Shelby v. State, 05-86-00109-CR

• Decision Date: 23 February 1987
• Docket Number: No. 05-86-00109-CR,05-86-00109-CR
• Citation: 724 S.W.2d 138
• Parties: Tennie SHELBY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 138

724 S.W.2d 138

Tennie SHELBY, Appellant, v. The STATE of Texas, Appellee.

No. 05-86-00109-CR.

Court of Appeals of Texas Dallas.

Feb. 23, 1987.

Scott M. Anderson, Dallas, for appellant.

Henry Wade, Crim. Dist. Atty., Mary Jo Kain, John Cruezot, Toby Shook, Asst. Dist. Attys., Dallas, Robert Huttash, State Pros. Atty., Austin, for appellee.

Before GUITTARD, C.J., and McCLUNG and BAKER ¹, JJ.

ON MOTION FOR REHEARING

BAKER, Justice.

This opinion supplements our original opinion in this case and is in response to the appellant's motion for rehearing.

Appellant was convicted of murder. The court's charge contained an instruction on the lesser included offense of aggravated assault. In our original opinion which was not designated for publication, we overruled all of appellant's points of error.

In his motion for rehearing appellant argues that this court failed to address the issue raised by appellant in his first point of error. This point of error was that the trial court erred in refusing to grant appellant's requested instruction on the benefit of the doubt as between murder and aggravated assault. Appellant further states that this court erred in concluding that the benefit of the doubt instruction should be given only in cases involving murder and the lesser included offense of voluntary manslaughter, confining its application to cases of sudden passion or malice.

Appellant complains that the trial court's charge only directed the jury to find the defendant not guilty if they had a reasonable doubt whether defendant was guilty of any offense, and that the charge failed to give the jury guidance as to what to do if they found defendant guilty of some offense but had doubt as to which offense he was guilty of, thereby shifting the burden of proof to the defendant. Consequently, the appellant asserts, the exclusion of the requested benefit-of-the-doubt charge deprived him of a fair and impartial trial.

Although the original opinion expresses the view that the question of instructing the jury on the benefit of the doubt arises only in murder-with-malice cases under the former penal code, we conclude that the applicability of such an instruction is not limited to such cases. Such an instruction, if requested, has been held to be required generally as between degrees of offenses, even when the charge includes a proper instruction on reasonable doubt as applied to the whole case. Richardson v. State, 91 Tex.Cr. 318, 239 S.W. 218, 222-24 (1922) (degrees of homicide); Sparks v. State, 108 Tex.Cr. 367, 300 S.W. 938, 939 (1927) (felony and misdemeanor theft). The rationale of these decisions is that without such an instruction, the jury might entertain no reasonable doubt as to the defendant's guilt, and yet be confused in reaching a conclusion as to the degree of the offense. Richardson, 239 S.W. at 224. The same rule applies as between the principal offense charged and a lesser included offense.

The present charge, in our view, leaves no uncertainty as to how to resolve any doubt as to what verdict to return if the jury believes appellant is guilty but have doubt as to whether he is guilty of murder or aggravated assault. The present charge includes the following instructions:

Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt that the defendant, Tennie Shelby, on or about the 1st day of April 1985, in Dallas County, State of Texas, did then and there knowingly or intentionally cause the death of Leonard Jiles, an individual by shooting the said Leonard Jiles with a handgun, a deadly weapon, you will find the defendant guilty of murder. If you do not so believe, or if you have a reasonable doubt thereof, you will next consider whether the defendant is guilty of aggravated assault.

If you believe from the evidence beyond a reasonable doubt that the defendant, Tennie Shelby, on or about the 1st day of April 1985, in Dallas County, State of Texas, did then and there knowingly or intentionally cause bodily injury to Leonard Jiles by shooting him with a handgun, a deadly weapon, but you further find and believe...