Lugo v. State
Decision Date | 14 March 1984 |
Docket Number | No. 312-83,312-83 |
Citation | 667 S.W.2d 144 |
Parties | Luis LUGO, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
J. Douglas Tinker, A. Deniz Tor, Mark A. Haynes, Corpus Christi, for appellant.
William B. Mobley, Jr., Former Dist. Atty., Grant Jones, Dist. Atty., Paul Raleigh, Aubrey R. Williams and Jeffery A. Babcock, Asst. Dist. Attys., Corpus Christi Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
This is an appeal from a conviction for murder. After a trial by jury, the court assessed punishment at 16 years.
On direct appeal, appellant contended in his sole ground of error that the trial court erred in refusing to instruct the jury on the lesser included offense of involuntary manslaughter. The Corpus Christi Court of Appeals held that the evidence did not raise the issue of involuntary manslaughter and affirmed the conviction. Lugo v. State, 653 S.W.2d 513 (Tex.App.--Corpus Christi 1983). We granted appellant's petition for discretionary review in order to review that holding.
The record reflects that in the early morning hours of December 7, 1980, appellant shot and killed his wife of ten years during an argument at their home. According to the testimony of the victim's two teenage daughters, the couple had been out earlier in the evening and had come home arguing. At about 2:00 a.m., appellant's wife came into the girls' bedroom and stated that appellant had tried to choke her and that she was throwing him out of the house. She screamed at appellant to pack his clothes and leave. Appellant had begun to pack and appellant's wife was still in the bedroom when the girls heard a noise like a gun being cocked. Appellant walked into the bedroom carrying the victim's 30-30 rifle. Appellant's wife grabbed the rifle, tried to pull it away from appellant, and told him, "I knew you had it somewhere." Sometime during the struggle, one of the girls asked appellant not to shoot their mother and he responded When appellant's wife stopped pulling on the gun and released it, she was immediately shot in the abdomen. As she fell to the floor, she dropped a set of keys she had been holding. One of the girls testified that appellant was holding the rifle, at his side, level, and was pointing the gun at the victim. After the shot was fired, appellant dropped the rifle and called the police. He was described as remorseful, upset, and crying. Appellant's wife died two hours later.
Appellant testified that when he and his wife returned to their home they started arguing about his decision to loan a car to one of his daughters. Eventually, the couple had gone to bed with the argument apparently abandoned. Appellant's wife, however, awakened him at about 2:00 a.m., told him "I don't trust you," and ordered him to leave the house. She said she wanted her rifle and she wanted the keys to the house. He denied having tried to choke her. While he was packing his clothes, he found the rifle and decided to give it to her in exchange for the keys to the car which were on the key ring she had taken with her. When he walked into the other bedroom, he told her he would give her the gun if she would give him the keys to the car; instead, his wife grabbed the rifle, jerked on it, then turned it loose and the gun "went off." Appellant testified he did not intend to kill his wife, he had neither cocked the gun nor loaded it, and he had believed the rifle was empty because his wife always kept it unloaded. He also testified that he had been aware that the rifle, if loaded, was dangerous and could kill someone, and that he should have checked to make sure it was unloaded.
The trial court in the instant case instructed the jury on the law of murder, the law of criminally negligent homicide, and the law of accident. Appellant objected to the trial court's failure to submit a charge on the law of involuntary manslaughter.
The Court of Appeals held that the appellant's testimony negated the intent required by involuntary manslaughter. Lugo, supra at 515. The court, in effect, held that if the appellant's testimony in any way denied an element of the lesser included offense, the appellant waived any right he might have to request the defensive charge even if evidence presented by the State supplied the missing element. Therefore, prior to reaching the merits of appellant's contention, we find it necessary to correct this misstatement of law.
It has long been recognized in Texas that a defendant is entitled to a charge on a defensive theory regardless of whether the evidence supporting the defensive theory is contradicted. As was explained by the Court of Appeals in Liskosski v. State, 23 Tex.App. 165, 3 S.W. 696, 698 (Tex.Ct.App.1887):
(emphasis added).
See also, Jones v. State, 33 Tex.Cr.R. 492, 26 S.W. 1082 (Tex.Cr.App.1894), and Arnwine v. State, 49 Tex.Cr.R. 5, 90 S.W. 39, 40 (Tex.Cr.App.1905).
Moreover, in an opinion written by this Court more than sixty years ago, the same reasoning used by the Court of Appeals in this case was soundly rejected. In Steen v. State, 88 Tex.Cr.R. 256, 225 S.W. 529 (Tex.Cr.App.1920), the State argued on Motion for Rehearing that the defendant's testimony "negatived" the intent necessary to require a charge on the lesser included offense of manslaughter. The Court held that:
"[I]t is not necessary that the testimony of the accused be that which raises the issue of manslaughter ... if the facts of the case in evidence fairly tend to indicate [manslaughter] ... it becomes the duty of the trial court to submit manslaughter, and leave to the jury the ascertainment of whether or not such killing was the result of such cause, and whether or not such cause was adequate ... even though the accused claimed the homicide an accident." Steen, supra at 531.
See also, Cantu v. State, 101 Tex.Cr.R. 386, 276 S.W. 432, 435 (1925); Fletcher v. State, 114 Tex.Cr.R. 276, 23 S.W.2d 369 (1930).
Fifty years later in Thompson v. State, 521 S.W.2d 621 (Tex.Cr.App.1974), this Court once again addressed this issue. The defendant in Thompson was convicted of assault with intent to murder a peace officer. The officer testified that the defendant pointed a gun at him and fired. The defendant testified that he did not shoot toward the officer and that he did not intend to endanger anyone. The trial court refused to instruct the jury on the law of aggravated assault. The State argued on appeal that no such instruction was necessary because the defendant testified that he did not fire the gun at the officer. Thus, the defendant was either guilty of the offense charged or, as he testified, he was guilty of no offense. This Court found the State's reasoning to be incorrect for the following reason:
(emphasis in original). Thompson, supra at 624.
Over the years, we have continued to follow the reasoning of Steen, supra, and Thompson, supra, by holding that:
(emphasis added). Moore v. State, 574 S.W.2d 122, 124 (Tex.Cr.App.1978).
The language of Moore, supra, was quoted with approval in Schoelman v. State, 644 S.W.2d 727 (Tex.Cr.App.1983). See also Ormsby v. State, 600 S.W.2d 782 (Tex.Cr.App.1979); Montgomery v. State, 588 S.W.2d 950 (Tex.Cr.App.1979); Torres v. State, 585 S.W.2d 746 (Tex.Cr.App.1979); Branham v. State, 583 S.W.2d 782 (Tex.Cr.App.1979); Swain v. State, 583 S.W.2d 775 (Tex.Cr.App.1979); Duson v. State, 559 S.W.2d 807 (Tex.Cr.App.1977).
In determining whether evidence has been presented which raises the issue of a lesser included offense, the language in a...
To continue reading
Request your trial-
Molitor v. State
...by the State and the defendant must be considered. Dowden v. State, 758 S.W.2d 264, 269 (Tex.Crim.App.1988); Lugo v. State, 667 S.W.2d 144, 147 (Tex.Crim.App.1984). Entitlement to a jury instruction on a lesser included offense must be made on a case-by-case basis according to the particula......
-
Livingston v. State
...issue, we consider all of the evidence raised at trial from any source. Thomas v. State, supra; Santana v. State, supra; Lugo v. State, 667 S.W.2d 144 (Tex.Cr.App.1984). The appellant did not testify at trial, nor did the defense offer any testimony which might reasonably have raised an inf......
-
Reyes v. State
...Moore v. State, 574 S.W.2d 122, 124 (Tex.Cr.App.1978); Montgomery v. State, 588 S.W.2d 950, 952 (Tex.Cr.App.1979); Lugo v. State, 667 S.W.2d 144, 146 (Tex.Cr.App.1984); Booth v. State, 679 S.W.2d 498, 500 (Tex.Cr.App.1984); Sanders v. State, 707 S.W.2d 78, 80 (Tex.Cr.App.1986). The Court of......
-
Tenner v. State
...of the lesser offense. In 1984, it appeared the Court of Criminal Appeals abandoned the "guilty only" rule in deciding Lugo v. State, 667 S.W.2d 144 (Tex.Crim.App.1984). However, the rule surfaced again in Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Crim.App.1985). In 1987, the Court of Crim......
-
Offenses against person
...regarding voluntary conduct. Simpkins v. State , 590 S.W.2d 129 (Tex.Crim.App. 1979), disapproved on other grounds, Lugo v. State , 667 S.W.2d 144 (Tex.Crim.App. 1984); Garcia v. State , 605 S.W.2d 565 (Tex.Crim.App. 1980, reh. denied October 15, 1980). If Defendant does not request a jury ......