Saunders v. State , 1985 Tex. App. LEXIS 6348 ( 1985 )

GUILLOT, Justice,

dissenting.

I respectfully dissent and, while I find the law in the area of what is admissible in the punishment phase of the trial to be clouded at best, I would hold that there was no error in refusing the proffered testimony.

Admitting that his testimony raises no legal defense to the charge of murder, Davis v. State, 597 S.W.2d 358, 360 (Tex.Crim. App.) (en banc), cert. denied, 449 U.S. 976, 101 S.Ct. 388, 66 L.Ed.2d 238 (1980), appellant argues that, because the evidence is not admissible for defense of the charge, it was offered to mitigate punishment. Appellant characterizes his testimony as evidence that the homicide occurred during an assault. We are not bound, however, by appellant’s characterization of the testimony.

What appellant attempted to do at the punishment phase was to testify to his version of the facts. At that point, his version is irrelevant and inadmissible. White v. State, 444 S.W.2d 921 (Tex.Crim.App.1969). Viewed in context, there is no reasonable interpretation of appellant’s testimony other than that he accidentally pulled the trigger. But evidence of the affirmative defense of accident which would exonerate appellant is not admissible at the punishment phase of the trial. Nixon v. State, 572 S.W.2d 699 (Tex.Crim.App.1978).

Furthermore, pulling the trigger cannot be an accident legally sufficient to exonerate appellant. Sargent v. State, 518 S.W.2d 807 (Tex.Crim.App.1975). Moreover, because there is no evidence to show that appellant used force to protect himself against the deceased’s “use or attempted use of unlawful force,” TEX. PENAL CODE ANN. § 9.31 (Vernon 1974), it cannot be self-defense. Hence, his testimony is inadmissible. I would affirm.