Moore v. State, 55306
| Decision Date | 13 December 1978 |
| Docket Number | No. 55306,No. 2,55306,2 |
| Citation | 574 S.W.2d 122 |
| Parties | Del MOORE, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Russell C. Busby, Amarillo, for appellant.
Tom Curtis, Dist. Atty. and Bruce Sadler, Asst. Dist. Atty., Amarillo, for the State.
Before ODOM, PHILLIPS and DALLY, JJ.
This is an appeal from a conviction for the offense of involuntary manslaughter punishment was assessed by the jury at imprisonment for ten years. Among other things, appellant complains of the trial court's refusal to submit a charge to the jury on the offense of criminally negligent homicide.
On May 14, 1976, the deceased was killed by a shotgun blast. Appellant and her neighbor Ray Purcell were standing in Purcell's front yard when the deceased, who was driving wildly, passed by in his car. Suddenly he wheeled around and drove into Purcell's yard, where he cursed appellant and began talking erratically. Purcell went into his house, brought out a shotgun, then walked to the deceased's car and told him to leave. At this point Purcell decided that the deceased was drunk and was not dangerous, and stated that he would not shoot the deceased. Appellant said that she wanted the shotgun and grabbed the weapon from Purcell. She testified that she wanted to scare the deceased, because Purcell was just standing there. Seconds after appellant grabbed the shotgun, it discharged, killing the deceased. Purcell testified he was looking over the hood of the car and did not see the actual firing; appellant testified that she remembered grabbing the barrel of the shotgun, but did not remember aiming the weapon or pulling the trigger. Purcell told appellant she had killed the deceased, and appellant went to her house and called the police.
Appellant contends that the trial court erred when it refused to charge the jury on the lesser included offense of criminally negligent homicide. Appellant properly objected to the court's failure to do so, and submitted a requested jury instruction on the issue. The court charged the jury only on the offense of murder and involuntary manslaughter.
A person commits involuntary manslaughter if he recklessly causes the death of an individual. V.T.C.A. Penal Code, Sec. 19.05(a)(1). Sec. 6.03(c) of the Penal Code defines "recklessly":
A person commits criminally negligent homicide if he causes the death of an individual by criminal negligence, V.T.C.A. Penal Code, Sec. 19.07(a). Sec. 6.03(d) of the Penal Code defines "criminal negligence":
The difference between the two culpable mental states required to establish these offenses lies in whether or not the actor himself perceives the risk of harm which his conduct creates. We explained this in Lewis v. State,529 S.W.2d 550 (Tex.Cr.App.1975):
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