Gonzales v. State ( 1985 )

CLINTON, Judge,

concurring.

The majority states: “Yet appellant fails to recognize that the standard of the reasonable man, the person of ordinary temper, is employed precisely to avoid different applications of the law of [voluntary] manslaughter to defendants of different races, creed, color, sex or social status.” P. 903. That broad statement does not take into account pertinent provisions of V.T.C.A. Penal Code, § 19.06, viz:

“In all prosecutions for ... voluntary manslaughter, the state or the defendant shall be permitted to offer testimony as to ... all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.”¹

Coupled together, § 19.04(c) and the quoted portion of 19.06, particularly the underscored words, render the definition of adequate cause “both objective and subjective,” Practice Commentary to § 19.05. Thus, whether a cause is adequate must be measured not only by understanding “a person of ordinary temper” but also by considering the standpoint of the accused. Ibid.

One, and probably the best, reason “to depart from the view expressed by Judge Lattimore, in Zimmerman v. State, 215 S.W.[] 101, 85 Tex.Cr.R. 630 (1919),” is that when he was writing that which the majority quotes, Judge Lattimore was addressing the former manslaughter law then in effect. However, it was repealed by the “Murder Act,” Acts 1927, 40th Leg., ch. 274, p. 412, § 3. That act also inserted in the penal code “a new article numbered 1257a relating to what may be proved and considered by the jury ...” See Mercer v. State, 111 Tex.Cr.R. 657, 13 S.W.2d 689, 691 (1928). Former article 1257a is the progenitor of § 19.06. Thus, Judge Lattimore was expounding his views without benefit of the very legislative expression now extant.

As to what Associate Justice Miller of the District of Columbia Circuit Court of Appeals opined in Hart v. United States, 130 F.2d 456, 458 (D.C.Cir.1942), suffice to say that, like Judge Lattimore, he did not have to treat any counterpart to article 1257a or § 19.06.

The point of it all is that the statutory definition in § 19.04(c) is just one aspect of what a jury may consider in deciding whether an accused acted under the immediate influence of sudden passion “arising from an adequate cause.” Under § 19.06 the jury also may and should take into account “all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.” Appellant does not claim that the jury was not properly charged in the latter respect. Therefore, § 19.04(c) is not vague facially or as applied for the reasons claimed by appellant.

Other than the statement questioned, with the observations made, I join the opinion of the Court.

1 . All emphasis is mine unless otherwise indicated.