Lynn v. State

• Court: Texas Court of Appeals
• Writing for the Court: Before NYE, C.J., and DORSEY and GILBERTO HINOJOSA; DORSEY; NYE
• Citation: Lynn v. State, 860 S.W.2d 599 (Tex. App. 1993)
• Decision Date: 29 July 1993
• Docket Number: No. 13-92-009-CR,13-92-009-CR
• Parties: Carroll Ray LYNN, Jr., Appellant, v. The STATE of Texas, Appellee.

Page 599

860 S.W.2d 599

Carroll Ray LYNN, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 13-92-009-CR.

Court of Appeals of Texas Corpus Christi.

July 29, 1993.

Discretionary Review Refused Nov. 17, 1993.

Mark Alexander, McAllen, for appellant.

Theodore C. Hake, Cynthia A. Morales, Asst. Crim. Dist. Attys., Rene Guerra, Dist. & County Atty., Edinburg, for the state.

Before NYE, C.J., and DORSEY and GILBERTO HINOJOSA, J.

OPINION

DORSEY, Justice.

Appellant pleaded not guilty to the offense of murder, ¹ after which a jury found him guilty and assessed punishment of 30 years' imprisonment and a $10,000 fine. By five points of error, appellant complains of the charge submitted to the jury and of certain evidence admitted by the trial court. We affirm.

By points of error one, four and five, appellant maintains that the trial court erroneously failed to include a defensive issue regarding voluntariness in the charge, as well as the lesser-included offenses of involuntary manslaughter and criminally negligent homicide.

Carolyne Garcia, an eye-witness to the shooting in this case, testified that on May 3, 1991, she, the appellant, the victim, and several others were having a barbecue at the home of a couple, Glennda Wise and Jimmy Weaver. All had been drinking beer for most of the day, and appellant and Weaver decided to go to a bar together. Weaver and Glennda Wise argued, she not wanting him to go with the appellant. Weaver left in a rage with the appellant. Wise was afraid to stay at home when Weaver came back from the bar, so she asked the victim to take her, her two children, and Garcia to a motel. The victim suggested that they all go to his house.

Sometime after midnight, appellant arrived at the victim's house, inebriated. He had blood splattered on him, and he himself was bleeding, after apparently getting into a fight with Weaver. Appellant was "pacing back and forth and ranting and raving that he wanted to leave." Appellant wanted everyone to leave the victim's house. Garcia testified that she told appellant she was not going to leave with him, and appellant put a gun to her neck and told her she was going with him. He also ordered the victim to leave with them.

The three left the house and moved towards the victim's truck. The victim got into the driver's side, with Garcia sitting in the middle of the front seat of the cab. Garcia testified that the appellant was on the passenger's side of the vehicle, and he "was in and out of the truck. And he was hollering at [the victim], looking for something." The appellant was yelling, "Where is it?" but Garcia did not know what he was looking for. Garcia testified that appellant was waving the gun around the entire time, with his arm inside the truck, asking the victim where this lost object was. The victim leaned across Garcia, trying to calm the appellant down; Garcia asked the victim what appellant was looking for. She stated that at that moment, the gun went off.

Garcia testified that the victim fell over in her lap. Appellant walked around to the driver's side of the vehicle and pulled the victim out, throwing his body against a wall and leaving it in the driveway. The appellant, with Garcia still in the vehicle, fled the scene. They went to the apartment of some friends and appellant borrowed their car.

Appellant and Garcia drove toward Houston; en route, appellant changed his blood-splattered clothes and discarded them, ordering Garcia to do the same. Meanwhile, the car was overheating sporadically. As a result, the two left the car on the side of the highway and hitchhiked the rest of the way to Houston. When they arrived in town, appellant checked them into a hotel using an assumed name.

No evidence existed of a dispute between appellant and the deceased, of a fight, or of hard feelings between them at the time of this incident. Rather, the evidence suggested that appellant and Weaver had been fighting and the appellant was trying to leave the victim's apartment before Weaver returned. No motive or reason for the killing was given.

During the charge conference, appellant requested an instruction on voluntariness because Garcia testified that he appeared to be in a panicked state at the time of the shooting, and that he felt no animosity towards the victim. Moreover, Garcia testified that appellant told her later that the shooting was an accident, that he did not mean to do it, and that his finger slipped, causing the gun to discharge. Appellant requested that the trial court include the following instruction, in pertinent part, in the jury charge:

Now if you find from the evidence beyond a reasonable doubt that on or about the 4th day of May, 1991 the Defendant CARROLL RAY LYNN, JR., did cause the death of JOHN DAVID GLICK by shooting him with a deadly weapon, ... but ... the shooting was a result of an accidental discharge of the gun when CARROLL RAY LYNN, JR., was outside the victim's truck, on the passenger's side, searching for a lost item and while in a state of panic and despair and said discharge was not the voluntary act or conduct of the Defendant, you will acquit the Defendant....

Appellant maintains that the charge he requested "was more in the nature of a voluntary conduct charge than an accident charge," and that such a charge is proper. The State contends that merely asserting that an "accident" occurred, i.e., that the accused's finger slipped off the trigger or that the gun "just went off" will not by itself raise an issue of voluntariness.

If the evidence does not raise the issue of involuntary conduct, the trial court need not include that instruction in its charge to the jury. George v. State, 681 S.W.2d 43, 47 (Tex.Crim.App.1984); Williams v. State, 630 S.W.2d 640, 644 (Tex.Crim.App.1982); Gaona v. State, 733 S.W.2d 611, 617 (Tex.App.--Corpus Christi 1988, pet. ref'd). It has been suggested that involuntary conduct is not a defense to a crime, but rather, voluntary conduct is an element of the offense that the State has the burden to prove. George, 681 S.W.2d at 46 n. 6; Joiner v. State, 727 S.W.2d 534, 536 n. 3 (Tex.Crim.App.1987); accord, Ross v. State, 763 S.W.2d 897, 900 n. 1 (Tex.App.--Dallas 1988, pet. ref'd). When the proposed defensive theory merely denies an element the State must prove, an instruction on that theory is not necessarily required. Moore v. State, 736 S.W.2d 682, 684 (Tex.Crim.App.1987); Ross, 763 S.W.2d at 900 n. 1.

It has been held that the court is not required to charge the jury on involuntary conduct if the appellant engaged in a single voluntary act, with the required mental state, and an involuntary act becomes part of the appellant's overall conduct. Joiner, 727 S.W.2d at 536-37; George, 681 S.W.2d at 47; Gaona, 733 S.W.2d at 617. In George, the defendant ordered the victim to give him a dollar. When the child refused, the defendant pointed a revolver at the victim, pulling the hammer back slightly. Defendant testified that the gun accidentally discharged when his thumb slipped off of the hammer. The trial court refused to give an instruction on involuntary conduct, and this action was upheld by the high court. George, 681 S.W.2d at 47. The court of criminal appeals reasoned that the defendant voluntarily engaged in conduct up to the moment that his thumb slipped off the hammer of the gun, and that his conduct would not be considered involuntary merely because he did not intend the results of his actions. George, 681 S.W.2d at 45-46.

In Gaona, the defendant and the victim were involved in a scuffle that defendant wished to end. Gaona, 733 S.W.2d at 616. In order to "scare" the victim into stopping the scuffle, defendant went inside his house and brought out his .22 rifle. Id. Defendant testified that he had his finger on the trigger, but was not aiming the gun at the victim and did not intend to pull the trigger or to shoot the gun. Defendant testified that "all I remember is I had the gun ... and it just went off." Id. Appellant surmised that he "must have slipped," because he was standing on sloped pavement when the gun went off. This court held testimony that a weapon "just went off" does not render an act involuntary so as to require a voluntariness instruction in the jury charge. Id. at 617. We reasoned that although the defendant denied aiming the rifle at the victim, the defendant acted voluntarily up to the moment that the rifle discharged. Id.

The jury charge in this case instructs the jury to find appellant guilty of murder if they determine, beyond a reasonable doubt, that he intentionally and knowingly caused the death of the victim by shooting him with a deadly weapon. Voluntariness is an element of the offense that the State was required to prove. A defensive issue on the same element is not necessary.

Moreover, we find the facts of this case analogous to those cited above. Appellant voluntarily threatened Garcia with a weapon in order to force her to leave the victim's house. In so doing, he persuaded the victim to leave the house as well. Appellant held a loaded weapon inside a pickup truck in which Garcia and the victim were seated. He continued to position the gun there while he searched for something, yelling at the victim to tell him where it was. Every action taken by the appellant was voluntary up to the moment the gun fired.

The trial court did not err by refusing to include an instruction regarding voluntariness. Point of error one is overruled.

Appellant complains the court erred in failing to charge on the lesser-included offenses of involuntary manslaughter and criminally negligent homicide. However, appellant's counsel did not request that the jury be charged on these offenses. When no request has been made that the jury be instructed on lesser-included offenses, and there is no objection to their exclusion, their absence is not reversible error. Kinnamon v. State, 791 S.W.2d 84, 96 (Tex.Crim.App.1990); Fuller v. State, 716 S.W.2d 721, 723 (...