Summary
holding trial court did not err in submitting charge on lesser included offense of voluntary manslaughter "even over appellant's objection"
Summary of this case from Fazio v. StateOpinion
No. 60721.
May 13, 1981.
Appeal from the 180th Judicial District Court, Harris County, Fred M. Hooey, J.
Ray Montgomery, on appeal only, Houston, for appellant.
Carol S. Vance, Dist. Atty., Calvin A. Hartmann and Candelario Elizondo, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before ODOM, W. C. DAVIS and McCORMICK, JJ.
OPINION
This is an appeal from a conviction for voluntary manslaughter. Punishment was assessed at confinement for 16 years.
In his sole ground of error appellant contends that the trial court erred in submitting a charge on voluntary manslaughter since he was indicted for the offense of murder. The appellant advances an argument similar to the one in Braudrick v. State, Tex.Cr.App., 572 S.W.2d 709, 710:
"Appellant argues that acting 'under the immediate influence of sudden passion arising from an adequate cause' is an element of the offense of voluntary manslaughter, and that no evidence in the record supports proof of that element. We hold that such fact is not an element of voluntary manslaughter, but is instead in the nature of a defense to murder that reduces that offense to voluntary manslaughter."
As we held in Braudrick at 711:
"We therefore hold 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 that 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.
"With this clear understanding of the nature of the 'immediate influence' element, appellant's grounds of error actually are tantamount to a claim that there is no evidence to support submission of the lesser included offense of voluntary manslaughter. The jury in returning a verdict of guilty of voluntary manslaughter found all of the statutory elements of murder were proven beyond a reasonable doubt, and further found a reasonable doubt on the defensive issue. We find the evidence was sufficient to support such reasonable doubt. The grounds of error are overruled."
In the instant case the record reflects the that appellant stabbed the victim in the course of a heated argument. Therefore, we find no error was committed by the submission of a charge on voluntary manslaughter, a lesser included offense of murder, even over appellant's objection.
The judgment is affirmed.