VINCENT VAN VAUGHN, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed December 20, 1989.
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-89-00187-CR
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VINCENT VAN VAUGHN, Appellant
V.
THE STATE OF TEXAS, Appellee
 
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On Appeal from the 203rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F88-84574-JP
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OPINION PER CURIAM
Before Justices Stewart, Thomas and Kinkeade
        Vincent Van Vaughn pleaded guilty before a jury to the offense of murder. The jury found appellant guilty, as instructed by the court, and sentenced him to ninety-five years' confinement. In his sole point of error, appellant contends that the trial court erred by failing to dismiss the jury and selecting a new jury to determine whether appellant was guilty of the lesser included offense of voluntary manslaughter. Finding no error, we affirm.
        Appellant urges that the trial court should have discharged the jury and called a new jury when evidence was introduced indicating sudden passion at the time of the murder. Because we can find no authority suggesting that the trial court should have discharged the jury, we will construe appellant's point as a complaint that the trial court erred in failing sua sponte to withdraw appellant's guilty plea and enter a plea of not guilty for him. In any case where evidence is introduced which reasonably and fairly raises an issue as to the innocence of the accused, the defendant's guilty plea must be withdrawn and a plea of not guilty must be sua sponte entered by the court. Griffin v. State, 703 S.W.2d 193, 195 (Tex. Crim. App. 1986). A substantial fact issue involved in guilt is raised so as to trigger the trial court's duty to sua sponte withdraw the accused's guilty plea only when evidence is adduced which, if believed, negates the defendant's guilt of the offense charged as a matter of law. Fairfield v. State, 610 S.W.2d 771, 778 (Tex. Crim. App. [Panel Op.] 1981).
        Appellant contends that the evidence raises the issue of sudden passion to suggest that appellant is guilty only of voluntary manslaughter and not of murder. We disagree. The evidence showed that one month prior to the murder, appellant and the deceased fought and the deceased stabbed appellant and appellant's brother. Two weeks after this incident, appellant told a friend he was going to "get" the deceased. On the night of the murder, appellant was standing in front of a barber shop as the deceased walked by. When the deceased passed, appellant said, "here, bitch, I got you now." He shot the deceased three times. The deceased ran and appellant followed, shooting him another three times. The witnesses agreed that there had been no fight before appellant shot the deceased, that the men did not even speak before appellant said, "I got you now," and fired. Appellant's girlfriend testified that she saw appellant both before and after the shooting and he was calm. He did not tell her about the shooting; he seemed normal and slept that night.
        A person commits the offense of voluntary manslaughter if he causes an individual's death 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" means passion directly caused by and arising out of provocation by the victim, 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) (Vernon 1989). There is nothing in the record to suggest that appellant was acting under the immediate influence of sudden passion. Appellant was described as calm both before and after the murder. There had been no fight or harsh words exchanged on the night of the murder. There appears to have been no provocation of any kind by the victim at the time of the offense.
        The evidence in this case indicates only that one month prior to the murder, appellant and the deceased fought, with the deceased injuring appellant and his brother. If that be the passion influencing appellant, it cannot be reasonably said to be sudden -- arising at the time of the offense. See Hobson v. State, 644 S.W.2d 473, 478 (Tex. Crim. App. 1983) (events of the morning could not be said to be sudden passion justifying evening murder). This former provocation would not justify sudden passion. Thus, the evidence, even if believed, would not negate the guilt of appellant as a matter of law. We conclude that the trial court did not have a duty, when faced with this evidence, to sua sponte withdraw appellant's guilty plea and enter a plea of not guilty. We overrule appellant's point of error.
        The judgment of the trial court is affirmed.
                                                          PER CURIAM
 
Do Not Publish
Tex. R. App. P. 90
 
 
File Date[12-20-89]
File Name[890187F]