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424 S.W.2d 631

Fennell v. State

Court of Criminal Appeals of Texas

Decided March 6, 1968

Court of Criminal Appeals of Texas · decided 1968-03-06

Key passage — most relied on by later courts

““You are instructed that in determining the existence of real or apparent danger, it is your duty to consider all of the facts and circumstances in the case in evidence before you and consider the words, acts and conduct, if any, of Glent Charles Ray at the time of and prior to the time of the alleged stabbing and consider whatever threats, if any, the said Glent Charles Ray may have made to the defendant, and consider any difficulty or difficulties which the said Glent Charles Ray had had with the defendant, and in considering such circumstances, you should place yourselves in the defendant’s position at that time and view them from his standpoint alone. “Now, if you find from the evidence beyond a reasonable doubt that the defendant, did knowingly cause the death of Glent Charles Ray by cutting and stabbing him with a knife but you further find from the evidence that, viewed from the standpoint of the defendant at the time, from the words or conduct, or both, of Glent Charles Ray it reasonably appeared to him that his life or person was in danger and there was created in his mind a reasonable expectation or fear of death or serious bodily injury from the use of unlawful deadly force at the hands of Glent Charles Ray and that acting under such apprehension and reasonable belief that the use of deadly force on his part was immediately necessary to protect himself against Glent Charles Ray use or attempted use of unlawful deadly force, he cut and stabbed the said Glent Charles”

quoted by 2 later decisions, including Bueno v. State, Thomas v. State

““We are reinforced in our opinion by virtue of the trial court’s refusal to respond to appellant’s timely presented special requested charge to the effect that the intoxication or drinking of the deceased would not excuse his attack upon appellant or take from the appellant his right of self-defense. “It may not have been reversible error to have refused such a charge had the appellant been given an adequate, comprehensive, complete and unrestricted instruction on self-defense, but that, of course was not done as observed earlier. [Citations omitted] The court’s charge as a whole did not fairly and adequately protect the rights of the appellant.” 1”

quoted by 1 later decision, including Doyle v. State

Relies on 75 Tex. Crim. 137 - McCue v. State · 120 Tex. Crim. 534 - Aston v. State · 68 Tex. Crim. 331 - Duckett v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1968-03-06

How this case has been cited

Cited by 26 later decisions — most recently April 2018 · most notably Smith v. State (1974), Garrett v. State (1981)

26 state decisions

110196819701980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1 OPINION ON STATE’S MOTION FOR REHEARING

ONION, Judge.

¶2 Our original opinion is withdrawn and the following is substituted in lieu thereof.

¶3 The offense is Murder without Malice; the punishment, assessed by the trial court after a verdict of guilty, five (S) years confinement in the Texas Department of Corrections.

¶4 On original submission this cause was reversed and remanded on the grounds (1) that the facts were insufficient to show an unlawful killing and that the uncontro-verted evidence established self-defense as a matter of law, and (2) that the appellant was deprived of a fair and impartial trial by reason of fundamental error which occurred despite the lack of objection when, under the circumstances, the trial court charged only abstractly on the law of self-defense and failed to apply the law to the fact?;

¶5 On rehearing, upon further consideration, we have concluded that we were in error in holding that self-defense was established by the facts as a matter of law.

¶6 We remain convinced, however, that this cause must be reversed on the error in the court’s charge. The testimony of the State and appellant clearly and strongly raised the issue of self-defense both against an unlawful attack giving rise to apprehension or fear of death or serious bodily injury (Articles 1221, 1226, V.A.P.C.) and against a milder attack (Article 1224 P.C.).

¶7 In our original opinion we said:

“It is further observed, since self-defense was the crucial question in the case at bar, that the court charged the jury only abstractly on the law of self-defense in a single paragraph and did not apply the law to the facts. For some unexplained reason there was no objection to such charge, nor was this fact assigned as ground of error or mentioned in oral argument or otherwise. The fact remains, however, that the jury was never told that if they found from the evidence that the appellant had acted in self-defense, or if they had a reasonable doubt thereof, to acquit this appellant.
“It has been the consistent holding of this Court under the provisions of Article 36.19, V.A.C.C.P. (former Article 666) that a case will not be reversed on appeal because of an error in the charge of the court to which no objection was made, unless the error was calculated to injure the rights of the defendant or unless it appears that he has not had a fair and impartial trial. Aston v. State, [Tex.Cr.App.], 48 S.W.2d 292; Barfield v. State, [118 Tex.Cr.R. 394], 43 S.W.2d 106; McCue v. State, [75 Tex.Cr.R. 137], 170 S.W. 280; Bonds v. State, [71 Tex.Cr.R. 408], 160 S.W. 100; Coleman v. State, [68 Tex.Cr.R. 182], 150 S.W. 1177.
“It would be difficult to conclude from the circumstances already discussed and the failure of the charge to apply the law of self-defense to the facts that this appellant has had a fair and impartial trial.”

¶8 We are reinforced in our opinion by virtue of the trial court’s refusal to respond to appellant’s timely presented special requested charge to the effect that the intoxication or drinking of the deceased would not excuse his attack upon appellant or take from the appellant his right of self-defense. *633 This was appellant’s second ground of error but was not discussed in our original opinion.

¶9 It may not have been reversible error to have refused such a charge had the appellant been given an adequate, comprehensive, complete and unrestricted instruction on self-defense, but that, of course, was not done as observed earlier. Cf. Kilgore v. State, 151 Tex.Cr.R. 123, 205 S.W.2d 779. The court’s charge as a whole did not fairly and adequately protect the rights of the appellant.

¶10 For the reasons stated, the State’s motion for rehearing is granted in part and overruled in part. The judgment is reversed and remanded.

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