McCloud v. State, 01-84-0541-CR

• Decision Date: 13 June 1985
• Docket Number: No. 01-84-0541-CR,01-84-0541-CR
• Citation: 692 S.W.2d 580
• Parties: Rex Joe McCLOUD, Appellant, v. The STATE of Texas, Appellee. (1st Dist)
• Court: Texas Court of Appeals

Page 580

692 S.W.2d 580

Rex Joe McCLOUD, Appellant, v. The STATE of Texas, Appellee.

No. 01-84-0541-CR.

Court of Appeals of Texas Houston (1st Dist).

June 13, 1985.

Mary B. Hennessy, Houston, for appellant.

John B. Holmes, Jr., Harris County Dist. Atty., William J. Delmore, III, Lori Millberg, Harris County Asst. Dist. Attys., Houston, for appellee.

Before JACK SMITH, BASS and LEVY, JJ.

OPINION

Jack SMITH, Justice.

A jury convicted appellant of attempted murder and assessed his punishment at four years imprisonment and a fine of $5,000. We affirm.

In his first ground of error, appellant alleges that the trial court erred in refusing to include a verdict form which would have permitted the jury to grant him probation on both his penitentiary term and his fine. The verdict form actually presented to the jury gave it only three options: confinement, confinement and a fine, or probated confinement and a fine. Appellant specifically objected to the verdict form and requested that the jury be allowed to probate the fine as well as the confinement.

We agree with appellant's contention that it was error for the trial court to refuse his requested verdict form. The punishment option he requested is authorized by Tex.Code Crim.P.Ann. art. 42.12, sec. 3a (Vernon Supp.1985). See Arcos v. State, 628 S.W.2d 867 (Tex.App.--Corpus Christi 1982, no pet.). However, we disagree with appellant that the trial court's refusal to give the requested verdict form was reversible error in the instant case. The jury assessed four years confinement and refused to give probation. At the present time, there is no authority which permits probation of a fine in an attempted murder case where punishment includes confinement. See Ex parte McIver, 586 S.W.2d 851 (Tex.Crim.App.1979). We hold that any error by the trial court in refusing the requested charge was rendered harmless when the jury denied probation of appellant's confinement. Appellant's first ground of error is overruled.

In his second ground of error, appellant alleges that the trial court erred in refusing his requested charge on the lesser included offense of reckless conduct. The court is required to charge on a lesser included offense only when some evidence shows that, if he is guilty at all, he is guilty only of the lesser included offense. Broussard v. State, 642 S.W.2d 171 (Tex.Crim.App.1982). Appellant asserts that the evidence shows that he did not shoot at the police officers, but shot at the floor, attempting to frighten away people he believed to be burglars.

Officer Elvin D. King testified that he and his partner, Officer Dennis Spradlin, were on patrol on the night of February 28, 1984, and that they received a call concerning a gunshot at the Carribean Apartments at about 1:30 a.m. When they arrived, they found appellant talking to two other police officers in the apartment complex parking lot. Appellant told them that he thought someone was walking past his bedroom window in the back of his apartment and trying to break in, and that he shot out his window to scare the prowler away. King testified that he went with appellant into the apartment and saw the hole in the bedroom window. Spradlin testified that he found no footprints in the boggy ground under appellant's bedroom window, but he did find a bullet hole about five feet above the ground in a shed in a neighbor's yard behind the apartment. King told appellant not to shoot again unless someone was actually breaking in, and the police left.

At about 2:15 a.m., King and Spradlin received another report of a gunshot at the same location, and when they arrived back at the apartment complex, they found another apartment resident in the parking lot. He told them that he had heard a dog barking and someone yelling at the dog, and then a shot was fired and the dog did not bark again. King went to appellant's apartment and knocked on the door, and appellant asked him to come inside. Appellant said that he had heard a gunshot, but he denied firing again. King saw a .357 revolver on the kitchen table and checked to see if a shot had been fired from that gun. He found all six shells in the gun, unloaded it, and told appellant not to shoot any more. Spradlin testified that he found a neighbor's dog unharmed in the yard behind appellant's apartment.

At about 3:25 a.m., King and Spradlin received a third call reporting gunshots. When they arrived, they found the same neighbor in the parking lot with a friend. The neighbor said that they had heard several shots coming from appellant's apartment. King and Spradlin approached appellant's apartment and took up positions on either side of the front door. They knocked and identified themselves, and as King looked down the front of the apartment, he saw appellant on his knees in front of a sliding glass door in a room to the left of the front door. King walked over to the sliding door and asked appellant to open the front door. Appellant refused and said that he was going to get his gun and shoot. King went back to the front door and continued to ask appellant to open the door so they could talk to him.

Appellant came to the narrow full-length window next to the front door and pushed the curtain aside, and King saw that he was holding a pistol in his right hand, with the barrel pointed at the floor. King and Spradlin drew their guns and told appellant to put down his gun. Appellant knelt down on the ground and put the gun on the floor, keeping his hand on the gun. He asked the officers who they were, and they said that they were Houston policemen. Appellant said that he did not believe them, and he asked to see some identification. Spradlin leaned closer to the window, opened his coat, and showed appellant his badge. Appellant immediately raised the gun, Spradlin jumped back, and appellant fired out the window in the direction of the officers. The bullet hit the pavement by the door where Spradlin had been standing, and a chip of the pavement hit him in the leg. Spradlin testified that appellant pointed the gun directly at him. Spradlin took cover in the doorway of the apartment next door, and King ran to a wooden barricade nearby. The two officers yelled for appellant to throw the gun down and come out with his hands up. Appellant broke out the rest of the glass in the shattered window with his pistol and his feet, stepped outside briefly, looked around, and stepped back inside. The officers yelled to him again, and he threw out the gun and came out through the window with his hands up. The policemen arrested him, and when they went back into the apartment, they found numerous bullet holes in the walls and spent casings on the floor.

Appellant testified that he was getting ready for bed on the night in question when he heard a dog barking in the neighbor's yard behind his bedroom. He turned off his bedroom lights, looked out the window, and saw a prowler walking past his apartment. He called the police emergency number, but no one answered, and while he was on the phone, the prowler walked past his window again. Appellant fired his revolver out the window to...