McKenzie v. State, No. 49131
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
| Citation | 521 S.W.2d 637 |
| Decision Date | 02 April 1975 |
| Parties | Homer McKENZIE, Appellant, v. The STATE of Texas, Appellee. |
| Docket Number | No. 49131 |
Page 637
v.
The STATE of Texas, Appellee.
Rehearing Denied April 30, 1975.
Douglas H. Parks, Dallas, for appellant.
Henry Wade, Dist. Atty., Richard W. Wilhelm, Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.
DAVIS, Commissioner.
Appeal is taken from a conviction for murder. Punishment was assessed by the jury at life.
The record reflects that Sue Ann Sharer left the deceased, a five-year-old male child, and her three other children with appellant when she departed for work on March 3, 1973. About 9:00 p.m., the manager of the restaurant where Sharer worked received a call from appellant asking that she 'tell Sue that I have killed her son.' Dr. William Sturner testified that an autopsy revealed that the primary cause of death was an external blow to the back of the head.
Among the contentions advanced by appellant, it is urged that the court erred in failing to grant his requested instruction to the jury on the law of negligent homicide. The State responds by asserting that appellant was not entitled to a charge on negligent homicide since the jury was charged on the law relative to accidental homicide.
Appellant, testifying in his own behalf, related that the deceased had come in the house crying about 4:30 p.m. and stated that he fell from the monkey bars and wet his pants. Appellant told the deceased that there was no sense in crying and suggested that they do pushups and 'flips.' Appellant stated that he had done 'flips' with deceased before but on this occasion they were not well executed. Appellant described 'flips' as follows:
'Well I (appellant) would sit in a chair facing the window and he (deceased) would be on my right side and as he would approach I would put one arm on his stomach and one on his head and he would do a complete somersault.'
According to appellant, the deceased fell to the floor during the execution of the 'flips' and it was his belief that the bruises found on the head of the deceased came from falls occurring during the 'flips.'
In the recent case of Stiles v. State, 520 S.W.2d 894 (Tex.Cr.App.1975), this Court said:
'The difference between accidental homicide and negligent homicide is whether the act resulting in death was Intentionally or Unintentionally done. The focus is on the accused's act, not on the result of...
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Tenner v. State, No. 2-86-285-CR
...alternative, Tenner would not be entitled to a charge on criminally negligent homicide. Tenner relies on the cases of McKenzie v. State, 521 S.W.2d 637 (Tex.Crim.App.1975) and Stiles v. State, 520 S.W.2d 894 (Tex.Crim.App.1975). Neither case is applicable to the facts before us in this case......
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Woodfox v. State, No. 595-86
...Cain v. State, 549 S.W.2d 707, 713, cert. denied 434 U.S. 845, 98 S.Ct. 149, 54 L.Ed.2d 111 (Tex.Cr.App.1977); McKenzie v. State, 521 S.W.2d 637, 639 (Tex.Cr.App.1975); Thompson v. State, 521 S.W.2d 621, 625 (Tex.Cr.App.1974); Hubbard v. State, 153 Tex.Cr.R. 143, 217 S.W.2d 1019, 1020 (1949......
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Williams v. State, No. 2-86-163-CR
...raised by the evidence, upon a proper request to do so. See Green v. State, 566 S.W.2d 578, 584 (Tex.Crim.App.1978); McKenzie v. State, 521 S.W.2d 637, 639 We do not dispute the validity of this principle. Appellant, though, has not cited any authority which holds that evidence that a defen......
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Brown v. State, No. 49837
...homicide may only result from an intentional act.' See also Esparza v. State, 520 S.W.2d 891 (Tex.Cr.App.1975); McKenzie v. State, 521 S.W.2d 637 (Tex.Cr.App.1975); Palafox v. State, 484 S.W.2d 739 The testimony relied upon by the appellant clearly show his acts toward the deceased were int......
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Tenner v. State, No. 2-86-285-CR
...alternative, Tenner would not be entitled to a charge on criminally negligent homicide. Tenner relies on the cases of McKenzie v. State, 521 S.W.2d 637 (Tex.Crim.App.1975) and Stiles v. State, 520 S.W.2d 894 (Tex.Crim.App.1975). Neither case is applicable to the facts before us in this case......
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Woodfox v. State, No. 595-86
...Cain v. State, 549 S.W.2d 707, 713, cert. denied 434 U.S. 845, 98 S.Ct. 149, 54 L.Ed.2d 111 (Tex.Cr.App.1977); McKenzie v. State, 521 S.W.2d 637, 639 (Tex.Cr.App.1975); Thompson v. State, 521 S.W.2d 621, 625 (Tex.Cr.App.1974); Hubbard v. State, 153 Tex.Cr.R. 143, 217 S.W.2d 1019, 1020 (1949......
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Williams v. State, No. 2-86-163-CR
...raised by the evidence, upon a proper request to do so. See Green v. State, 566 S.W.2d 578, 584 (Tex.Crim.App.1978); McKenzie v. State, 521 S.W.2d 637, 639 We do not dispute the validity of this principle. Appellant, though, has not cited any authority which holds that evidence that a defen......
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Brown v. State, No. 49837
...homicide may only result from an intentional act.' See also Esparza v. State, 520 S.W.2d 891 (Tex.Cr.App.1975); McKenzie v. State, 521 S.W.2d 637 (Tex.Cr.App.1975); Palafox v. State, 484 S.W.2d 739 The testimony relied upon by the appellant clearly show his acts toward the deceased were int......