Castillo-Fuentes v. State

• Decision Date: 22 January 1986
• Docket Number: A,CASTILLO-FUENTE,No. 502-83,502-83
• Citation: 707 S.W.2d 559
• Parties: Jose Luisppellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 559

707 S.W.2d 559

Jose Luis CASTILLO-FUENTES, Appellant, v. The STATE of Texas, Appellee.

No. 502-83.

Court of Criminal Appeals of Texas En Banc.

Jan. 22, 1986.

Dennis R. Martin, San Antonio, for appellant.

Sam D. Millsap, Jr., Dist. Atty. and Charles Estee, Bill Harris and Alan E. Battaglia, Asst. Dist. Attys., Roy R. Barrera, Jr., Sp. Pros., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellant was convicted of murder. See V.T.C.A. Penal Code, § 19.02. The jury assessed punishment at thirty years confinement in the Texas Department of Corrections. On appeal to the San Antonio Court of Appeals, appellant's conviction was reversed in an unpublished opinion. Castillo-Fuentes v. State (Tex.App.--San Antonio, No. 04-82-00547-CR, delivered May 25, 1983). We granted the State's petition for discretionary review in order to consider the court of appeals' holding that there was fundamental error in the jury charge. We affirm the court of appeals' ruling.

The facts leading to the death of Maria del Carmen Proscelle follow. Appellant and the deceased had been living together as man and wife for approximately 3 years, and had a child, Rosalinda Proscelle. The deceased had previously been married, and Proscelle was her name from the prior marriage. The deceased gave the child the name Proscelle so that she could receive Social Security benefits, to which appellant initially agreed. The couple (appellant and deceased) had been separated for a month and a half when the fatal shooting incident occurred. During the separation, appellant made child support payments to deceased. He became increasingly irritated that the child did not carry his name.

On the day of the incident, appellant was to have gone to play pool in San Antonio with friends. He and the deceased had discussed, the evening before, his plans to go to San Antonio. She did not want appellant to go, preferring that he visit with her and their child. When appellant arrived at the group's pre-arranged meeting place, she was waiting for him.

She signalled to him from across the parking lot, and he approached her. They began arguing about the pool trip, and appellant went with the deceased to her home. Once inside the house, the arguing continued, first about her jealousy over another woman and then about the last name of their child. Appellant testified, "[s]he started to threaten me. Oh, let's say [she] wanted to slap me. And what I would do is just push her back. At one time she came to fall on a heater that was there." Appellant continued, "[s]he was very upset and she told me she was going to kill me." The deceased then reached for a rifle that was on top of a china closet. In response appellant also reached for the rifle, and got it before she did.

Appellant testified at trial that the deceased cursed at appellant and cursed his mother, and said, "[i]f I don't kill you my brother Mario will." On questioning by the defense counsel the following testimony took place:

"Q. Now, what effect, if any, did those words and those acts have on you, sir and acts [sic]?

"A. Like what?

"Q. Did you feel anything or react in any way to those words and those acts?

"A. Yes. I was very angered because why did she curse my mother.

"Q. And what happened then?

"A. Then she started running to call for Mario."

* * *

"A. I was very angered because she was going to kill me and Mario was going to kill me."

It was at this point that appellant fired a shot at Maria Del Carmen. He testified that she fell to the ground after the first shot was fired. He fired two more shots towards her "because I was angry. I didn't know what I was doing ... I don't know whether I did hit her or not."

The trial court held that this evidence raised the issue of voluntary manslaughter under V.T.C.A. Penal Code, § 19.04. ¹ Both the State and appellant agree that the appellant's testimony raised the issue of sudden passion, and that the trial court was correct to charge the jury on the law of voluntary manslaughter. The court's charge instructed the jury in pertinent part as follows:

"3.

Therefore, if you believe from the evidence beyond a reasonable doubt that the defendant, Jose Luis Castillo Fuentes, did, in Bexar County, Texas, on or about February 16, 1982, intentionally or knowingly cause the death of an individual, to-wit: Marie Del Carmen Proscelle, by shooting the said Marie Del Carmen Proscelle with a rifle, you will find the defendant guilty of murder.

If you do not so believe, or if you have a reasonable doubt thereof, you will find the defendant not guilty of murder and you will next consider whether the defendant is guilty of voluntary manslaughter."

In Cobarrubio v. State, 675 S.W.2d 749 (Tex.Cr.App.1984), this Court held, "the burden of proving lack of sudden passion must be placed upon the prosecution, [and] this burden must be so placed in the paragraph of the charge applying the law of murder to the facts of the case." Id. at 751. We further stated that constructing a charge in this manner will avoid the "likelihood that a jury would affirmatively answer the murder paragraph, never having considered the defensive issue of sudden passion which would reduce the offense of murder to the lesser included offense of voluntary manslaughter." Id. at 752. The jury charge above is precisely the type of charge condemned in Cobarrubio, supra, and the court of appeals concluded that the charge presented reversible error on that basis.

The State argues that Cobarrubio, supra, was incorrectly decided, along with Jenkins v. State, --- S.W.2d ---- (Tex.Cr.App. No. 64,000 delivered Feb. 16, 1983), a similar case. It maintains further that the court of appeals incorrectly applied Cobarrubio, supra, and Jenkins, supra. Although we affirm the court of appeals, some clarification of "Cobarrubio error" in light of recent decisions is necessary.

Since the court of appeals' opinion was delivered in the instant case, we have re-evaluated the doctrine of fundamental error in a court's charge. See Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985) and Lawrence v. State, 700 S.W.2d 208 (Tex.Cr.App.1985). We must look to this Court's ruling in Almanza, supra, to determine the nature of the fundamental error found by the court of appeals. We concluded in Almanza, supra, that Article 36.19, V.A.A.C.P. contains the standards for both fundamental error (which does not require preservation) and ordinary (properly preserved) error. The error in this case was not properly preserved by objection. Almanza states that, "if no proper objection was made at trial and the accused must claim that the error was 'fundamental,' he will obtain reversal only if the error is so egregious and created such harm that he 'has not had a fair and impartial trial'--in short 'egregious harm.' " Id. at 171.

To determine the egregiousness of the harm to appellant, we undertake a thorough evidentiary review, following Almanza, supra:

" 'But in determining whether the error is material ... we are to look to the whole record bearing upon the subject. What was the nature of the testimony supporting the verdict? Was it cogent and overwhelming? What was the character of the testimony presenting the phase or theory of the case omitted to be noticed in the charge, and upon which omission error is assigned? Was it at all reasonable? Did it present a theory which a reasonable mind could entertain, or was it supported by such testimony as was remotely calculated to destroy the State's case when considered in connection with the other testimony in the case, as well as the charge as a whole? Was the phase of the case simply an addition to the case as made by the State and consistent therewith, or was it in direct conflict with the State's theory? These are all important matters to be considered in passing upon the [degree of harm] in the omission or error....' "

Id. at 173-174, quoting 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).

The problem of unpreserved Cobarrubio error was presented recently in Lawrence, supra. On the facts of that case, we held that, although voluntary manslaughter was sufficiently "raised" by the evidence to justify a jury charge on the issue, the voluntary manslaughter theory was incidental to the primary theory of self-defense. "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." Id., 700 S.W.2d at 213. Cobarrubio error in such a context did not rise to the level of fundamental, reversible error under Almanza, supra.

Conversely, a review of the record in the instant case shows voluntary manslaughter as the primary, indeed the only theory proffered by the defense. In closing arguments for the defense, counsel informed the jury, as follows:

"... where there is a murder under circumstances that show that this murder resulted from immediate passion and that that immediate passion was caused by the provocation of the victim, and that further that this constituted adequate cause, then by law that is voluntary manslaughter.... She made an effort to obtain that rifle. Common sense and logic would say for what? To inspect it? No. She was angry. She was enraged. Is it logical to conclude that his anger and his rage was somewhere in the same degree? And was this such a degree as to have rendered him incapable of cool reflection? ... Yet that night something occurred and that occurrence constitutes, I believe, under the law and evidence, voluntary manslaughter."

The bulk of defense counsel's closing argument, and of the defense...