Appeal from DENTON County
R. William Wood, Denton, for appellant.
Jerry Cobb, Dist. Atty., Bruce F. Baxter, and Gary Patton, Asst. County Attys., Denton, Robert Huttash, State's Atty., Austin, for the State.
Before Douglas, Tom G. Davis and Dally, JJ.
Appeal is taken from a conviction for involuntary manslaughter. V.T.C.A. Penal Code, Sec. 19.05(a)(1). After returning a verdict of guilty, the jury assessed punishment at ten years and a $5,000 fine.
In her first ground of error, appellant contends that the trial court erred in failing to charge the jury on the offense of criminally negligent homicide. Appellant had been indicted for the offense of murder. The trial court charged the jury on the law of murder, involuntary manslaughter, justification, mistake of fact, and self-defense. Appellant properly objected to the court's failure to include a charge on criminally negligent homicide, and submitted a requested jury instruction on the issue.
Appellant shot and killed the deceased after coming into possession of his gun. There was conflicting testimony as to whether the deceased handed her his gun or whether she "snatched" it from him. The deceased had quarreled with appellant earlier in the day and he had fired a shot at her with the same pistol. Appellant testified:
"Q. All right. Now, when he handed you the pistol, was it in the holster or out of the holster?
"A. No, it was out of the holster.
"Q. All right. How did he hand it to you?
"A. He just pulled it out and handed it to me and I took it by the handle.
"Q. Okay. Did you think the gun was loaded?
"A. Because after what he had just did to me, I didn't think that he would ...