Hardaway v. State , 1985 Tex. App. LEXIS 12433 ( 1985 )

OPINION

T. GILBERT SHARPE, Assigned Justice.^*

This appeal is from a judgment rendered after jury trial convicting appellant of voluntary manslaughter and imposing sentence of confinement for a period of eleven (11) years.

Appellant asserts six grounds of error. We sustain his grounds of error three, four and five, which requires that the case be reversed and remanded for new trial.

At the outset it may be well to state that much of the confusion surrounding the trial of this case was caused by the decisions of the Texas Court of Criminal Appeals in the cases of Paige v. State, 573 S.W.2d 16 (Tex.Crim.App.1978) and Braudrick v. State, 572 S.W.2d 709 (Tex.Crim.App.1978). It now appears, hopefully, that such confusion has been largely, if not completely, eliminated by the decision of the Court of Criminal Appeals in Bradley v. State, 688 S.W.2d 847 (Tex.Crim.App.1985), decided some twenty days after the instant case was submitted.

Appellant’s brief sets out the background of this case substantially as follows: Appellant originally was indicted for the offense of murder (non-capital) because of the shooting death of Norris J. Austin. On that indictment he was found guilty of voluntary manslaughter in the 289th District Court. However, appellant was granted a new trial, for reasons not related to the instant appeal. The case was then transferred to the 187th District Court. Appellant asserts that the State and counsel for appellant agreed that appellant had been placed in former jeopardy as to the offense of murder, but he remained indicted for such offense. Appellant’s motion to quash the original indictment was granted and he was then indicted specifically for the offense of voluntary manslaughter.

Appellant filed a typewritten motion to quash the latest indictment on December 5, 1983, which was overruled on the same date. That motion did not mention any prior proceedings. On the same date appellant filed a longhand unsworn motion designated as “Defendant’s Motion to Quash Indictment and Prior Jeopardy,” which also was overruled. The latter motion contained among other things an allegation that appellant had been acquitted by virtue of a prior ruling of the court quashing a heretofore filed indictment for murder.

The principal difficulty we face in passing on appellant’s grounds one and two is that the record does not support his recitation of prior proceedings. Appellant’s first motion to quash does not contain any reference to any prior proceedings. His second (longhand) motion, which includes an allegation of double jeopardy, does not identify such prior proceedings, nor does evidence of same otherwise appear in the record. The second motion is not verified as required by TEX.CODE CRIM.PROC.ANN. art. 27.05 (Vernon 1974).

The indictment is not invalid on its face.

Under these conditions we cannot hold that reversible error is presented by appellant’s grounds one and two, and they are accordingly overruled.

Under his grounds of error three, four and five appellant complains of the overruling of his objections to Paragraph IV of the court’s charge. Grounds numbers four and five are asserted in order to avoid a claim of multifariousness, but appellant’s argument is the same as under his ground of error three.

The three sub-paragraphs of Paragraph IV read as follows:

IV.

Now, if you find from the evidence beyond a reasonable doubt that on or about the 7th day of March, A.D., 1981, in Bexar County, Texas, the defendant, Kenneth Wilson Hardaway, did intentionally or knowingly cause the death of an individual, namely Norris J. Austin, by shooting him with a gun, and you further find from the evidence beyond a reasonable doubt, that the defendant acted under the immediate influence of sudden passion arising from an adequate cause, then you will find the defendant guilty of voluntary manslaughter. If you do not so find, or if you have a reasonable doubt thereof, you will acquit the defendant of voluntary manslaughter, except as set forth in the following paragraph, and next consider whether he is guilty of aggravated assault.

The offense of voluntary manslaughter is committed whenever an individual intentionally or knowingly causes the death of another individual, without legal justification or excuse. The immediate influence of a sudden passion arising from an adequate cause reduces to voluntary manslaughter what would otherwise be a higher level offense, but it is not justification or excuse for killing. It is therefore, not essential that there be proof beyond a reasonable doubt that the accused acted in the heat of sudden passion arising from an adequate cause.

Therefore, if you find from the evidence beyond a reasonable doubt that Kenneth Wilson Hardaway did intentionally or knowingly cause the death of Norris J. Austin by shooting him with a gun on or about the 7th day of March, A.D., 1981, in Bexar County, Texas, and that such causing of the death of Norris J. Austin was without legal justification or excuse, and was not in self-defense, then you should find the defendant guilty of voluntary manslaughter. If you have a reasonable doubt as to whether Kenneth Wilson Hardaway intentionally or knowingly caused the death of Norris J. Austin, in Bexar County, Texas, on or about the 7th day of March, A.D., 1981, you will acquit the defendant of voluntary manslaughter and next consider whether he is guilty of aggravated assault.

It is apparent that the court charged the jury in Paragraph IV, sub-paragraph one, that if appellant did intentionally or knowingly cause the death of Norris J. Austin, by shooting him with a gun, and further found from the evidence beyond a reasonable doubt, that the defendant acted under the influence of sudden passion arising from an adequate cause, then the jury would find the defendant guilty of voluntary manslaughter, etc ..., but in the second sub-paragraph of Paragraph IV told the jury in part “It is therefore, not essential that there be proof beyond a reasonable doubt that the accused acted in the heat of passion arising from an adequate cause.” These instructions present a direct conflict.

It also appears that in Paragraph II of the court’s charge the jury was instructed “Our law provides that a person commits the offense of voluntary manslaughter if he intentionally or knowingly causes the death of an individual under the immediate influence of sudden passion arising from an adequate cause.”

Additionally, there are other apparent conflicts in the court’s charge, primarily because of the efforts of the trial judge and counsel to ascertain and apply the law as it then existed, prior to the decision in Bradley, supra.

Appellant’s grounds of error three, four and five are sustained.

Under ground of error six, appellant complains of the refusal of the trial court to advise the jury as to the range of punishment for aggravated assault.

During the jury deliberations on the first phase of the trial, a note was sent to the judge inquiring as to the range or type of punishment for aggravated assault, (on which instructions had been given as a lesser included offense): The trial judge answered the note by referring the jury to the top paragraph on the last page of the court’s charge, which instructed the jury to determine the guilt or lack of guilt of the defendant at that time and to restrict their deliberations solely to that issue.

There was no objection to the instruction given, and in any event, it was proper. Appellant’s ground of error six is overruled.

We believe that the decision of the Court of Criminal Appeals in Bradley, supra, will be of much assistance on the new trial and disposition of this case.

The judgment of the trial court will be reversed and the cause remanded for new trial.

* Assigned to this case by the Chief Justice of the Supreme Court of Texas as authorized pursuant to Paragraph (d) of Article 1812, Texas Revised Civil Statutes as amended by H.B. 2244 (Acts 1983, 68th Leg., p. 1912, Ch. 354, Sec. 1, effective June 16, 1983).