Joiner v. State

OPINION

REEVES, Justice.

Appellant was convicted of the offense of murder. His punishment was assessed by the court at confinement in the Texas Department of Corrections for twenty years.

The homicide took place at McDuff’s nightclub in San Antonio, on April 8, 1983. The State’s primary witness to the events that occurred that night was Sandra Dixon. She narrated that while she and the decedent, Edith Elaine Smith, also known as Lanie, were having a drink at the bar appellant walked up and engaged Lanie in conversation. Sandra could not hear the contents of the conversation which terminated a short time later when appellant left them to play pool in another part of the nightclub.

Approximately an hour later, Sandra and Lanie left the bar to go to the restroom. Somewhere along the way they became separated and Sandra entered the restroom by herself. A short time later she heard someone yanking on the door of the restroom; she unlocked it and Lanie entered the restroom with appellant following. According to Sandra, the appellant seemed angry; he asked, “Bitch, where is my money?” Lanie replied that she “didn’t owe him no money, that he wasn’t none of her man.” The appellant then hit the decedent in the jaw with his fist causing her to fall on the side of the commode. Lanie got up and, in Sandra’s words, “bucked” appellant, telling him she was not scared of him. Sandra testified as follows:

Q: When you say she bucked him, could you tell the jury what you mean by that?
A: She just stood up to him and told him she wasn’t scared of him.
Q: Okay. Came up close to him and butted him? ,©
A: Uh-huh— >
Q: Okay. After Lanie bucked Mr. Joiner, what, if anything, did Mr. Joiner do? <©
A: He said, ‘Bitch, don’t make me kill you.” And he said it again, he said, ‘Bitch, you are going to make me kill you.’—
Q: How close are Mr. Joiner and Lanie standing at this point, Ms. Dixon? .©
*70A: They was touching, that is when she bucked him, you know, she was up to his chest.
Q: Okay. What is the next thing that happened, if you remember?
A: He pulled out a gun and shot her—
Q: All right. Where did he pull the gun from?
A: From inside of his jacket—
Q: All right, what, if anything, happened, or what, if anything was said, after the one shot rang out?
A: Sherman called Lanie and said, ‘La-nie’. Then he said, ‘Oh my God, I done killed her.’ And he looked at me and said, ‘It was an accident.’

Appellant then left the restroom.

Appellant brings forth three grounds of error: Failure by the trial court to include within the charge to the jury an instruction on the law of exculpatory statement; failure of the trial court to submit a requested instruction whether the shooting of the gun was voluntary or involuntary conduct; and failure of the trial court to submit the charge on the lesser included offense of voluntary manslaughter.

THE EXCULPATORY STATEMENT

Generally speaking, when the State introduces an exculpatory statement of a defendant, it is incumbent upon the trial court, on request, to instruct the jury that the exculpatory statement is regarded as true unless disproved. Coleman v. State, 643 S.W.2d 947, 951 (Tex.Crim.App.1982); Palafox v. State, 608 S.W.2d 177, 181 (Tex.Crim.App.1979). There are several exceptions to this general rule of law. One exception is where the State does not rely solely on the statement of the ac cused to prove its case in chief. Richards v. State, 511 S.W.2d 5, 7 (Tex.Crim.App.1974); Fernandez v. State, 172 Tex.Cr.R. 68, 353 S.W.2d 434, 436 (1962). The State did not rely solely on appellant’s statement, “Oh my God, I done killed her. It was an accident.” The State proved its case against the appellant through the eyewitness testimony of Sandra Dixon, who saw appellant take the gun from under his coat and shoot the decedent. Appellant’s first ground of error is overruled.

THE VOLUNTARINESS OF APPELLANT’S ACT

The appellant requested the following instructions which the trial court refused to submit:

You are instructed that a person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession. Conduct is not rendered involuntarily merely because the person did not intend the results of his conduct. Therefore, if you believe from the evidence beyond a reasonable doubt that on the occasion in question the defendant, Sherman Joiner, did cause the death of Edith E. Smith, by shooting her with a gun, as alleged in the indictment, but you further believe from the evidence or you have a reasonable doubt thereof, that the shooting was the result of an accidental discharge of the gun while Edith E. Smith and defendant was [sic] struggling or scuffling and was not the voluntary act or conduct of the defendant, you will acquit the defendant and say by your verdict not guilty.

TEX.PENAL CODE ANN. § 6.01(a) (Vernon Supp.1985) provides that a person commits an offense only if the person voluntarily engages in conduct, including an act, an omission, or possession.

The appellant’s testimony that the killing was an accident was sufficient to raise the defense of voluntariness of the shooting.

A defendant is entitled to an affirmative defense instruction on every issue raised by the evidence regardless of whether it is strong, feeble, unim-peached, or contradicted, and even if the trial court is of the opinion that the testimony is not entitled to belief. [Citations omitted.] The defendant’s testimony alone may be sufficient to raise a defensive theory requiring a charge.

*71Warren v. State, 565 S.W.2d 931, 933-34 (Tex.Crim.App.1978) (citations omitted). There is no law and defense of accident in the present Penal Code. However, if the issue is raised by the evidence, a jury may be charged that a defendant should be acquitted if there is a reasonable doubt as to whether he voluntarily engaged in the conduct of which he is accused. Schoelman v. State, 644 S.W.2d 727, f.n. 16, 732 (Tex.Crim.App.1983); Williams v. State, 630 S.W.2d 640, 644 (Tex.Crim.App.1982); Garcia v. State, 605 S.W.2d 565 (Tex.Crim.App. 1980).

The failure to grant the requested instruction as to the voluntary conduct of the appellant constituted reversible error.

VOLUNTARY MANSLAUGHTER

Appellant was charged with murder under TEX.PENAL CODE ANN. § 19.-02(a)(1) (Vernon 1974) which provides:

(a) A person commits an offense if he: (1) intentionally or knowingly causes the death of an individual; ....

Section 19.04, Voluntary Manslaughter, provides in relevant 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.

If the evidence raises the issue of voluntary manslaughter, the charge, if requested, must be submitted to the jury. Moore v. State, 574 S.W.2d 122, 124 (Tex.Crim.App.1978); Braudrick v. State, 572 S.W.2d 709, 710 (Tex.Crim.App.1978). Therefore, the charge on voluntary manslaughter is mandatory when some evidence has raised the issue that the defendant acted under the immediate influence of sudden passion arising from adequate cause. Schoelman v. State, 644 S.W.2d 727, 733 (Tex.Crim. App.1983).

The appellant properly excepted to the court’s charge in his failure to include a charge on voluntary manslaughter and we will, therefore, now review the evidence presented at the trial.

As related earlier, Sandra Dixon testified that there 'was no violence or physical contact between Lanie and the appellant as they conversed at the bar. The appellant accosted Lanie in the restroom. There is no evidence in Sandra’s testimony of actions by Lanie which would constitute adequate cause.

The only other witness that testified to an occurrence between appellant and Lanie was the proprietor, Joseph McDuffy. McDuffy testified that about an hour before the shooting appellant and Lanie were involved in a “slight argument.” He stated that he could ascertain that the appellant was angry, but was of the opinion that they were not causing a disturbance and did nothing to break up the argument.

There is, in our opinion, no evidence presented to show sudden passion from adequate cause. The appellant was not entitled to a charge on voluntary manslaughter. Daniels v. State, 645 S.W.2d 459 (Tex.Crim.App.1983); Coit v. State, 629 S.W.2d 263, 264 (Tex.App.—Dallas 1982, pet. ref’d).

The judgment of the trial court is reversed and the cause remanded.