Burks v. State
| Decision Date | 12 June 1974 |
| Docket Number | No. 48457,48457 |
| Citation | 510 S.W.2d 321 |
| Parties | Jessie Lee BURKS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Victor R. Blaine, Houston, for appellant.
Carol S. Vance, Dist. Atty., Phyllis Bell & John Pizzitola, Asst. Dist. Attys., Houston and Jim D. Vollers, State's Atty., Austin, for the State.
The appellant was indicted for the offense of assault with intent to murder with malice. The jury found him guilty of aggravated assault and assessed his punishment at confinement for two years in the county jail and a fine of one thousand dollars.
Appellant's first ground of error challenges the sufficiency of the evidence. From the argument in support of this contention, it appears that appellant is complaining of the court's charge because it included an instruction on aggravated assault, and of the jury's verdict finding him guilty of that offense. Appellant contends that the issue of aggravated assault was not raised by the evidence and that therefore: (a) no charge should have been given on it; and (b) the evidence cannot support the jury's finding that it occurred. The testimony reflects that the complaining witness, Kennedy, went to an apartment where appellant and others were playing cards. One of the players, Troy Ray, and the appellant began having difficulties and a fight ensued. During this fight, a pistol fell from appellant's clothing and Ray recovered it. Ray then left the premises, taking the pistol with him, and appellant left shortly thereafter.
The complaining witness and another witness then testified that appellant returned about thirty-five or forty minutes later with a shotgun and demanded to know where Ray was. When the complaining witness was unable to answer him, appellant demanded that Kennedy give him $150.00. Kennedy attempted to reason with appellant who remained adamant in his demand for money. Kennedy then attempted to run from the room and appellant shot him with the shotgun from a distance of about two or three feet.
The appellant testified that after the fight occurred he took the shotgun from his automobile and returned to the scene in order to find Ray and recover his pistol. He stated that he did not demand money from Kennedy and that he shot Kennedy accidentally when the man grabbed the shotgun and attempted to take it from him.
Appellant contends that this evidence does not raise the issue of aggravated assault and that he was either guilty of assault with intent to murder or not guilty because the shooting was accidental. We do not agree.
We note initially that the appellant made no objection to the court's charge. However, such objection, if made, would have been without merit, because the court should charge on aggravated assault whenever there is testimony which, if true, would render it doubtful whether the accused...
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Smith v. State, C14-81-771CR
...prosecutor's statement, during final argument, and was thus denied a fair trial. The Texas Court of Criminal Appeals, in Burks v. State, 510 S.W.2d 321 (Tex.Cr.App.1974) held that "a Court should charge the jury on aggravated assault whenever there is testimony which, if true, would render ......
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Arias v. State, No. 04-04-00247-CR (TX 6/8/2005)
...included in its charge the lesser included offense of aggravated assault which was raised by the evidence. Burks v. State, 510 S.W.2d 321, 322 (Tex. Crim. App. 1974). Because aggravated assault may properly be considered a lesser included offense of attempted murder and the evidence showed ......
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Ferguson v. State
...of offense will be sustained even though the evidence shows a greater offense has been committed," citing, inter alia, Burks v. State, 510 S.W.2d 321 (Tex.Cr.App.1974) and McDonald v. State, 462 S.W.2d 40 The problem with the State's position is that, as the trier of fact, in finding appell......
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Milton v. State, C14-83-702CR
...623 S.W.2d 341 (Tex.Crim.App.1981). The trial court was free to charge the jury on murder and aggravated assault. See Burks v. State, 510 S.W.2d 321 (Tex.Crim.App.1974). Ground of error number two is Appellant contends in his third ground of error that the trial court improperly submitted a......