Jones v. State

¶1dissenting.

¶2The offense here is murder. The jury convicted and assessed appellant’s punishment at 99 years’ imprisonment.

¶3On appeal the conviction was affirmed. Jones v. State, 689 S.W.2d 510 (Tex.App.-El Paso, 1985). On appeal appellant had urged, inter alia, that the trial court erred in failing to include, sua sponte, in its charge, applying the law of murder to the facts of the case, an instruction that the State was required to prove that the murder was not committed under the immediate influence of sudden passion arising from an adequate cause. See Cobarrubio v. State, 675 S.W.2d 749 (Tex.Cr.App.1983). The trial court apparently instructed on voluntary manslaughter without a request from the appellant, and there was no objec*537tion to the charge applying the law of murder to the facts. The Court of Appeals, after citing Cobarrubio, Bradley v. State, 688 S.W.2d 847 (Tex.Cr.App.1985), and Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), and other cases, determined the error, if any, was waived by the failure to object. We granted appellant’s petition for discretionary review to determine the correctness of the Court of Appeals’ holding on this single issue.

¶4The record discloses that this offense occurred on August 28, 1980. The indictment was returned on October 2, 1980. Trial commenced on April 26, 1982. After conviction, notice of appeal was given on June 18, 1982. The record reached the Court of Appeals on October 7, 1983. On May 15,1985, the Court of Appeals handed down its opinion affirming the conviction. In connection with the said petition the record reached the Court of Criminal Appeals on July 10, 1985. The said petition was originally refused on April 30, 1986, but appellant’s motion for rehearing and petition were granted on June 18, 1986. The cause was submitted on November 12, 1986. Now, over six years after the alleged murder offense, the majority is returning the cause to the Court of Appeals for another appellate round with every likelihood that another round will be had in this Court before any gong will be sounded, if then.

¶5In this Court appellant calls attention to his own testimony at trial. Appellant, once a male prostitute in Los Angeles, California, was hitchhiking through El Paso County when he was picked up by the deceased. After drinking some alcoholic beverages, a motel room was rented and the deceased gave the appellant $20.00 for a sexual act. An argument ensued over who was to be the aggressive partner. Appellant related the deceased pushed him back on the bed when he started to get up, and that he “became worried” as the deceased was a large individual. Appellant offered to return the $20.00, but the deceased pushed him again and he became “scared” and grabbed a spark plug wrench and hit the deceased, who fell, and kept hitting him. Appellant then took a rope which the deceased had and strangled the deceased. Appellant stated that he was afraid of what would happen if the deceased got up, and that out of fear he killed the deceased. He took the deceased’s money and his vehicle and left.

¶6In his brief appellant states that it was his testimony that raised the issue of voluntary manslaughter. He insists that there were no other defenses and that voluntary manslaughter was the primary “defense” and that under Castillo-Fuentes v. State, 707 S.W.2d 559 (Tex.Cr.App.1986), he is entitled to a reversal. He distinguishes Lawrence v. State, 700 S.W.2d 208 (Tex.Cr.App.1985), on the basis that in Lawrencevoluntary manslaughter was only an incidental defense and no reversible error was shown.

¶7The State, on the other hand, contends that there was no fundamental reversible error in the court’s charge because the appellant’s testimony that he was in “fear” standing alone does not raise the issue of sudden passion, citing Daniels v. State, 645 S.W.2d 459, 460 (Tex.Cr.App.1983), and Lawrence, supra. See also Gonzales v. State, 717 S.W.2d 355 (Tex.Cr.App.1986).

¶8Both parties agree upon the same summary of facts to support their respective positions. The issue is clearly drawn for this Court by the briefs filed before this Court. It can and should be decided promptly by this Court.

¶9Nevertheless, the majority concludes that the Court of Appeals did not have the benefit of Castillo-Fuentesand Lawrenceand the cause should be remanded to the Court of Appeals for consideration in light of these two decisions. Nothing is said about the State’s position. May it be considered by the Court of Appeals? Under any circumstances, this six-year-old murder case is given another whirl in the appellate orbit, and after a year or two may find its *538way back to this Court.1 Who knows but what there may then be new decisions on which it can again be remanded for reconsideration. But then who said that the name of the game was quickness.

¶10I vigorously dissent to this remand and this type of justice. It is totally uncalled for in this fact situation. The sole issue remaining in the case should be decided NOW by this Court.