Hanks v. State, 52172
| Decision Date | 27 October 1976 |
| Docket Number | No. 52172,52172 |
| Parties | Willie HANKS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
CORNELIUS, Commissioner.
Appellant was convicted, under the former Penal Code, of murder. Punishment was assessed at fifty (50) years' confinement.
Appellant and the deceased, Bessie Ann Love, had lived together for about two years. They separated about a week prior to the occurrence in question. On the day of the offense, they were at the apartment of the deceased's sister, and had been drinking. At about 10:05 in the evening, appellant shot the deceased six times with a .22 caliber pistol. She died prior to reaching the hospital. At the guilt-innocence stage of the trial, appellant requested the court to instruct the jury on murder without malice and temporary insanity due to involuntary intoxication. Both requests were refused.
In his first ground of error, appellant complains of the failure to charge the jury on murder without malice. To support his contention that the charge should have been given, appellant points to testimony of Louis Braxton Love, the brother of the deceased, that immediately before the killing he heard the following verbal exchange between appellant and the deceased:
Deceased:
Appellant: 'I'm tired of this _ _.'
Appellant contends this testimony raises an inference that he acted in a rage of sudden passion, and was therefore sufficient to raise the issue of murder without malice. We do not agree. Under the former Penal Code, murder without malice was a voluntary homicide committed without justification or excuse, under the immediate influence of a sudden passion arising from an adequate cause, by which it is meant such cause as would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection. Art. 1257c, V.A.P.C. There was no testimony here that the quoted exchange or any other circumstance caused appellant to become enraged or overcome with sudden passion. No witness testified that he appeared incapable of cool reflection. In fact, appellant himself testified, and his only defense was that because of intoxication he did not remember what happened and did not know he had shot the deceased until sometime after the killing. He stated that he was not angry at anyone and simply could not remember what happened. In these circumstances, the evidence did not raise the issue of murder without malice. Ortegon v. State, 459 S.W.2d 646 (Tex.Cr.App.1970); Allen v. State, 169 Tex.Cr.R. 318, 333 S.W.2d 855; Dickson v. State, 463 S.W.2d 20 (Tex.Cr.App.1971); Bryant v. State, 482 S.W.2d 270 (Tex.Cr.App.1972). The failure to instruct the jury on murder without malice is not error unless there is evidence raising the issue. Dickson v. State, supra. Moreover, appellant requested the charge at the guiltinnocence stage of the trial but did not reurge it at the punishment stage. At the time of this trial, the lack of malice did not affect the question of guilt, but only that of punishment. Thus, the proper time to have requested a charge on murder without malice was at the punishment stage. Foster v. State, 493 S.W.2d 812 (Tex.Cr.App.1973); Jones v. State, 504 S.W.2d 906 (Tex.Cr.App.1974). Ground of error number one is overruled.
The second ground of error asserts that the court erred in failing to charge the jury on temporary insanity due to involuntary intoxication. Appellant contends that the issue was raised by his testimony that after he had consumed one beer he was about to drink another when the deceased took something from her bosom and dropped it...
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...must be truly involuntary. [See Brown (defendant taking Ambien by mistake was enough to show volition); see also Hanks v. State , 542 S.W.2d 413, 416 (Tex.Crim.App. 1976) (there must be an absence of an exercise of independent judgment and volition on the part of the accused in taking the i......
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