Johnson v. State

CLINTON, Judge,

concurring on appellant's petition for discretionary review.

I agree with the majority’s ultimate resolution of appellant’s second ground for review here. In my view the court of appeals correctly affirmed appellant’s conviction on authority of this Court's decision in Gold v. State, 736 S.W.2d 685 (Tex.Cr.App.1987), even allowing for our later rejection of Gold’s regrettable “mere modicum” articulation of the standard, in Butler v. State, 769 S.W.2d 234 (Tex.Cr.App.1989). The majority overreaches, however, to “acknowledge” that the holding of the plurality in Bradley v. State, 688 S.W.2d 847 (Tex.Cr.App.1985), since endorsed by a majority of the Court in cases such as Gold and Lawrence v. State, 700 S.W.2d 208 (Tex.Cr.App.1985), was somehow “unnecessary.” At 710, n. 3. The Court has a short memory indeed.

In Braudrick v. State, 572 S.W.2d 709, at 711 (Tex.Cr.App.1978), a panel of the Court held:

“that causing death ‘under the immediate influence of sudden passion arising from an adequate cause’ is in the nature of a defense to murder that reduces the offense to the lesser included offense of voluntary manslaughter, and that the State need not prove such influence beyond a reasonable doubt to establish voluntary manslaughter, but that if raised by the evidence it must prove the absence of such influence beyond a reasonable doubt to establish murder.”

It is apparent from this language, first, that the so-called “shifting of the burden of proof” inherent in requiring the State to disprove sudden passion whenever that issue is raised by the evidence in order to obtain a murder conviction, at 710, n. 3, had already occurred in Braudrick , and was not a “manipulation” novel to Bradley . *714 However “ludicrous” this burden might be, Bradley did not impose it for the first time.

The problem with the holding in Brau-drick is that it failed to acknowledge that voluntary manslaughter, as promulgated in § 19.04 of the 1974 Penal Code, is an offense in its own right. It may form the basis of an indictment as such; indeed, under certain undisputed facts presented to a grand jury, it might be incumbent upon a prosecutor to draft an indictment in that way. See Article 2.01, V.A.C.C.P. And in a prosecution for voluntary manslaughter it would surely violate basic due process and due course of law to relieve the State of proving the element of sudden passion.

Nevertheless, in cases such as Paige v. State, 573 S.W.2d 16 (Tex.Cr.App.1978), the Court held in a prosecution for murder that the evidence was sufficient to support a conviction for voluntary manslaughter even though it did not raise, much less prove by sufficient evidence, the element of sudden passion. The basis for this holding was the old legal aphorism that proof of a greater offense will necessarily sustain a conviction for a lesser included offense. See also Daniel v. State, 668 S.W.2d 390 (Tex.Cr.App.1984). The innovation in Bradley was to point out that this aphorism does not hold true in every case of homicide because of the peculiar relationship between murder and voluntary manslaughter.

The offense of voluntary manslaughter is murder “except that” the murder must have been committed while the actor was “under the immediate influence of sudden passion arising from an adequate cause.” V.T.C.A. Penal Code, § 19.04. Murder is a first degree felony; voluntary manslaughter is a second degree felony. Thus, voluntary manslaughter is clearly a “lesser” offense in terms of prescribed punishment. In view of the added element of “sudden passion” necessary to prove the offense of voluntary manslaughter, however, it does not readily fit as a “lesser included offense” of murder within the definitions contained in Article 37.09, V.A.C.C.P. For surely voluntary manslaughter is not, at least on the face of it, “established by proof of the same or less than all the facts required to establish commission of” a murder. Article 37.09(1), supra. Nor, as the majority would have it today, is voluntary manslaughter a lesser included offense in that “it differs from [murder] only in the respect that a less culpable mental state suffices to establish its commission.” Article 37.09(3), supra. At 710, n. 3. Because voluntary manslaughter is murder plus an additional element, like murder it requires that the actor’s conduct be intentional or knowing.

Braudrick itself rendered voluntary manslaughter a lesser included offense under the terms of Article 37.09(1), supra, by the artifice of engrafting an “implied” element of lack of sudden passion in any murder prosecution in which the issue of sudden passion is raised. Bradley fine-tuned Braudrick , accepting its rationale for finding voluntary manslaughter to be a lesser included offense for murder when sudden passion is raised, while rejecting the characterization of voluntary manslaughter as “in the nature of a defense to murder,” with the observation that, “[w]hile we understand the reasoning behind that construction, finding that in some circumstances voluntary manslaughter may be a lesser included offense to murder would have sufficed.” 688 S.W.2d at 849 . Bradley also corrected the conceptual error of cases like Paige, supra, (which may have derived from thinking of voluntary manslaughter as a “defense” rather than as an “offense”), making it clear that evidence sufficient to support a murder conviction will not automatically be sufficient to support conviction for voluntary manslaughter. The issue of sudden passion must be raised by the evidence.

I agree that the present statutory scheme occasionally places this Court and the courts of appeals in “the ludicrous position of acquitting a defendant when there is sufficient evidence in the record that he is guilty of murder.” Daniel v. State, supra, at 398 (Miller, J., concurring). That the Legislature could improve upon it is clear. See Bradley, supra, at 853, n. 13 ; Gold, supra, at 686, n. 1 . But to say that Bradley (really Braudrick) was an “unnecessary” “manipulation” of the statutory *715 scheme is, it seems to me, to fail to appreciate the nature of the problem. By needlessly inviting future attack on the present state of the caselaw, the majority only threatens to further “muddle” the situation.

Therefore, I concur only in the judgment of the Court. I cannot join its opinion.

OVERSTREET, Judge,

concurring on appellant’s petition for discretionary review.

Appellant’s ground for review no. 1 deals with what kind of notice is required to inform an accused that the State intends to seek a deadly weapon finding. The answer I believe is simple. Relying in part on Ex parte Patterson, 740 S.W.2d 766 (Tex.Cr.App.1987), I would say that the State should be required to add the simple language of “The State intends to seek an affirmative finding of the use of a deadly weapon,” either in the indictment or in a separate instrument filed with the court at the time the indictment is presented or at anytime prior to trial in order that the accused has adequate notice. With the above, I concur only in the judgment of the Court. I cannot join its opinion.