May v. State

• Decision Date: 30 November 1983
• Docket Number: No. 3-83-097-CR,3-83-097-CR
• Citation: 660 S.W.2d 888
• Parties: James Lynn MAY, a/k/a James Benight, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 888

660 S.W.2d 888

James Lynn MAY, a/k/a James Benight, Appellant, v. The STATE of Texas, Appellee.

No. 3-83-097-CR.

Court of Appeals of Texas,

Austin.

Nov. 30, 1983.

Ted L. Potter, Belton, for appellant.

James T. Russell, Bell County Asst. Dist. Atty., Belton, for appellee.

Before SHANNON, POWERS and BRADY, JJ.

PER CURIAM.

Appeal is taken from a judgment of conviction for the offense of aggravated assault. Tex.Pen.Code Ann. § 22.02(a)(4) (Supp.1982). Punishment was assessed by a jury at incarceration for three years.

By his two grounds of error, appellant complains that the district court erred in failing to sustain his motion for a directed verdict of not guilty, and in not granting him a mistrial on the court's own motion when it became evident that he was being denied effective assistance of counsel. This Court will reverse the judgment of conviction, and remand the cause for a new trial.

In his first ground of error, appellant contends that the State failed to prove he "used" a deadly weapon, as alleged in the indictment, and therefore his motion for directed verdict was erroneously overruled.

The evidence regarding the occurrence in question is conflicting. Both appellant and the victim, Richard Wofford, testified of a continuing course of "bad blood" between the two. Wofford testified that on September 7, 1982, he was seated in his parked automobile, near the Lamar Middle School, waiting to pick up a friend, when appellant in his van pulled up even with him on the opposite side of the street. Appellant then asked Wofford to step out into the street. Wofford declined and began to drive away when he saw appellant's van door open, revealing appellant sitting and looking at him with a shotgun lying on his lap. The shotgun was pointed in Wofford's general direction. Wofford further testified that he then drove away rapidly, and as he was doing so, heard a gunshot. He pulled his car into a vacant lot, got out, and discovered that his car had been hit by the discharge from a shotgun.

Appellant testified that he was parked in front of the Lamar Middle School when Wofford pulled up and told him to get off the street. Appellant ignored him, and when appellant's boys were almost at the van, Wofford displayed a handgun and stated "I've got this for you all." Appellant then heard a small gunshot, reached for his shotgun, loaded it, and fired at Wofford as he drove away.

In determining the sufficiency of the evidence to support a criminal conviction, the question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Carlsen v. State, 654 S.W.2d 444 (Tex.Cr.App.1983) (opinion on State's motion for rehearing).

In his brief, appellant seems to be equating "use" with "firing," and argues that since Wofford did not see appellant fire the shotgun, appellant could not have threatened Wofford with imminent bodily injury with the "use" of a deadly weapon. This argument has no merit. The mere fact that appellant displayed the shotgun and pointed it in Wofford's general direction is sufficient "use." See Carvajal v. State, 529 S.W.2d 517 (Tex.Cr.App.1975).

We hold that the evidence in the instant case is sufficient to support the jury's finding of guilt.

By his second ground of error appellant claims that "the trial court erred in not granting the appellant a mistrial on the court's own motion when it became evident that the appellant was being denied effective assistance of counsel." Appellant's sole complaint in this regard is that his trial counsel submitted an unsworn motion for probation, and because it was unsworn, the district judge refused to submit a charge on probation to the jury. Tex.Code Cr.P.Ann. art. 42.12, Sec. 3a (Supp.1982). Although appellant's ground of error is couched in somewhat unusual terms, this Court will construe the ground of error as alleging that appellant was denied effective assistance of counsel.

We note first that authority exists for the proposition that neither the judge nor the jury is authorized to grant probation in a case in which a defendant has used or exhibited a deadly weapon. Rivas v. State, 627 S.W.2d 494 (Tex.App.1981, pet. ref'd). If that were the law, appellant would not have been eligible for probation, and there would be no error. However, we are of the opinion that the rationale in Rivas is erroneous. ¹

The court of appeals in Rivas reasoned that to allow the jury to recommend probation in those cases in which the court was expressly forbidden to do so, Tex.Code Cr.P.Ann. art. 42.12, sec. 3f(a) (1979), ² "would create a conflict between the power of the court and the power of the jury," Rivas v. State, supra, at 496, and refused to adopt such a construction. However, Tex. Code Cr.P.Ann. 42.12, sec. 3a (Supp.1982), requires the court to grant probation when the jury recommends it. Furthermore, such a construction as was denounced in Rivas is contemplated by the provisions of Tex.Code Cr.P.Ann. art. 42.12, sec. 3f(b) (1979), which authorizes the court to require a defendant to serve up to 120 days' confinement as a condition of probation when the defendant, although he used or exhibited a deadly weapon (which is one of the instances in which the court is expressly forbidden to grant probation), has been granted probation, presumably upon the jury's recommendation. Therefore we hold that appellant was eligible for probation in this cause. ³

We turn now to the question of whether...