Dickson v. State

• Citation: 463 S.W.2d 20
• Decision Date: 10 February 1971
• Docket Number: No. 43422,43422
• Parties: Booker T. DICKSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 20

463 S.W.2d 20

Booker T. DICKSON, Appellant, v. The STATE of Texas, Appellee.

No. 43422.

Court of Criminal Appeals of Texas.

Feb. 10, 1971.

Ronald H. Bartlett, Houston (Court Appointed), for appellant.

Carol S. Vance, Dist. Atty., James C. Brough and Thomas C. Dunn, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for murder with punishment assessed at 40 years.

In his first three grounds of error appellant complains that the trial court erred in failing to charge on the issues of murder without malice, aggravated assault and self-defense, despite timely presented special requested charges.

The appellant was identified as one of two men who entered the cab of the deceased, Lorraine Tones, sometime between 3 and 4 a.m. on June 29, 1968, near the Continental Bus Station in the city of Houston. Approximately fifteen minutes later the deceased was found dying while lying on the steps of the Sacred Hope Funeral Home. He had been shot in the back. His taxicab was 140 feet away headed into a fence with one of the doors open.

The cause of death was shown to be a gunshot wound to the back which penetrated the left lung, the aorta and the esophagus. A .22 caliber bullet was recovered from the body.

Perry Braggs, another cab driver, testified that shortly before the deceased was discovered on the funeral home steps he had observed one man dragging and slapping another near the location of the funeral home. C. B. Rice, who lived above the funeral home in question, related he was awakened about 4 a.m. by 'someone hollering 'oh, no, no," and that he heard some gunshots.

On July 9, 1968, the appellant contacted the police through an intermediary and surrendered. After being properly warned he gave a written extrajudicial confession.

In such statement, which was introduced by the State, appellant stated he, S. B. Bradley and two other men, later shown to be Thomas and McAllister, agreed in the early morning hours of June 29, 1968, to rob a cab driver. Appellant, who had been drinking, further stated that when they got to the bus station McAllister gave him a .22 caliber derringer, and that he and Thomas told the cab driver to take the two of them to the Fifth Ward. The statement revealed that appellant fell asleep in the cab and that he 'woke up' when the cab ran into a fence. He then observed Thomas and the deceased 'scuffling' outside of the car. When the deceased ran behind a bush and 'went for his pocket' appellant admitted he took the gun and 'shot at the cab driver' though he 'did not intent to hit him In the back.' He related that he grabbed and carried the deceased to the funeral home steps thinking it was a church. He then rejoined Bradley and McAllister who were nearby and returned the gun to McAllister.

Testifying for the State Bradley related that when the appellant returned he stated 'he had to shoot a guy' and 'got $13 off of him and a billfold and a lighter.'

The appellant, testifying in his own behalf, admitted he had entered an agreement to rob a cab driver, but stated he passed out in the cab as a result of the whiskey and beer he had been drinking and that when he awoke after the cab struck the fence he had 'no intention of robbing.' He testified that 'by that time I forgot all about it. I woke up and I was upset. I didn't know what was going on. * * *'

His other testimony was similar to that of his written statement except that he stated he shot to the left of the bush and away from the deceased, and that he did not intend to shoot him at all.

It is well established that failure to instruct that jury on the issue of murder without malice is not error unless there is some evidence which calls for such a charge. 4 Branch's Ann.P.C., 2d ed., Sec. 2302, p. 658. If the issue was raised it was by virtue of the appellant's testimony alone. We do not view his testimony as showing he voluntarily committed the act charged without justification or excuse 'under the immediate influence of a sudden passion arising from adequate cause.' Rayson v. State, 160 Tex.Cr.R. 103, 267 S.W.2d 153.

In Cook v. State, 152 Tex.Cr.App. 51, 211 S.W.2d 224, it was held the trial court was not required to charge upon the question of murder without malice where the defendant killed the deceased during an act of robbery. See also Smith v. State, 154 Tex.Cr.R. 234, 225 S.W.2d 846; Smith v. State, 168 Tex.Cr.R. 102, 323 S.W.2d 443; David v. State, Tex.Cr.App., 453 S.W.2d 172. Cf. Cassell v. State, 154 Tex.Cr.App. 648, 216 S.W.2d 813, reversed 339 U.S. 282, 283, 70 S.Ct. 629, 94 L.Ed. 846 (upon question of racial discrimination); Rayson v. State, supra.

Likewise, we do not view the evidence as requiring the submission of a charge on self-defense under the circumstances presented. Appellant's testimony was too slight and doubtful to raise an issue.

In Herrera v. State, 159 Tex.Cr.R. 175, 261 S.W.2d 706, 708, in discussing the necessity of a charge under Article 1224, V.A.P.C., this court wrote:

'It has been the consistent holding of this Court that the attack there referred to has reference to an actual attack; that it does not have reference to, nor is applicable when the injured party is about to make, an attack or is doing some act preparatory to the attack.' See also Johnson v. State, 167 Tex.Cr.R. 289, 319 S.W.2d 720; Leonard v. State, 169 Tex.Cr.R. 147, 332 S.W.2d 562; Mays v. State, 170 Tex.Cr.R. 293, 340 S.W.2d 43; Howard v. State, 172 Tex.Cr.R. 352, 357 S.W.2d 403.

In the case at bar, the appellant saw no weapon in the possession of the deceased. Just prior to the deceased being shot in the back the...