APPELLANT

APPELLEE

After finding appellant guilty of the offense of voluntary manslaughter, Tex. Penal Code Ann. § 19.04 (West 1989), the jury assessed punishment at confinement for seven years and a fine of ten thousand dollars. The trial court had charged the jury on the primary offense of murder, Tex. Penal Code Ann. § 19.02 (West 1989), and, over appellant's objection, on the lesser included offense of voluntary manslaughter. The trial court's action in charging the jury on voluntary manslaughter forms the basis of appellant's two points of error. We will overrule appellant's points of error and affirm the judgment of the trial court.

It is undisputed that appellant caused the death of the decedent by cutting his throat with a broken beer bottle at the Lighthouse Bar in the early morning hours of October 6, 1991. The decedent had broken up with his girlfriend as a result of her relationship with appellant. This was a source of tension between decedent, appellant and a third party named Bill Mayo, all of whom had been drinking in the hours preceding the fatal altercation.

When evidence from any source raises an issue that a lesser included offense may have been committed and a jury charge on the issue is properly requested, the issue must be submitted to the jury. Moore v. State, 574 S.W.2d 122, 124 (Tex. Crim. App. 1978). "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." Tex. Penal Code Ann. § 19.04(b) (West 1989). Fear alone is not sufficient to demonstrate "sudden passion arising from adequate cause" and thus to raise voluntary manslaughter unless the fear rises to the level of terror sufficient to render the mind incapable of cool reflection. Daniels v. State, 645 S.W.2d 459, 460 (Tex. Crim. App. 1983).

Testimony showed that a verbal confrontation between appellant and the decedent occurred at the bar the afternoon preceding the fatal attack. Bill Mayo started an argument with appellant in the bar later that evening. Mayo was described as a person with an "intimidating" appearance who was drunk, "hostile" and "aggressive." However, a short time before the fatal altercation, the decedent, appellant and Bill Mayo were observed with their arms around each other, professing their friendship and "doing a male bonding thing."

The events that immediately preceded the fatal stabbing were described in the testimony of Don Samson, a patron at the Lighthouse Bar. After being introduced to appellant, Samson observed that appellant was drunk and talking to other people about a problem he had earlier that evening about a girl. Subsequently, Samson met Mayo, who engaged appellant in an argument at Samson's table that continued as they moved to the bar where they were standing "face to face" in a "very threatening manner." Samson next saw the two men on the bar's deck, where "Mayo had his arm around Bryan's [appellant's] neck, sort of a headlock and was hollering at him." Appellant was trying to make peace with Mayo and asking him to leave him alone. Samson gave the following account of the decedent's entry into the altercation:

I saw David Viviano [decedent] come running up the stairs very forcefully, very loudly, shaking the entire landing coming up. When he came up to the top of the stairs, he never stopped. He went immediately over to Bryan [appellant] and Bill [Mayo], grabbed hold of Bryan in some manner which I couldn't really see because Bryan had his back to me. But he either got him by the shirt or by the throat and between Bryan -- excuse me, between David and Bill at that point they began shaking Bryan and banging him up against the rail.

The manner in which appellant inflicted the fatal wounds was described by Samson:

He was trying to protect himself. He swung it out in front of himself. I don't think he could even see where he was swinging it. His head was back. His head was back like looking up at the sky. I don't think he could even really see where he was swinging the beer bottle. He wasn't aiming at anything. He was strictly swinging it in front of him, trying to get them to back away.

Following the fatal stabbing, appellant returned to the bar. Witnesses testified that appellant appeared "panic stricken -- scared, broken up -- excited -- acted like it happened real fast and he didn't mean for that to happen." Immediately following the attack witnesses said that appellant stated, "Oh, my God, I didn't mean to do it -- I didn't mean to do it, but I'm going to fry anyway."

Appellant contends that Samson's testimony only raises the issue of self-defense and that Samson's testimony does not demonstrate that appellant was extremely excited or agitated so as to constitute sudden passion. The defense of self-defense and the lesser included offense of voluntary manslaughter may exist where there is evidence that the offense occurred under the influence of sudden passion. See Acosta v. State, 742 S.W.2d 287, 288 (Tex. Crim. App. 1986); Lucks v. State, 588 S.W.2d 371, 374-75 (Tex. Crim. App. 1979), cert. denied, 446 U.S. 994 (1980).

In Havard v. State, 800 S.W.2d 195 (Tex. Crim. App. 1989), the court held that the issue of voluntary manslaughter was raised by the defendant's testimony that he was emotionally hurt and mad when he saw two men coming toward him with weapons drawn, that he was in fear of his life, and that the events of the shooting happened so quickly that he did not know what he was thinking at the time. Id. at 217. In Brunson v. State, 764 S.W.2d 888 (Tex. App.--Austin 1989, pet. ref'd), the defendant's testimony that he "panicked" when the victim came at him was held sufficient to have allowed the jury to find sudden passion. Id. at 895. This Court reasoned that the defendant's testimony that he "panicked" was a shorthand expression of "I experienced a sudden terror of such a degree that it overwhelmed my mind." Id. "[P]rovocation, in support of a claim of 'sudden passion,' may derive from someone other than the deceased" if the third party was acting in concert with the deceased. Havard, 800 S.W.2d at 215.

Tension had existed between appellant, Mayo and the decedent prior to the fatal stabbing, and there was testimony that appellant had armed himself as a result of the ill-feeling; however, the expression of friendship between the men a short time earlier is inconsistent with the theory that the ultimate attack resulted solely from former provocation. While appellant did not testify, observations of witnesses who described the manner in which appellant was swinging the broken bottle, the appearance of being "panic stricken -- excited -- like it happened real fast" coupled with appellant's statements immediately following the fatal attack constitute evidence from which a jury could have reasonably concluded that appellant experienced sudden terror of such a degree that it overwhelmed his mind. A jury could reasonably infer that the fear experienced by appellant rose to the level of sudden passion. We hold that the trial court did not err in charging the jury on the lesser included offense of voluntary manslaughter. Appellant's first point of error is overruled.

In his second point of error, appellant contends that the trial court erred in charging the jury on voluntary manslaughter over his objection under Article I, section 13 of the Texas Constitution and Section 19.04 of the Texas Penal Code.

Other than citing Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991), appellant has advanced no argument or authority concerning the protection provided by the Texas Constitution or how that protection differs from that provided by the United States Constitution. Narvaiz v. State, 840 S.W.2d 415, 432 (Tex. Crim. App. 1992), cert. denied, 113 S. Ct. 1422 (1993). Nothing is presented for review. Appellant's second point of error is overruled.

The judgment of conviction is affirmed.

Tom G. Davis, Justice

Before Justices Jones, Kidd and Davis^*

Affirmed

Filed: January 18, 1995

Do Not Publish

^* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).