Godsey v. State

• Decision Date: 01 October 1986
• Docket Number: No. 843-82,843-82
• Citation: 719 S.W.2d 578
• Parties: Anthony Paul GODSEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 578

719 S.W.2d 578

Anthony Paul GODSEY, Appellant, v. The STATE of Texas, Appellee.

No. 843-82.

Court of Criminal Appeals of Texas En Banc.

Oct. 1, 1986.

David K. Chapman (court appointed), Fort Worth, for appellant.

Bill M. White, Former Dist. Atty., Sam D. Millsap, Jr., Dist. Atty., and Alan E. Battaglia and Julie B. Pollock, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S AND APPELLANT'S PETITIONS FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

A jury convicted appellant of attempted capital murder. The court assessed punishment at confinement for ten years. The Fourth Court of Appeals in San Antonio reversed the conviction because of the failure of the trial court to charge on the lesser included offenses of aggravated assault and reckless conduct. Godsey v. State, 640 S.W.2d 336 (Tex.App.--San Antonio, 1982). The Court of Appeals also held that the facts and circumstances of the offense were sufficient to permit a rational trier of fact to find that appellant had specific intent to commit capital murder and that he engaged in actions that amounted to more than mere preparation for the offense. We granted the State's petition for discretionary review on the issue of whether the evidence showed that appellant was guilty only of a lesser included offense. Appellant's petition was granted to review the Court of Appeals' holding that the evidence was sufficient to support a conviction for attempted capital murder, that the charge should have instructed the jury on the lesser included offenses of aggravated assault and reckless conduct, and if, in the event reversal was required, the State could retry appellant on the lesser included offenses.

On May 12, 1979, in the early evening, several people witnessed appellant firing a gun into the air around the Nimitz Apartments in San Antonio. Police arrived at the Nimitz Apartments and were directed to apartment F-6, as the one into which appellant had gone. The apartment was on the second level of the building and officers positioned themselves both upstairs and downstairs around the apartment. Several officers yelled that they were police officers and for appellant to come out with his hands over his head. Twenty to thirty minutes later six people came out of the apartment, including appellant's mother and sisters. The police identified themselves and instructed the six to put their hands above their heads. Apparently, they were somewhat surprised to see the police. Several officers testified that some of these six people told them appellant and an infant were still inside and appellant was armed. They were taken to another part of the apartment complex. The door to the apartment was left wide open after the six people had come out.

Between twelve and twenty officers, most of them uniformed, were present at the scene. Officers West and Renken, who were positioned on the second level balcony, about six or eight feet from the door, yelled for appellant to come out, that they were police. West and Renken were situated to the side of the door and could not see inside the apartment. Detective Gaston and Officer Teel were standing directly across from the open front door, about twelve to fifteen feet away on the second level. They could see into the apartment. Other officers were positioned along the stairs leading up to the second level, and on the ground level.

One or two minutes after the six had exited the apartment, appellant stepped outside of the front door onto the balcony. Appellant had his left hand on top of his head and his right hand at his side. A pistol was stuck in the waistband of his pants. Gaston, Renken and West yelled at appellant not to touch the gun and to put both hands on top of his head. Appellant looked at Gaston across from him, looked at West and Renken to his side, and looked at the officers on the ground. Then, with "a sort of half-smile on his face," he slowly and deliberately pulled the gun out of his waistband with his right hand. The police yelled at him to drop the gun. Appellant raised the gun up, moving it in an arc, and in the process of moving it pointed it first toward Renken, and, continuing to move his arm, pointed it toward the officers on the ground level, and finally brought it up and pointed it at Gaston and Teel, who were directly across from him. Appellant leveled the gun at Gaston and Teel. Three officers then fired at appellant, one shot hit him in the jaw and knocked him backwards into the hallway of the apartment. His gun slid across the floor a few feet from his head.

Appellant's mother, cousin, and sister testified that appellant had been talking about committing suicide that afternoon and evening. Right before the shooting, when his mother was leaving the apartment apparently to get something to eat, appellant told her that he was going to commit suicide that night. She asked him to give her his gun, but he refused.

Appellant testified that he had been released from the state hospital eight days prior to the day of the offense, after undergoing treatment for alcoholism. He said that on the day of the offense he was trying to get drunk enough to have the nerve to kill himself. Appellant testified that he told his mother he was tired of living and tired of his problems. She talked to him for a few minutes, then told him she was going to get some food and would be right back. Appellant said that after she had gone, he left the gun in the bedroom and walked into the hallway, intending to go into the kitchen to get another beer. He said he was then shot in the hallway. Appellant did not remember confronting the officers and could not explain why his gun was found a few feet from his head in the hallway.

Appellant contends that the evidence is insufficient to show that he had the specific intent to commit capital murder or that he engaged in an act amounting to more than mere preparation for the offense of capital murder. V.T.C.A.Penal Code, Sec. 15.01(a) defines criminal attempt:

A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.

Appellant was charged with attempted capital murder under V.T.C.A.Penal Code, Sec. 19.03(a)(1), specifically, that he did "intentionally and knowingly attempt to cause the death of Garland Gaston, ... having at the time the specific intent to commit the offense of capital murder, and the said complainant was a peace officer acting in the lawful discharge of an official duty, and the said defendant knew the complainant was a peace officer." Appellant contends that the facts do not show that he had this specific intent to intentionally cause the death of Officer Gaston.

The specific intent to kill may be inferred from the use of a deadly weapon, Flanagan v. State, 675 S.W.2d 734 (Tex.Cr.App.1984) ; Bell v. State, 501 S.W.2d 137 (Tex.Cr.App.1973), unless in the manner of its use it is reasonably apparent that death or serious bodily injury could not result. Flanagan, supra; Hatton v. State, 31 Tex.Cr.R. 586, 21 S.W. 679 (1893). The court in Hatton, 21 S.W. at 679, stated what is still the law, namely: "If a deadly weapon is used in deadly manner, the inference is almost conclusive that he intended to kill; on the other hand, if the weapon was not a dangerous one, or was not used in a deadly manner, the evidence must be established by other facts." See also Flanagan, supra; Hall v. State, 418 S.W.2d 810 (Tex.Cr.App.1967); Kincaid v. State, 150 Tex.Cr.R. 45, 198 S.W.2d 899 (1947). The facts of the instant case show exhibition rather than use of a deadly weapon by appellant. Therefore, we cannot use the permissible inference supplied by use of a deadly weapon in a deadly manner. We must look to the facts and circumstances to establish specific intent to kill. The exhibition of a deadly weapon and the manner of its exhibition is a circumstance to be considered.

The old offense of assault with intent to murder is the predecessor to attempted murder. See V.T.C.A.Penal Code, Tables, and Flanagan v. State, 675 S.W.2d 734 (Tex.Cr.App.1984). Both offenses require(d) specific intent to kill. Flanagan, supra. Naturally, the most obvious cases and the easiest ones in which to prove a specific intent to kill, are those cases in which a firearm was used and was fired or attempted to have been fired at a person. See Wallace v. State, 679 S.W.2d 1 (Tex.Cr.App.1983); Flanagan, supra; Williams v. State, 567 S.W.2d 507 (Tex.Cr.App.1978); Colman v. State, 542 S.W.2d 144 (Tex.Cr.App.1976); Hill v. State, 456 S.W.2d 699 (Tex.Cr.App.1970); Hall v. State, 418 S.W.2d 810 (Tex.Cr.App.1967); Yanez v. State, 403 S.W.2d 412 (Tex.Cr.App.1966); Muro v. State, 387 S.W.2d 674 (Tex.Cr.App.1965); Streets v. State, 148 Tex.Cr.R. 517, 188 S.W.2d 582 (1945); Honey v. State, 132 Tex.Cr.R. 98, 102 S.W.2d 224 (1937); Hatton, supra. However, see also Thompson v. State, 37 Tex.Cr.R. 448, 36 S.W. 265 (1896) where the defendant "presented" a gun to the sheriff and forced the sheriff into a cell so that the defendants could escape. The defendant apparently made clear that he would kill the sheriff if the sheriff did not comply. The court found specific intent to kill simply by the circumstances surrounding the pointing of the gun. While very few cases can be found where pointing a loaded firearm has been involved, we emphasize that a finding of specific intent rests on the facts and circumstances of each individual case.

All cases in which a gun was fired or attempted to have been fired have not been upheld as sufficient to show specific intent. Appellant points to several cases in which a weapon was used and the facts were held insufficient to show specific intent to kill. He contends that if these cases are insufficient, the instant case is likewise insufficient.

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