BILL VANCE, Justice.
Following a running argument with his wife and a brief argument with his fifteen-year-old son, Larry Wayne Haynes, who had been drinking beer, got his shotgun. Seconds later his son, Matthew, was dead of a close-range shotgun blast to the head. Haynes was indicted for murder, but a jury convicted him of the lesser-included offense of manslaughter, presumably because there was evidence that the shooting may have been the result of "reckless" behavior rather than intentional behavior. Tex. Pen.Code Ann. § 19.04 (Vernon 1994). The jury assessed punishment at twenty years in prison.
Haynes raises two issues on appeal:
We will affirm the judgment.
In the guilt-innocence charge, the court, over defense counsel's objection, included this instruction:
The instruction comes from the Penal Code:
§ 8.04 Intoxication
Id. § 8.04 (Vernon 1994).
Haynes argues that the instruction is only appropriate when the defendant presents an "intoxication-insanity" defense during the punishment phase of trial. If, as here, the defendant does not rely on "intoxication" at all, then to include the instruction in the guilt-innocence charge is a harmful judicial comment on the evidence, i.e., it implies that the judge believes the defendant was intoxicated.
Haynes relies heavily on Gonzales v. State, 838 S.W.2d 848, 866 (Tex.App.-Houston [1st Dist.] 1992, pet. dism'd). On appeal from a murder trial, the Houston court reversed a conviction on a lesser-included charge of voluntary manslaughter due to "sudden passion,"
The Court of Criminal Appeals more recently discussed section 8.04 in Taylor v. State, 885 S.W.2d 154 (Tex.Crim. App.1994). The defendant claimed that due to psychosis, she did not know right from wrong when she murdered her child; the State countered that her use of marijuana triggered the psychotic reaction. Id. at 155. The defendant objected to the court's submission of an instruction under section 8.04. Id. The Court explained that subsection "a" refers to the guilt-innocence phase of trial, subsection "b" refers to the punishment phase, and subsection "c" is a non-exclusive provision concerning the jury charge. Id. at 156. Thus, subsection "c" does not control whether an instruction is required under subsection "a" at the guilt-innocence phase.
The evidence at Haynes's trial was hotly contested about whether Haynes was intoxicated, with both sides presenting witnesses to either prove (the State) or disprove (Haynes) that he was. At no time did Haynes attempt to rely on any defense based on intoxication; he argued that the shooting was an accident. Evidence of intoxication was presented by the State and not the defense—the State's theory was that Haynes killed his son in a drunken rage. However, a jury could have concluded that Haynes lacked the "intent" for murder because he was intoxicated. Because, under Taylor, evidence of intoxication "from any source that might lead a jury to conclude that the defendant's intoxication somehow excused his actions" allows for the instruction, the instruction was appropriate, and the court did not err in giving it.
We overrule the issue.
To prove its theory of the case, the State wanted to show that Haynes was intoxicated at the time of the shooting. The State called three witnesses on this issue. A neighbor testified that Haynes was frequently intoxicated. Haynes's brother testified that Haynes was "a little buzzed" at the time of the shooting which would take a lot of beer because Haynes drank every day. Matthew's girlfriend testified that
As the State points out, the testimonies of Haynes's brother and Matthew's girlfriend were not objected to, which forfeits any complaint relative to them. Tex.R. Evid. 103; Tex.R.App. P. 33.1. As for the neighbor's testimony, we note that Rule 406 allows for evidence of a "habit" if relevant, as Haynes's drinking habit was here. But regardless of that, evidence of Haynes's previous drinking came in through the testimony of his brother and Matthew's girlfriend. "[I]t is well settled that an error in admission of evidence is cured where the same evidence comes in elsewhere without objection; defense counsel must object every time allegedly inadmissible evidence is offered." Hernandez v. State, 914 S.W.2d 226, 233 (Tex. App.-Waco 1996, no pet.) (citing Hudson v. State, 675 S.W.2d 507, 511 (Tex.Crim.App. 1984)). As the Court of Criminal Appeals said in Leday v. State:
Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim.App.1998). The Court discussed whether the rule is one of waiver or harmless error, but did not definitively state which it is. Id. Regardless, based on the rule, we overrule the issue.
Having overruled Haynes's issues, we affirm the judgment.