Hall v. State, 39115

• Citation: 402 S.W.2d 752
• Decision Date: 20 April 1966
• Docket Number: No. 39115,39115
• Parties: Frank HALL, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 752

402 S.W.2d 752

Frank HALL, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 39115.

Court of Criminal Appeals of Texas.

April 20, 1966.

Rehearing Denied May 25, 1966.

Gerald Weatherly (appointed on appeal only), Charles R. Wheeler, Fort Worth, for appellant.

Doug Crouch, Dist. Atty., Truman Power, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State's Atty., Austin, for the State.

McDONALD, Presiding Judge.

The offense is assault with intent to murder; the punishment, 14 years in the Texas Department of Corrections.

The evidence shows that all the witnesses to the assault had spent much of the evening in the No-Peep-Inn, and that the complaining witness, Woods, had talked and drunk beer with Betty McKee, common-law wife of appellant. At about 12:30 a.m. appellant his wife, and another girl left the tavern, and Woods and another man left about 15 or 20 minutes later. The two parties met a short distance from the No-Peep-Inn.

According to Woods, he attempted to apologize to appellant for his earlier familiarity with Betty McKee, telling appellant that 'I did not know that that was your wife.' Words were exchanged, then appellant said, 'Betty, give me my pistol.' When the girl refused, appellant took the pistol from her brassiere or purse. Both girls and Woods pleaded with appellant not to shoot Woods, and one of the girls attempted to disarm appellant, but as Woods backed away, appellant fired two shots at him. Woods, wounded, fell to the ground. He arose, and as he attempted to flee he heard two or three other shots, one of which struck him in the leg, after which he again fell to the ground and lost consciousness.

Witness Retha Gardner's testimony was substantially similar to that of Woods. She stated that appellant continued to fire at Woods until he was out of sight, and that about six shots were fired during the transaction.

Testimony of the attending physician indicated that Woods suffered one wound in the left thigh and one in the head, and that these wounds were of the nature that bullets might produce.

Appellant testified that Woods was accompanied by several other persons and that he (appellant) was afraid for his safety and for the safety of his wife. He testified that Woods approached him with a pocket knife and that he fired at Woods only to stop him and did not intend to kill him. According to appellant, he fired only two shots, aiming the first one into the ground, then, when Woods failed to stop, firing the second time at Woods.

Other than testimony that Woods had his hand in his pocket during much of the transaction there was little to support appellant's theory of self-defense, and the jury chose not to believe it. The evidence is sufficient to sustain the conviction.

Appellant objected to the court's charge because it did not instruct the jury that appellant, in order to be found guilty of assault with intent to murder, must have had the intent to kill at the time the shots were fired at Woods. Appellant submitted a requested charge to the effect that unless the jury found that appellant had the specific intent to kill 'the deceased,' then they could not convict him of assault with intent to murder, and he must be acquitted. This requested instruction was refused by the trial court.

On appeal, appellant concedes that 'The Trial Court, merely as a part of it_ _ general charge, did charge, incidentally, along with the several elements of the alleged offense, that, to convict, the jury must find beyond reasonable doubt the various elements of the alleged offense, including 'the intent to kill the said Calvin Woods." It is appellant's contention, however, that he was entitled to a separate, distinct charge, affirmatively submitted, on the element of intent to kill.

Appellant cites 4 Branch's Ann.P.C. (2nd ed.) 187, Sec. 1846, where the rule is stated that 'If defendant testified that he did not intend to kill he is entitled to an affirmative submission of his theory.' We think the contention here is similar to that urged in Royal v. State, 154 Tex.Cr.R. 567, 228 S.W.2d 162, rehearing denied 229 S.W.2d 808. There, the offense was assault with intent to murder, and an affirmative charge was requested on intent to kill, which requested instruction was refused by the trial court. This Court affirmed the conviction, stating:

'The only evidence in the case to justify the foregoing charge is the quoted testimony of appellant himself. This is not an affirmative defense, but only a negative statement. It is sometimes very difficult to distinguish, under the holdings of our court, the difference between a negative defense and an affirmative defense requiring an affirmative charge. In the instant case, appellant testified to nothing which if found to be true would justify his acts if the jury should find he intended to kill. He merely denied the allegation of intention to kill. There is no requirement that this defense be affirmatively submitted.' 228 S.W.2d 162, 163. See also, Fields v. State, 171 Tex.Cr.R. 636, 352 S.W.2d 729; Tapley v. State, 158 Tex.Cr.R. 495, 256 S.W.2d 583.

In the case at bar, the only affirmative defense raised by the evidence was appellant's theory of self-defense, upon which the jury was properly charged, and no affirmative submission of the issue of intent to kill was required. In reaching this conclusion, we have reviewed, among other cases, the following: Melton v. State, Tex.Cr.App., 367 S.W.2d 678; Barnes v. State, 172 Tex.Cr.R. 303, 356 S.W.2d 679; Trotter v. State, 170 Tex.Cr.R. 495, 341 S.W.2d 923; Mixon v. State, 168 Tex.Cr.R. 613, 330 S.W.2d 438; Brown v. State, 155 Tex.Cr.R. 233, 233 S.W.2d 578; Chandler v. State, 155 Tex.Cr.R. 41, 229 S.W.2d 71; Crowley v. State, 146 Tex.Cr.R. 269, 174 S.W.2d 321; Rodriguez v. State, 146 Tex.Cr.R. 206, 172 S.W.2d 502; Barnes v. State, 145 Tex.Cr.R. 179, 167 S.W.2d 197; Johnson v. State, 144 Tex.Cr.R. 493, 164 S.W.2d 675; Buchanan v. State, 127 Tex.Cr.R. 100, 74 S.W.2d 1022; Irlbeck v. State, 118 Tex.Cr.R. 5, 40 S.W.2d 124; Eubank v. State, 115 Tex.Cr.R. 112, 28 S.W.2d 808, and Carr v. State, 48 Tex.Cr.R. 287, 87 S.W. 346, as well as the cases cited by appellant, discussed more fully below. It becomes clear that an accused is entitled to an affirmative instruction on any affirmative defense raised by the evidence. In addition, where there is evidence that the assault was made with no intention to kill, an accused is entitled to an instruction on the lesser-included offenses of aggravated assault and simple assault and, along with such an instruction, an affirmative submission of the issue of intent to kill. See the charge in Willson's Texas Criminal Forms Annotated (7th Ed.), Section 3472. We do not find that a simple denial of that element of the offense entitles an accused to an affirmative submission of the issue of intent to kill, absent a charge on the lesser included offense.

Appellant relies upon Watts v. State, 151 Tex.Cr.R. 349, 207 S.W.2d 94; Minor v. State, 108 Tex.Cr.R. 413, 1 S.W.2d 315; and Scott v. State, 60 Tex.Cr.R. 318, 131 S.W. 1072. These cases are not contrary to the principles stated above. In Scott, the conviction was reversed because the trial court refused to give the requested charge on intent to kill even though the charge contained an instruction on the...