Jones v. State

• Decision Date: 08 December 1976
• Docket Number: No. 52079,52079
• Parties: George A. JONES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 139

544 S.W.2d 139

George A. JONES, Appellant, v. The STATE of Texas, Appellee.

No. 52079.

Court of Criminal Appeals of Texas.

Dec. 8, 1976.

James W. Patterson, Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough, Alvin M. Titus and Charles C. Cate, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

GREEN, Commissioner.

In a trial before a jury on an indictment for murder, appellant was convicted of voluntary manslaughter. See V.T.C.A. Penal Code, Sec. 19.04. Punishment was assessed at ten years.

The record reflects that at about 4:00 o'clock in the morning of August 20, 1974, in front of appellant's home in Houston, appellant shot deceased three times with a shotgun causing the death of deceased. Mrs. Lydia Johnson, a State's witness, testified that for about twenty hours immediately prior thereto she and deceased had been in deceased's home drinking together. About 3:30 a.m., she left with him in his car with her driving to get her four year old daughter from a babysitter. Upon getting the child she insisted on driving to appellant's home in order to get away from deceased, who was intoxicated. She parked the car in front of appellant's house and, after having an argument with deceased, she and her child got out of the car and entered appellant's yard, with deceased following. She then saw appellant in his yard holding a shotgun. Appellant asked her if deceased had a gun, and she answered she didn't know, but he had told her he had one. Appellant then 'hollered' at deceased to 'go on,' repeating this three times. After the third time, she saw deceased 'coming on to where we were at' and heard him say to appellant 'F . . . you.' She next saw appellant fire three times at deceased. At no time on this occasion did she hear deceased say anything to appellant except the one remark stated above.

Officers coming to the scene shortly after the shooting found deceased lying dead in the yard. No knife or other weapon was found on deceased or in the yard. Doctor Jachimczyk performed an autopsy that same morning, and testified that death was caused by wounds caused by shotgun pellets.

On cross-examination, Lydia Johnson testified to an 'altercation' between appellant and deceased about six weeks prior to the shooting. Deceased was 'bending her over the sink backward.' Appellant told him to stop, and 'took his shoulders and just turned him sway from me.' She testified that deceased then started to go for his knife but changed his mind, and said to appellant, 'If you ever mess with my business again I'll cut your throat.'

Appellant's written confession was placed in evidence by the State. In it he admitted shooting deceased three times with a shotgun, stating that after questioning 'Lydia about what was going on and she said she needed a place to stay or a way home' he told deceased two or three times to leave, and 'when he moved forward I shot one time and when he did not fall I shot two more times.' He then called the officers, and voluntarily surrendered.

Appellant, as a witness in his behalf, testified that he was awakened on the morning of the shooting by a barking dog. Upon seeing a car stopped in front of his yard he got his shotgun, believing that perhaps thieves might be attempting to steal parts of his car, and went into his yard. He saw Lydia Johnson and her child in his yard, with deceased behind them, and asked Johnson if deceased, whom he had recognized had a gun or knife on him, and she said she didn't know, but that 'deceased had told her he had received his shotgun back.' He then asked the deceased to leave. The deceased responded by backing up a little bit and then he 'brought his hand up either to grab at the barrel or something.' The appellant then told him to 'back-up' one more time. Appellant testified that he then heard deceased say 'F . . . you' and move toward him, pulling his hands out of his pockets. Appellant saw a knife in deceased's hand, as deceased attempted to grab the shotgun and 'a flash, a quick flash.' Knowing deceased's reputation for violence, particularly when intoxicated, and for carrying a gun or other weapon, and seeing the knife in deceased's hand, he feared for his life and serious bodily harm and the life of his mother and Lydia Johnson and her daughter, all of whom were in the yard. He stepped back behind his car and fired his shotgun at decease. Appellant further testified that after the first shot, the deceased hollered and continued to advance upon him. The appellant then shot the deceased two more times. He then went in his house, taking his shotgun with him, and called the police. No knife or other weapon was found in the yard where the shooting occurred. Appellant also testified about the prior altercation with deceased, his testimony being substantially the same as Johnson's, supra, except that, according to appellant, deceased's threat was 'If you ever put your hands on my 'blank' body I will F . . . you off any time I want to.'

There was considerable testimony to the effect that deceased had a violent temper when drinking, and that he was a man who was likely to carry out his threats, and for carrying a gun, which reputation was well known by appellant. Deceased had told appellant he was a former member of the Clyde Barrow gang, and had once been convicted of murder.

The court charged on the law of murder and the lesser included offense of voluntary manslaughter. The charge also included instructions on self-defense from an unlawful deadly attack, and the defense of others. Due to the disposition of this case, only one ground of error will be discussed.

In ground of error two, appellant contends that the trial court erred in refusing to charge the jury on the law of apparent danger as viewed from appellant's standpoint. The court's charge on self-defense included the following instructions:

'Now, therefore, even though you may believe from the evidence beyond a reasonable doubt that the defendant, George A. Jones, intentionally or knowingly caused the death of William Daniel Jones by shooting him with a gun, if he did, but you further believe from the evidence, or you have a reasonable doubt thereof, that at the time he did so, the said William Daniel Jones was using or attempting to use unlawful deadly force against the defendant, and the defendant reasonably believed the use of deadly force and the deadly force used, if any, was immediately necessary to...