Flanagan v. State

• Decision Date: 22 December 1982
• Docket Number: No. 60580,No. 1,60580,1
• Citation: 675 S.W.2d 734
• Parties: Dennis LaFaine FLANAGAN, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 734

675 S.W.2d 734

Dennis LaFaine FLANAGAN, Appellant, v. The STATE of Texas, Appellee.

No. 60580.

Court of Criminal Appeals of Texas,

Panel No. 1.

Dec. 22, 1982.

On Rehearing Sept. 19, 1984.

Robert A. Flynn, Dallas, for appellant.

Henry Wade, Dist. Atty. and Anne B. Wetherholt, Maridell Templeton, Lee Hight and Dan Garrigan, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before ROBERTS, DALLY and TEAGUE, JJ.

OPINION

TEAGUE, Judge.

This is an appeal from a conviction for committing the offense of attempted murder. After a bench trial on a plea of not guilty, appellant was found guilty and the trial judge assessed his punishment at 20 years' confinement in the penitentiary.

Because the appellant challenges the sufficiency of the evidence to sustain the verdict of the trial court, it is necessary that we review the evidence. Before doing so, however, we point out that the indictment, omitting the formal introductory and concluding portions, alleges:

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* * * ... that one, DENNIS LAFAINE FLANAGAN hereinafter styled Defendant, on or about the 18 day of April in the year of our Lord One Thousand Nine Hundred and 77 in the County and State aforesaid, did unlawfully, then and there, with the specific intent to commit the offense of murder, attempt to cause the death of Jerry M. Rhodes, an individual, by knowingly and intentionally shooting at Jerry M. Rhodes with a shotgun, said act amounting to more than mere preparation that tended but failed to effect the commission of the offense intended.

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* * *

It was thus incumbent upon the State to prove beyond a reasonable doubt each of the following elements:

(1) Appellant

(2) With the specific intent to commit the offense of murder

(3) Attempted to cause the death of Jerry M. Rhodes

(4) By knowingly or intentionally shooting at Jerry M. Rhodes

(5) With a shotgun

Jerry M. Rhodes, a Dallas police officer, testified that he got off duty at 12:30 o'clock a.m. on the day in question. He then proceeded in his pickup motor vehicle to his residence. While traveling in his pickup truck on R.L. Thornton Freeway in Dallas, Rhodes observed an automobile that was traveling in the same lane of traffic he was in. The automobile was approximately 75 to 80 feet in front of him. Rhodes was traveling between 50 and 60 miles per hour throughout the times mentioned herein. His attention became attracted to the other vehicle due to the erratic movements the vehicle was making, which included weaving on the freeway. When Rhodes' vehicle was approximately 50 feet from the other vehicle, he "noticed what appeared to [him] to be a shotgun blast [from the passenger side of the other vehicle] go toward the front of [his] vehicle." Rhodes testified: "It appeared to me that a gun had been shot toward the front or east of me fired forward." Thornton Freeway, where this occurred, is a four-lane roadway. Rhodes, who identified appellant as the person who fired the shotgun, testified that appellant "was sticking part of his body out of the vehicle, out of the window." Rhodes testified that appellant fired the shotgun "directly at me". However, Rhodes did not sustain any type injuries. Pellets from the firing of the shotgun struck only the front of the pickup, causing very minor damage to the center of the grill and the hood. Rhodes also testified that in his opinion the shotgun, which was not offered in evidence, was a "single barrel shotgun." The spent shell, which was not recovered, was described by him as "a green shotgun shell." In Rhodes' opinion, the damage done to his vehicle "was done by birdshot. Sounded like little B-B's hitting it or something." He also testified that the shotgun blast placed him in fear of his life and "scared him", which, of course, is understandable. Only one shot was fired from the shotgun.

Although armed with his police pistol, Rhodes did not attempt to use it, because other vehicles were traveling on the freeway and business establishments were located nearby on the feeder road to the freeway.

After the shotgun blast, Rhodes continued traveling on the freeway in the same direction as the other vehicle. After traveling approximately fifteen blocks, the other vehicle slowed down and Rhodes passed it. Both vehicles, however, continued traveling in the same direction until Rhodes turned off the freeway at the Interstate 20 exit. At that time, the driver of the other vehicle began to accelerate the speed of his vehicle. Rhodes, however, maintained the other vehicle in his view and wrote down a partial license plate number. He then continued traveling to his residence. After arrival, he called the Mesquite Police Department and reported the incident to that law enforcement agency. Later that morning, he went to the Mesquite Police Department where he saw the appellant and another person, apparently appellant's brother, in custody. At the police station he identified appellant as the person who fired the shotgun. Prior to the night in question, he had never before seen the appellant.

Although Rhodes testified that he had had experience with shotguns, he was unable to express an opinion as to whether a shotgun, using birdshot, that was fired at a distance of 50 feet, would "break the windshield of a car." However, the evidence and testimony showed that no damage was done to the windshield of the pickup truck.

Charles A. Golden also testified for the State and he testified that near the time of the incident involving Rhodes, at another location, he observed an unidentified person "hanging out the window [of an automobile] with a shotgun. He was holding it about like this, you know, hanging out the window just holding the gun like this." ¹ Golden relayed over his "CB" radio, to unnamed friends ² with whom he was conversing at the time, a message of what had happened. "Well, I told them what had happened and I gave the license number three or four times, you know, to make sure it was understood." Golden was not asked, nor did he testify as to the description of the other vehicle, the description of the persons in the other vehicle, or what the license number was that he gave to "them".

Appellant also testified. He admitted he was in the vehicle described by Rhodes. However, he testified it was his brother who was displaying and "shooting [a shotgun] at the lights on the roadway." (Emphasis added) Appellant also testified as follows:

Q: (Mr. Hight, the prosecutor): It's your testimony that essentially everything we've talked about here did happen. It was just your brother and it wasn't you?

A: (Appellant): Yes, sir.

We are confronted at the outset with the following factual question:

Whether the shooting of a single barrel shotgun by a person in one motor vehicle toward another vehicle, a pick-up truck, with both vehicles traveling between 50 and 60 miles per hour at the time, with the distance between the vehicles being approximately 50', with the shell described as containing birdshot, with the birdshot striking approximately the center of the front grill of the other vehicle and doing very minor damage, is sufficient evidence to sustain the element of the specific intent to kill the driver of the second or other vehicle, who did not sustain any bodily injuries?

Based upon the above facts, we answer the question in the negative, and hold that the evidence presented by the State in this cause is insufficient to show that appellant had the specific intent to kill Rhodes when he fired the shotgun.

To support the conviction, the State relies on several general principles of law, i.e., a shotgun is a deadly weapon per se, see McClennon v. State, 492 S.W.2d 524 (Tex.Cr.App.1973); Stallings v. State, 476 S.W.2d 679 (Tex.Cr.App.1972); Burks v. State, 165 S.W.2d 460 (Tex.Cr.App.1942), and the intent to commit murder may be inferred from the use of a deadly weapon per se. We agree with the State that those are sound and reasonable principles of law. However, whether a valid inference from a given set of facts, where one person shoots at another with a shotgun, may be deduced to reflect a specific intent to kill depends upon the factual context in which the shooting occurred. "Simply because a man shoots at another [with a shotgun] does not necessarily make it an assault with intent to murder." Cooper v. State, 60 Tex.Cr.R. 411, 132 S.W. 355 (1910); Montalvo v. State, 31 Tex. 63 (1868). "The element of the manner of use of such weapon must always be taken into consideration. A shotgun [fired at such] range as to make it reasonably apparent that death or serious bodily injury could not result from its use would not be legally a deadly weapon. Scott v. State, 46 Tex.Cr.R. 317, 81 S.W. 952." Medford v. State, 86 Tex.Cr.R. 237, 216 S.W. 175, 177 (1919). See also Burks v. State, supra; Cooper v. State, supra; King v. State, 166 Tex.Cr.R. 230, 312 S.W.2d 677 (1958); Neal v. State, 534 S.W.2d 675, 676 (Tex.Cr.App.1975). If the type of shot fired from a shotgun is incapable of inflicting death, the mere firing of the shotgun by one person at another will not, without more, permit the inference that the shotgun was fired with the specific intent to kill.

It is therefore clear from the above decisions of this Court that before the specific intent to cause the death of another person may be inferred from the firing of a shotgun by one person at or toward another person, it must additionally be shown that the firing of the shotgun occurred with the capacity and under such circumstances as are reasonably calculated to produce the death of the other person. However, each case must be viewed in its own setting. In that regard, compare the facts of this cause with those found in Tapley v. State, 158 Tex.Cr.R. 495, 256 S.W.2d 583 (1953).

Cases which this Court has reversed, because the evidence was ruled insufficient to sustain the element of specific intent to kill, where one person fired a...