Gantz v. State

• Decision Date: 12 October 1983
• Docket Number: No. 04-81-00364-CR,04-81-00364-CR
• Citation: 661 S.W.2d 213
• Parties: Clifford GANTZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 213

661 S.W.2d 213

Clifford GANTZ, Appellant, v. The STATE of Texas, Appellee.

No. 04-81-00364-CR.

Court of Appeals of Texas,

San Antonio.

Oct. 12, 1983.

Rehearing Denied Nov. 14, 1983.

William J. Klingeman, Seguin, for appellant.

Houston Munson, Dist. Atty., Gonzales, for appellee.

Before ESQUIVEL, BUTTS and TIJERINA, JJ.

OPINION

PER CURIAM.

This is an appeal from a conviction for attempted capital murder of a peace officer. The jury assessed punishment at ninety-nine (99) years' confinement in the Texas Department of Corrections. We affirm.

Appellant raises ten grounds of error. The State has failed to file a brief in response thereto. See TEX.CODE CRIM.PROC.ANN. art. 2.01 (Vernon Supp. 1982-1983).

In order to facilitate a proper review of his grounds of error a brief summary of the evidence is necessary.

Department of Public Safety Officer Michael Wayne Gorrell was on routine patrol on Interstate Highway 10, near Seguin, on October 12, 1979. From a radio dispatch, he received information concerning a vehicle whose driver was possibly intoxicated. He spotted the vehicle whose description had been given him. Gorrell clocked the vehicle's speed at seventy-one (71) miles per hour in a fifty-five (55) mile per hour zone. He observed the vehicle cutting in and out of traffic without signaling. In his marked DPS vehicle, he activated his overhead lights and began pursuit.

The suspect vehicle initially stopped on the grassy median of the highway while Gorrell stopped his own vehicle on the right-hand shoulder of the highway. Under Gorrell's direction, the suspect vehicle pulled over to the right-hand shoulder and stopped about ten (10) yards in front of Gorrell's vehicle.

Gorrell, in uniform, approached the suspect vehicle and identified himself. Gorrell identified appellant as the driver of the vehicle and requested to see appellant's driver's license. Appellant did not produce one. Gorrell asked appellant to exit the vehicle.

Gorrell and appellant walked back to the front of Gorrell's vehicle. Appellant appeared unsteady on his feet. When asked again, appellant failed to produce a driver's license. Gorrell walked back to appellant's vehicle, opened the driver's side door and saw a plastic container which he determined contained an alcoholic beverage. He also observed what he believed to be a whiskey bottle on the floorboard. Gorrell informed the passenger to remain in the vehicle and returned to where appellant was standing.

Gorrell advised appellant he was under arrest and began a protective search for weapons. After hearing what he thought was a gunshot, Gorrell testified that appellant pushed him into a ditch.

According to Gorrell, he was knocked down and appellant, and the passenger, Clenton Ray Gantz, appellant's brother, were on top of him. Clenton Ray Gantz had a small caliber pistol pointed at Gorrell's heart. While appellant held Gorrell's left hand, Gorrell grabbed the pistol with his right hand. Gorrell was shot once in the chest. As the struggle continued, Gorrell was shot in the groin.

Clenton Ray Gantz then grabbed Gorrell's .357 caliber service revolver and aimed it at Gorrell's head. At this point, according to Gorrell, appellant said, "Kill the mother-fucker. We have to complete our mission. Let's get out of here." Gorrell continued to struggle and a shot was fired from his service revolver. This bullet went through Gorrell's right hand, then through his lung and exited from his back. Appellant and Clenton then returned to their vehicle.

Gorrell managed to get back to his DPS vehicle, remove a shotgun and fire once at the suspect's fleeing vehicle. Gorrell then radioed for emergency assistance and gave a description of the vehicle. Gorrell noticed a blue van had pulled onto the shoulder.

William Smith testified that he was the driver of the blue van that stopped on the shoulder. He tried to radio for assistance for Officer Gorrell after seeing two subjects wrestling with the officer. Smith testified that he observed both subjects holding Gorrell down and then heard a loud gunshot. Smith could not identify appellant.

Tony Castaneda, another DPS officer, heard the emergency broadcast, spotted the fleeing vehicle and began pursuit. The suspect vehicle left the interstate and traveled down a farm to market road. Castaneda followed the vehicle onto private property. Using his outside speaker, he identified himself and ordered the subjects to surrender.

Castaneda testified that the suspects' vehicle started backing up and appellant fired two shots at Castaneda. Clenton, the driver, also fired a shot at Castaneda. Castaneda drove his vehicle into the Gantz's vehicle and Clenton fired another shot. The Gantz's vehicle fled and Castaneda was unable to move his vehicle.

Mike Medlin testified that he was driving his pick-up truck in the vicinity on the date in question. As he pulled onto a friend's property, two black men with pistols exited a vehicle and said they were taking his truck. As they started to leave, Medlin noticed Officers Boeck and De La Garza coming. His truck, containing the two men, rammed Boeck's car. The truck then stalled. He saw one of the men in the truck pointing a .357 caliber pistol out the window toward De La Garza.

Officers Boeck and De La Garza both related the same sequence of events as testified to by Medlin. A small .25 caliber pistol was taken from appellant and the .357 caliber pistol was recovered after it was thrown from the pick-up truck. The evidence revealed that this .357 caliber pistol was the service revolver taken from Officer Gorrell during the initial confrontation.

Two fired shell casings found at the scene where Gorrell was assaulted were shown to have been fired from the .25 caliber pistol taken from appellant. Two particles of a red, rear taillight lens, found at the scene where Gorrell was assaulted, matched the taillight assembly from the vehicle used by appellant and Clenton Ray Gantz.

In his tenth ground of error, appellant alleges he was entitled to an instructed verdict of acquittal because the proof varied from the charge in the indictment; and that the proof was insufficient under the theory in the indictment or under the law of parties.

The pertinent portion of the indictment charged:

that Clifford Gantz and Clenton Ray Gantz, on or about the 12th day of October, A.D. 1979, and before the presentment of this indictment, in said County and State, did then and there unlawfully with the specific intent to commit the offense of Capital Murder intentionally and knowingly attempt to cause the death of an individual, Michael Gorrell, a peace officer by shooting him with a handgun and the said Clifford Gantz and Clenton Ray Gantz then and there knew that the said Michael Gorrell was a peace officer, to-wit: a Highway Patrolman for the Texas Department of Public Safety who was acting in the lawful discharge of an official duty to-wit: making a lawful stop of the vehicle operated by Clifford Gantz and Clenton Ray Gantz on a Highway, said attempt amounting to more than mere preparation that tends but fails to effect the commission of the offense intended; ...

The allegations in the indictment are sufficient to charge appellant with the offense of attempted capital murder. TEX.PENAL CODE ANN. §§ 15.01(a) (Vernon Supp. 1982-1983) and 19.03(a)(1) (Vernon 1974). The allegations in the indictment are also sufficient to permit appellant's responsibility to be based upon an application of the law of parties pursuant to TEX.PENAL CODE ANN. §§ 7.01 and 7.02(a)(2) (Vernon 1974); Pitts v. State, 569 S.W.2d 898 (Tex.Cr.App.1978).

The court charged the jury on the definitions of murder, capital murder, intent, knowledge and on the law of criminal responsibility as a party. The application of the law to the facts permitted the jury to find appellant guilty as a party to the offense.

Under the prior Penal Code, it was held that a pistol was a deadly weapon per se and when used by a defendant an intent to kill was presumed. Williams v. State, 567 S.W.2d 507 (Tex.Cr.App.1978); Garcia v. State, 541 S.W.2d 428 (Tex.Cr.App.1976). This presumption of an intent to kill arising from the use of a pistol is no longer valid under our present Penal Code. Harrell v. State, 659 S.W.2d 825 (Tex.Cr.App.1983). Although the evidence presented by the State does not reveal that appellant, himself, fired any of the shots that struck Officer Gorrell, appellant's intent to kill was established by Gorrell's testimony. According to Gorrell, appellant physically assisted his brother by holding down Officer Gorrell and by encouraging his brother to kill Gorrell. Under the facts presented, there is no variance between the indictment and the evidence relied upon by the State. The evidence is sufficient to sustain the conviction. See Pitts v. State, supra; Blansett v. State, 556 S.W.2d 322 (Tex.Cr.App.1977). Appellant's tenth ground of error is overruled.

Appellant's first ground of error is the trial court reversibly erred by refusing his requested charge on the lesser included offense of aggravated assault. A two-step analysis is used to determine whether a charge on a lesser included offense is required. First, the elements of the lesser offense must be included within the proof necessary to establish the offense charged, and of this there is no doubt in the case before us. Secondly, there must be some evidence in the record that if the defendant is guilty, he is guilty only of the lesser offense. Salinas v. State, 644 S.W.2d 744 (Tex.Cr.App.1983); Royster v. State, 622 S.W.2d 442 (Tex.Cr.App.1981) (on rehearing). The second step in the analysis has been interpreted to mean that if the evidence raises the issue that the accused is guilty of the greater offense or no offense at all, the issue of a lesser included offense is not raised. Gonzales v. State, 632 S.W.2d 899 (Tex.App.--Dallas 1982), pet. ref'd; Simpkins v. State, 590 S.W.2d 129 (Tex.Cr.App.1979).

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