McCartney v. State

• Decision Date: 20 October 1976
• Docket Number: No. 51565,51565
• Citation: 542 S.W.2d 156
• Parties: Troy McCARTNEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 156

542 S.W.2d 156

Troy McCARTNEY, Appellant, v. The STATE of Texas, Appellee.

No. 51565.

Court of Criminal Appeals of Texas.

Oct. 20, 1976.

Sheehan & Dubuque, on appeal only, Dumas, for appellant.

Andy Shuval, Sp. Pros., Hereford, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This appeal is taken from a murder conviction, wherein the jury assessed punishment at fifty (50) years' confinement in the Department of Corrections.

Appellant urges that the trial court erred in refusing to instruct the jury on the lesser included offense of voluntary manslaughter, and complains there was jury misconduct because of an improper discussion of the parole laws.

The State's evidence at the guilt stage of the trial reflects that the appellant McCartney and the deceased, Ruby Mae Duckworth, had been living together 'for some time,' ¹ and two weeks before the killing the deceased moved into a hotel and separated from the appellant. There was testimony she was going with a Melvin Blair after the separation. Earlier in the afternoon of May 15, 1974, the date of the shooting, between 2 and 3 p.m., the evidence reflects that the appellant purchased the .22 calibre pistol with which he subsequently shot the deceased. The owner of the shop who sold the pistol to the appellant testified he appeared to be cool and collected and did not seem nervous or disturbed.

Alfred Combs testified that he first saw the appellant about noon on May 15th, when the appellant sold him an air conditioner for $100.00. At such time appellant did not seem upset or distraught. Combs testified he saw the appellant later in the afternoon in Harry's Bar in Dalhart. Combs was seated in booth #2 with Ellie Fanelli when the appellant came in and sat in booth #1. Fanelli spoke to him, and the appellant said 'he was waiting on some broad,' who Combs said had reference to the deceased, Ruby Mae Duckworth. At this point, Fanelli called his attention to the fact the deceased was seated in booth #3. Appellant joined the deceased in her booth and Combs heard them 'fussing a little.' The deceased stated, 'I don't have to listen to you, you SOB,' and them moved to a bar stool, and the appellant followed her and the 'fussing' continued until the bartender told them they had to leave if it continued. The deceased tapped the appellant on the arm, then moved back to a booth. Combs related the appellant remained at the bar for about five minutes, then went to the restroom. A little later, Combs heard a shot and looked up and saw the appellant pointing a pistol at the deceased. There was a second shot, and then Combs rushed to the appellant, got him on the floor and took the pistol away from him. Combs related the deceased just fell over in the booth and appeared to be dead.

Ruby Losacco, bartender at Harry's Bar, testified she saw the appellant go to the deceased's booth and heard the appellant tell the deceased he was going to kill her, and the deceased replied, 'No, you're not.' The witness told the appellant to leave the deceased alone and called him aside and told him, 'She (deceased) belongs to another man.' ² The appellant replied, 'Well, she has belonged to me for a long time.' Appellant then returned to the deceased and again threatened to shoot her. The witness offered to call the police, but the deceased declined the offer stating, 'He is not going to do it.' The appellant stated, 'Just step outside . . . I will shoot you . . . I know right where to put it,' and the deceased said, 'Well, I'm going to tell another thing, when I do I'm going to tell them about you forging my name to my withholding return.' The witness told the deceased to go to a booth and she would see that the appellant did not follow her. While it is not altogether clear from the record in what order the events then occurred, it appears that when the deceased went to a booth a Cecil Jobe asked her, 'Would Melvin care if I spent three nights with you?' and she answered, 'No, I guess not, he never has.' The witness Losacco admonished Jobe that the appellant was not Melvin and not to agitate him. At this time a Warren Jennings stated, 'Well, I will sit with you, sweetheart,' and went to the booth where the deceased was. At this point the appellant said, 'You might as well take the whole bar with you,' and then laughed. He then went to the restroom. Jennings sat with the deceased for a short time and then went to the restroom as the appellant was coming out of the restroom. Losacco watched him and decided nothing was going to happen and started washing glasses when she heard a shot and then a second, and then rushed to help Combs disarm the appellant.

The cause of death was shown to be a gunshot wound to the chest.

Ellie Fanelli testified for the defense that she thought the deceased was 'rather a flirtatious woman,' that the deceased had told her she had been living with the appellant, but shortly before the shooting she had seen the deceased with a Melvin Blair.

Edna Dooley testified she ran a cafe and that the appellant had worked for her as a back-up cook and as a dishwasher and he was not a man of violence.

The appellant did not testify at the guilt stage of the trial.

Appellant initially contends that the court erred in failing to charge on voluntary manslaughter even if the issue was not raised by the evidence. Appellant notes that Article 1257c, Vernon's Ann.P.C., 1925, related to instructions on the issue of murder without malice and provided that in cases 'where the facts present the issue of murder without malice' the jury was to be instructed thereon 'and in appropriate terms in the charge to apply the law to the facts as developed from the evidence.' He argues that this Article has now been repealed and that neither V.T.C.A., Penal Code, § 19.02 (murder) nor § 19.04 (Voluntary Manslaughter) make any similar provision requiring the issue of voluntary manslaughter to be submitted if raised by the evidence. We reasons that the Legislature by expressly excluding such procedural requirement in the definition of murder or voluntary manslaughter meant the issue of voluntary manslaughter must be submitted in any murder case where requested even if the issue is not raised by the evidence. We reject outright any such contention. We find nothing in appellant's argument to support the fact that the legislative intent was what he claimed it to be.

Appellant next argues that, even if the issue must be raised by the evidence before it need be submitted to the jury, it was in fact raised by the evidence in the instant case.

V.T.C.A., Penal Code, § 19.04 (Voluntary Manslaughter), provides:

'(a) A person commits an offense if he causes the death of an individual under circumstances that would constitute murder under Section 19.02 of this code, except that he caused the death under the immediate influence of sudden passion arising from an adequate cause.

'(b) 'Sudden passion' means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.

'(c) 'Adequate cause' means cause that 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.

'(d) An offense under this section is a felony of the second degree.'

It is noted that the term 'adequate cause' was brought forward from former Article 1257c, supra, and that 'sudden passion,' undefined in the former statute, is now statutorily defined following the general trend of the case law. See 2 Branch's Ann.P.C., 3rd Ed., § 19.04 (Explanatory Comment), p. 21.

As a result of its historical background, the Practice Commentary to V.T.C.A., Penal Code, § 19.05, is pertinent since it also deals with said § 19.04.

The commentary reads in part:

'Sections 19.04 and 19.05 restore manslaughter to the Texas criminal homicide lexicon. Before 1927 Penal Code arts. 1244 to 1255 defined manslaughter substantially in terms of the common law's voluntary manslaughter, i.e., an unlawful, willful killing on legal provocation. Common-law involuntary manslaughter, an unlawful negligent killing, was preserved in substance in arts. 1230 to 1243 (negligent homicide). The 1927 Murder Act repealed arts. 1244 to 1255, replacing voluntary manslaughter with the concept of murder without malice, art. 1257c, but the negligent homicide articles, 1230 to 1243, were expressly saved from repeal.

'Sections 19.04 and 19.05 are an interesting blend of the old and new. Section 19.04 is basically the 1856 definition of (voluntary) manslaughter, without, however, that first code's enumeration of what was and was not adequate cause. See Penal Code arts. 594 to 597 (1856). As noted, these articles became 1244 to 1246 in the 1925 code but were repealed in 1927. The analogue to common-law involuntary manslaughter is preserved in Section 19.05, but its immediate ancestor is neither the common law nor its Texas offspring but the Model Penal Code. Section 19.05(a)(2) traces its lineage both to the common law (the misdemeanor-manslaughter doctrine) and to the modern legislative judgment that driving while intoxicated is recklessness per se.

'A killing that otherwise would be murder is reduced to voluntary manslaughter under Section 19.04 if it occurred while the actor was under the 'immediate influence' of a 'sudden passion' arising from 'adequate cause.' The quoted words were all lifted from art. 594 of the 1856 code (art. 1244 of the 1925 code) and all were brought forward into prior art. 1257c to define murder without malice as part of the 1927 Murder Act. 'Immediate influence' appears redundant with the general cause-and-effect requirement and with Subsection (b)'s requirement that the passion arise at the time of the offense; this may...