Lawrence v. State

*209OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted by a jury for the offense of murder. V.T.C.A., Penal Code § 19.02. The jury assessed a term of 25 years in the Texas Department of Corrections. The Austin Court of Appeals reversed appellant’s conviction, finding the evidence insufficient to sustain a murder conviction. The court of appeals also found that the jury charge was “fundamentally defective,” see Cobarrubio v. State, 675 S.W.2d 749 (Tex.Cr.App.1984), and ordered “the judgment of conviction for murder reversed and the indictment for murder dismissed.” However, since the court of appeals further found the evidence sufficient to show voluntary manslaughter or any other lesser included offense, that court held that the dismissal of the murder indictment was “without prejudice” to further prosecution for a lesser included offense.” Lawrence v. State, 699 S.W.2d 229 (Tex.App. — Austin, 1983).

We granted the State’s petition for discretionary review to determine the correctness of the court of appeals holding that the evidence was insufficient to prove appellant guilty of murder. We will also review the court of appeals holding that the charge to the jury on the law of murder is “fundamentally defective.” We conduct this latter review because of this Court’s recent decision in Almanza v. State 1, 686 S.W.2d 157 (Tex.Cr.App.1985). After reviewing the entire record and the law applicable to the case, we will reverse the court of appeals and affirm appellant’s conviction.

I. FACTS2

A detailed recitation of the facts is necessary to the disposition of the case. Appellant and the deceased were live-in lovers. On August 1, 1979, at approximately 2:30 p.m. they met at the Hitching Post Bar in Killeen. They drank together until approximately 4:30 p.m., at which time they returned to their apartment and appellant fixed dinner for the two of them. They then returned to the Hitching Post. Sometime between 7:30 and 8:00 p.m., the couple went to the Waterhole No. 3, another drinking establishment.

At approximately 9:30 p.m. the appellant left the bar to pick up her son from a baby-sitter. After taking care of her son, she returned to the Waterhole. When she walked into the bar, she observed the deceased dancing with another woman. According to an employee of the bar, appellant knocked the woman to the floor. Appellant claimed she merely pushed the woman and the woman stumbled and fell. A bartender testified that appellant, shortly after the altercation with the deceased’s dancing partner, was very angry and upset and repeatedly threatened to “shoot his peter off.” Appellant specifically denied being very angry or upset and also denied making any threats to harm the deceased.

Appellant pleaded with the deceased to leave the bar. Both deceased and the appellant then left the Waterhole and drove to their apartment. The deceased refused to go into the apartment; appellant replied that she was going to go with deceased if he was going out. Both parties then returned in separate vehicles to the Hitching Post. It being near closing time, the bar owner refused to serve the deceased and asked appellant to drive deceased home. In the owner’s words, deceased was stumbling, falling-down drunk.

Appellant drove deceased home. She testified that the deceased was hostile and angry because appellant refused to apologize to “the woman.” Appellant enlisted the assistance of Paul Miller, a next door neighbor, in getting the deceased out of the car and into the house.

According to appellant’s testimony, she was cleaning up when the deceased grabbed her and threw her on the couch *210and started beating her with his fist. She screamed and Paul Miller and Martha Graves, Paul Miller’s roommate, came running over. Appellant claimed to have no recollection of the events following Paul Miller’s entrance to the apartment. All appellant could recall was that when the deceased was beating her she was scared.

Miller and Graves both testified that when they entered the apartment appellant was on the couch and the deceased was standing five to seven feet away from appellant. Appellant yelled “Paul, keep him away from me” and Paul Miller grabbed the deceased. Martha Graves heard the deceased say “shut up, or I’m going to knock your damn head off.”3 At this point appellant walked over the couch and into a bathroom where she retrieved her revolver. She entered the room and fired 2 shots, one of which fatally struck the deceased in the stomach. Paul Miller further testified that when appellant fired the first shot he shoved the deceased behind him and out of the way. Appellant in turn took a step around Paul Miller and shot a second time, this time hitting the deceased. Miller and Graves left immediately. Appellant assisted the deceased outside the apartment. Police were called immediately, and upon their arrival found the appellant sitting on the ground holding deceased’s head in her lap. An emergency room doctor testified that the deceased died of massive bleeding due to the gunshot wound, and furthermore that deceased’s blood-alcohol content measured .221 milligrams per cent by weight and that .500 milligrams per cent would be lethal to most people.

Neither the eyewitnesses nor the investigating officers noticed any bruising on appellant the night of the offense. A police officer, who was a personal friend of appellant and the deceased, noticed a large bruise on appellant at around 10 p.m., some twenty hours after the shooting and alleged beating. A doctor who examined appellant 5 days after the shooting found bruising that was consistent with the appellant having been injured 3-7 days before the examination.

Appellant attempted to paint a picture of the deceased as a violent man; however, no other testimony supports this view. The neighbors both testified that the evening of the homicide was the first time they had heard any fighting between appellant and the deceased. Other witnesses who frequented the same bars as deceased described the deceased as easy-going and non-violent, although sometimes boisterous. Appellant’s ex-husband testified he saw the appellant with scratches on her neck 2 days before the homicide. There was no evidence indicating that the apartment was in disarray as one would expect if there had been an altercation, and no one ever saw the deceased strike the appellant, either on the night in question or anytime before that night.

II. SUFFICIENCY OF THE EVIDENCE TO RAISE THE ISSUE OF VOLUNTARY MANSLAUGHTER AND NEGATION OF THE SAME BY THE STATE

Appellant was charged with murder in a two paragraph indictment, each paragraph alleging a different manner of committing murder. See V.T.C.A., Penal Code § 19.-02(a)(1) and (a)(2). This Court has held that if the issue of sudden passion is raised, then the State must disprove beyond a reasonable doubt the existence of sudden passion. Bradley v. State, 688 S.W.2d 847 (Tex.Cr.App.1985). Additionally, this Court has repeatedly held that evidence from any source may raise the issue of sudden passion. Gonzales v. State, 546 S.W.2d 617 (Tex.Cr.App.1977). Testimony that the defendant was extremely mad or upset can raise the issue. Schoelman v. State, 644 S.W.2d 727 (Tex.Cr.App.1983). Moreover, in some instances, the evidence can raise both self-defense and voluntary manslaughter. Medlock v. State, 591 S.W.2d 485 (Tex.Cr.App.1980). While former provocation, standing alone, will not suffice, see V.T.C.A., Penal Code § 19.04(b) supra, for*211mer provocation along with a showing of a defendant’s agitated state of mind will raise the issue. Testimony that the defendant was in fear, standing alone, does not raise sudden passion. Daniels v. State, 645 S.W.2d 459 (Tex.Cr.App.1983). Thus before we can determine if the evidence is sufficient to sustain appellant’s conviction for murder, we must determine if sudden passion is raised by the evidence.

If we were to look at only the appellant’s testimony, we would find no issue of sudden passion. Appellant denied being angry or upset at the deceased. She claimed simple fear, and in fact, denied having any recollection of the shooting. This testimony does not raise sudden passion. However, other witnesses testified that the appellant was in fact very angry and upset at the deceased’s behavior earlier in the evening. This shows former provocation and, when coupled with the decedent’s alleged beating of appellant immediately preceding the shooting, is sufficient to raise the issue of sudden passion. Thus, the State was required to prove beyond a reasonable doubt that appellant was not acting under the immediate influence of sudden passion. Bradley, supra.

Although we find there was sufficient evidence to raise the issue of voluntary manslaughter, there was more than sufficient evidence to convict appellant of murder. Appellant herself refuted any claim of voluntary manslaughter. Indeed, during closing argument, appellant’s attorney argued that the facts presented a classic case of self-defense.4 Voluntary manslaughter, as a defense to murder, seems to have appeared in the case as an afterthought. As the trier of fact, the jury determined the credibility of the witnesses and the weight to be given their testimony, and it was free to reject any or all of the testimony of any of the witnesses. Thomas v. State, 605 S.W.2d 290 (Tex.Cr.App.1980).

When reviewing sufficiency of the evidence questions, this Court will not substitute its judgment for that of the jury. This Court has previously found that:

“It is irrelevant whether we as a Court believe the evidence, or believe that defense evidence ‘outweighs’ the State’s evidence. If there is any evidence that establishes guilt beyond a reasonable doubt, and if the trier of facts believes that evidence, we are not in a position to reverse the judgment on sufficiency grounds.” Combs v. State, 643 S.W.2d 709, at p. 716 (Tex.Cr.App.1982).

We find the evidence more than sufficient to support the jury’s verdict.

Although the State does not challenge the court of appeals’ finding that the jury charge is fundamentally defective, we find we must review this holding in view of this Court’s recent decision in Almanza, cognizant of the fact that neither the State nor the court of appeals had the benefit of our holding in Almanza in the case sub judice.

III. THE JURY CHARGE—“COBARRU-BIO ERROR” IN LIGHT OF ALMANZA

The court of appeals found that the trial court fundamentally erred when it failed to require the jury to find, beyond a reasonable doubt, the absence of sudden passion before it could convict appellant of murder. That court relied on this Court’s holding in Cobarrubio, supra.

Prior to our holding in Almanza, this Court had not had the opportunity to determine if “Cobarrubio error” was fundamental under our State law.5 See Cumbie *212v. State, 578 S.W.2d 732 (Tex.Cr.App.1979). In Cumbie, supra, this Court found four basic categories of fundamental error. The first category noted was “an omission from the court’s charge of an allegation in the indictment which is required to be proved”, Cumbie at 733. The evil addressed was that a jury was permitted to convict a defendant without finding all the essential elements of the crime charged. This constituted a diminution of the State’s burden of proof. While we recognize that “Cobarrubio error” is distinguishable from “Cumbie error” in that the “element” omitted from the jury charge need not be pled in the indictment, nonetheless the evil perceived in the omission is arguably the same. In “Cobarrubio error” the jury is permitted to convict a defendant of murder without finding that the State disproved the existence of sudden passion, thus diminishing the State’s burden of proof. We therefore find that “Cobarrubio error” is error, that, under our now abandoned holding in Cumbie, supra, would have necessitated automatic reversal.

Today we repeat what Judge Clinton opined in Almanza:

“We hold that finding error in the court’s charge to the jury begins — not ends — the inquiry; the next step is to make an evidentiary review along the lines of that described in Davis, supra, as well as a review of any other part of the record as a whole which may illuminate the actual, not just theoretical, harm to the accused.” [citations omitted] Al-manza, at 174.

Under this Court’s holding in Almanza, a determination of whether “fundamental error” exists in a jury charge requires a case-by-case analysis. This Court no longer recognizes per se reversible jury charge error, having overruled Cumbie, supra. By failing to object in the instant case, the appellant is charged with showing actual egregious harm. We quote from Alman-za:

“... if no proper objection was made at trial and the accused must claim that the error was ‘fundamental’ he will obtain reversal only if the error was not egregious and created such harm that he ‘has not had a fair and impartial trial’— in short ‘egregious harm.’

“In both situations the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.

“This conclusion is not undermined by the fact that some of the cases couple the phrases ‘error of a fundamental nature’ or ‘material error’ with ‘calculated to injure.’

“Should it be, for instance, ‘a material misdirection of the law applicable to the case,’ then the next determination was whether under the circumstances of the case the error was ‘calculated to injure the rights of the defendant,’ ...” Al-manza at 171-172.

In Almanza, we made it quite clear that in each case of unobjected-to jury charge error, this Court must weigh the evidence:

“... But in determining whether the error is material ... we are to look to the whole record bearing upon the subject. What was the nature of the testimony supporting the verdict? Was it cogent and overwhelming? What was the character of the testimony presenting the phase or theory of the case omitted to be noticed in the charge, and upon which omission error is assigned? Was it at all reasonable? Did it present a theory which a reasonable mind could entertain, or was it supported by such testimony as was remotely calculated to destroy *213the State’s case when considered in connection with the other testimony in the case, as well as the charge as a whole? Was the phase of the case simply an addition to the case as made by the State and consistent therewith, or was it in direct conflict with the State’s theory? These are all important matters to be considered in passing upon the [degree of harm] in the omission or error....” (citations omitted)

Almanza at 173-174, citing Davis v. State, 28 Tex.Ct.App. 542, 13 S.W. 994, 995 (1890), writ of error dism’d, 139 U.S. 651, 11 S.Ct. 675, 35 L.Ed. 300 (1891).

Judge Clinton opined in Cobarrubio, supra, that the failure of a trial court to charge in accordance with Cobarrubio “precipitated a denial of due process of law in the most fundamental sense,” 675 S.W.2d at 752, and perforce constituted fundamental error. We cannot accept this position as being consistent with this Court’s holding in Almanza. Such an application of the doctrine of fundamental error ignores the necessity of a finding of actual egregious harm as Almanza requires. To the extent that Cobarrubio held that jury charge “error precipitated a denial of due process of law in the most fundamental sense,” Cobarrubio at 752, it is overruled. “Cobarrubio error” will be assayed in light of our holding in Alman-za.

Judge Teague, along with the court of appeals, posits his argument that, Cobar-rubio error is fundamental error of federal constitutional dimension, [emphasis added] primarily on Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). Cf. Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). In Mullaney, the Maine statute prescribed that a defendant prove by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation in order to reduce murder to manslaughter. The Supreme Court held that “the due process clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly raised in a homicide ease.” Mullaney, supra at 704, 95 S.Ct. at 1892. The Maine statute was thus found to be infirm, the burden not being placed on the State to prove every element of its case beyond a reasonable doubt. See In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)

In this state, the burden is on the prosecution in Sec. 19.02, supra, a fact that we confirmed only recently in Bradley, supra. See ante, p. 215. Thus, we find that the Texas murder statute and the holding in Bradley, supra, are harmonious with the holding in Mullaney, supra.

Even if we concede, as does our brother Teague, that the error in the instant case was of federal constitutional dimension, we know of nothing in the law that saves appellant from her failure to object to the charge. Our state law provides that any such objection or refusal of any specially requested charge “shall be made at the time of the trial.” Art. 36.19, V.A.C.C.P. It is this failure by the appellant that is the backbone of the holding in Almanza, supra.

We conclude that when a review of the entire record shows, as here, that voluntary manslaughter is an incidental theory of the defense, the subtle deletion of the State’s burden of proof on the absence of sudden passion in the murder application paragraph cannot realistically be construed to inure to the defendant’s egregious harm. Under these circumstances, we cannot say that the unobjected-to jury charge error was “so egregious and created such harm that [appellant] has not had a fair and impartial trial.”

The judgment of the court of appeals is reversed and the judgment of the trial court is affirmed.

. Hereinafter referred to simply as Almanza.

. We borrow liberally from the appellant’s brief.

. Paul Miller did not recall hearing this threat.

. The appellant's attorney in closing argument made the following statements:

"How much provocation do you need before you defend yourself. The defensive [sic] firmly believes that this is a classic case of self-defense....

Later on the appellant’s counsel continued:

"Paragraph 5 addresses the voluntary manslaughter issue. It is the defenses’ firm position that this is a self-defense case.”

. Note 3 of the Clinton dissent suggests this Court should continue to remand cases to the courts of appeals for consideration of jury charge error in light of Almanza. Because of what we perceive to be an obvious conflict be*212tween Cobarrubio and Almanza, we believe that this Court should accept the responsibility of ultimate resolution. Additionally, in some of the cases that have been remanded to the courts of appeals because of “Cobarrubio error", the issue of sudden passion was not even raised in the trial of the case.