Robinson v. State

Decision Date17 February 1982
Docket NumberNo. 04-81-00077-CR,04-81-00077-CR
PartiesLarry D. ROBINSON, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Appeals

Samuel H. Bayless, San Antonio, for appellant.

Bill White, Dist. Atty., Linda S. McDonald, Asst. Dist. Atty., San Antonio, for appellee.

Before ESQUIVEL, BUTTS and CANTU, JJ.

OPINION

CANTU, Justice.

Appellant was convicted of attempted murder by a jury and punishment was thereafter assessed at five (5) years' confinement in the Texas Department of Corrections.

In an ably written brief appellant complains of error in eighteen (18) particulars but does not challenge the sufficiency of the evidence. A proper addressing of some of the assigned error requires discussion of the facts in the case.

The evidence viewed in the light most favorable to the verdict reflects that on the early evening of June 15, 1978, appellant visited the house of his former girlfriend Lucinda Davis, located at 2146 Aransas Street in San Antonio, Bexar County, for the purpose of effectuating a reconciliation. Appellant returned to his own apartment to collect his personal effects and to inform his current girlfriend, Deborah Nious that he, appellant, would be reconciling with Lucinda Davis.

Lucinda Davis, who in the meantime had been living with Deborah Nious' ex-husband, Arthur Nious, learned that appellant had lied to her about his relationship with Deborah Nious and became upset. Upon appellant's return to Miss Davis' house a violent argument ensued between appellant and Lucinda Davis resulting in injuries being inflicted upon Miss Davis. Lucinda Davis' parents, Leroy and Catherine Davis, came over from their next-door residence to calm appellant and Lucinda.

Between appellant's first and second trips to Lucinda's house, Lucinda telephoned Arthur Nious, with whom she had been living since her separation from appellant, to tell him about the problem. Arthur Nious arrived at Lucinda's residence, parked his car in the driveway of Lucinda's parents' residence and stood in the driveway until Lucinda went out to meet him. Together they returned to her home and when Arthur Nious reached the front door appellant moved back and away from the door.

An argument immediately began between appellant, Catherine Davis and Arthur Nious concerning how the two couples were to be paired. Arthur Nious then challenged appellant to step out and engage in a fight as he (Nious) stood leaning against the front door.

Instantly, and without warning, appellant reached into his back pocket, pulled out his .22 caliber automatic pistol and began firing at Arthur Nious inside the house. As Arthur Nious ran out the door, appellant followed in hot pursuit, jumped on top of his car and continued to fire at Nious until the pistol was emptied. Nious ran through some hedges and in the direction of Martin Luther King Drive.

A single shot from some other weapon was heard and appellant ducked for cover. Appellant then reached into his car, reloaded his pistol and was heard to say, "I finally got his ass." Appellant then got into his car and drove away. Ten minutes later appellant called Lucinda Davis to find out if Arthur Nious had been found between Lucinda's house and the neighbor's house.

Arthur Nious subsequently was discovered in a pool of blood on the porch of 2815 Martin Luther King Drive, the next street over from the Davis residence. Nious sustained critical injuries to his neck and chest with resulting paralysis, speech impediment and memory loss.

Catherine Davis corroborated the testimony of Lucinda Davis in every particular. Arthur Nious was unable to remember when he was shot or by whom. His testimony was punctuated by instances of memory loss.

Appellant testifying in his own behalf, related similar facts happening prior to the shooting incident. According to his story, Arthur Nious arrived at the Davis residence wearing a T-shirt with the butt of a pistol outlined under the shirt. After the challenge to fight was made, Arthur Nious ran out of the house with appellant in pursuit. When appellant reached the porch he saw Nious hiding behind the front of appellant's car and appellant, believing Nious to have a gun, drew his pistol and fired at Nious. Nious moved to the driver's side of the car and appellant believing Nious was about to shoot him, jumped on top of his car and fired a second shot at Nious. Nious moved to the rear of the car and appellant fired off the third shot. Nious fled through the hedges toward a neighbor's house and as he momentarily hesitated appellant fired off a fourth shot.

According to appellant, as he approached the hedges searching for Nious' whereabouts two shots were fired at him. Appellant then got into his car and drove away.

Appellant denied reloading his pistol and denied any exchange of words with Nious during the shootout. Appellant predicated his right to shoot at Nious on his belief that Nious would have shot him first and insisted that he acted solely in self-defense.

Several officers testified as to their role in the investigation and their recovery of a bloody hat belonging to Nious, a .22 caliber revolver and a single long .22 caliber live round found on the porch of the house at 2815 Martin Luther King Drive.

In his first ground of error appellant asserts that the trial court committed fundamental error in its charge, in that the charge authorized the jury to convict upon a lesser culpable mental state than is prescribed by the statute creating the offense.

The indictment, formal parts omitted, alleges:

Larry D. Robinson did then and there intentionally and knowingly attempt to cause the death of Arthur Nious by shooting the said Arthur Nious with a gun, an act amounting to more than mere preparation that tended but failed to effect the commission of the offense of murder ....

The charge of the court on guilt or innocence provided, inter alia the following definitions and application of the law to the facts.

A person attempts to commit an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends, but fails, to effect the commission of the offense intended.

A person commits the offense of attempted murder if he intentionally or knowingly attempts to cause the death of an individual.

Therefore, if you believe from the evidence beyond a reasonable doubt that the defendant, Larry D. Robinson, did, in Bexar County, Texas, on or about June 15th, 1978, intentionally or knowingly attempt to cause the death of an individual, to wit: Arthur Nious, by shooting the said Arthur Nious with a gun, you will find the defendant Guilty.

If you do not so believe, or if you have a reasonable doubt thereof, you will find the defendant not guilty. (Emphasis supplied.)

Appellant argues that Tex.Penal Code Ann. § 15.01 (Vernon Supp. 1980-1981), 1 addressing criminal attempts, permits an act to become a criminal attempt only if the act is done with the specific intent to commit the offense intended and that since Tex.Penal Code Ann. § 6.03 (Vernon 1974) 2 defines intentionally and with intent synonymously, a person acting intentionally necessarily acts with intent, the same culpable mental state. Appellant, therefore, reasons that the charge to the jury permitted a conviction upon a lesser culpable mental state 3 than that required by § 15.01, since it permitted the jury to convict of attempted murder if they found that appellant intentionally or knowingly attempted to cause the death, etc.

Appellant insists that the portion of the court's charge applying the law to the facts is fundamentally defective because it permits a conviction upon the finding of a knowing act, a lesser culpable mental state than is prescribed by the statute creating the offense of "criminal attempt." Appellant further contends that the criminal attempt statute can apply only to an offense which can be committed intentionally and by applying it to a crime capable of commission under a knowing culpable mental state, the statute improperly permits a conviction without proof of an essential element. Without benefit of specific authority, appellant relies generally upon a line of cases holding that a charge which permits the jury to convict without a finding of the existence of all essential elements of the offense beyond a reasonable doubt constitutes fundamental error. See Cumbie v. State, 578 S.W.2d 732 (Tex.Cr.App.1979); Jackson v. State, 576 S.W.2d 88 (Tex.Cr.App.1979); Dowden v. State, 537 S.W.2d 5 (Tex.Cr.App.1976). We are impressed but not persuaded by appellant's interpretation and manipulation of the law.

The charge to the jury requires a finding of an attempt (as defined) by appellant to cause the death of a specified individual in addition to a finding that the attempt was knowingly or intentionally made in order to justify a conviction. Because the word "attempt" is sufficient to include the word "intent" and in fact is more comprehensive in meaning 4 the jury was necessarily required to find that criminal attempt was committed with specific intent regardless of whether it found the attempt to be intentionally or knowingly made.

Attempt implies an intent and an active effort to carry out or consummate the intent or purpose. Ex parte Pousson, 599 S.W.2d 820 (Tex.Cr.App.1980); Dovalina v. State, 564 S.W.2d 378 (Tex.Cr.App.1978). See comprehensive discussion in Shipp v. State, 81 Tex.Cr.R. 328, 196 S.W. 840 (1917). The jury having found that the attempt was with specific intent, it matters not that they also found that the attempt was made knowingly rather than intentionally.

We hold that the finding by the jury that the attempt was either knowingly made or intentionally made is surplusage and that the required culpable mental state is supplied by a finding that the act was performed with the specific intent to commit the offense intended. To require an additional culpable mental state would result in a jury...

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