Davis v. State, 41877
| Decision Date | 02 April 1969 |
| Docket Number | No. 41877,41877 |
| Citation | 440 S.W.2d 291 |
| Parties | Johnny Wayne DAVIS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Samuel R. Jones, Dan Francis, Waco, for appellant.
Martin D. Eichelberger, Dist. Atty., John B. McNamara, Asst. Dist. Atty., Waco, and Jim D. Vollers, State's Atty., Austin, for the State.
The offense is murder; the punishment five years.
The record reflects that appellant, Johnny Wayne Davis, killed Randall Ernest Mull with a rifle. Davis was angry because Mull owed him a gambling debt arising out of a pool game. After Mull left the pool hall, Jimmy Hoge, James Richards, Donald Richards and Davis decided to find and fight Mull. They took along a 30-30 caliber deer rifle for Davis to hold on Mull during the fight. They located Mull in a Toddle House cafe and waited for him, and when Mull went outside Davis shot and killed him.
Appellant contends that the trial court erred in refusing to charge on aggravated assault. Appellant stated upon learning of the death of Mull that he had not intended to kill him, and while testifying about the shooting stated, 'Well, the way it looked, I didn't mean to hit him, but it looked like I hit him high in the shoulder, just grazed him, the way it looked.' There was no testimony that appellant shot to scare Mull. Ordinarily a charge on aggravated assault is not required where the killing was with a deadly weapon per se. The intent to kill is presumed. Art. 45, Vernon's Ann.P.C.; Smith v. State, Tex.Cr.App., 411 S.W.2d 548; Beasley v. State, 171 Tex.Cr.R. 115, 346 S.W.2d 123; Barr v. State, 146 Tex.Cr.R. 178, 172 S.W.2d 322; Cade v. State, 96 Tex.Cr.R. 523, 258 S.W. 484; see 29 Tex.Jur.2d, Sec. 286, pp. 533--534.
Appellant's first ground of error is overruled.
Complaint is made that the trial court permitted the rifle to be introduced into evidence when it was not properly identified. James Howard Richards testified that the rifle was the one appellant had in his hand when he shot Mull.
Appellant's second ground of error is overruled.
Reversal is sought, because the special prosecutor argued to the jury: 'We have nothing here except an ambush like we had in Dallas in the assassination of President Kennedy.'
A formal bill of exception was qualified by the court to show that appellant went to the place where deceased was and lay in wait and shot the deceased when he came outside. An objection that the argument was outside the record and highly prejudicial was sustained, and the court stated: 'I instruct you, members of the jury, you will not consider the argument of counsel as relating to the assassination of the President for any purpose in your deliberations in the case.' A motion for mistrial was overruled.
Appellant distinguishes this case from Corry v. State, Tex.Cr.App., 390 S.W.2d 763. There the prosecutor argued that the deceased died like President Kennedy with an assassin's bullet in his head. The court instructed the jury not to consider that argument. The case was affirmed. The deceased in the Corry case had stated that he was going to die like President Kennedy, and this court held there...
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Madden v. State
...decided on the basis of two prior opinions from this Court, viz: Bellah v. State, 415 S.W.2d 418 (Tex.Cr.App.1967), and Davis v. State, 440 S.W.2d 291 (Tex.Cr.App.1969), neither of which held that an appellant waives his right to complain of the trial judge's overruling of his motion for in......
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Henley v. State, s. 53561-53566
...this evidence which must be reviewed in analyzing whether or not the court's action constituted harmless error. Davis v. State, 440 S.W.2d 291 (Tex.Cr.App.1969). At the hearing on the bill of exception, appellant introduced testimony and numerous exhibits demonstrating the existence of cons......
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Cherry v. State
...intent to kill is presumed, a charge on aggravated assault is not required. Suber v. State, Tex.Cr.App., 440 S.W.2d 293; Davis v. State, Tex.Cr.App., 440 S.W.2d 291.' The appellant did not testify and we find no evidence in the record which would require a charge on self-defense. Gonzales v......
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Munoz v. State
...not just that offered or presented by the State." DeGarmo, 691 S.W.2d at 661. In support of this language, we cited Davis v. State, 440 S.W.2d 291, 293 (Tex.Cr.App.1969) and Bellah v. State, 415 S.W.2d 418 (Tex.Cr.App.1967). However, neither Davis or Bellah support this proposition. Davis h......