Thomas v. State

Decision Date09 October 1985
Docket NumberNo. 65334,65334
Citation699 S.W.2d 845
PartiesJames Marvin THOMAS, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals
OPINION

W.C. DAVIS, Judge.

Appellant was indicted for murder. A jury convicted him of voluntary manslaughter and assessed punishment at fifteen years' confinement. The case was tried in Madison County after a change of venue from Robertson County. Appellant raises four grounds of error, contending that the court erred in refusing to charge the jury on criminally negligent homicide, that venue was not proved, that a dying declaration was inadmissible, and that jury misconduct occurred.

Appellant was charged with murder and convicted of voluntary manslaughter. He contends that his request for inclusion of a charge on the lesser included offense of criminally negligent homicide was erroneously denied.

A charge on a lesser included offense is required if the evidence meets the two-step test enunciated in Royster v. State, 622 S.W.2d 442 (Tex.Cr.App.1981) (opinion on rehearing). The first prong of the test is met in the instant case: namely, that the lesser included offense must be included in the proof necessary to establish the offense charged. Criminally negligent homicide is a lesser included offense of murder. See Art. 37.09(1) & (3), V.A.C.C.P.; V.T.C.A. Penal Code, Sec. 19.02(a)(1) & Sec. 19.07; Schoelman v. State, 644 S.W.2d 727 (Tex.Cr.App.1983); Kuykendall v. State, 609 S.W.2d 791 (Tex.Cr.App.1981). The second prong of the test is that there must be some evidence in the record that if the defendant is guilty he is guilty only of the lesser offense. Royster, supra. To determine if such evidence is presented we turn now to the evidence in the instant case.

Roy Bishop and his wife, May Beth, operated a restaurant in Hearne called "Dena's Cafe." Betty Lester, a waitress at the cafe, testified that in February, 1977, several people, including appellant, created a disturbance in the restaurant. As they left, they were told to quiet down and refrain from cursing next time they came to the cafe. In March, 1977, appellant and those with him were again warned to be quiet in the cafe or they would be asked to leave. They decided to leave.

Shortly before midnight on April 28, 1977, appellant, his wife, and Bessie Templeton walked into Dena's Cafe. Lester testified that she told them she was sorry but she could not serve them because they had been barred from the restaurant. As the three left the restaurant appellant turned around and said, "I'll come back and I'll tear this goddamn place apart with my bear (sic) hands and get the son-of-a-bitch that owns it." Lester called May Beth and told her what had happened. May Beth told her that Roy would be there in a few minutes.

Roy Bishop walked into the restaurant a few minutes later and chatted with several customers in the restaurant. Lester answered a phone call from appellant asking to speak to Bishop. Lester heard Bishop tell appellant he was not allowed to come into the cafe anymore because he had harassed his wife on two different occasions while at the cafe. Lester said that Bishop did not appear to be angry after the conversation.

Elizabeth Lopez, a waitress at "The Pitt Grill" in Hearne, testified that sometime during the late evening hours of April 28, 1977, and into the early morning hours of April 29, 1977, appellant, his wife, and Bessie Templeton came into The Pitt Grill. Appellant told her he had been kicked out of Dena's. She said he seemed upset and he said he would get Roy Lee before the night was out. Bessie Templeton made a phone call, asked appellant if he wanted to talk to Roy, and handed appellant the phone. After talking on the phone, appellant left the restaurant without finishing his meal. His wife and Templeton remained there.

Lester testified that not long after Bishop had spoken on the phone to appellant, appellant "busted in the front door" asking for "a Bishop." Bishop went to appellant, told him he was Bishop, and told him to go outside to talk with him. John McCarver had been drinking coffee inside the cafe at the time appellant had been asked to leave. He was still there when appellant returned and he followed the two outside.

Bishop went over to his pickup truck and obtained a stick that looked like a pick-ax handle except that it was shorter. He walked over to appellant, held the stick up, and told appellant he did not want him in the restaurant anymore because he had caused trouble and had harassed Bishop's wife. Appellant told him that was fine, walked across the street to his car, sat in it for a few minutes, and then started walking past the cafe toward a Texaco gas station. Bishop then placed the club back in his truck.

A few minutes later appellant's wife and Templeton, returning from the Pitt Grill, walked over to Bishop and McCarver. Appellant yelled to his wife and she went to him. He reached into her purse and took out her gun. Appellant started toward Bishop saying, "You had your time, now it's my time." He grabbed Bishop, threw him across the hood of a car and jammed the gun in his side. Appellant then held Bishop by the wrist, pointed the gun at him as he forced him backwards across the parking lot, over to appellant's car. McCarver said that Bishop did not resist appellant. McCarver followed the two, urging appellant to put the gun down. Appellant told him to call the sheriff. McCarver went back into the restaurant and called the police.

Charles McColley testified that he had been inside the restaurant when appellant came inside and rather excitedly, though not angrily, asked for Bishop. McColley finished his meal and went outside just as McCarver came inside to call the police. McCarver told him not to go outside because appellant had a gun. McColley went outside and saw appellant holding Bishop's wrist with one hand and holding his other hand against Bishop's chest. McColley saw smoke and heard the gun fire. He said that Bishop did not struggle with appellant either before or at the time the gun went off. McColley yelled to McCarver to call an ambulance because appellant had just shot Bishop.

Appellant's version of the events differs somewhat. He denied stating he would "get" Bishop and denied being angry when he was told he would not be served in Dena's. He said he went back to Dena's to talk to Bishop and that when they went outside Bishop ran at him carrying what looked like a pick-ax handle. Appellant testified Bishop told him that if he came near he would kill him and that Bishop also said, "You son-of-a-bitch, let me see you turn the goddamn place upside down now." Appellant was scared so he ran back to his car and tried to start it, but could not do so. Bishop went back to his pickup truck and appellant got out of the car when he saw his wife and Templeton approaching. He told his wife he was going to get help to start the car and he took her gun for protection. He put the gun in his hip pocket.

Bishop approached appellant, telling him "I told you never put your foot on or near my premises again and if you did, I was going to kill you." Appellant did not see a weapon in Bishop's hands, but he could not see Bishop's left hand at first. Appellant took the gun out of his pocket, pointed it at Bishop, and told him to stop, that he had a gun. Bishop continued to approach him. Appellant professed to fear Bishop and started backing up. He yelled for someone to call the sheriff. Appellant testified that as he backed up toward his car, Bishop continued toward him with his arms raised. Bishop grabbed at him and appellant pushed him back with one hand, at which time the gun discharged. Appellant said he did not know how the gun fired and said he feared for his life. He also testified that he did not intend to shoot Bishop, that it was an accident and that it was in self-defense.

In reviewing appellant's contention that his requested charge on criminally negligent homicide should have been given, we are governed by the rule that as long as evidence from any source raises a defensive issue or raises an issue that a lesser included offense may have been committed, and a jury charge on the issue is properly requested, the issue must be submitted to the jury. Ormsby v. State, 600 S.W.2d 782 (Tex.Cr.App.1980); Moore v. State, 574 S.W.2d 122 (Tex.Cr.App.1978). The credibility of the evidence and whether it is controverted or conflicts with other evidence may not be considered in determining whether such a charge should be given. Moore, supra.

Criminally negligent homicide is defined in V.T.C.A. Penal Code, Sec. 19.07(a):

"A person commits an offense if he causes the death of an individual by criminal negligence."

V.T.C.A. Penal Code, Sec. 6.03(d) defines criminal negligence:

A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

The difference between criminally negligent homicide and involuntary manslaughter is the culpable mental state required to establish each offense--criminal negligence for the former and recklessness for the latter. Lewis v. State, 529 S.W.2d 550 (Tex.Cr.App.1975). The difference between criminally negligent homicide and murder is also the culpable mental state required for each. Because of the close distinction in risk awareness...

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