Reyes Guadalupe Castaneda, Jr. v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-92-046-CR

REYES GUADALUPE CASTANEDA, JR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 91-161-C

O P I N I O N

A jury found Reyes Castaneda guilty of attempted murder and assessed punishment at life in prison. Castaneda has two points of error. First, he contends the court erred in refusing to allow testimony concerning the victim's prior threats against him. In his second point, he argues that the court erred in refusing to submit an instruction on the lesser-included offense of voluntary manslaughter. We affirm.

On December 31, 1990, Laura Rodriguez entered a bar. She immediately went into the restroom. As she prepared to leave the restroom, she observed Castaneda in the bar with a gun. Because Castaneda had a gun, Rodriguez remained in the restroom until he was gone. Rodriguez then left the bar. As she attempted to get into her car, Castaneda drove into the parking lot. He approached Rodriguez and shot her once in the forehead.

In his first point Castaneda argues that the court should have allowed testimony concerning Rodriguez' prior threats against him. He contends that Anita Marquez should have been permitted to testify before the jury that Rodriguez told Marquez: "Waito [Rodriguez' common law husband] and them is going to get [Castaneda]." However, there is no evidence in the record that indicates Castaneda had knowledge of the threat. He further argues that section 19.06 of the Texas Penal Code provides for the admission of such hearsay testimony and that excluding Marquez' testimony constitutes reversible error. See Tex. Penal Code Ann. 19.06 (Vernon 1989) (current version at Tex. Penal Code Ann. 19.06(a) (Vernon Supp. 1993)).

Section 19.06 states:

In all prosecutions for murder or voluntary manslaughter, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.

Id. Section 19.06 does not extend the rules of hearsay to allow the admission of otherwise inadmissible hearsay statements. Werner v. State, 711 S.W.2d 639, 644 (Tex. Crim. App. 1986). The excluded testimony is not only hearsay but, in fact, hearsay within hearsay. Castaneda neither argued nor proved that the excluded statement falls within a recognized hearsay exception. Consequently, the hearsay testimony was properly excluded. We overrule point one.

Castaneda's second point is that the court erred in refusing to submit an instruction on the lesser-included offense of voluntary manslaughter. Aguilar v. State sets out the proper test for determining whether a defendant is entitled to an instruction on a lesser-included offense. Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985). A defendant is only entitled to a lesser-included offense instruction when (1) the proof of the lesser-included offense is within proof of the greater offense, and (2) there is some evidence that the defendant, if guilty, is guilty only of the lesser offense. Id.

Here, the first prong is met. See id. Voluntary manslaughter is a lesser-included offense of attempted murder. Etheridge v. State, 634 S.W.2d 382, 384 (Tex. App. Austin 1982), aff'd, 648 S.W.2d 308 (Tex. Crim. App. 1983). However, the second prong of the test is not met. See Aguliar, 682 S.W.2d at 558. Voluntary manslaughter cannot be considered a lesser-included offense of murder unless there is some evidence of sudden passion. Bradley v. State, 688 S.W.2d 847, 849 (Tex. Crim. App. 1985). The "sudden passion" must be "directly caused by and arising out of provocation" by the victim "at the time of the offense." Hobson v. State, 644 S.W.2d 473, 478 (Tex. Crim. App. 1983). Passion that is solely the result of former provocation is not sufficient to raise the issue of voluntary manslaughter. Lawrence v. State, 700 S.W.2d 208, 210-11 (Tex. Crim. App. 1985).

There is no evidence in the record to establish that Castaneda acted under the immediate influence of sudden passion arising from adequate cause, as required for voluntary manslaughter. The record contains no evidence that on December 31, 1990, Rodriguez and Castaneda ever exchanged words, that Rodriguez engaged in any act of provocation, or that they had other interaction with each other before the shooting. See Tex. Penal Code Ann. 19.04 (Vernon 1989). Thus, the evidence did not raise the lesser-included offense of voluntary manslaughter, and the court properly refused the instruction. We overrule point two and affirm.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed January 27, 1993

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