Paige v. State, 55298
| Decision Date | 08 November 1978 |
| Docket Number | No. 2,No. 55298,55298,2 |
| Citation | 573 S.W.2d 16 |
| Parties | Arthur PAIGE, III, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Ed Stapleton, on appeal only, Denton, for appellant.
Gerald W. Cobb, Dist. Atty., and Freddie Dean Marsh, Asst. Dist. Atty., Denton, for the State.
Before ODOM, PHILLIPS and DALLY, JJ.
This is an appeal from a conviction for voluntary manslaughter in which punishment, enhanced by proof of one prior conviction, was assessed by the jury at life.
In his first two grounds of error appellant challenges the sufficiency of the evidence to prove voluntary manslaughter on grounds that voluntary manslaughter is not a lesser included offense of murder and the State failed to prove the element of voluntary manslaughter that appellant was acting "under the immediate influence of sudden passion arising from an adequate cause" when he caused the death. V.T.C.A., Penal Code Sec. 19.04(a).
The evidence is clearly sufficient to show murder, and it is not necessary to address the sufficiency of the evidence in that regard in order to dispose of appellant's grounds of error. His arguments rest on the statutory definitions of murder, V.T.C.A., Penal Code Sec. 19.02, and voluntary manslaughter, Sec. 19.04, supra.
Section 19.02(a)(1) provides:
Section 19.04(a) provides:
"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."
Appellant's arguments are founded on the proposition that acting "under the immediate influence of sudden passion arising from an adequate cause" is an element of voluntary manslaughter, and from this premise he argues in his first ground of error that voluntary manslaughter cannot be a lesser included offense of murder, and in his second ground of error that the State did not prove that element beyond a reasonable doubt.
In Braudrick v. State, 572 S.W.2d 709 (Odom, J.), it was held that acting "under the immediate influence of sudden passion arising from an adequate cause" is not an element of voluntary manslaughter, but is instead in the nature of a defense to murder that reduces that offense to the lesser included offense of voluntary manslaughter. Therefore, the State need not prove such influence beyond a reasonable doubt to establish voluntary manslaughter.
Since the evidence here was sufficient to prove murder, the greater offense, it was necessarily sufficient to prove voluntary manslaughter, the lesser included offense. Cf. Neely v. State, 571 S.W.2d 926 (Dally, J.). The first two grounds of error are overruled.
In his next two grounds of error appellant challenges the sufficiency of the evidence to convict him for possession of a firearm by a felon, V.T.C.A., Penal Code Sec. 46.05. Although this offense was submitted to the jury at the guilt stage of the trial, and a guilty verdict was returned, the State apparently abandoned that offense and elected to proceed only on the voluntary manslaughter conviction. We reach this conclusion because at the punishment stage the jury was instructed to assess punishment upon their finding of guilt for voluntary manslaughter, and judgment of conviction was entered for voluntary manslaughter, not for the firearms offense. Accordingly, the issues raised in the third and fourth grounds of error are moot.
Appellant next complains of omission from the record on appeal of statements sought from the prosecutor during the course of trial. The relevant portion of...
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Nethery v. State
...Art. 40.09, Sec. 7, V.A.C.C.P. Nothing is presented for review. Vanderbilt v. State, 629 S.W.2d 709 (Tex.Cr.App.1982); Paige v. State, 573 S.W.2d 16 (Tex.Cr.App.1978); Lynch v. State, 502 S.W.2d 740 (Tex.Cr.App.1973) (opinion on rehearing); Weedon v. State, 501 S.W.2d 336 In his thirty-four......
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Fransaw v. Lynaugh
...Texas law held that voluntary manslaughter was in all cases a lesser offense included in the charge of murder. See Paige v. State, 573 S.W.2d 16, 18 (Tex.Crim.App.1978) ("Since the evidence here was sufficient to prove murder, the greater offense, it was necessarily sufficient to prove volu......
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Vanderbilt v. State
...it has generally been held that any error in the record has been waived." Id. at 741 (on motion for rehearing); see Paige v. State, Tex.Cr.App., 573 S.W.2d 16; Stockton v. State, Tex.Cr.App., 487 S.W.2d 69; Johnson v. State, Tex.Cr.App., 466 S.W.2d 744. In Rhoda v. State, Tex.Cr.App., 514 S......
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Garza v. State
...it has generally been held that any error in the record has been waived." Id. at 741 (on motion for rehearing). See Paige v. State, Tex.Cr.App., 573 S.W.2d 16; Stockton v. State, Tex.Cr.App., 487 S.W.2d 69; Johnson v. State, Tex.Cr.App., 466 S.W.2d 744. In his brief, appellant has directed ......