Dovalina v. State

• Decision Date: 22 February 1978
• Docket Number: No. 53797,53797
• Citation: 564 S.W.2d 378
• Parties: Oscar M. DOVALINA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 378

564 S.W.2d 378

Oscar M. DOVALINA, Appellant, v. The STATE of Texas, Appellee.

No. 53797.

Court of Criminal Appeals of Texas, En Banc.

Feb. 22, 1978.

Rehearing En Banc Denied May 3, 1978.

Will Gray, Houston, court-appointed, for appellant.

Carol S. Vance, Dist. Atty., Alvin M. Titus and Henry K. Oncken, Asst. Dist. Attys., Houston, for the State.

Before the court en banc.

OPINION

DOUGLAS, Judge.

Appellant was convicted for the offense of attempted capital murder of a policeman under V.T.C.A., Penal Code, Sections 15.01(a) and 19.03(a)(1). The jury assessed punishment at 50 years.

At approximately 6:05 p. m. on May 23, 1975, Department of Public Safety Narcotics Agent Powell and Detective Bush of the Harris County Sheriff's Department, went to the Houston apartment of James Tatum to arrest appellant and a female companion, Sylvia Nerios, pursuant to two arrest warrants for delivery of controlled substances. Tatum admitted the officers in the apartment, at which time Bush and Powell identified themselves as police officers. The officers discovered appellant and Nerios upstairs in the apartment, arrested them and seated them downstairs. Tatum was also arrested. Detective Bush went upstairs and found a M-1 carbine loaded with a clip in the bottom.

Nerios and appellant were handcuffed together and placed in the backseat of the Department of Public Safety car with appellant in the middle and Tatum, who was not handcuffed, on the left side. Officer Powell then drove the car with Detective Bush seated beside him in the front seat to a Steak and Ale Restaurant on Northwest Freeway to inform Sergeant Murray of the Department of Public Safety that the arrest had been made. As Bush entered the restaurant, Officer Powell remained in the car with the prisoners. As Powell was turning the vehicle around in the parking lot, appellant, who was still handcuffed, grabbed him around the neck and started stabbing him with a knife. Tatum took this opportunity to escape.

During the struggle appellant stabbed Powell in the top of the head, in the cheek, across the nose and in the groin. In the meantime Nerios escaped from the handcuffs, crawled to the front seat and grabbed Powell's service revolver that had fallen on the floorboard. Appellant said to Nerios: "Get the pistol, Sunshine, and shoot him." She pointed the pistol at Powell and pulled the trigger twice. The pistol did not fire because the safety was engaged. Appellant, Nerios and Powell continued to struggle for the pistol between the front and rear seats of the car. Powell was able to obtain the pistol as he continued to fight appellant. Powell testified, ". . . he (appellant) at first had control of the weapon and had it pointed at me and I got it turned around and got control of it and he had his finger behind the trigger in the trigger guard. . . ." Appellant was not able to fire the weapon. As the struggle continued Nerios got the M-1 carbine from under the front seat and inserted the ammunition clip and pointed the gun at Powell. Powell managed to escape from the car and ran toward the restaurant, meeting Detective Bush. Appellant fired at the officers, Bush fired a shot at appellant. Nerios and appellant attempted to leave the parking lot in the police car with appellant driving. The car stalled and appellant got out of the driver's side and fired a shot in the officers' direction, missing both of them. Bush fired a total of five shots before Nerios and the appellant drove away in the police car.

Their flight through Houston eventually led them to a Boise Cascade warehouse where they stole a janitor's 1970 Mustang. They were finally apprehended in this car after a high-speed freeway chase in which appellant attempted to fire the M-1 carbine at the pursing Houston police officer.

Although not raised at the trial, appellant contends that the indictment was fundamentally defective because it did not allege that the criminal attempt was made with the specific intent to commit the offense of capital murder. The indictment, in substance, alleged that appellant

". . . on or about May 23, 1975, did then and there unlawfully, knowingly and intentionally attempt to cause the death of Jerry Powell by cutting and stabbing him with a knife and by shooting him with a gun, the said Jerry Powell being a peace officer acting in the lawful discharge of his official duties and the said Defendant then and there knew the said Jerry Powell was a peace officer acting in the discharge of his official duty."

V.T.C.A., Penal Code, Section 15.01(a), defines criminal attempt as follows "(a) A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended."

Capital murder of a peace officer is defined in V.T.C.A., Penal Code, Section 19.03(a)(1), as follows:

"(a) A person commits an offense if he commits murder as defined under Section 19.02(a)(1) of this code and;

"(1) the person murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman."

The dissent would hold the indictment fundamentally defective because it did not allege that the assault was made with the specific intent to commit murder. A fairly recent case controlling the questions is Lucero v. State, 502 S.W.2d 750 (Tex.Cr.App.1973). Lucero was convicted for the offense of assault with intent to commit robbery. Instead of alleging that he made an assault with intent to commit the robbery, the indictment charged that there was an "attempt" to fraudulently take the property. This Court held:

"The word 'attempt' is used only once and appears to be properly used. See 4 Branch's Ann.P.C.2d, ed., Section 1891.1, page 221. Under any circumstances it would not appear that the use of the word 'attempt' instead of the word 'intent' would vitiate the indictment. McCutcheon v. State, Tex.Cr.App., 363 S.W.2d 457, 459."

The former penal code, Article 1160, provided:

"If any person shall assault another with intent to murder he shall be confined in the penitentiary for not less than two years nor more than life. . . ."

Article 1162 of the former penal code provided:

"If any person shall assault a woman with intent to commit the offense of rape, he shall be confined in the penitentiary for any term of years not less than two."

This Court held that under Article 1162, supra, the word "attempt" instead of "intent" may be alleged. Greenlee v. State, 4 Tex.App. 345 (1878). Fowler v. State, 66 Tex.Cr.R. 500, 148 S.W. 576 (1912).

In Small v. State, 116 Tex.Cr.R. 41, 32 S.W.2d 860 (1930), the Court held that an indictment charging the defendant with making an assault with intent to "kill" charged an assault with intent to murder under Article 1160, supra. In Beal v. State, 520 S.W.2d 907 (Tex.Cr.App.1975), the conviction was for murder under the former code. The indictment alleged that ". . . Beal . . . did murder with malice aforethought kill Michael Martelli, by shooting him with a gun . . . ." The Court held that the inclusion of the extra word "murder" is surplusage when "kill" is also alleged.

In the earlier cases of Shields v. State, 32 Tex.Cr.R. 498, 23 S.W. 893 (1893); Passmore v. State, 29 Tex.App. 241, 15 S.W. 286 (1891), this Court held that the assault must be accompanied with the specific intent to commit rape. Even in light of those holdings the Court, as noted above, held that the word "attempt" was sufficient to allege intent and the word "intent" did not have to be alleged.

In Black's Law Dictionary, Revised 4th ed., attempt "implies an intent and an actual effort to carry out or consummate the intent or purpose." Branch's Ann.P.C.2d, Section 1866, quotes the correct rule:

" 'Attempt' is a word more comprehensive of meaning than the word 'intent' and includes the latter. . . ."

For other cases holding that attempt may be substituted for intent see Atkinson v. State, 34 Tex.Cr.R. 424, 30 S.W. 1064 (1895); Runnells v. State, 34 Tex.Cr.R. 431, 30 S.W. 1065 (1895), and Lucero v. State, supra.

In Mosely v. State, 70 S.W. 546 (Tex.Cr.App.1902), the conviction was for assault with intent to murder. Mosely complained that the court erred in not instructing the jury in his charge on assault with intent to murder that the jury must find that the defendant had the specific intent to kill, his contention being that the word "specific" was omitted from the court's charge. The Court noted that the charge required the jury to find beyond a reasonable doubt before they could convict that there must have been an assault with intent to murder on the part of the defendant and held that where the court instructed the jury that there had to be an intent to kill that the word "specific" did not have to be used. Watts v. State, 207 S.W.2d 94 (Tex.Cr.App.1947), followed the holding in Mosely.

Other cases under the former penal code have been construed with regard to the allegation of "specific" intent to commit an offense. Notwithstanding the former code's requirement that there be a specific intent to kill, prior decisions have held that an indictment need not allege the word "specific."

The Code Construction Act, V.A.T.S., 5429b-2, Section 2.01, provides:

"Words and phrases shall be read in context and construed according to the rules of grammar and common usage. Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly."

Section 3.03 provides:

"In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the

" * * *

"(4) common law or former statutory provisions, including laws upon the same or similar subjects;

". . ."

Some of the cases discussed above cover common law and former statutory provisions upon the same or similar subjects. The...