Smith v. State, 13-81-131-CR

• Decision Date: 16 September 1982
• Docket Number: No. 13-81-131-CR,13-81-131-CR
• Citation: 653 S.W.2d 835
• Parties: Billy Joe SMITH, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 835

653 S.W.2d 835

Billy Joe SMITH, Appellant, v. STATE of Texas, Appellee.

No. 13-81-131-CR.

Court of Appeals of Texas Corpus Christi.

Sept. 16, 1982.

Rehearing Denied Oct. 14, 1982.

J. Douglas Tinker, Tinker & Tor, Corpus Christi, for appellant.

Wm. B. Mobley, Jr., Dist. Atty., Corpus Christi, for appellee.

Before BISSETT, YOUNG and KENNEDY, JJ.

OPINION

KENNEDY, Justice.

Appeal is taken from conviction for voluntary manslaughter for which punishment was assessed at ten years. We affirm.

The theory propounded at trial by appellant was accident. The deceased died as a result of a gunshot wound to the chest. Appellant did not deny that he had the gun in his hands at the time it discharged. The incident occurred on the beach at Padre Island on April 28, 1979. There were a number of people in the vicinity at the time, most of whom, including appellant and the deceased, Bruce Benham, had been drinking quite a bit over the period of the preceding day or two. It was appellant's testimony at trial that at the time of the incident Benham was quite drunk, but that he (appellant) was not. He testified that he was in the midst of a group of people engaged in conversation when the deceased, suddenly and with neither warning nor apparent reason, came charging at him with a knife in his hand. Appellant stated that he picked up the shotgun and fired once or twice into the sand in front of Benham, but that the deceased kept coming toward him and grabbed hold of the barrel of the shotgun; that the two then proceeded to wrestle over possession of the gun. According to appellant, this tussle took the two of them around to the other end of the car beside which they were standing, at which point the gun accidentally discharged.

The State introduced a statement made by appellant the day after the shooting which reads, in pertinent part:

"At about 5:00 p.m. 04/28/79 we were all standing around Pat's car talking. Bruce Benham kept butting into our conversation, and I told him to shut up. We were all drinking at the time and all of us were drunk. Bruce kept butting in and I told him to get out of my face. I then saw him come towards me with what I thought was a knife. I had already had the shotgun in my hands when he came at me. We had been shooting all during the day with the shotgun. I then shot into the ground three times and tried to scare Bruce away. Bruce then fell to his knees and reached for the barrel of the shotgun. I pulled away and Bruce started to run backwards towards the rear of the car. I followed him around the rear of the car and on around the front where Bruce took hold of the barrel of the gun and pulled it towards him and the gun went off."

The testimony of the other witnesses who were in the vicinity at the time of the incident tended to corroborate appellant's version of the occurrence to the extent that they established that appellant and the deceased exchanged heated words, that appellant fired twice into the sand at the feet of the deceased, and that the deceased then lunged for the weapon, grabbing it, and that a fight for control ensued. None of the witnesses who testified had a clear view of the two at the moment of the third and fatal shot. None of the testifying witnesses saw a knife in Benham's hand, and an apparently thorough search of the area by the police afterwards failed to turn up one.

The gun which caused the death was a pump style shotgun. It was necessary for appellant to manually eject the spent shell from the chamber after each shot and to reload by pumping in another one. It appears that the entire incident, from the time of the first shot, took approximately 45 seconds.

In his first grounds of error appellant attacks the sufficiency of the evidence to support the finding of voluntary manslaughter, that offense being the commission of murder ¹ under the immediate influence of sudden passion arising from an adequate cause. Tex.Penal Code Ann. § 19.04. That statute defines "sudden passion" and "adequate cause" as follows:

"(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." § 19.04(b) & (c).

Thus, the offense of voluntary manslaughter, a lesser included offense of murder, is essentially the commission of murder under mitigating circumstances. Appellant asserts that the evidence adduced at trial is insufficient to show either intent or the existence of sudden passion and adequate cause.

Whether appellant had the requisite intent is a question of fact for the jury who may infer it from any facts in evidence which to their minds proves its existence. Samuel v. State, 477 S.W.2d 611, 614 (Tex.Cr.App.1972); Hunter v. State, 468 S.W.2d 96, 99 (Tex.Cr.App.1971); Hunter v. State, 161 Tex.Cr.R. 225, 275 S.W.2d 803, 804 (Tex.Cr.App.1955). It is hardly ever provable by direct evidence. Samuel, supra. If the jury chose not to believe appellant's assertion that the gun in his hands discharged accidentally, that was their prerogative as fact finders. Considering the evidence in the light most favorable to the jury's verdict as we are required to do, we deem the evidence sufficient to support same as to a finding of intent.

The jury was charged on the lesser included offense of voluntary manslaughter over appellant's objection. We agree with him that the evidence does not support a finding of sudden passion and adequate cause. The trial court is required to charge the jury on a lesser included offense only when an issue as to such is raised by the evidence. Thomas v. State, 578 S.W.2d 691, 698 (Tex.Cr.App.1979). We re-affirm this rule of law and do not intend to weaken it. However, for reasons peculiar to the relationship which the offense of voluntary manslaughter holds to that of murder, we hold that the trial court did not commit reversible error in charging on the lesser included offense in this case.

Acting "under the immediate influence of sudden passion arising from an adequate cause" is not an element of the offense of voluntary manslaughter which must be proved by the State, but is instead in the nature of a defense to murder that reduces that offense to voluntary manslaughter. Humphries v. State, 615 S.W.2d 737, 738 (Tex.Cr.App.1981); Braudrick v. State, 572 S.W.2d 709, 710 (Tex.Cr.App.1978). Thus, without that finding the jury would have been entitled to convict appellant of the greater offense of murder. Reduced to fundamentals, the trial court asked the jury: "did Billy Joe Smith intentionally or knowingly cause the death of Bruce Benham?" The jury answered: "Yes, but ...." We have no reason to believe, and we are not willing to assume, that had they not had the opportunity to qualify their response it would have been given in the negative. It becomes clear, then, that the charge on the lesser included offense worked to appellant's benefit rather than to his harm. That being the case, appellant cannot now be heard to complain of a conviction for the lesser included offense. See Nielson v. State, 437 S.W.2d 862, 866 (Tex.Cr.App.1969). In so holding we reiterate that our decision is predicated upon the peculiar relationship between these two offenses, taken in conjunction with the facts of this individual case, and emphasize our desire that it be construed narrowly.

Nor is there merit to appellant's contention that the charge on voluntary manslaughter is a defensive issue which may only be submitted when requested by the accused. See Humphries v. State, supra, 615 S.W.2d at 738. No reversible error is shown, and appellant's first three grounds of error are overruled.

In his fourth ground of error appellant complains of the submission of the voluntary manslaughter charge contending that such permits a conviction under a charge for which he had not been indicted. No complaint is made regarding the adequacy of the indictment for the greater charge. When, as here, the greater charge is properly alleged, it necessarily includes all of the lesser included offenses. Allison v. State, 618 S.W.2d 763, 764 (Tex.Cr.App.1981). This ground is overruled.

In his next three grounds of error appellant contends that the trial court abused its discretion in denying his motion for continuance due to the absence of three witnesses who were in the vicinity at the time of the shooting. It was appellant's contention that the testimony of these three would support his theory of accidental shooting, and he requested the trial court, in ruling on his motion, to review their testimony given to the grand jury. The trial court refused to do so, but attached a transcript of said testimony for this Court's perusal. We have reviewed that testimony and note that none of the witnesses were looking at the deceased and appellant at the time of the shooting, none of them witnessed an argument between the two, and none of them saw a knife in the deceased's hand. The testimony of these witnesses was not of the required material nature so as to warrant the granting of a continuance to procure their presence, and no abuse of discretion is shown. Grounds of error five, six, and seven are overruled.

In grounds of error eight through twelve appellant complains of the trial court's failure to turn over to him the grand jury testimony of the three aforementioned witnesses, and the affidavits of two of them, claiming that such contained mitigating and exculpatory evidence. Our review of these items reveals that the testimony and statements sought were neither mitigating nor exculpatory. For the reasons set forth in our discussion of grounds five through seven, we overrule these grounds of error as well.

Complaint is...