Selman v. State
| Decision Date | 08 February 1984 |
| Docket Number | No. 161-82,161-82 |
| Citation | 663 S.W.2d 838 |
| Parties | Sam SELMAN, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
George L. Thompson, III, Lubbock, for appellant.
John T. Montford, Dist. Atty., Jim B. Darnell and Travis S. Ware, Asst. Dist. Attys., Lubbock, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW
Appellant was indicted for murder under V.T.C.A., Penal Code, § 19.02(2). The jury convicted him of voluntary manslaughter, and the court assessed his punishment at eight years' imprisonment.
On direct appeal his conviction was reversed because the Amarillo Court of Appeals found the jury charge on voluntary manslaughter authorized conviction on a theory not charged in the indictment. Selman v. State, 627 S.W.2d 543 (Tex.App.1982--Amarillo). We granted the State's Petition for Discretionary Review to determine the correctness of the holding.
V.T.C.A., Penal Code, § 19.02 (Murder), provides in part:
The one-count murder indictment against appellant alleged, in pertinent part, that he:
"... did then and there, intending to cause serious bodily injury to an individual, Jeral Ray Kirkland, commit an act clearly dangerous to human life, to-wit: did then and there intentionally and knowingly strike and beat the said Jeral Ray Kirkland, with his hand and his fist, about the said Jeral Ray Kirkland's head and body, thereby causing the death of the said Jeral Ray Kirkland."
It is clear that appellant was charged under the mode or theory of § 19.02(a)(2).
Under its charge the court, consistent with the indictment, instructed the jury on the law of murder under § 19.02(a)(2), and after applying the law to the facts, added:
"Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt as to whether defendant is guilty of murder, then you will acquit him of murder and next consider whether he is guilty of voluntary manslaughter." 1
In that part of the charge applying the law to the facts concerning voluntary manslaughter, the jury was instructed:
After quoting the above portion of the charge, the Court of Appeals wrote:
"The vice in the charge is that it authorized the jury to convict appellant for voluntary manslaughter on the theory of death caused under the condemnation of Section 19.02(a)(1), a theory that alleged in the indictment and one entirely different from the theory of death alleged in the indictment to have been caused under the circumstances embraced by Section 19.02(a)(2)."
Relying upon Cumbie v. State, 578 S.W.2d 732, 733-34 (Tex.Cr.App.1979), and Deitch v. State, 617 S.W.2d 695, 696 (Tex.Cr.App.1981), the Court of Appeals reversed because of the fundamental defect in the charge.
In his petition for discretionary review the State's Prosecuting Attorney argues that the charge is not fundamentally defective for the reason given by the Court of Appeals. He observes that if the charge is defective it is because it did not include, in its application of the law to the facts, all the elements of voluntary manslaughter as included within § 19.02(a)(2). He acknowledges that the charge, to which there was no objection, omitted the phrases "did then and there intending to cause serious bodily injury" and "commit an act clearly dangerous to human life." The argument is advanced that the court properly charged on murder under § 19.02(a)(2) consistent with the indictment, and that while the questioned portion of the charge relating to voluntary manslaughter omitted certain phrases, it was not inconsistent with the theory under § 19.02(a)(2), and when other parts of the charge not mentioned in the Court of Appeals' opinion are considered, and the charge is read as a whole, there is no fundamental error.
The State's Prosecuting Attorney calls our attention to that part of the charge which followed the questioned portion:
We also observe that preceding the questioned portion of the charge the court instructed the jury:
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