Neal v. State
| Decision Date | 10 December 1975 |
| Docket Number | No. 50561,50561 |
| Citation | 534 S.W.2d 675 |
| Parties | Wesley Bernard NEAL, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Gilbert M. Spring, Lufkin, for appellant.
Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.
Appellant was found guilty by a guilty of the offense of assault with intent to murder with malice. The jury assessed punishment at twenty-five years.
The sufficiency of the evidence is challenged. The record reflects that the appellant kidnapped at gun point Mike Capps and his date Rohnda Fullen, forced them to drive to an adjacent county where he raped Fullen, and then forced them into the trunk of the car for the drive back to Lufkin. After circumstances required the three to abandon the car, they arrived on foot in Lufkin at about 4:00 a.m. Verman Perry, a uniformed police officer, approached them in a patrol car and inquired as to their identity and business at that hour of the morning.
When Perry noticed Capps nodding toward the appellant, he asked Capps to get into the car with him. As Capps entered the car he told Perry that appellant had a gun in his belt and had just raped the girl. Perry then turned toward the appellant, who had pulled up his shirt so that a pistol was visible. Simultaneously, the officer testified, appellant was 'reaching for it.' Perry drew his own gun and fired a single shot at him that missed. The appellant then threw his pistol to the ground and surrendered.
Appellant contends that the evidence is insufficient to show an intent to kill. We agree.
An intent to kill may be shown where a victim has been shot with a firearm. E.g., Hartman v. State, Tex.Cr.App., 507 S.W.2d 553; Hemphill v. State, Tex., Cr.App., 505 S.W.2d 560; Ortiz v. State, Tex.Cr.App., 490 S.W.2d 594; Carlisle v. State, Tex.Cr.App., 488 S.W.2d 428; Stallings v. State, Tex.Cr.App., 476 S.W.2d 679; Gamblin v. State, Tex.Cr.App., 476 S.W.2d 18; Rawlins v. State, Tex.Cr.App., 466 S.W.2d 308; Schulz v. State, Tex.Cr.App., 446 S.W.2d 872; Walker v. State, Tex.Cr.App., 440 S.W.2d 653; Valle v. State, Tex.Cr.App., 438 S.W.2d 583. Also, the evidence may be sufficient where a shot has been fired at an intended victim. E.g., Bell v. State, Tex.Cr.App., 501 S.W.2d 137; Klechka v. State, Tex.Cr.App., 475 S.W.2d 257; Hall v. State, Tex.Cr.App., 418 S.W.2d 810; Peterson v. State, Tex.Cr.App., 399 S.W.2d 813; Kincaid v. State, 150 Tex.Cr.R. 45, 198 S.W.2d 899. But this Court has consistently required more evidence than was shown here. Convictions have been overturned that were supported by even more evidence of specific intent than presented in the instant case. For example, in Davis v. State, Tex.Cr.App., 516 S.W.2d 157, the police officer was unsure whether defendant had pointed his pistol at him; in Barnes v. State, 172 Tex.Cr.R. 303, 356 S.W.2d 679, defendant cut the victim with a knife and fired his pistol in the air as the victim was fleeing; in King v. State, 166 Tex.Cr.R. 230, 312 S.W.2d 677, defendant fired his rifle at four officers who 'heard the bullet 'whistle' by them.' See also Thompson v. State, Tex.Cr.App., 521 S.W.2d 621; Hargrove...
To continue reading
Request your trial
-
Flanagan v. State
...See also Burks v. State, supra; Cooper v. State, supra; King v. State, 166 Tex.Cr.R. 230, 312 S.W.2d 677 (1958); Neal v. State, 534 S.W.2d 675, 676 (Tex.Cr.App.1975). If the type of shot fired from a shotgun is incapable of inflicting death, the mere firing of the shotgun by one person at a......
-
Godsey v. State
...the evidence insufficient to show malice but indicated that the defendant could be retried for murder without malice. Neal v. State, 534 S.W.2d 675 (Tex.Cr.App.1975), also cited by appellant, is distinguishable on its facts. The defendant in Neal started to reach for his gun. The police off......
-
Robbins v. State
...cited by Robbins are also distinguishable. In both Davis v. State, 516 S.W.2d 157, 160 (Tex.Crim.App.1974), and Neal v. State, 534 S.W.2d 675, 675-76 (Tex.Crim.App.1975), there was no evidence that the defendants pointed the guns, much less fired them. In Sloan v. State, 76 S.W. 922, 922-23......
-
Swenson v. State
..., 675 S.W.2d 734, 744–45 (Tex. Crim. App. 1982) ; Morrison v. State , 625 S.W.2d 729, 730 (Tex. Crim. App. 1981) ; Neal v. State , 534 S.W.2d 675 (Tex. Crim. App. 1975) ; Amos v. State , 955 S.W.2d 468, 470 (Tex. App.—Fort Worth 1997, no pet.) ; Blevins v. State , No. 02-09-00237-CR, 2010 W......