Gonzales v. State

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

WHITE, Judge.

Appellant pled not guilty to an indictment for murder. V.T.C.A., Penal Code Sec. 19.02. A jury convicted appellant of murder, and assessed his punishment at 20 years imprisonment. He appealed from, and the San Antonio Court of Appeals reversed, that conviction. Gonzales v. State, 679 S.W.2d 638 (Tex.App. — 4th Dist.1984). We granted the State’s petition to review the correctness of the Court of Appeals’ holding that the appellant was entitled to a charge on voluntary manslaughter.

On appeal, appellant claimed that he presented sufficient evidence to raise the issue that he acted under the immediate influence of sudden passion arising from an adequate cause. The majority opinion of the Court of Appeals agreed, and held that the appellant’s testimony, alone, was sufficient to raise the issue and warrant an instruction on voluntary manslaughter. The State filed a petition for discretionary review and we granted that petition on two grounds: first, was the evidence sufficient to raise the issue that the appellant acted under the immediate influence of sudden passion; and second, did the Court of Appeals err by creating an automatic right to an instruction on voluntary manslaughter whenever self-defense is raised by the evidence. We agree with the State that the evidence was insufficient, and that no instruction on the law of voluntary manslaughter was necessary.

The testimony indicates that the appellant witnessed a confrontation in a nightclub between his friend and the victim. The appellant testified that he left the nightclub before the victim. Appellant went to his friend’s car and waited. The victim came out of the club, and the appellant watched him walk to his car, open the trunk and get something out. At that time, without being certain that the victim retrieved a gun from his trunk, appellant picked up his friend’s automatic pistol. Appellant left his friend’s car and walked away. He said the victim came up behind *357 him and fired a shot. Appellant said he then turned around and fired the automatic pistol at the victim. According to appellant, the /‘gun just kept firing.” The victim died as a result of the wounds.

This evidence clearly raised the issue that the appellant acted in self-defense. In his opening and closing arguments to the jury, defense counsel explained that “this was a case of self-defense,” and that the victim was the passionately angry party involved. The appellant testified that “I fired in self-defense.” The majority opinion of the Court of Appeals concluded that the appellant’s theory from the outset was one of self-defense. The majority opinion also stated that the appellant was not at all upset over the words of the victim (in the victim’s confrontation with appellant’s friend). The only defensive issue raised by the evidence was that the appellant acted in self-defense.

The evidence at trial did not indicate that the appellant acted under the immediate influence of sudden passion arising from an adequate cause. At the most, appellant indicated that he was scared of the victim. Within the context of all of his testimony, this fear of the victim did not amount to the terror which would qualify as “sudden passion.” As the dissenting opinion of the Court of Appeals stated:

“There is nothing in the record which indicates that appellant acted under the immediate influence of sudden passion. To the contrary, appellant anticipated the event and prepared himself to respond to the occasion ... the testimony of appellant ... demonstrates a person possessed of cool reflection throughout the entire incident.”

Gonzales, supra, at 640 . The evidence, including appellant’s testimony, does not reflect “anger, rage, resentment or terror”, V.T.C.A., Penal Code Sec. 19.04(c), of the appellant.

The majority opinion of the Court of Appeals erred when it incorrectly assumed that a defendant feels sudden passion (as defined in Sec. 19.04(c), supra), whenever a soon-to-be deceased victim provokes the defendant with a gun. In spite of the evidence to the contrary, the majority of the Court of Appeals held that:

“It would be difficult to imagine a specific event more likely to cause anger, rage, resentment or terror in a person of ordinary temper than to have someone aim a gun at you and fire.”

Gonzales, supra, at 639 . We will not imply material evidence into the record. It must be in the record for us to review when making a ruling. This Court, as well as the Courts of Appeals, have ruled in several cases, that when the evidence raises the issue of self-defense, a defendant is not entitled to a jury instruction on voluntary manslaughter unless there is evidence that the offense occurred under the influence of sudden passion arising from an adequate cause. Luck v. State, 588 S.W.2d 371 (Tex. Cr.App.1979); Green v. State, 658 S.W.2d 303 (Tex.App.—1st Dist.1983); Martinez v. State, 664 S.W.2d 822 (Tex.App.—3rd Dist. 1984); and Wolford v. State, 675 S.W.2d 530 (Tex.App.—14th Dist.1984).

This Court has ruled that a mere claim of fear, as the appellant made in the instant case, does not establish the existence of sudden passion arising from an adequate cause. Por a claim of fear to rise to the level of sudden passion, the defendant’s mind must be rendered incapable of cool reflection. Daniels v. State, 645 S.W.2d 459 (Tex.Cr.App.1983). There was no testimony to indicate that the appellant became enraged, resentful or terrified immediately prior to the shooting. Bradley v. State, 688 S.W.2d 847 (Tex.Cr.App.1985). The appellant did not indicate through his testimony that he was emotionally aroused at the time of the shooting, and gave no cause for being aroused. Stevens v. State, 671 S.W.2d 517 (Tex.Cr.App.1984). The appellant’s testimony showed that throughout his confrontation with the deceased he stayed cool and maintained his composure. The appellant's mental state did not call for an instruction on voluntary manslaughter. Moore v. State, 694 S.W.2d 528 (Tex.Cr.App.1985). The appellant’s claim that he was scared of the deceased was insufficient *358 to raise the issue that he was acting under the immediate influence of sudden passion arising from an adequate cause. The Court of Appeals erred when it held that the appellant was entitled to a jury instruction on voluntary manslaughter.

In its second ground of review, the State accuses the Court of Appeals of creating an automatic right to a jury instruction on voluntary manslaughter whenever the issue of self-defense is raised. We disagree with the broad interpretation of the language used by the majority of the Court of Appeals. We overrule the majority’s presumption that evidence of a defendant’s sudden passion always exists when a victim shoots at a defendant with a gun.

We reverse the decision of the Court of Appeals, and remand this cause for the court to consider the appellant’s other grounds of error.

CAMPBELL, J., concurs in the result.

ONION, P.J., not participating.