Hemphill v. State, 47464
| Decision Date | 20 February 1974 |
| Docket Number | No. 47464,47464 |
| Parties | Albert Lee HEMPHILL, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
John L. Foster and Wayne D. Meissner, Austin, for appellant.
Robert O. Smith, Dist. Atty., Stephen H. Capelle, Asst. Dist. Atty., Austin, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.
GREEN, Commissioner.
This appeal is from a conviction of murder with malice in which the punishment was assessed at 10 years' confinement.
In two grounds of error appellant contends that the the evidence is insufficient to support the verdict since there is no evidence that at the time of the offense appellant had the intent to kill, nor is there any evidence of malice.
The evidence on the trial was given by five witnesses, all placed on the stand by the State. A pathologist who performed an autopsy testified that deceased died as a result of a wound caused by a small bullet entering the body at the left side of the chest wall, penetrating the left lobe of the lung and the aorta, causing loss of blood into the chest wall from the perforated dorsal aorta.
Officer Odom testified that, armed with an arrest warrant, he arrested appellant on June 24, 1972, hiding in an attic in a residence in Austin.
The mother of deceased testified that about 6:30 P.M. on April 27, 1972, her son, 17 years old, left the house with his friend Forrest Tribue to play basketball. After the shooting she identified the body of her 17 year old son at the mortuary.
Forrest Tribue testified that as he and deceased were walking on their way to play basketball, on the evening of April 27, 1972 they saw appellant ahead of them walking toward them. As he got near them, Tribue asked appellant where he was going, but he made no reply. He came toward them, and started pointing at them. He had a jacket over his arm, and Tribue did not see a pistol in his hand. Deceased siad to appellant 'Quit playing,' and Tribue turned to walk off, and heard 'something go off.' He asked deceased if he was hit, and, upon getting an affirmative reply, ran to a nearby residence and called for an ambulance. Deceased fell to the ground. Appellant told Tribue that he, also, had called for an ambulance. Appellant asked Tribue, 'What do we do now, man,' to which Tribue said, 'I don't know.' The appellant 'just got afraid, and ran.'
The deceased was unarmed, as was Tribue. There was no argument between them and appellant; in fact they had been friends. Tribue testified on cross-examination that it was not for him to judge whether this was an accident.
On cross-examination of investigating Officer Spain, appellant placed in evidence a written statement made by him to the officers after arrest. This statement describes the shooting as follows:
'On 4--27--72, I was walking on Pennsylvania near Kealing Junior High School and saw two dudes I know as Forrest and Mathew, this would be Mathew L. Thompson and Forrest Tribue. I called to them saying: 'Mathew, Forrest, where you all going?' They said: We are going to Lott Park to get loaded.
'I ran to 1805 East 13th Street and I told my mother and wife what had happened, and I told my mother I was going to give myself up and my mother said no, they are going to give you life.
The evidence reflects that appellant, armed with a pistol, pointed it first at Tribue, then at deceased, and that the pistol fired, causing the death of deceased. He then became afraid and ran, and thereafter...
To continue reading
Request your trial
-
Walter v. State
...culpability is a question of fact to be determined by the jury from all the facts and circumstances in evidence. Hemphill v. State , 505 S.W.2d 560, 562 (Tex. Crim. App. 1974). Intent is of such a nature that it is most often proven through circumstantial evidence surrounding the crime. Her......
-
Pine v. State
...pet. ref'd). Whether an accused acted with intent or knowledge is a question to be determined by the trier of fact. Hemphill v. State, 505 S.W.2d 560, 562 (Tex.Crim.App.1974); Parramore v. State, 853 S.W.2d 741, 745 (Tex.App.--Corpus Christi 1993, pet. ref'd). Knowledge and intent may be in......
-
Ervin v. State
...and is a factual matter to be determined by the jury from all the facts and circumstances in evidence. See Hemphill v. State, 505 S.W.2d 560, 562 (Tex.Crim.App.1974). “When a deadly weapon is fired at close range, and death results, the law presumes an intent to kill.” Sholars, 312 S.W.3d a......
-
Puente v. State
...of fact based upon the circumstantial evidence adduced at trial. Dues v. State, 634 S.W.2d 304 (Tex.Crim.App.1982); Hemphill v. State, 505 S.W.2d 560 (Tex.Crim.App.1974); Martinez v. State, 844 S.W.2d 279 (Tex.App.--San Antonio, 1992, pet. ref'd). Intent can be inferred from the acts, words......