Braudrick v. State
| Decision Date | 01 November 1978 |
| Docket Number | No. 54587,No. 3,54587,3 |
| Citation | 572 S.W.2d 709 |
| Parties | Lex Newton BRAUDRICK, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Gene A. Garcia, Rockport, for appellant.
John H. Flinn, Dist. Atty., Sinton, for the State.
Before ROBERTS, ODOM and DAVIS, JJ.
This is an appeal from a conviction for voluntary manslaughter obtained on an indictment charging murder. Punishment was assessed by the jury at 20 years and a $5,000 fine.
In two grounds of error appellant challenges the sufficiency of the evidence to show voluntary manslaughter. Specifically, he argues there is no evidence that he was acting under the immediate influence of sudden passion arising from an adequate cause. The relation between murder and voluntary manslaughter must be examined.
Appellant was charged with murder under V.T.C.A., Penal Code Sec. 19.02(a)(1), which provides:
Sec. 19.04, Voluntary Manslaughter, provides in relevant part:
"(a) A person commits an offense if he causes the death of an individual under circumstances that would constitute murder under Section 19.02 of this code, except that he caused the death under the immediate influence of sudden passion arising from an adequate cause."
Appellant argues that acting "under the immediate influence of sudden passion arising from an adequate cause" is an element of the offense of voluntary manslaughter, and that no evidence in the record supports proof of that element. We hold that such fact 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.
It is the use of language in Sec. 19.04 that creates the illusion that voluntary manslaughter has one additional element not found in murder. Sec. 19.04, supra, suggests that voluntary manslaughter is murder Plus acting from a sudden passion, etc. Murder, however, is the greater offense and voluntary manslaughter is the lesser, and not vice versa. Murder, then, may be said to consist of these elements, taking Sec. 19.02(a)(1) as the example (the indictment here charging under that theory):
1) a person
2) intentionally or knowingly
3) causes the death
4) of an individual
5) while not acting under the immediate influence of sudden passion arising from an adequate cause.
Voluntary manslaughter consists of the same elements except for the last, which would be:
5) while acting under the immediate influence of sudden passion arising from an adequate cause.
This reflects the distinguishing fact that differentiates murder and voluntary manslaughter, as provided in Sec. 19.04(a), supra, which provides that voluntary manslaughter is the same as murder "except that he caused the death under the immediate influence of sudden passion arising from an adequate cause."
Sec. 19.02, supra, does not expressly require proof that the accused was not acting under the immediate influence, etc. This element is implied, and its proof is required, only where the evidence raises the issue that the accused was acting under such an influence. Thus, it can be seen that in a case where murder is charged and the statutory elements (as distinguished from the implied element) are proven by the State the jury should be charged on the statutory elements as stated in the facts alleged in the indictment. Only if the evidence raises the issue of voluntary manslaughter as a lesser included offense (see Art. 37.09(1), V.A.C.C.P.) must the implied element be charged. Here, although the implied element of murder was not charged in the murder paragraph of the jury instruction, it was adequately charged in the voluntary manslaughter paragraph. That portion of the jury instructions charged:
"Now if you find from the evidence beyond a reasonable doubt that on or about the 29th day of October, 1974, in Aransas County, Texas, the defendant, Les Newton Braudrick, did then and there intentionally or knowingly cause the death of an individual, K. W. Smith, by stabbing him with a knife, but you further find and believe from all the facts and circumstances in evidence in the case, the defendant, in killing the deceased, if he did, acted under the immediate influence of sudden passion arising from an adequate cause, Or if you have a reasonable doubt as to whether defendant acted under the immediate influence of a sudden passion arising from an adequate cause, then you will find the defendant guilty of voluntary manslaughter." (Emphasis added.)
The distinguishing feature between murder and voluntary manslaughter is not a fact that must be proven beyond a reasonable doubt to establish voluntary manslaughter, nor is it a fact that must be disproven by the State to establish murder in the absence of...
To continue reading
Request your trial
-
Robinson v. State
...us. We think, however, that in light of the holdings in Humphries v. State, 615 S.W.2d 737 (Tex.Cr.App.1981) and Braudrick v. State, 572 S.W.2d 709 (Tex.Cr.App.1978) that voluntary manslaughter arises only as reduced murder 15 by way of defense, that one cannot have the specific intent to c......
-
Almanza v. State
...and common sense I would suggest he has overlooked cases as Antunez v. State, 647 S.W.2d 649 (Tex.Cr.App.1983); Braudrick v. State, 572 S.W.2d 709 (Tex.Cr.App.1978); Cobarrubio v. State, 675 S.W.2d 749 (Tex.Cr.App.1983); Carriera v. State, 663 S.W.2d 1 In concluding its opinion, the majorit......
-
Cantu v. Collins
...Petitioner argues that in Texas, voluntary manslaughter is considered a lesser included offense of murder. See Braudrick v. State, 572 S.W.2d 709, 710 (Tex.Crim.App.1978). Braudrick was later questioned by an en banc panel of that court. Bradley v. State, 688 S.W.2d 847 (Tex.Crim.App.1985) ......
-
Fielder v. State
...see how the complained of charge shifted the burden of proof on any element or issue. In support of her contention, she cites: Braudrick v. State, 572 S.W.2d 709 (Tex.Crim.App.), cert. denied, 440 U.S. 923, 99 S.Ct. 1252, 59 L.Ed.2d 477 (1979); Gibson v. State, 659 S.W.2d 34 (Tex.Crim.App.1......