AFFIRMED

MAY 31, 1990

NO. 10-89-211-CR

Trial Court

# 87-773-C

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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WILLIE JOHN CLAY,

   Appellant

v.

THE STATE OF TEXAS,

   Appellee

* * * * * * * * * * * * *

From 54th Judicial District Court

McLennan County, Texas

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O P I N I O N

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Willie John Clay was convicted of murder and assessed punishment at life in the Texas Department of Corrections. He appeals this conviction, complaining that the trial court erred when it refused to instruct the jury on the law of voluntary manslaughter.

     Section 19.04 of the Texas Penal Code provides that a person commits an offense of voluntary manslaughter "if he causes the death of an individual under circumstances that would constitute murder . . . except that he caused the death under the immediate influence of sudden passion arising from an adequate cause." TEX. PENAL CODE ANN. § 19.04(a) (Vernon 1989). "Sudden passion" is defined as "passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation." Id. at § 19.04(b). "Adequate cause" is defined as "cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection." Id. at § 19.04(c).

Clay was granted his requested charge on self-defense. However, merely because the issue of self-defense is raised, a defendant is not automatically entitled to an instruction on voluntary manslaughter. Stahl v. State, 712 S.W.2d 783, 788 (Tex. App.--Houston [1st Dist.] 1986) aff'd, 749 S.W. 826 (Tex. Crim. App. 1988).

Did the evidence raise the issue of voluntary manslaughter in Clay's case? Clay testified that he was using a telephone at a 7-Eleven Store when the victim--Stephen Giles, who was sitting in a truck, started cursing at him. Giles told Clay, "I'll f___ you up," and "I'll do something to your ass." Clay stated that he was in fear for his life over Giles's remarks, and he believed that Giles might be reaching for a gun. He explained that he went to his car, reached in and got a gun, then went to the truck and shot Giles. Clay admitted saying to Giles, "I'm not the one to f___ with." Clay asserts because the altercation occurred within a period of five minutes or less, his shooting of the deceased was spontaneous and, therefore, not premeditated. The evidence must show more that just spontaneity. None of the evidence, including Clay's testimony, reflects that Giles's actions produced a "degree of anger, rage, resentment, or terror" sufficient to render his mind incapable of cool reflection. See TEX. PENAL CODE ANN. § 19.04(c) (Vernon 1989). Clay's testimony reveals that he shot Giles because he was afraid Giles was going to hurt him. Clay testified:

He was looking at me seriously. He scared me. He scared me so bad that I thought he was going to hurt me, definitely hurt me, the way he looked at me and talked to me.

 

And he made some kind of move like he was reaching under the seat for something, you know. Right then I just got all upset. It just upsetted (sic) me. I knew I was going to get hurt the way he was talking, looking at me. And, before I knew it, I had shot him. I went up and shot him, you know.

Clay's comments that he was "upset" are in the context of his being afraid, and this fear does not amount to the terror which would qualify as "sudden passion." See Stahl, 712 S.W.2d at 787. The court of criminal appeals held in Gonzales v. State, 717 S.W.2d 355, 357 (Tex. Crim. App. 1986), that "a mere claim of fear . . . does not establish the existence of sudden passion arising from an adequate cause." While the evidence may have raised the issue of self-defense in this case, it did not raise the issue of voluntary manslaughter, and we will not allow material evidence to be implied into the record. See id.

By his brief, Clay asks us to remember the evidence from the record showing that he was a Vietnam veteran and has a history of mental problems. However, the "statutory definition of voluntary manslaughter does not contemplate what would constitute adequate cause from the perspective of an individual with impaired impulse control." Miller v. State, 770 S.W.2d 865, 867 (Tex. App.--Tyler 1989 pet ref'd). Clay's point of error is overruled and the judgment is affirmed.

 

                          TERRY R. MEANS

DO NOT PUBLISHJustice

class=MsoNormal style='text-align:justify;text-indent:.5in'>Justice Davis, and

Justice Scoggins

Denied

Opinion delivered and filed January 19, 2011

Do not publish

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