Eanes v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: PHILLIPS; DOUGLAS
• Citation: Eanes v. State, 546 S.W.2d 312 (Tex. Crim. App. 1977)
• Decision Date: 02 February 1977
• Docket Number: No. 52559,52559
• Parties: David EANES, Appellant, v. The STATE of Texas, Appellee.

Page 312

546 S.W.2d 312

David EANES, Appellant, v. The STATE of Texas, Appellee.

No. 52559.

Court of Criminal Appeals of Texas.

Feb. 2, 1977.

Stanley Kacir, Temple, for appellant.

Joe Carroll, Dist. Atty. and Paul R. Reagan, Asst. Dist. Atty., Belton, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

PHILLIPS, Judge.

This is an appeal of a conviction of assault wherein the jury assessed punishment at a probated one year jail term and an unprobated $1,000.00 fine.

The record shows without dispute that at about 12:30 a.m. on June 23, 1974, appellant and the injured party, Willie Kopriva, accompanied by two of his brothers, were in attendance at a public dance hall in Bell County. Appellant testified that at about said time he was walking down the side of said dance hall when Willie Kopriva, the alleged assaultee, suddenly was pushing him out into the middle of the dance floor and hollering at him to quit coming by his table, that Willie's two brothers, Walter and Jerry, jumped up and started toward him, that Jerry was getting a metal folding chair and folded same, that he told Willie two or three times he didn't want any trouble and then the last time Willie pushed him he hit him with the beer bottle, that he struck Willie only after he saw his brother getting into the act and as a last resort, and that he felt there was apparent danger to himself at the time. The evidence further showed that said Willie Kopriva was taken to the emergency room of Scott and White Hospital in Temple, Texas, where he was found to have sustained a four centimeter transverse laceration of the left cheek and a small laceration of the base of the nose as the result of being struck in the face with said beer bottle.

Thus, the evidence clearly raised the issue of self defense which was thoroughly charged by the court and the issue of whether the assault resulted in serious bodily injury so as to constitute the alleged offense of aggravated assault.

The failure of the indictment to allege the manner and means used to commit the assault was raised at the trial level solely through a motion for an instructed verdict. Such failure does not constitute a failure to allege an element of the offense, but relates only to the certainty and definiteness constitutionally and statutorily required to enable the defendant to reasonably understand the nature and cause of the accusation against him. Appellant's failure to raise said question by timely motion to quash constituted a waiver thereof. Thornton v. State, Tex.Cr.App., 529 S.W.2d 539; Cox v. State, Tex.Cr.App., 523 S.W.2d 695; Terry v. State, Tex.Cr.App., 517 S.W.2d 554.

Appellant's contention that the court erred in failing to respond to his objection to the court's failure to charge under V.T.C.A., Penal Code, Sec. 22.01(a)(3), the causing of physical contact when one knows or should reasonably believe that the other will regard the contact as offensive and provocative, is without merit for the reason that the appellant specifically testified that he deliberately hit the injured party with the beer bottle, thus eliminating any issue as to V.T.C.A., Penal Code, Sec. 22.01(a)(2).

Appellant's contention that the witnesses Chub and Kopriva were disqualified from testifying as to the reputation of appellant upon the grounds that their said testimony was based on specific acts instead of report is contradicted by the record. Chub testified that he, as school principal, based his testimony on having heard discussions by other students and teachers pertaining to appellant and threats made to other students by him. Gene Kopriva testified that people had discussed appellant and his activities with him and that he knew his general reputation as a peaceable and law abiding citizen in the community.

The court erroneously, in defining 'assault' for the jury in its charge, defined same as 'intentionally, knowingly Or recklessly causing bodily injury to another'. Appellant's objection to the inclusion of the term 'recklessly' upon the grounds that reckless conduct was not alleged in the indictment specifically called this error to the attention of the trial court. In applying the law to the facts, the court instructed the jury to find whether appellant 'did then and there knowingly and intentionally cause serious bodily injury to another' as alleged in the indictment. Cf. Dowden v. State, Tex.Cr.App., 537 S.W.2d 5. Reversible error is not here presented. Grudzien v. State, Tex.Cr.App., 493 S.W.2d 827; Martinez v. State, 157 Tex.Cr.R. 603, 252 S.W.2d 186.

Walter Kopriva, a State witness, testified on direct examination that after said incident he went to the hospital to check on his brother, after which he returned at approximately 4:00 a.m. to said dance hall to get the injured party's pickup. The attorney for the State then elicited the following testimony from said witness:

'Q Was there anything unusual about the pick-up?

A Yes, sir. The left side of the windshield was busted and had blood still on the windshield and pieces of embedded beer bottle on the left side of the windshield, and all the people at the shop saw it and Joe Thurdy (phonetic) from Cameron saw it when he came to visit the next day.'

On cross examination Kopriva testified as follows:

'Q You mentioned when you got back to the hall that Willie's pick-up had a broken windshield?

A Yes, sir.

Q And was there any way for you to know what time of the day or night that that windshield had been broken?

A No, sir.

Q Now, you are not saying that David Eanes broke your windshield?

A I am not saying that David Eanes broke it. I am saying that it got broke. I would have liked to have that blood analyzed.

Q What has that got to do with this fight?

A I want to know who broke that...