Hunter v. State
| Decision Date | 23 March 1983 |
| Docket Number | No. 689-82,689-82 |
| Citation | 647 S.W.2d 657 |
| Parties | Reginald HUNTER, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Bruce Anton, Dallas, for appellant.
Henry Wade, Dist. Atty., R.K. Weaver, Mike Wilson and Royce West, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Appellant was found guilty of murder after a jury trial and was sentenced to fifteen years in prison. Proper requests for jury charges on criminally negligent homicide and involuntary manslaughter were overruled by the trial court. Appellant urges two grounds of error: first, the trial court erred in refusing to charge the jury on criminally negligent homicide; second, the trial court erred in refusing to charge the jury on involuntary manslaughter. We granted appellant's petition for discretionary review to determine whether the court of appeals erred in upholding the trial court's refusal to give the requested charges.
At trial, appellant testified to the following:
The general rule concerning the required submission of jury charges is that when the evidence from any source raises an issue of a lesser included offense, and there is testimony that, if guilty at all, the defendant is only guilty of the lesser included offense, then the charge on the lesser included offense must be submitted to the jury, assuming the charge is properly requested or its omission properly objected to. Simpkins v. State, 590 S.W.2d 129, 132 (Tex.Cr.App.1979), and cases cited therein; Watson v. State, 605 S.W.2d 877 (Tex.Cr.App.1979). Moreover, a defendant's own testimony is sufficient to raise the issue. Campbell v. State, 614 S.W.2d 443 (Tex.Cr.App.1981); Jackson v. State, 548 S.W.2d 685 (Tex.Cr.App.1977).
The offense of criminally negligent homicide is committed when a person causes the death of an individual by criminal negligence. V.T.C.A. Penal Code, Sec. 19.07. Criminal negligence is defined in V.T.C.A. Penal Code, Sec. 6.03(d) as:
(Emphasis supplied).
In this case, the evidence is sufficient to raise the issue of criminally negligent homicide, a lesser included offense of murder. Appellant testified that he did not know why the gun went off, he did not intend to shoot or hit the victim, and he did not cock the gun. He did, however, swing his arm around toward the back seat, aiming the gun in the general vicinity of the deceased. This testimony raised an issue as to whether appellant was negligent in not perceiving the risk which his conduct created.
Other fact situations giving rise to the criminally negligent homicide charge are helpful in this analysis. In Bodeker v. State, 629 S.W.2d 65 (), the court of appeals found that criminal negligence was raised where the testimony indicated that the deceased was pushed into a knife held by defendant during a struggle. Since there was an issue as to whether defendant was negligent in not perceiving the risk of injury created by his conduct in obtaining and holding the knife, the trial court erred in refusing the charge on criminal negligence. Id. at 66.
In Branham v. State, 583 S.W.2d 129, 132 (Tex.Cr.App.1979), this court held that where the defendant testified that she thought the gun was unloaded, that she did not intend to fire the gun, that her finger was not on the trigger, and that the gun accidently discharged when she was grabbed by a third party, the issue of criminal negligence was raised....
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