Fennell v. State

• Decision Date: 06 March 1968
• Docket Number: No. 40830,40830
• Citation: 424 S.W.2d 631
• Parties: Fred FENNELL, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 631

424 S.W.2d 631

Fred FENNELL, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 40830.

Court of Criminal Appeals of Texas.

March 6, 1968.

Ray Epps, John Cutler, Houston, for appellant.

Carol S. Vance, Dist. Atty., Joe S. Moss, James C. Brough, Wells Stewart and J. Robert Musslewhite, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION ON STATE'S MOTION FOR REHEARING

ONION, Judge.

Our original opinion is withdrawn and the following is substituted in lieu thereof.

The offense is Murder without Malice; the punishment, assessed by the trial court after a verdict of guilty, five (5) years confinement in the Texas Department of Corrections.

On original submission this cause was reversed and remanded on the grounds (1) that the facts were insufficient to show an unlawful killing and that the uncontroverted evidence established self-defense as a matter of law, and (2) that the appellant was deprived of a fair and impartial trial by reason of fundamental error which occurred despite the lack of objection when, under the circumstances, the trial court charged only abstractly on the law of self-defense and failed to apply the law to the facts.

On rehearing, upon further consideration, we have concluded that we were in error in holding that self-defense was established by the facts as a matter of law.

We remain convinced, however, that this cause must be reversed on the error in the court's charge. The testimony of the State and appellant clearly and strongly raised the issue of self-defense both against an unlawful attack giving rise to apprehension or fear of death or serious bodily injury (Articles 1221, 1226, V.A.P.C.) and against a milder attack (Article 1224 P.C.).

In our original opinion said:

'It is further observed, since self-defense was the crucial question in the case at bar, that the court charged the jury only abstractly on the law of self-defense in a single paragraph and did not apply the law to the facts. For some unexplained reason there was no objection to such charge, nor was this fact assigned as ground of error or mentioned in oral argument or otherwise. The fact remains, however, that the jury was never told that if they found from the evidence that the appellant had acted in self-defense, or if they had a reasonable doubt thereof, to acquit this appellant.

'It has been the consistent holding of this Court under the provisions of Article 36.19, V.A.C.C.P. (former Article 666) that a case will not be reversed on appeal because of an error in the charge of the court to which no objection was made,...