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573 S.W.2d 548

Fella v. State

Court of Criminal Appeals of Texas

Decided November 22, 1978

Court of Criminal Appeals of Texas · decided 1978-11-22

Key passage — most relied on by later courts

“"If you find and believe from the evidence beyond a reasonable doubt that on or about the 22nd day of May, 1976, in Hidalgo County, Texas, the defendant, Lonnie M. Young, did intentionally or knowingly cause the death of James Graham by shooting him with a firearm, to wit, a gun, or did then and there intend to cause serious bodily injury to the said James Graham and with said intent to cause such injury did commit an act clearly dangerous to human life, to wit, shooting at James Graham with a gun and causing the death of the said James Graham, but you further find and believe from all the facts and circumstances in evidence in the case, or you have a reasonable doubt thereof, that the defendant, in killing the deceased, if he did, acted under the immediate influence of sudden passion arising from an adequate cause, then you will find the defendant guilty of voluntary manslaughter." (Emphasis added)”

quoted by 2 later decisions, including Young v. State, Deitch v. State

““A person commits an offense if he causes the death of an individual under circumstances that would constitute murder under Section 19.02 of this code, except that he caused the death under the immediate influence of a sudden passion arising from an adequate cause.””

quoted by 2 later decisions, including Young v. State, Deitch v. State

Relies on Robinson v. State · Davis v. State · Brewer v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1978-11-22

How this case has been cited

Cited by 28 later decisions — most recently October 2009 · most notably Cumbie v. State (1979), Smith v. Flack (1987)

28 state decisions

1401978198019902000decided

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

PHILLIPS, Judge.

¶2 This is an appeal from a conviction for voluntary manslaughter. The punishment was assessed at 17 years’ imprisonment.

¶3 At the outset we note as unassigned error in the interest of justice (see Article 40.09, Section 13, V.A.C.C.P.) that the charge of the trial court authorized the jury to find the appellant guilty of voluntary manslaughter on a theory not alleged in the indictment. The indictment alleges, in pertinent part:

“ . . . ALBERT ALLEN FELLA . did then and there unlawfully and while under the immediate influence of a sudden passion arising from an adequate cause, intentionally and knowingly cause the death of an individual, PAUL CAREY SMITH, by stabbing him with a knife, . . .. ”

¶4 The court’s charge applying the law to the facts of the case and instructing the jury reads as follows:

“Now, therefore, if you believe from the evidence beyond a reasonable doubt that on or about August 20, 1976, in El Paso county, Texas, the defendant, intentionally or knowingly, either (1) caused the death of Paul Carey Smith, by stabbing him with a knife, or (2) intended to cause serious bodily injury and committed an act clearly dangerous to human life, to wit: by stabbing the said Paul Carey Smith with a knife and caused his death, you will in either of such cases find the defendant guilty of voluntary manslaughter.”

¶5 See Plunkett v. State, Tex.Cr.App., (No. 55,078, November 15, 1978); Brewer v. State, Tex.Cr.App., 572 S.W.2d 940 (1978); Robinson v. State, Tex.Cr.App., 553 S.W.2d 371; Davis v. State, Tex.Cr.App., 557 S.W.2d 303.

¶6 Because of the fundamental error identified above, the judgment of conviction is reversed and the cause is remanded.

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