West v. State , 846 S.W.2d 912 ( 1993 )

BURGESS, Justice,

concurring and dissenting.

I concur in part and dissent in part. I concur in the majority’s resolution of the first point of error. There is sufficient evidence for the jury to have found that appellant intended to cause serious bodily injury to his wife and committed an act clearly dangerous to human life. I dissent to the majority’s resolution of points of error two and three.

The second point of error alleges the state failed to prove, beyond a reasonable doubt, the absence of “sudden passion” and “adequate cause” as required for a conviction of murder. The majority acknowledges the evidence was sufficient to raise the issue of sudden passion. Medlock v. State, 591 S.W.2d 485 (Tex.Crim.App.1979). They further acknowledge that if the issue is raised, but a jury finds a defendant guilty of murder, the court must make two determinations: (1) whether the evidence was sufficient to establish the offense of murder and (2) whether the evidence was sufficient to disprove the issue of sudden passion. Johnson v. State, 815 S.W.2d 707, 711 (Tex.Crim.App.1991). We all agree the evidence was sufficient to establish murder. We agree as to the law regarding the second determination, but disagree as to the quantum of evidence. A jury may reject sudden passion, even though it is raised by the evidence, but may not find facts necessary to establish the absence of sudden passion “purely on the basis of its disbelief of the accused’s contrary assertions.” Johnson, 815 S.W.2d at 711; citing Gold v. State, 736 S.W.2d 685, 689 (Tex.Crim.App.1987), overruled in part on other grounds, in Torres v. State, 785 S.W.2d 824 (Tex.Crim.App.1989). First, was there sufficient evidence on which to base a finding of no adequate cause? I think not. The only evidence concerning the altercation that morning is that Brenda West grabbed appellant’s penis and would not let go, causing pain. Next, was there sufficient evidence on which to base a finding of no immediate influence of sudden passion? This is a more difficult question. The medical evidence does not show a prolonged beating. It does not contradict appellant's statement that he struck his wife three times, at the most, with his open hand. While there was evidence that appellant had struck his wife in the past and had even acknowledged the possibility that he might be driven to enough rage to kill her, I am unable to say, that a rational trier of fact could have found beyond a reasonable doubt, that the acts committed the morning of Brenda’s injuries were the result of previous provocations rather than sudden passion. Therefore, I would sustain point of error number two and order an acquittal to the offense of murder, but authorize a retrial on the remaining offenses.

I also dissent to the majority’s holding regarding the trial court’s failure to charge the jury on self defense. I believe the trial judge refused the instruction on self defense due to his misinterpretation of the right to use deadly force. It is apparent from the charge conference that the judge determined since a death occurred, then appellant used deadly force and was not entitled to the instruction since he was not confronted with deadly force. The trial court focused only upon a portion of the definition of deadly force. Deadly force is not only force that is capable of causing death, but also force that is capable of causing serious bodily injury. Tex.Penal Code Ann. § 9.01(3) (Vernon 1974). Whether the grabbing of appellant’s penis is within the definition of deadly force is a fact question for the jury. Appellant was entitled to an instruction on every defensive issue raised by the evidence, regardless of whether the evidence was strong, weak, unimpeached or contradicted and regardless of what the trial court may or may not think about the credibility of the evidence. Hayes v. State, 728 S.W.2d 804, 807 (Tex.Crim.App.1987). Appellant was entitled to a charge on self defense under Tex.Penal Code Ann. § 9.32 (Vernon Supp.1993). I would sustain point of error number three and remand for a new trial on this issue alone.