Rains v. State

Decision Date28 May 1980
Docket NumberNo. 59107,No. 2,59107,2
Citation604 S.W.2d 118
PartiesWill RAINS, Jr., Appellant, v. The STATE of Texas, Appellee
CourtTexas Court of Criminal Appeals

Robert T. Basket, Dallas, court appointed, for appellant.

Henry M. Wade, Dist. Atty., W. T. Westmoreland, Jr., Robert E. Whaley and Mary Ludwick, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before DOUGLAS, ROBERTS and CLINTON, JJ.

OPINION

ROBERTS, Judge.

This appellant's first conviction for murder with malice was set aside. Ex parte Rains, 555 S.W.2d 478 (Tex.Cr.App.1977). The appellant has been convicted again of murder with malice, with punishment assessed at confinement for sixty years. The evidence was that the appellant and two companions were at the Maverick Skating Rink on March 1, 1961. The appellant got into an argument with another youth. Shortly thereafter the victim, followed by the appellant, ran from the skating rink. The appellant said, "Stop him, he's going to his car to get a shotgun." A shot was heard. The appellant told his companion, "I just shot him through the heart." They fled.

I.

The trial court charged the jury on the law of self-defense in the following terms (emphasis supplied):

"When a person is attacked with unlawful deadly force or he reasonably believes he is under attack or attempted attack with unlawful deadly force, and there is created in the mind of such person a reasonable expectation or fear of death or serious bodily injury, then the law excuses or justifies such person in resorting to deadly force by any means at his command to the degree that he reasonably believes immediately necessary, viewed from his standpoint at the time, to protect himself from such attack or attempted attack. It is not necessary that there be an actual attack or attempted attack, as a person has a right to defend his life and person from apparent danger as fully and to the same extent as he would had the danger been real, provided that he acted upon a reasonable apprehension of danger, as it appeared to him from his standpoint at the time, and that he reasonably believed such force was immediately necessary to protect himself against the other person's use or attempted use of unlawful deadly force.

"Now, if you find from the evidence beyond a reasonable doubt that the defendant did shoot Willie Gene McCoy with a gun as alleged, but you further find from the evidence that, viewed from the standpoint of the defendant at the time, from the words or conduct, or both, of Willie Gene McCoy, it reasonably appeared to him that his life or person was in danger and there was created in his mind a reasonable expectation or fear of death or serious bodily injury from the use of unlawful deadly force at the hands of Willie Gene McCoy, and that acting under such apprehension and reasonable belief that the use of deadly force on his part was immediately necessary to protect himself against Willie Gene McCoy's use or attempted use of unlawful deadly force, he shot the said Willie Gene McCoy, and that a reasonable person in defendant's situation would not have retreated, then you should acquit the defendant on the grounds of self-defense; or if you have a reasonable doubt as to whether or not the defendant was acting in self-defense on said occasion under said circumstances, then you should give the benefit of that doubt to the defendant and acquit him, and say by your verdict, not guilty."

It will be noted that this charge was on the law of self-defense under our present Penal Code. * That law was not in effect when this offense allegedly was committed, and it had no application in the trial of this case. See 1973 Texas General Laws, ch. 399, Sec. 6(a). The appellant especially objected to the language that we have emphasized above, which reflected two changes made by V.T.C.A., Penal Code, Sec. 9.32. See the comments on "Deadly Force" and "Retreat" in Searcy & Patterson, "Practice Commentary," 1 Vernon's Texas Codes Annotated-Penal Code 346-348 (1974); P. McClung, Jury Charges for Texas Criminal Practice 262 (rev. ed. 1979). It was error to charge on inapplicable law of self-defense over the appellant's objections.

The State's only reply to this ground of error is that the appellant did not preserve his error by having his oral objections transcribed, endorsed with the court's ruling and official signature, and filed with the clerk. See V.A.C.C.P., Art. 36.14. The trial court approved the statement of facts, which contained the transcription of the objections and the ruling. That was sufficient to preserve the ground. Dirck v. State, 579 S.W.2d 198 (Tex.Cr.App.1979).

II.

Although the judgment must be reversed we still...

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25 cases
  • Wallace v. State
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • July 1, 1981
    ...a challenge to the sufficiency of the punishment evidence must be considered in an appeal from a capital case. Cf. Rains v. State, 604 S.W.2d 118, 120 (Tex.Cr.App.1980) (sufficiency of evidence must be considered even when trial error is found, because of different effect on retrial). I agr......
  • Rankin v. State
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • January 10, 1996
    ...Jefcoat v. State, 644 S.W.2d 719, 723 (Tex.Cr.App.1982); Horne v. State, 607 S.W.2d 556, 562 (Tex.Cr.App.1980); Rains v. State, 604 S.W.2d 118, 120 (Tex.Cr.App.1980); Watson v. State, 605 S.W.2d 877, 880-881 (Tex.Cr.App.1980); Winn v. State, 871 S.W.2d 756, 758 (Tex.App.--Corpus Christi 199......
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    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • March 10, 1982
    ...Penagraph v. State, 623 S.W.2d 341 (Tex.Cr.App.1981); Hooker v. State, 621 S.W.2d 597 (Tex.Cr.App.1981); Rains v. State, 604 S.W.2d 118 (Tex.Cr.App.1980); Swabado v. State, 597 S.W.2d 361 (Tex.Cr.App.1980). Ironic indeed is the observation that the State's Attorney by necessity has reviewed......
  • Thompson v. State
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • September 23, 1981
    ...98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), we must review these grounds. Swabado v. State, 597 S.W.2d 361 (Tex.Cr.App.1980); Rains v. State, 604 S.W.2d 118 (Tex.Cr.App.1980). The great majority of the testimony linking appellant to the robbery-murder of Mrs. Kneupper came from Esther Cervantes an......
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