Session v. State
| Decision Date | 26 September 1984 |
| Docket Number | No. 09-83-170-CR,09-83-170-CR |
| Citation | 680 S.W.2d 549 |
| Parties | Ray Donald SESSION, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
The Appellant pleaded not guilty to the offense of Attempted Capital Murder of peace officer Cleburne Swilley. The jury found him guilty as charged in the indictment. The court assessed punishment at fifteen years and one day and affirmatively found that the Appellant used a deadly weapon, a firearm, in the commission of the offense.
This appeal is based on a single ground of error. Appellant contends that his motion for instructed verdict should have been granted because the evidence was legally insufficient to establish that he had the required intent to commit the offense of murder.
Gary Lee Pinson, a witness for the State, testified that he knew the Appellant. Pinson stated that he, the Appellant, and Hillary Brown rode in a pickup truck together on the evening of May 2, 1982. The Appellant was the driver, Pinson sat in the middle and Brown was on his right. The three decided to drive toward Houston from Livingston. About 11:00 or 12:00 p.m., they traveled north on the East Texas Highway toward Polk County. Pinson testified that they had not been drinking but they had been smoking marihuana. Appellant drove the truck to the front of a tire store located in Livingston at about 1:00 a.m. on May 3rd. Pinson further testified:
Bob Price, a reserve police officer with the Livingston Police Department, was on duty as the inn keeper of a Holiday Inn across the street from the tire store. He heard the gunshots and ran outside to see what was happening. He saw the pickup truck and three people in front of the tire store. The driver left the store and drove past him. Price testified that the lighting was good enough to see all three men. Price described the driver as a large black man. Price was able to identify the Appellant in an in-court identification. He also gave testimony that the Appellant was definitely the driver of the vehicle as it left the tire store. Price notified the police of the shooting after the pickup truck sped away.
Deputy Sheriff Cleburne Swilley received a description of the vehicle and began a search for the truck. Swilley spotted Appellant's truck at a service station in Corrigan. He followed the truck for several blocks after it left the service station. Swilley switched on his revolving lights, aircraft landing lights and siren. The truck pulled over to the side of the road.
Gary Pinson testified that he was aware a police car had stopped them. Swilley, with the use of his public address system, told the occupants of the truck to "put your hands on your head." The two passengers complied but the driver did not. The command was repeated. Suddenly, the truck started off at a high speed.
Pinson testified:
The truck sped down the freeway and a chase ensued. At one point in the chase the speed of the truck was said to be in excess of 100 miles per hour. The truck slowed down as it approached the Neches River. Swilley came within 100 to 150 feet of the Appellant's truck. As the vehicles slowed down to 25 or 30 miles an hour, Swilley notified his dispatcher by radio that the truck was stopping. When Swilley drew closer to the truck, he saw the Appellant raise a shotgun out of the window on the driver's side of the truck. When Swilley saw the shotgun, he immediately applied his brakes. The gun was pointed and fired in the direction of the patrol car driven by Swilley. The shot went slightly high and to the right of the patrol car.
Pinson further testified:
Swilley testified that after the first shot was fired the driver immediately increased the truck's speed and continued north on Highway 59. Two shots were fired within Polk County. Swilley said the Appellant was apparently driving with his left hand and shooting the gun with his right hand. The fleeing suspects were stopped at a roadblock. Appellant was finally apprehended after a shootout with law enforcement officers in South Lufkin.
Testimony concerning the shootout and the roadblock in Lufkin was given by Patrolman Dennis Jones of the Lufkin Police Department. A Browning automatic 16-gauge shotgun and a .38 caliber pistol were recovered.
Simon David Hayes, a patrol officer with the City of Lufkin, secured evidence at the scene of the Lufkin roadblock. Hayes testified that Jones handed him a Browning 16-gauge shotgun and Swilley handed him a .38 caliber pistol.
The Appellant correctly concedes that under the prior Penal Code in a trial for assault with intent to murder, the predecessor of the present statute, that intent to kill could be inferred from the use of a per se deadly weapon in a deadly manner. Thompson v. State, 521 S.W.2d 621 (Tex.Crim.App.1974); Burks v. State, 145 Tex.Cr.R. 15, 165 S.W.2d 460 (Tex.Crim.App.1942).
There is no longer such a presumption of specific intent when a per se deadly weapon is used by a defendant. Harrell v. State, 659 S.W.2d 825 (Tex.Crim.App.1983); Gutierrez v. State, 672 S.W.2d 633 (Tex.App.--Corpus Christi 1984, no writ).
But intent, even a specific intent, may be inferred from the conduct, acts, and words of the accused. Dues v. State, 634 S.W.2d...
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