George v. State
| Decision Date | 14 February 1974 |
| Docket Number | No. 16261,16261 |
| Citation | 506 S.W.2d 275 |
| Parties | James Edward GEORGE, Appellant, v. STATE of Texas, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
R. H. Stauffacher, Jr., Houston, for appellant.
Carol S. Vance, Dist. Atty., Marshall M. Arnold, Charles E. Martin, Asst. Dist. Attys., Houston, for appellee.
Appellant, James Edward George, who was sixteen years old at time of trial, appeals from an adjudication of delinquency in a proceeding tried before the court without a jury. The court's judgment was based upon a finding that appellant had committed an aggravated assault upon a police officer. The trial court ordered appellant placed upon probation in the custody of his parents.
The complaining witness, Lester Lee Davis, a police officer employed by the Bellaire Police Department, testified that on the evening of February 17, 1973 he was working 'an extra job' at Marian High School at the request of the nuns there who were having a dance . Officer Davis volunteered testimony that one of the nuns had hired him to watch the parking lot as she suspected alcohol was being smuggled on the premises; however, the court sustained objections to this testimony. Officer Davis testified that he noticed appellant's pickup truck make 'several rounds' in the parking lot; that as appellant drove up to the doorway of the gymnasium where the dance was being held, he, Officer Davis, stepped in front of the vehicle, stopped it and asked appellant what he was doing. He said appellant replied, 'Nothing'; that he then asked appellant if he and his passenger had alcohol, to which appellant replied 'No'. Officer Davis said there was a red and black cooler in the back of the truck; that he then went around to the back of the truck and opened the top of the cooler and saw three 6-packs of beer. Officer Davis said he then closed the lid and asked the driver to back up in the parking lot but that appellant sat there; that he, Officer Davis, then reached for the door to let the passenger out and the truck started forward. Officer Davis said his hand was on the door at the time the truck started forward; that he was unable to get his hand out of the door handle and the vehicle kept going; that he heard the passenger say, 'Stop, you're dragging him,' but that the truck did not stop. He said he went approximately 30 to 40 yards before he could extricate himself when the driver slowed to make an S curve; that he was injured by reason of getting his hand caught and that he had abrasions to his left ankle and lacerations requiring seven stitches below his kneecap on his left leg.
On cross-examination Officer Davis testified that the night was dark, rainy, cold and wet, and that there were three light poles in the parking lot with two lights on each pole shining straight down. He said at that particular location on the parking lot 'You could see well' because of the lights of the gymnasium and that the vehicle was only 10 to 15 feet from the gym when he first approached it. Appellant's vehicle was a 1950, '51 or '52 Chevrolet pick-up painted yellow with a black hood and a right rear fender missing; it had running boards and a push-button type door handle. Officer Davis said that after he had looked in the back of the truck, he walked around to the driver's side; he gave the following version as to what happened at that time:
'A Right next to the--I was touching the truck.
'Q Did you state anything to the people inside the truck?
'A Again I reached for the door to tell him once more to back up in the parking space.
'Q You didn't state anything? You just reached for the door?
'A Yes, sir. I reached for the door.
'Q After the truck began in motion, did you state anything else to the people in the truck?
'A I hollered, 'Hold it'.
'A That was about three long steps after they took off, because he took off at a fairly high rate of speed.
'Q Could you see the people inside the truck from where you were holding onto the door?
'A At that time, yes.
'Q Can you tell us whether or not the window on the passenger's side was rolled up or do you know?
'A It was down approximately three to four inches.
'A It was in between the two light poles from the reflection coming from the gym.'
Officer Davis further testified on cross-examination that the two persons were not under arrest until after he told them to back up in the parking space; that they were 'under arrest' at the time when he saw the beer. He said that after he considered they were 'under arrest', the only thing he said to them was 'hold it' when they took off. On re-direct examination Officer Davis testified that he had shouted for them to stop and that they did not; that the passenger had alerted the appellant of his predicament and that appellant had not stopped or slowed at the time the warning was given.
Appellant testified that he went to the dance because he had friends there, that it was around 7:30 P.M. and that he went to the gym door to wait for his friends who were coming out but that a car came up behind him and that he had to go around the parking lot again. He said he circled around the parking lot one time and was on his second approach to the gym when the officer stopped him. He said the officer had a flashlight and flicked it off and on and motioned them to stop; that he came up to the car and asked if they had alcohol and then walked around and looked inside the cooler in the back of the truck and he first said 'go forward' and then said 'go and back up.' He said that at that time the officer stepped back and he, appellant, panicked and drove off. He said he was looking straight ahead and did not look over in the direction to see where the officer was. He said his passenger said, 'Don't do it, Jimmy,' asking him not to leave but never said anything to him about the officer being caught or holding onto the vehicle. He said after they had gone about 50 yards the passenger said something about the officer 'rolling or something'. He said that was the first occasion that he knew the officer was still not standing back where he originally had been. He said he could not see the officer holding onto the door nor did he hear the officer say anything after he stepped back from the car. He heard no yells or commands. On cross-examination he denied he thought the officer could possibly be hit when he took off; he said he thought he was far enough back from the truck. He said his passenger told him to stop because he would get in less trouble. He said he did not see the officer on the ground after he left the property but was told he was; he did not go back to see what had happened.
The passenger, a friend of appellant's, testified that they had made about two circles on the parking lot at the time the officer stopped them; that after the officer looked in the cooler, he at first started to tell them to park in one of the front parking spaces but then told them to back up and shined his flashlight at a spot behind them. He said after the officer told them to back up he took a couple of steps away from the truck and was about three to four feet away from it when appellant 'panicked and took off.' He said when the appellant 'took off' he yelled for appellant to stop and said, 'Stop, don't do it, Jimmy.' He said as they were making the 'Scurve' leaving the parking lot he looked back and saw the officer rolling on the ground. He said the officer was about 40 feet from where they had first started. He said that at the time he believe he again told the driver to stop, but he said nothing else to the driver. He said he told the appellant the officer had rolled after they had left the parking lot. He said after the officer stepped back from the truck, he, the passenger, looked away from him and it is possible the officer could have stepped forward again and put his hand on the handle.
Appellant contends the State failed to prove all the essential elements of the offense of aggravated assault and that the evidence does not support the trial court's judgment.
In determining this question, the criterion established by our Court of Criminal Appeals is whether there is evidence of probative value, which when viewed in the light most favorable to the prosecution, and taken with all reasonable inferences to be drawn therefrom, is sufficient to sustain the trial court's finding. Hill v. State, 456 S.W.2d 699 (Tex.Cr.App.1970). It is for the trial court, a jury having been waived, to determine the credibility of the witnesses and on appeal its finding will not be disturbed if based upon probative evidence. Isaac v. State, 468 S.W.2d 855 (Tex.Cr.App.1971); McCoy v. State, 81 Tex.Cr.R. 518, 196 S.W. 543 (1917). Appellee argues that the evidence must be tested under the rules of civil procedure, as in an instance where no findings of fact have been filed or requested; however, we find it unnecessary to specifically determine that question since under either criteria our decision in the case would be the same. There is no question that the burden is clearly upon the State of Texas to prove its case, not by a preponderance of the evidence, but beyond a reasonable doubt. In re Winship, 90 S.Ct. 1068 (1970). See also this court's opinion in State of Texas v. Perry D. Marshall, 503 S.W .2d 875, and authorities cited therein.
Article 1138 of the Texas Penal Code reads in part:
'The use of any unlawful violence upon the person of another with intent to injure him, whatever be the means or the degree of violence used, is an assault and battery . . ..'
Article 1139 of the Penal Code states:
'When an injury is caused by violence to the person, the intent to injure is presumed, and it rests with the person inflicting the injury to show accident or innocent intention . . ..'
Article 1147 states...
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...See, State v. Santana, 444 S.W.2d 614 (Tex.1969), vacated and remanded, 397 U.S. 596, 90 S.Ct. 1350, 25 L.Ed.2d 594 (1970). George v. State, 506 S.W.2d 275 (Tex.Civ.App.--Houston (1st Dist.) 1974, no The reason behind holding that such accomplice testimony must be corroborated is obvious--t......
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