Mason v. State, B14-89-875-CR

• Court: Court of Appeals of Texas
• Writing for the Court: DRAUGHN
• Citation: 798 S.W.2d 854
• Parties: Terry Lee MASON, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Docket Number: No. B14-89-875-CR,B14-89-875-CR
• Decision Date: 11 October 1990

Page 854

798 S.W.2d 854 Terry Lee MASON, Appellant,
v.
The STATE of Texas, Appellee. No. B14-89-875-CR. Court of Appeals of Texas,
Houston (14th Dist.). Oct. 11, 1990.

Page 855

James M. Leitner, Houston, for appellant.

Carol M. Cameron, Houston, for appellee.

Before ROBERTSON, SEARS and DRAUGHN, JJ.

OPINION

DRAUGHN, Justice.

Following a jury trial, appellant was convicted of murder and sentenced to six years confinement in the Texas Department of Corrections. In three points of error, he complains of the trial court's refusal to give an instruction on the lesser-included offense of voluntary manslaughter and the sufficiency of the evidence. We affirm.

In his first point of error, appellant argues that the trial court committed reversible error in overruling appellant's request for an instruction on the lesser-included offense of voluntary manslaughter. To be entitled to an instruction on a lesser-included offense, there must be some evidence before the court that, if the defendant is guilty, he is guilty only of the lesser offense. Simpkins v. State, 590 S.W.2d 129 (Tex.Crim.App.1979); Johnson v. State, 681 S.W.2d 648, 651 (Tex.App.--Houston [14th Dist.] 1984, pet. ref'd). A charge on the lesser-included offense of voluntary manslaughter should only be given when there is evidence that the defendant acted under the "immediate influence of sudden passion arising from an adequate cause." TEX.PENAL CODE ANN. § 19.04(a) (Vernon 1989); Marquez v. State, 725 S.W.2d 217, 223-24 (Tex.Crim.App.1987) (en banc), cert. denied, 484 U.S. 872, 108 S.Ct. 201, 98 L.Ed.2d 152 (1987). The "sudden passion" must directly arise from the immediate provocation by the deceased at the time of the offense. Williams v. State, 768 S.W.2d 337, 340 (Tex.App.--Houston [14th Dist.] 1989, pet. ref'd); TEX.PENAL CODE ANN. § 19.04(b) (Vernon 1989). "Adequate cause" must be an act sufficient to render a person's mind incapable of cool reflection and would commonly produce anger, rage, resentment or terror in a person of ordinary temper. Id. § 19.04(c). The record, as summarized below, reflects neither sudden passion nor adequate cause at the time of the offense.

In the early morning on April 29, 1989, appellant was involved in an altercation with the decedent, David William Vick, in the parking lot of a nightclub in Houston. The altercation arose when appellant heard the alarm sound on his Porsche automobile and assumed that Vick was tampering with the car. Vick, the club photographer, was taking a picture of an unidentified couple near the car. Appellant approached Vick, words were exchanged, a fight ensued, and Vick was knocked to the ground. Appellant then got in his car to leave and Vick grabbed hold of the car's passenger door and nearly yanked it off its hinges. Appellant then got out of the car and returned to the club to call the police. Vick followed him into the club asking that the police not be called so that they might work it out on their own. Appellant went into the club's office and dialed 911. Vick remained outside the office at the bar. While another employee was on the phone giving the police dispatcher the club's address, appellant saw Vick through the door and picked up a single barrel shotgun from behind the desk. Shrugging off an attempt by two club employees to stop him, appellant walked to the office door, pointed the gun at Vick and pulled the trigger on an empty chamber. He then pumped a fresh shell into the chamber and shot Vick in the face

Page 856

and upper right chest. Vick, mortally wounded, staggered outside the building and died in the parking lot.

There is no evidence in the record that appellant was acting under the influence of a sudden passion. Arguably,...