Ashworth v. State
| Decision Date | 19 July 1967 |
| Docket Number | No. 40514,40514 |
| Citation | 418 S.W.2d 668 |
| Parties | Lavern ASHWORTH, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Clyde W. Woody, Marian S. Rosen, John P. Farra (all on appeal only), Houston, for appellant.
Carol S. Vance, Dist. Atty., Phyllis Bell and Donald Keith, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
Appellant was tried upon an indictment for murder with malice and convicted of the offense of murder without malice. Punishment was assessed at confinement in the Department of Corrections for a term of five years.
Notice was given by the state that it would not seek the death penalty.
The issues of appellant's guilt or innocence and punishment were determined under the alternate procedure provided by Art. 37.07--2 of the 1965 Code. Following return of the jury's verdict of guilty, appellant elected to have the judge assess the punishment.
The evidence was undisputed that appellant killed the deceased by shooting him with a pistol. The killing occurred just outside the apartment of the deceased.
Testifying in her own behalf, appellant claimed the right of self-defense, swearing that on the night in question the deceased had beaten her up and was coming at her wigh a gun. She swore that she shot the deceased because she was in fear of her life and serious bodily injury. She further stated that she did not intend to kill the deceased but only intended to shoot him to prevent him from killing her.
The issue of self-defense was submitted to the jury.
Four grounds of error are urged by appellant in her brief filed in the trial court.
In her first ground she complains of the court's instructions in certain paragraphs of the charge, which she insists were comments upon the weight of the evidence and constituted a denial of her rights guaranteed by Article 1, Sections 10 and 19 of the Constitution of this State, Vernon's Ann.St. and the Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States.
The record reflects that while certain objections were made to the charge, no objections were made, on the grounds now urged, to any of the paragraphs of which appellant now complains.
Art. 36.14, V.A.C.C.P. (1965), which directs that the trial judge deliver a written charge to the jury, provides:
'* * * Before said charge is read to the jury, the defendant or his counsel shall have a reasonable time to examine the same and he shall present his objections thereto in writing, distinctly specifying each ground of objection. * * *'
Article 36.19 of the Code provides:
In the absence of an objection to the charge, no errors therein can be considered which are not fundamental. Morrow v. State, Tex.Cr.App., 396 S.W.2d 386.
We find no fundamental error in the charge.
It does not appear from the record that appellant has been deprived of a fair and impartial trial, nor does it appear that any error was committed which was calculated to injure her rights. The ground of error is overruled.
In her ground of error #2, appellant insists that the court erred in failing to charge the jury on the lesser degrees of culpable homicide, including assault with intent to commit murder, pursuant to the requirements of Articles 37.08 and 37.09 of the Code of Criminal Procedure.
No request was made by appellant that the court charge on any lesser included offense and no objection was made to the court's charge on such ground. In the absence thereof, appellant is in no position to complain. We observe, however, that a charge on any lesser included offense was not called for under the evidence.
In her fourth ground of error appellant insists that the court erred in instructing the jury pursuant to the provisions of Art. 37.07--2(a) as to the punishment provided by law for the offenses of both murder with and without malice.
No objection was made by appellant to the court's instructions.
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