Payne v. State

SHANNON, Justice.

Steven Glenn Payne appeals from a judgment of conviction for murder after a jury *496trial in the district court of Travis County. The jury assessed punishment at confinement for ten years. This Court will affirm the judgment of conviction.

The district court denied appellant’s requested charges on involuntary manslaughter, voluntary manslaughter, and criminally negligent homicide. The district court’s refusal to submit those charges is the foundation for appellant’s primary appellate complaint.

The district court admitted into evidence appellant’s written confession. That writing shows that he worked at the Okey-Do-key nightclub as night manager. To function at that job he had been using “pills and alcohol.” Early in the morning of March 7, 1981, appellant departed the Okey-Dokey nightclub, but he returned to the club to obtain a telephone number. After using the telephone, appellant began conversing with the club’s bookkeeper, Carol Ellen Rosenbaum, who was counting the night’s receipts.

After a time, the pair commenced an argument stemming from the bookkeeper’s taunt about appellant’s promiscuous sexual conduct and his recent bout with venereal disease. The argument escalated into a shouting match as she and appellant traded verbal insults. Carol Rosenbaum then tried to slap appellant, but only grazed his face. After a struggle, appellant handcuffed the woman as he held her down. While shackled, she continued to heap verbal abuse upon appellant. Appellant forced the manacled woman through the club and into the kitchen where she broke away from him, screaming threats. Appellant stated in the confession that “[she] told me that she was going to get somebody to whip my a_ or kill me or something. She said that I’ll make you sorry that you were ever born.” As she was running, Miss Rosenbaum slipped and fell, hitting her chin. She then began crying and did not get up.

Appellant returned to the kitchen, and upon seeing a mop bucket “it went thorugh [sic] my mind that I could make her say that she was sorry for all of the things that she said to me.” According to Payne’s confession, he “was in such a rage” but he “didn’t want to hurt anybody.” Appellant filled the mop bucket with water and then approached the victim demanding a retraction and an apology for her remarks. Instead of an apology, Miss Rosenbaum continued to swear and threaten appellant. When appellant seized her by the hands and arms, she continued to kick and curse. In the confession, appellant stated “the more she did [kick and curse] the madder I got.” Appellant then began dunking Carol Rosenbaum’s head into the mop bucket, holding her head under water. When he raised her head from the bucket, she continued to threaten, curse, and kick at appellant. He submerged her head once again in the mop bucket. According to appellant he did not hold her head under water “very long,” but when he raised her head up, she was no longer maligning him. Instead, she was dying.

At that point, appellant by his own admission, realized that he “had gone too far.” “I knew that she was dead, and I looked at her and I told her that I was sorry that she wasn’t supposed to be dead. She just made me so mad.”

At trial, appellant disavowed the confession and tried to explain why he signed it. Appellant testified further that he was not present at the Okey-Dokey when the victim died. He claimed, instead, that he was at home.

Appellant contends that the offenses of voluntary manslaughter, involuntary manslaughter, and criminally negligent homicide were raised by the evidence and hence these charges should have been submitted to the jury. Appellant refers the Court to the familiar rule that if there is evidence from any source raising the lesser-included offense, the trial court should submit the charge on the lesser-included offense. Schoelman v. State, 644 S.W.2d 727 (Tex.Cr.App.1983); Day v. State, 532 S.W.2d 302 (Tex.Cr.App.1975); Christian v. State, 71 Tex.Cr.R. 566, 161 S.W. 101 (1913). The charge is required to be submitted even though that evidence *497may be “strong, feeble, impeached or contradicted.” Campbell v. State, 614 S.W.2d 443, 445 (Tex.Cr.App.1981); Warren v. State, 565 S.W.2d 931 (Tex.Cr.App.1978). An accused’s testimony is sufficient to require submission of the lesser-included offense. Jackson v. State, 548 S.W.2d 685 (Tex.Cr.App.1977).

Texas Pen.Code Ann. § 19.04 (1974) defines voluntary manslaughter and provides in part:

(a) 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.
(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.

The nub of the voluntary manslaughter offense is that the killing was committed “under the immediate influence of sudden passion arising from an adequate cause.” McCartney v. State, 542 S.W.2d 156, 160 (Tex.Cr.App.1976). The evidence was that Miss Rosenbaum’s conduct toward appellant kindled his rage. Nevertheless, this Court has concluded that there was no evidence that the victim’s drowning was committed by appellant “under the immediate influence of sudden passion arising from an adequate cause.” The victim met her death as appellant’s helpless captive. She had been immobilized by handcuffing and led by appellant through the nightclub to the kitchen. She had attempted to escape and her will to physically resist appellant doubtless had been diminished by her fall and injury. After reflection, appellant determined to immerse the victim in the mop bucket until she retracted her villifications. In drowning Miss Ro-senbaum, appellant did not act under the immediate influence of sudden passion, but rather the scheme to reduce her to acquiescence was planned and deliberate. He intentionally embarked upon a course of conduct designed to compel his victim to forswear the vile names which she had called him.

In addition, this Court is convinced that there is no evidence that appellant’s rage arose from adequate cause. It is true that Miss Rosenbaum slapped at appellant and that the pair had engaged in a scuffle. Those facts may have been evidence of adequate cause at or near the time of occurrence. Pennington v. State, 644 S.W.2d 64 (Tex.App.1982, pet. granted). Nevertheless, there followed a span of time during which Miss Rosenbaum, while pinioned, was under appellant’s complete dominion and control. It was during this time that appellant conceived the plan to force retraction which ended in the woman’s death.

We now examine appellant’s contention that the district court should have submitted a charge on involuntary manslaughter and criminally negligent homicide. A person commits involuntary manslaughter if he recklessly causes the death of an individual. Tex.Pen.Code Ann. § 19.-05(a)(1). Section 6.03 of the Texas Penal Code further explains the term “recklessly”:

(c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards 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 its disregard 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.

Tex.Pen.Code Ann. § 6.03(c).

Criminally negligent homicide is committed when one causes the death of *498another person by criminal negligence. Tex.Pen.Code Ann. § 19.07. Criminal negligence is defined in Tex.Pen.Code Ann. § 6.03(d) as:

“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.”

This Court has concluded, finally, that the district court did not err in refusing to submit a charge on involuntary manslaughter or criminally negligent homicide for the reason that the evidence claimed to raise those offenses established also that appellant was guilty of murder. Appellant, accordingly, failed to establish that if guilty, he was guilty only of a lesser-included offense.

Evidence relied upon by appellant to raise the lesser-included offenses of involuntary manslaughter and criminally negligent homicide also established murder pursuant to Tex.Pen.Code Ann. § 19.02(a)(2). Harrell v. State, 659 S.W.2d 825 (Tex.Cr.App.1983).

Texas Pen.Code Ann. § 19.02(a)(2) provides in part:

(a) A person commits an offense [of murder] if he: ...
(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual;

Tex.Pen.Code Ann. § 1.07(a) defines the term “serious bodily injury”:

(34) “Serious bodily injury” means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

In his confession, appellant admitted that he forced his victim’s head into the mop bucket several times, and he further acknowledged that he held her head under water to force a retraction. At trial appellant denied the veracity of the confession, but argued to the district court that if the confession constituted any evidence it was evidence of voluntary manslaughter, involuntary manslaughter, or criminally negligent homicide. In support of the submission of charges on involuntary manslaughter and criminally negligent homicide, appellant refers to statements in the confession demonstrating that he only intended to force Miss Rosenbaum to withdraw her slurs. He claimed that he did not intend to kill her. His statements do not constitute evidence that if guilty, appellant was guilty only of involuntary manslaughter or only of criminally negligent homicide; to the contrary his statements also constitute evidence that he was guilty of murder pursuant to Tex.Pen.Code Ann. § 19.02(a)(2).

Appellant’s statements establish that he intended to cause “bodily injury that creates a substantial risk of death or that causes death, _” Tex.Pen.Code Ann. § 1.07(a)(34). Furthermore, appellant’s confession constitutes evidence that he committed an act clearly dangerous to human life, and that such conduct resulted in Miss Rosenbaum’s death. Because the statements upon which appellant relied to raise the lesser-included offenses of involuntary manslaughter and criminally negligent homicide also constitute evidence of murder under Tex.Pen.Code Ann. § 19.-02(a)(2), it was not error for the district court to refuse to submit the requested charge on the lesser-included offenses. Harrell v. State, supra.

The judgment of conviction is affirmed.