Ross v. State , 861 S.W.2d 870 ( 1993 )

OPINION ON STATE’S MOTIONS FOR REHEARING

WHITE, Judge.

Appellant was convicted on August 24, 1983, of capital murder for intentionally killing Ronald Ted Martin while in the course of committing a robbery. See Tex.Penal Code Ann. § 19.03(a)(2). Appellant was sentenced to death.

In point of error number three in our opinion on original submission, Ross v. State, No. 69,206 (Tex.Cr.App. December 9, 1992), we held the trial court erred in failing to charge the jury on the lesser included offense of involuntary manslaughter, concluding that the evidence presented entitled appellant to a jury charge on involuntary manslaughter. After finding appellant suffered some harm, we reversed and remanded the instant cause. In point of error number one we found the evidence adduced at trial was sufficient to find appellant intentionally caused the death of the victim. In point of error number four, we held that the evidence from trial was sufficient for a jury to find that the murder was “deliberate.”¹ Ross, at 875.

In the State’s Motions for Rehearing, they argue that the only lesser included offense raised by the evidence was felony-murder, and that this Court erred when it concluded that the jury should have been given an instruction on the lesser included offense of involuntary manslaughter. We agree with this contention. We will reconsider Part III of our opinion on original submission concerning point of error number three.

The State contends that no evidence was presented to show that, if guilty, appellant was guilty only of involuntary manslaughter. Admittedly, there was conflicting evidence as to whether appellant intentionally or recklessly killed the victim. Appellant claimed that during the commission of the robbery he shoved the victim forward and “the gun went off and struck the man in the head.”² This Court concluded that such evidence was sufficient to raise the issue of involuntary manslaughter as a lesser included offense of capital murder, and that the trial court erred in disallowing appellant’s request' for such an instruction. Ross, at 875.

No conflict existed in the evidence as to whether appellant perpetrated a robbery. By his own confession, appellant stated that he held a gun near the victim’s head while a co-defendant went through the victim’s pockets. Testimony at trial raised the possibility that during the commission of the robbery, the appellant did not intentionally and knowingly cause the death of the victim. See Tex.Penal Code Ann. § 19.02(a)(1). If the manner in which the weapon was used amounted to an act clearly dangerous to human life, the resulting homicide constitutes the offense of felony-murder as defined by Tex.Penal Code Ann. § 19.02(a)(3). Only if the homicide had been effected as a result of reckless conduct by the appellant would the appellant be entitled to a jury charge on a lesser included offense of involuntary manslaughter. See Tex.Penal Code Ann. §§ 6.03(c), 19.05(a)(1).

This Court has enunciated a two-part test to determine whether a charge on a lesser included offense is required. Royster v. State, 622 S.W.2d 442, 446 (Tex.Cr.App.1981). The first prong of the test requires that the offense requested to be charged is a lesser included offense of the offense charged. Royster, 622 S.W.2d at 446. The second inquiry is whether there is some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense. Royster, supra.

It is clear that murder is a lesser included offense of capital murder. Ex parte McClelland, 588 S.W.2d 957, 959 (Tex.Cr.App.1979). It is also well settled that if facts are elicited during trial that raise an issue of a lesser included offense and a charge is properly requested, then a charge on the issue must be given. Jackson v. State, 548 S.W.2d 685, 695 (Tex.Cr.App.1977).

Appellant admits committing a robbery, during which he held a gun to the victim. In the course of this robbery, the gun was fired by the appellant, killing the victim. Trial testimony raised the possibility that the appellant may not have intentionally and knowingly caused the victim’s death. Therefore, it is possible the appellant’s actions constitute and act clearly dangerous to human life, which resulted in the victim’s death, indicating appellant may have only been guilty of felony-murder, as distinguished from involuntary manslaughter. See Tex.Penal Code Ann. §§ 19.02(a)(3), 19.05(a)(1).

On original submission we found the evidence at trial raised the issue of recklessness, and we reversed the conviction based on the appellant’s third point of error. Ross, at 875. We believe that was incorrect.

We are in agreement with appellant’s brief on original submission that the evidence clearly raises the issue that the appellant may be guilty only of the lesser offense of murder by committing an act clearly dangerous to human life and causing the death of the deceased. In the Motions for Rehearing, the State and the State Prosecuting Attorney concur with appellant.³ They concede that there was some evidence presented that, if guilty, appellant was guilty only of the offense of felony-murder. We now find that the trial court erred in failing to charge the jury on the lesser offense of murder over the request and objection of appellant. However, there was not sufficient evidence to raise the issue of involuntary manslaughter.

In Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App.1984), we stated the rule that “[i]f the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is ‘calculated to injure the rights of the defendant,’ which means no more than that there must be some harm to the accused from the error; in other words, an error which has been properly preserved by objection will call for reversal as long as the error is not harmless.” In the instant case because the evidence clearly raised the issue, appellant was harmed because the jury was not instructed upon and not allowed to consider the lesser offense of felony-murder.

Based on the aforementioned reasons, the appellant was entitled to receive a jury charge on the lesser included offense of murder, or felony-murder, but not involuntary manslaughter. Jackson-, Royster, supra.

We reverse the conviction based on point of error number two of appellant’s brief on original submission asserting appellant’s right to a jury charge on the lesser offense of murder,⁴ and remand the cause to the trial court.

CLINTON, J.,

believing that we correctly decided point of error three, joins only the judgment of the Court.

1 . In our opinion on original submission, we only addressed three of appellant’s eleven points of error.

2 . A complete description of the facts in the instant case is cited in the opinion on original submission, Ross v. State, No. 69,206 (Tex.Cr.App. December 9, 1992).

3 . On original submission, the State, in its reply brief, did not address appellant's second point of error contending the trial court erred in not allowing a charge on murder. The State first addressed this issue in its Motion for Rehearing, at which time they conceded the fact that appellant was entitled to such a charge.

4 . Both the Harris County District Attorney and the State Prosecuting Attorney readily admit that there was some evidence presented at trial that, if guilty, the appellant was guilty only of the offense of felony murder.