we will never know what the jury believed about "sudden passion." On that point there is no judgment of the jury for this Court to substitute its own. Though the trial court plainly erred, Cobarrubio v. State, 675 S.W.2d 749 (Tex.
At the outset to be stressed is that there is more than one concept of "fundamental error." At least two are implicated in this discussion: one is an error duly and properly preserved for appellate review that is "fundamental" in nature; the other is an error not preserved for appellate review that is so basically or fundamentally wrong an appellate court may still review it.
Though it is true that since there was an objection in Cobarrubio, whether the error was "fundamental" in its latter incarnation was not an issue. However, as just observed, an error in the jury charge may be "fundamental" in more ways than one. Moreover, in deciding whether objected to charge error is reversible this Court may, and often did, evaluate the character and gravity of the error. One need only review some of the earlier decisions cited and discussed in Part I A and B of Almanza to understand the common practice of the Court in this regard. It did not limit itself to finding some minimal degree of error and was free to express its evaluation in terms of the highest kind of reversible error. This Court still is.
In Cobarrubio we said that "this error precipitated a denial of due process of law in the most FUNDAMENTAL sense," id., at 752. Thus, "Cobarrubio error" is constitutional error, just as recognized in headnote 1 and by opinion in several decisions collected under it in Texas Digest. So did all judges more than two years ago in Jenkins v. State, No. 64,004, delivered February 16, 1983, but still pending on rehearing. In this very cause, as well as Cobarrubio, the Austin Court of Appeals relied on three decisions by the Supreme Court of the United States to underscore its own determination that fundamental error of constitutional dimension was presented by the State. The strength of that assessment by the Court in Cobarrubio is not weakened by the mere fact that it was made in the context of an objection to the charge.
Though "Cobarrubio error" not preserved for appellate review "would have necessitated automatic reversal" under one group of decisions classified in Cumbie as fit and proper for appellate consideration and reversal, it does not follow that "Cobarrubio error" qua error is no longer "a denial of due process in the most fundamental sense," id., at 753. Overruling Cumbie did not serve to change the nature and character of an error. Thus, at this point the premise on which a part of the majority opinion is based and proceeds is flawed.
The term "actual egregious harm," underlined whenever used in the proposed opinion, simply does not appear in Almanza; and to concoct and emphasize it will raise even more questions of what Almanza is all about. It overrules Cumbie only "[t]o the extent that it holds any charge error requires `automatic' reversal," Almanza, at 174; we did not purport to say errors catalogued in Cumbie are no longer "reversible." Indeed, our remand to the Fort Worth Court of Appeals was "to make
Let it be clearly understood that an egregious error must first be found before an appellate court takes the next step "to make an evidentiary review along the lines of that described in Davis" and to review any other pertinent part of the record for actual harm. But obviously there are some errors so egregious that such a review will not save them. Nowhere in Almanza did we say, "This Court no longer recognizes per se reversible jury charge error," as intimated in the majority opinion.
In his dissenting opinion Judge Teague argues that Cobarrubio error already qualifies for a sort of per se treatment, just as he did in Moore v. State, 694 S.W.2d 528 (Tex.Cr.App.1985.
When there is some evidence, however, an appellate court must look to that which in the whole record bears on the matter. Almanza, at 174. In its abstract interpretation of that aspect of Almanza the majority opinion is correct. An appellate court is to "make an evidentiary review along the lines of that described in Davis" et cetera, ibid. Though it did not have "the benefit of our holding in Almanza," the Austin Court of Appeals did review the evidence—certainly it so stated on pages 3 and 5 of its opinion, viz:
In Davis the complaint on appeal was that the charge failed to instruct the jury on "second degree" murder. On rehearing the Davis court refined the questions presented on an evidentiary review into a positive statement of the rule it actually ended up applying in that case, viz:
I dissent to the egregious harm inflicted by the majority opinion.
I demonstrate my concerns about the factual version in the majority opinion from the point where appellant drove deceased home by inserting here and there in Part I and underscoring relevant testimony from the record. Thereafter I attach hereto some reproduced portions of the jury argument regarding sudden passion.
Appellant drove deceased home. She testified that the deceased was hostile and angry because appellant refused to apologize to the "woman." Appellant enlisted the assistance of Paul Miller, a next door neighbor, in getting the deceased out of the car and into the house.
Within a few minutes appellant returned to her neighbors with a plate of "two big old pieces of ham," apologizing all the while, saying she was sorry that she had awaken them and gotten them up. (Graves, SOF 45)
According to appellant's testimony, she was cleaning up when the deceased grabbed her and threw her on the couch and started beating her with his fist. She screamed—it sounded "like a scream of fear" (Graves, SOF 62)—and Paul Miller and Martha Graves, Paul Miller's roommate, came running over. Appellant claimed to have no recollection of the events following Paul Miller's entrance to the apartment. All appellant could recall was that when the deceased was beating her she was scared—"I was in fear of my life," and thought that was the reason why she shot deceased, is the way she put it. (Appellant, SOF 157, 146)
Miller and Graves both testified that when they entered the apartment appellant was on the couch, "just kind of crunched up" or "crumpled," Graves said, (SOF 48, 60, 61) and the deceased was standing five to seven feet away. Graves walked over to appellant. (Graves, SOF 49) Appellant was crying, and her eyes became red. (Graves, SOF 72) "Act[ing] like she was afraid," (Graves, SOF 62) Appellant yelled "Paul, keep him away from me" or "Don't let Kenneth hit me." (Miller, SOF 194) Deceased "had started walking over toward her," taking "a step toward her, staggering;" (Graves SOF 50 and 65-66) and, saying, "Okay, I won't." (Miller, SOF 194) Paul Miller grabbed the deceased by the arm and told him to "be cool;" he said, "No, Ken, be cool ... just don't get yourself in no trouble." (Graves, SOF 50, 68; Miller, SOF 195, 211) Martha Graves was by appellant. "Because [she] could tell they were having an argument," Martha Graves asked appellant "to come and spend the night with [her]." (Graves, SOF 51). Martha Graves heard the deceased say "shut up, or I'm going to knock your damn head off."
Neither the eyewitnesses nor the investigating officers noticed any bruising on appellant the night of the offense. However, Officer Longwell candidly stated, "I could honestly not tell you if I could have noticed any marks ..., I could not have probably noticed them at the time." (Longwell, SOF 25) Officer Burton described what appellant was wearing and when asked generally whether he "notice[d] anything else about her," answered "No, sir. Not that I could see." (Burton, SOF 33) A police officer, who was a personal friend of appellant and the deceased, and who was on duty Thursday evening August 2, removed appellant from her jail cell and escorted her to a visitors room; he observed "some swelling around the right cheek, a little bit of darkening, bruises and so forth around the chest area and up around the neck," (Stephens, SOF 216) noticed a large bruise on appellant at around 10 p.m., some twenty hours after the shooting and alleged beating. On Saturday morning while appellant was out of her cell smoking and drinking coffee, Officer Stephens observed that "on both arms, around the elbow area and on the upper arm on both sides were bruised. And bruises around the neck and around the upper chest and the face were very visible at that time," being "bluish purple" and "dark." (Stephens, SOF 219) Several days later after she had been released bruises were evident. (Stephens, SOF 222) A doctor who examined appellant 5 days [sic] after the shooting found bruising that was consistent with appellant having been injured 3-7 days or 3-5 days (Whitten, SOF 229) before [sic] the examination. The doctor found "considerable bruising" of "blue discoloration" "along the right side of the jaw," and he explained that after injury "it would take about two to three days" for discoloration to begin; (Stephens, SOF 229) he took X rays, (Appellant, SOF 160) and from his examination the doctor thought "there was a possibility of a fracture," so he referred appellant to a dentist. (Stephens, SOF 230). He expressed the opinion that "it would require a blow of say sizeable force to cause a bruise of that nature," (ibid.) and that appellant "was injured and in some pain" when he saw her. (Stephens, SOF 232.)
(As content of the remaining paragraph is more conclusory than factual, to treat this material is hardly worth the candle. Suffice to say that by drawing from appellant brief statements that deceased had struck her before counsel was not trying to show he was a violent man generally but to contrast "any other time" with the beating he gave her Thursday morning. See, e.g., SOF 141-142, 146, 161. In fact, though appellant said "at times" deceased was "a violent man," she explained that "he always thought when he was drinking he could beat anybody," but while "he would
EVIDENCE, BOTH TESTIMONIAL AND PHYSICAL IN THE FORM OF EXHIBITS THAT WE HAVE INTRODUCED, YOU WILL ABLE—YOU WILL BE ABLE TO COME TO A VERDICT IN THIS CASE. NOW, JUST IN A NUTSHELL WHAT THIS CASE IS IS FIRST OF ALL, TWO PARAGRAPHS CHARGING HOMICIDE. NOW, THESE ARE THE TWO PARAGRAPHS IN THE INDICTMENT THAT CHARGE THE OFFENSE OF MURDER. FIRST OF ALL, THE ELEMENTS ARE LISTED AS TO THESE PARAGRAPHS. LET ME STATE RIGHT NOW THAT EACH ONE OF THESE PARAGRAPHS— EACH, IF PROVEN BY THE STATE CONSTITUTES THE OFFENSE OF MURDER. WE MUST PROVE THAT THE DEFENDANT IN THIS CASE, IN BELL COUNTY, STATE OF TEXAS, ON OR ABOUT THIS DATE, INTENTIONALLY AND KNOWINGLY CAUSED THE DEATH OF KENNETH TRUMBLE BY SHOOTING HIM WITH A GUN. THESE ARE THE SIX ELEMENTS THAT I TALKED TO YOU ABOUT ON VOIR DIRE, THAT THE STATE HAD THE BURDEN TO PROVE BEYOND A REASONABLE DOUBT, TO PROVE TO YOU THAT THE DEFENDANT SITTING IN COURT TODAY, BETTY LAWRENCE, COMMITTED THE OFFENSE OF MURDER. THESE SEVEN ELEMENTS CONCERN THE SECOND PARAGRAPH OF WHETHER OR NOT THE DEFENDANT, IN THE COUNTY OF BELL, STATE OF TEXAS, ON THIS DATE, INTENDING TO CAUSE SERIOUS BODILY INJURY TO KENNETH TRUMBLE, COMMITTED AN ACT CLEARLY DANGEROUS TO LIFE BY SHOOTING HIM, KENNETH TRUMBLE, WITH A GUN, CAUSING THE DEATH OF KENNETH TRUMBLE. THERE ARE TWO WAYS UNDER THE LAW OF THE STATE OF TEXAS—TWO WAYS OF PROVING THE OFFENSE OF MURDER. THEY ARE THE SAME DEGREES. THEY'RE FIRST DEGREE FELONIES. NOW,
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HOLLARING. THE H—HE MAN, GOTTA BEAT UP ON A WOMAN. AND WE WILL TAKE THE Y ON THE END OF IT FOR YIELDING. BETTY LAWRENCE HAD YIELDED AS FAR AS SHE COULD GO. IF YOU CONSIDER IT FROM THAT ASPECT, IT CAN ONLY LEAD TO ONE CONCLUSION. HOW FAR DO YOU HAVE TO RETREAT BEFORE YOUR TURN COMES TO PROTECT YOURSELF? HAVING SAID THAT, LET ME TALK AND MENTION THAT SELF DEFENSE IS THE ISSUE HERE. DID SHE ACT IN SELF DEFENSE TO PRESERVE HER LIFE AND LIMB FROM SERIOUS BODILY INJURY OR DID SHE CROSS THE IMAGINARY LINE FROM REASONABLE FORCE TO DEADLY FORCE TO KILLING? THAT'S REALLY WHAT IT COMES DOWN TO. YOU KNOW, NOT ALL KILLING UNDER THE LAW IS MURDER. BECAUSE OBVIOUSLY, THERE'S MURDER AND
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HE PROBABLY HAD THE EASIEST JOB OF ALL. THEY HAD THE GUN, THE SUSPECT, THE VICTIM, TWO ABSOLUTE EYE WITNESSES, AND THE STATEMENTS OF BETTY LAWRENCE THAT SHE DID THE SHOOTING. I MEAN IT WAS AN OPEN AND SHUT CASE, LITERALLY. THERE WAS NO WORK TO BE DONE, NO SLEUTHING THROUGH DARK ALLEYS, NO FINGERPRINTS TO BE LIFTED, NO STAKEOUTS TO BE CONDUCTED. IT ALL OCCURRED IN A BRIEF TIME SPAN. THE REASON OCCURRED, THE SHOT WAS FIRED, THE CRIME WAS SOLVED, AND IT PROBABLY DIDN'T TAKE FIFTEEN MINUTES. NOT AS LONG AS I'LL TALK TO YOU TODAY, THIS WHOLE MATTER RESOLVED ITSELF. I MENTIONED TWO EYE WITNESSES. MR. ALLISON CALLED ONE, MARTHA GRAVES. THERE ARE REALLY THREE PEOPLE WHO KNOW MORE ABOUT THIS SINGLE CASE THAN ANY ONE ELSE, PAUL MILLER, MARTHA GRAVES AND BETTY LAWRENCE. IF YOU WILL THINK BACK ON IT, THE DEFENSE PRESENTED TWO OF THOSE THREE WITNESSES. GRANTED, THE DEFENDANT CANNOT BE COMPELLED BY THE STATE TO TESTIFY AGAINST THEMSELVES, BUT THE STATE CERTAINLY HAD ACCESS TO BOTH EYE WITNESSES, AND COULD HAVE CALLED THEM. THEY DID NOT. I CALLED PAUL MILLER. THE DEFENSE CALLED PAUL MILLER. BECAUSE WE FELT THAT EVEN IF IT WAS AN ABSOLUTE TOTALLY REPETITIOUS ACCOUNT OF WHAT MARTHA GRAVES HAD SAID, IT WAS STILL IMPORTANT EVIDENCE FOR YOU TO CONSIDER. I'D LIKE TO RUN DOWN THROUGH A BRIEF SCENARIO OF WHAT MARTHA GRAVES SAID. SHE STATED THAT SHE HAD SEEN THE DEFENDANT AND KEN EARLIER AT THE HITCHING POST, EARLIER IN THE DAY, TWO OR THREE O'CLOCK IN THE AFTERNOON. SAID SHE SAW THEM RIGHT BEFORE SHE WENT HOME. SHE DID NOT SEE THEM AGAIN UNTIL TWO O'CLOCK IN THE MORNING, AT WHICH TIME BETTY LAWRENCE WAS KNOCKING ON HER DOOR, PROBABLY LOUDER, BUT IN THAT FASHION, SAYING CAN YOU HELP ME. AND MARTHA GRAVES ANSWERED THE DOOR, AND WHEN SHE CAME TO THE DOOR, SHE ASKED FOR PAUL MILLER. AND WHY DID SHE NEED PAUL MILLER? BECAUSE KENNETH TRUMBLE WAS SO DRUNK HE COULDN'T GET OUT OF THE TRUCK. SIMPLE AS THAT. PAUL SAYS, WELL, HE COULD WALK, BUT IF I HADN'T GUIDED HIM, HE NEEDED A LITTLE GUIDANCE, YOU KNOW. GOT HIM INSIDE. MARTHA SAYS THEY WERE BACK IN OH, MAYBE A FEW MINUTES MAYBE LONGER. BACK IN THEIR APARTMENT, THEY HEARD A SCREAM. NOT A MAN'S SCREAM, NOT A LAUGHTER, A SCREAM. NOW, I CAN'T SCREAM. I PROBABLY COULDN'T MIMIC IT EVEN IF I WANTED TO FOR THE SHOCK EFFECT, BUT IT WAS SUFFICIENT TO BE HEARD IN THE NEXT APARTMENT, AND TO CAUSE THEM TO IMMEDIATELY VACATE WHERE THEY WERE AND GET NEXT DOOR. THAT IS NOT A SCREAM LIKE HEY YOU, OR HELLO. IT HAS GOT TO BE A SCREAM OF TERROR OR A SCREAM OF FEAR. PEOPLE DON'T REACT TO OTHER SCREAMS. PEOPLE HOLLAR AT FOOTBALL GAMES ALL THE TIME, BUT THEN YOU JUST CONSIDER THEM A NUISANCE. WHEN SOMEBODY
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THING WITH STATISTICS, BUT HER PERSONALITY TESTS, I THINK, SAID SOMETHING. THEY SAID SHE IS A PASSIVE WOMAN IN A CLASSIC FEMINE ROLE, SOMETIMES GIVEN TO IMPULSE. THE PROPER STATE'S ANSWER TO THAT WOULD BE AND IMPULSIVELY SHE GOT THE GUN AND SHOT HIM DOWN. OUR ANSWER TO THAT WOULD BE I WOULD PROBABLY BE IMPULSIVE TOO IF SOMEONE WERE TRYING TO BEAT IN THE RIGHT SIDE OF MY FACE WITH REPEATED BLOWS.
MR. ALLISON: YOUR HONOR, I WOULD OBJECT TO HIM GOING OUTSIDE THE RECORD.
THE COURT: OVERRULED
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AT THAT INSTANT, SHE NEEDED RELIEF. I KNOW WHEN WE WERE ALL CHILDREN GROWING UP, WHEN WE WOULD GET OUTSELVES IN SOME TERRIBLE BIND, WE'D SAY LORD, IF YOU'LL JUST EXTRACT ME FROM THIS. WHY CAN'T I BE DEAD? BECAUSE IT'S NOT THAT I WANT TO BE DEAD, IT'S JUST THAT I DON'T WANT TO BE IN THIS TERRIBLE SITUATION. I'LL DO WHATEVER IT TAKES TO GET OUT OF IT. AND I—YOU KNOW, IT'S EASY—IT PROBABLY TAKES—TAKEN ME QUITE A WHILE TO SAY ALL OF THAT, BUT IT TAKES A MERE MILLI-SECOND FOR YOUR THOUGHT PROCESSES TO LEARN THAT. PARAGRAPH FIVE ADDRESSES THE
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BACK IN THE BATHROOM AND CLOSE THE DOOR BECAUSE PAUL MILLER WAS THERE. SELF DEFENSE, LADIES AND GENTLEMEN, IS A RIGHT THAT WE ALL ENJOY UNDER THE LAW, TO TAKE ANOTHER HUMAN LIFE BECAUSE WE FEEL IN A POSITION THAT WE ARE IN AT THE TIME THAT WE ARE IN FEAR OF SERIOUS BODILY INJURY OR DEATH. THAT WAS NOT PRESENT ON AUGUST THE SECOND AT TWO A.M. LET ME TALK TO YOU ABOUT
Shortly before the Court recessed we remanded at least a dozen causes to courts of appeals for reexamination in light of Almanza. Today the majority takes on the chore, though why this Court should do so in this particular cause is not explained. Consistent with our recent uniform policy, I would remand for that consideration.