Cobarrubio v. State

• Decision Date: 12 January 1983
• Docket Number: No. 63801,63801
• Citation: 675 S.W.2d 749
• Parties: Joe Martinez COBARRUBIO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 749

675 S.W.2d 749

Joe Martinez COBARRUBIO, Appellant, v. The STATE of Texas, Appellee.

No. 63801.

Court of Criminal Appeals of Texas En Banc.

Jan. 12, 1983.

Rehearing Denied Sept. 26, 1984.

Dennis W. McGill, Lubbock, for appellant.

John T. Montford, Dist. Atty. and Earl Harcrow, Asst. Dist. Atty., Lubbock, Robert Huttash, State's Atty., and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CLINTON, Judge.

Appeal is taken from a conviction for murder ¹ in which the jury assessed punishment at 40 years confinement. We confront at the outset an error in the trial which was calculated to injure the rights of the accused, Article 36.19, V.A.C.C.P., and are therefore constrained to reverse the conviction obtained.

The evidence reflected that during an altercation the deceased was struck in his head by one of four shots fired by appellant with a .25 caliber automatic pistol. According to appellant's testimony, he was on his way to the country to try out his new pistol when he confronted the deceased, who had quarreled with a cousin of appellant a few days before. Encountering provocative language, then conduct, appellant testified he prepared to defend himself; the deceased kicked him in the stomach, then twice in the face. In a dazed state, appellant pulled his pistol and fired in the direction of the deceased.

Apparently without a request from appellant, the trial court included an instruction on, inter alia, the lesser included offense of voluntary manslaughter ² in the jury charge. ³ Appellant did, however, object to the paragraphs containing the respective applications of the law of murder and voluntary manslaughter to the facts of the case on the ground that each improperly applied the law to the facts. These objections should have been sustained.

In Braudrick v. State, 572 S.W.2d 709, 710 (Tex.Cr.App.1978), the Court examined the relationship between murder ⁴ and voluntary manslaughter, ⁵ observing the language of V.T.C.A. Penal Code, § 19.04 "creates [an] illusion that voluntary manslaughter has one additional element not found in murder." ⁶ In order to conclude that voluntary manslaughter is a lesser offense included in the offense of murder, the Court effaced the "illusion" as follows:

"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 some evidence raising an issue as to that fact. If the issue is raised, then it must be disproven to establish murder, and a reasonable doubt on the issue requires acquittal on the murder charge and allows conviction only for voluntary manslaughter. ⁷

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We therefore hold that causing death 'under the immediate influence of sudden passion arising from an adequate cause' is in the nature of a defense to murder that reduces that offense to the lesser included offense of voluntary manslaughter, and that the State need not prove such influence beyond a reasonable doubt to establish voluntary manslaughter, but that if raised by the evidence [the State] must prove the absence of such influence beyond a reasonable doubt to establish murder."

572 S.W.2d at 711.

With the nature of the "element" of "sudden passion" in mind, it becomes apparent not only that the burden of proving the lack of sudden passion must be placed upon the prosecution, but also that this burden must be so placed in the paragraph of the charge applying the law of murder to the facts of the case. ⁸

In the instant case, the court instructed the jury in pertinent part as follows:

"...[If] you believe from the evidence beyond a reasonable doubt, that on or about the 23rd day of May, 1978, in the County of Lubbock and State of Texas, as alleged in the indictment, the defendant, JOE MARTINEZ COBARRUBIO, did then and there intentionally and knowingly cause the death of an individual, Javier Gutierrez, by shooting him with a gun, then you will find the defendant, JOE MARTINEZ COBARRUBIO, guilty of murder as charged in the indictment.

Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt as to whether defendant is guilty of murder, then you will acquit him of murder and next consider whether he is guilty of voluntary manslaughter."

Thereafter the jury was for the first time instructed in the abstract on the law of voluntary manslaughter and the definitions of "sudden passion" and "adequate cause." The application paragraph concerning voluntary manslaughter essentially tracked that suggested by McClung, Jury Charges for Texas Criminal Practice (Jan. 1981) 47, 48. See n. 8, ante. ⁹

With the defensive issue of sudden passion deleted from the paragraph on murder and placed only in the voluntary manslaughter paragraph as it is here, there exists a decided 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. Thus, if the jurors followed the court's instructions to the letter--indeed, we must presume they did--the State's burden of proof was significantly diminished and appellant was denied an opportunity to have the jury determine his guilt on the issue of murder as interpreted by the Court in Braudrick, supra. Under these circumstances, this error precipitated a denial of due process of law in the most fundamental sense.

The judgment of conviction is reversed and the cause is remanded to the trial court.

CAMPBELL, J., concurs in result.

McCORMICK, Judge, dissenting to the denial of State's Motion for Leave to File Motion for Rehearing without written opinion.

On original submission, this Court, relying on Braudrick v. State, 572 S.W.2d 709 (Tex.Cr.App.1978), found that the "element" of "under the immediate influence of sudden passion arising from an adequate cause" is in the nature of a defense to the offense of murder that must be disproved by the State if raised by the evidence in order to establish the offense of murder. The opinion on original submission then went on to boldly state without statutory or case authority that:

"With the nature of the 'element' of 'sudden passion' in mind, it becomes apparent not only that the burden of proving the lack of sudden passion must be placed upon the prosecution, but also that this burden must be so placed in the paragraph of the charge applying the law of murder to the facts of the case."

The opinion then went on to make the novel holding that where the charge was worded with the defensive issue of sudden passion deleted from the paragraph on murder and placed only in the voluntary manslaughter paragraph there existed a likelihood that the jury would affirmatively answer the murder paragraph and never even consider the defensive issue of sudden passion.

It has long been the general rule that a reviewing court should read the charge as a whole. Doyle v. State, 631 S.W.2d 732 (Tex.Cr.App.1982) (Opinion on Rehearing). This rule, however, is not applicable when an entire element of the offense is omitted from the application paragraph. Doyle v. State, supra (where the culpable mental state was omitted from the jury charge).

The Court's opinion on original submission relied on Braudrick v. State, supra, in its analysis of the "elements" of murder and voluntary manslaughter. In Braudrick, a panel of this Court found that the fact that the accused was "not acting under the immediate influence of sudden passion arising from an adequate cause" was an implied element of murder, as distinguished from a statutory element (see V.T.C.A., Penal Code, Section 19.02) and must be proved only where the evidence adduced at trial raised the issue that the accused was acting under such an influence. But, the author of the Court's opinion in Braudrick also went on to write that the fact that the defendant was acting "under the immediate influence of sudden passion arising from an adequate cause" is in the nature of a defense to murder that reduces the offense to voluntary manslaughter. So, although not quite an element of murder, this issue of "sudden passion" does in fact seem to be a defense to murder and as a matter of burden of proof is to be treated like a defense.

I submit that, according to Braudrick, "sudden passion" is then not an element that must be charged in the application paragraph of murder. In fact, if we read Braudrick closely, we see that the panel therein approved the court's charge which in essence is identical to the charge before us today. ¹ Since the absence of sudden passion is not an element (statutory) of murder, proper review of the court's charge is to read it as a...