Citations
- 681 S.W.2d 640
Full opinion text
MURPHY, Justice.
This is an appeal from a conviction for murder in which the jury assessed punishment at ten (10) years in the Texas Department of Corrections.
In her first ground of error appellant contends that the trial court erred in refusing to charge the jury on the lesser included offense of criminally negligent homicide. Appellant objected to the court’s failure to include the lesser included offense and submitted a requested jury instruction on the issue. We agree.
The general rule concerning the required submission of jury charges is that when evidence from any source raises an issue of a lesser included offense, and there is testimony that, if guilty at all, the defendant is only guilty of the lesser included offense, then the charge on the lesser included offense must be submitted to the jury. Hunter v. State, 647 S.W.2d 657, 658 (Tex.Crim.App.1983); Simpkins v. State, 590 S.W.2d 129, 132 (Tex.Crim.App.1979). Moreover, a defendant’s own testimony is sufficient to raise the issue. Campbell v. State, 614 S.W.2d 443, 445 (Tex.Crim.App.1981).
The offense of criminally negligent homicide is committed when a person causes the death of an individual by criminal negligence i.e.: when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. Tex.Penal Code Ann. § 19.07, § 6.-03(d) (Vernon 1974).
In describing the events of January 11, 1982, appellant testified that her husband announced that he was leaving her and wanted a divorce. Appellant related that she went into the bedroom crying and collapsed on the bed. Thereafter, the appellant saw the deceased’s revolver on the nightstand, picked it up, and went into the kitchen with the intention of killing herself. Once in the presence of the deceased, the appellant attempted to raise the loaded gun toward her head with her finger on the trigger and stated, “I’m going to kill myself. I can’t live without you.” The deceased tried to disarm the appellant and in the ensuing struggle two shots were fired. The second shot hit the deceased in the lower left back causing his death.
On cross-examination by the Prosecutor, the appellant testified as follows:
Q: And you didn’t pull the trigger?
No, I didn t.