Dowden v. State

• Decision Date: 10 June 1982
• Docket Number: No. 01-81-0560-CR,01-81-0560-CR
• Citation: 638 S.W.2d 85
• Court: Texas Court of Appeals
• Parties: Billy Wayne DOWDEN, Sr., Appellant, v. STATE of Texas, Appellee. (1st Dist.)

Page 85

638 S.W.2d 85

Billy Wayne DOWDEN, Sr., Appellant, v. STATE of Texas, Appellee.

No. 01-81-0560-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

June 10, 1982.

Larry Dowell, Leonard Roth, Houston, for appellant.

James O. Jenkins, Jr., Orange, for appellee.

OPINION ON MOTION FOR REHEARING

DYESS, Justice.

The opinion heretofore issued on February 25, 1982 is withdrawn and the following opinion is substituted.

The appellant and his co-defendant, Clifford Blansett, were indicted for capital murder--knowingly and intentionally causing the death of a police officer who was acting in the course of duty and who was known to the defendant to be a police officer. Tex. Penal Code Ann. Sec. 19.03(a). Blansett was convicted of capital murder by a jury in the 128th District Court in Orange County, Texas. This conviction was affirmed by the Court of Criminal Appeals, Blansett v. State, 556 S.W.2d 322 (Tex. Cr. App. 1977). The appellant, however, requested and received, a change of venue from Orange County to Harris County, where his case was assigned to the 182nd Judicial District Court. Thereafter, a plea bargain was reached between the State and the appellant. By the terms of the plea bargain, the appellant would waive his right to a jury trial and plead guilty, and the State would waive the death penalty. Based upon the agreements of the parties, and upon the evidence presented to it, the court assessed punishment at life imprisonment.

Subsequently, the appellant submitted a post conviction writ of habeas corpus to the Court of Criminal Appeals pursuant to Tex. Code Crim. Pro. Ann. art. 11.07 (Vernon 1974). In such writ the appellant asserted that the State did not have the power to waive the death penalty and that an accused in a capital murder case cannot waive his right to a jury trial. The Court of Criminal Appeals agreed. Ex Parte Dowden, 580 S.W.2d 364 (Tex. Cr. App. 1979). Thus, the writ was granted, the conviction set aside, and the case remanded to the trial court for a trial by jury on the merits.

The appellant was subsequently tried by the jury, found guilty of capital murder, and sentenced to life imprisonment. The appeal before this court stems from that trial.

The factual background giving rise to the prior proceedings and the conviction in this case is the following.

On June 28, 1974, at 1:00 a.m., the appellant's brother, Charles Ray Dowden, was arrested for robbing a 7-11 convenience store in Orange, Texas. He was taken to the police station where he was booked and placed in the city jail on the second floor of the police station.

The appellant, who had been at the convenience store with his brother, decided to aid his brother in escaping from jail, and he drove to his brother's house, where he picked up his sister-in-law, and told her of his plan to get his brother out of jail. The appellant and his sister-in-law then drove to Clifford Blansett's house, where they picked up a rifle and a pistol, and the three drove to the police station, arriving there around 4:00 a.m. on that same morning.

The appellant and Blansett entered the police station and went to the dispatcher's booking office, where two police officers and one dispatcher were working. The appellant slammed open the door to the dispatcher's office, pointed an automatic pistol at the police officers and declared, "I have come to get Charles." The officers were stunned at the outset, but quickly regained their composure. Captain Gray (the deceased) lunged at the appellant, grabbed the hand in which he was holding the gun and, placing his other arm around the appellant's body, forced him into the hall. The door, operating on a spring closing device, closed automatically behind them. At this moment, the two men remaining in the office could not see what was happening, but they heard a shot fired in the hallway. No longer being able to see Captain Gray, they presumed that he had been shot by the appellant and was dead.

Meanwhile, the officer remaining in the dispatcher's office, Officer Windham, drew his pistol, and the dispatcher, Denton slipped into a small room adjoining the dispatcher's office to load a shotgun. There ensued an exchange of gunfire between the appellant and Officer Windham and Denton.

After the fusillade subsided, Officer Windham heard "moving around in the hall." Whereupon Denton hollered, "He's coming in through the door" (or "He's at the door"). There was more "moving around" and then another bullet came through the booking window. Following this last shot the door came "crashing open," and Windham immediately "shot twice and then again." According to Officer Windham's testimony, when he fired these shots he was on his knees at the edge of the booking counter closest to the door. The pistol was in his left hand, around the corner of the cabinet, and aimed at the door. On cross-examination, Windham admitted that he did not look before he fired because he thought that only the appellant could be coming through the door. Upon being asked why he shot without looking, he said he thought that he would be killed if he did not.

Officer Windham's three shots at the person in the doorway were the last shots fired. The two men, Windham and Denton, not knowing whether their assailants had left or whether they had taken a breather, radioed for help. It was not until Windham crawled back to join Denton in the back room that he knew that the man lying in the doorway was Captain Gray, and not the appellant. A ballistics examination revealed that Captain Gray was killed by Officer Windham.

The appellant raises six grounds of error, alleging, in effect, that the State did not prove, as required by Tex. Penal Code Ann. Sec. 19.02(a)(1), that the appellant acted with the intent to murder any of the peace officers.

To be considered criminal, an overt or voluntary act must be accompanied by criminal intent, U.S. v. Lovely, 77 F.Supp. 619, 621 (1948), rev'd on other grounds, 169 F.2d 386 (4th Cir. 1948). As stated by one federal court, "Criminal intent is the sine qua non of criminal responsibility," Rent v. U.S., 209 F.2d 893, 900 (5th Cir. 1954). Following this same reasoning, the Court of Criminal Appeals stated in Womble v. State, 618 S.W.2d 59, 64 (Tex. Cr. App. 1981), that, "... homicide is punishable only where the State proves both voluntary conduct and a culpable mental state."

In the present Penal Code, there are four recognized mental states which can accompany an act and cause an individual to be criminally responsible for the act: 1) acting intentionally; 2) acting knowingly; 3) acting recklessly; and 4) acting with criminal negligence. Tex. Penal Code Ann. Sec. 6.03.

In the appellant's first three grounds of error he complains that the trial court should have submitted three lesser included offense charges to the jury for its consideration. The alleged lesser offenses were aggravated assault, criminally negligent homicide, and involuntary manslaughter. A requested charge on a lesser included offense is necessary if there were testimony in the case that, if guilty at all, the defendant is guilty only of the lesser included offense. Bingham v. State, 630 S.W.2d 718 (Tex.App.--Houston [1st Dist.] 1982) Watson v. State, 605 S.W.2d 877 (Tex. Cr. App. 1980, on rehearing); Daywood v. State, 157 Tex.Cr.R. 266, 248 S.W.2d 479 (1952).

The cases have uniformly ruled that when a deadly weapon per-se is used in a deadly manner and death results, there is no need to give a charge on aggravated assault. In the instant case, the appellant engaged in a gun battle with the police in which he fired three shots into the office wherein the two men were hiding. He directed the shots in the direction of these men. These actions indicate more than merely aggravated assault. See, Ruiz v. State, 523 S.W.2d 691 (Tex. Cr. App. 1975); Womble, supra; Simpkins v. State, 590 S.W.2d 129, 134 (Tex. Cr. App. 1979); Curtis v. State, 573 S.W.2d 219 (Tex. Cr. App. 1978). We overrule the appellant's first ground of error, that a charge on aggravated assault should have been given.

The appellant claims in grounds of error two and three that he should have been afforded the opportunity to have the jury consider a charge on the lesser included offenses of criminally negligent homicide and involuntary manslaughter. Neither of these offenses requires as great an awareness on the part of the defendant as is required when a defendant is charged with intentionally and knowingly committing an act.

On original submission we held that the jury in this case should have been given the opportunity to decide whether the appellant was aware of a risk but consciously disregarded it, or should have been, but was not aware, of a risk that someone might be killed at the police station if he acted as he did. In brief, we held that charges on the two lesser included offenses of involuntary manslaughter and criminally negligent homicide should have been given. Having now been favored with the State's motion for rehearing, whereas at submission the State did not appear for argument, we withdraw our opinion on original submission, and we grant the State's motion for rehearing, vacating our former judgment and affirming the judgment of the trial court.

We have come to the foregoing conclusion after having reconsidered the proper application of the legal definitions of criminal negligence and recklessness to the actions of the appellant. Thus, we have decided that the question is not whether the actor, knowing his gun to be loaded and ready to shoot, and knowing that others probably have loaded guns, recognizes the great risk that death might result from a confrontation and fires his gun when he finds himself in such a confrontation. Rather, the question is whether he voluntarily fires the gun with the requisite culpable mental state.

More specifically, the information required to determine properly whether an individual was aware of substantial risk of death...