Garcia v. State
| Decision Date | 02 July 1980 |
| Docket Number | No. 59205,No. 3,59205,3 |
| Citation | 605 S.W.2d 565 |
| Parties | Victor Ramirez GARCIA, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Richard M. Lovelace, El Paso, for appellant.
Steve W. Simmons, Dist. Atty., and Paul J. Kubinski, Asst. Dist. Atty., El Paso, Robert Huttash, State's Atty., Austin, for the State.
Before ODOM, TOM G. DAVIS and CLINTON, JJ.
This is an appeal from a conviction for murder, wherein punishment was assessed at ten years.
Appellant contends the trial court erred in refusing his "requested special instruction to the jury relating to the defense of accident." We agree and reverse.
Testifying in his own behalf, appellant related that the deceased gave him the gun as they were walking on the sidewalk and that the hammer was already pulled. When appellant told the deceased that he was going to throw the gun into the canal, the deceased suddenly grabbed appellant's right elbow with one hand and the gun with his other hand in an attempt to take the gun away from appellant. Appellant testified:
In Dockery v. State, 542 S.W.2d 644 (Tex.Cr.App.), this Court wrote concerning the issue of accidental homicide:
The testimony summarized and quoted above was sufficient to raise an issue of fact as to the voluntariness of appellant's conduct. It is settled that an accused is entitled to an instruction on every defensive matter raised by the evidence. Esparza v. State, 520 S.W.2d 891 (Tex.Cr.App.). The testimony of the defendant alone is sufficient to raise the issue. London v. State, 547 S.W.2d 27 (Tex.Cr.App.). The failure to grant the timely filed and properly requested special instruction on accident constituted reversible error.
The judgment is reversed and the cause remanded.
Before the court en banc.
ON DENIAL OF STATE'S MOTION FOR LEAVE TO FILE MOTION FOR REHEARING
The majority denies leave to file the State's motion for rehearing. On original submission, the panel reversed the conviction because the court did not instruct the jury to acquit if the homicide was the result of an accident. The 1925 penal code, Article 39, provided for the defense of accident. The present code has no such provision as the defense of accident. The majority relies upon the dictum in Dockery v. State 542 S.W.2d 644 (Tex.Cr.App.1976) (a 3-to-2 decision), and V.T.C.A., Penal Code, Section 6.01(a), which provides:
"A person commits an offense only if he voluntarily engages in conduct, including an act, an omission or possession, in violation of a statute that provides that the conduct is an offense."
A charge on accident is not required by the statute, but the majority ignores it.
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