Thom v. State

• Decision Date: 03 December 1958
• Docket Number: No. 30101,30101
• Citation: 319 S.W.2d 313,167 Tex.Crim. 258
• Parties: Hollis G. THOM, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 313

319 S.W.2d 313

167 Tex.Crim. 258

Hollis G. THOM, Appellant, v. STATE of Texas, Appellee.

No. 30101.

Court of Criminal Appeals of Texas.

Dec. 3, 1958.

Martin, Moore & Tackett, Fort Worth, for appellant.

Howard M. Fender, Dist. Atty., John E. McLean and Albert F. Fick, Jr., Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

The conviction is for assault with intent to murder with malice; the punishment, fifteen years.

E. J. (Eddie) Kelliher testified that about 4:30 P.M. while he was on duty as a policeman in the City of Fort Worth, he saw the appellant, a person he didn't know and had never seen before, drive a pick-up through a red traffic light; and upon following him found that he exceeded the speed limit. After a short distance appellant stopped in front of a tavern; that he also stopped and parked his motorcycle near the side of the pick-up. As he got off his motorcycle, he observed appellant take two bottles which appeared to be bottles of liquor from his shirt and place them under the seat; he approached the pick-up, spoke to the appellant, and told him that he had run a red traffic light and had been speeding and asked for his drivers license to which appellant replied: 'I didn't run no damned red light and I wasn't speeding. You are not to get my damned drivers license.' Kelliher observed that the appellant was drunk, returned to his motorcycle and radioed for help. At this time appellant started to drive his pick-up away, so Kelliher went to the pick-up, secured the ignition keys and returned to his radio. Kelliher then asked appellant to get out of the pickup and as he was replying, 'I'm not getting out of no damn car, you son-of-a-bitch. If you want me out, come and get me out,' he slid from under the steering wheel to the opposite side of the pick-up and reached down. Kelliher, apprehending danger, pulled his pistol, started toward the pick-up, then stopped and hesitated a moment, then placed his gun back in the holster. As he opened the door of the pick-up he saw appellant's gun, lunged at him, and appellant fired his pistol twice, hitting him in the chest and in the shoulder, with one bullet severing his spinal cord and instantly and permanently paralizing him from the chest downward. Kelliher immediately fell prostrate on the ground. Appellant then jumped out of the pick-up, stood over Kelliher and pointed his pistol between Kelliher's eyes and said, 'You son-of-a-bitch, if you don't give me my car keys, I'll shoot you right between the eyes;' and he took the ignition keys from Kelliher's pocket and immediately left the scene after backing the pick-up over his body and then driving forward over his body again thereby breaking two ribs and injuring his neck.

Other officers soon arrived at the scene of the shooting. They pursued the appellant and apprehended him in a short time. A pistol and 'one empty whiskey bottle, pint bottle and one vodka bottle almost empty and a full bottle of whiskey' were found in the pick-up. The other officers also testified that appellant was drunk.

The testimony of an eyewitness to the difficulty from across the street substantiated that of Kelliher. Another witness who testified that he saw part of the difficulty also substantiates the testimony of Kelliher.

A waitress in the tavern testified that she saw the policeman and appellant at the pickup, that appellant reached down, came up with a pistol, and pointed it toward the policeman, but she didn't see him shoot although she heard two shots, one right after another. She further testified that she later returned to the window and saw appellant standing over the policeman and saying something she didn't understand.

Another waitress at the tavern testified that she heard two shots, went to the door, and saw appellant with a pistol in his hand; next she saw him standing over and kicking the policeman, and saw him get in the pickup, drive over and then back over his body before leaving the scene.

The state introduced in evidence appellant's written statement in which he states that he stopped at the tavern and, 'The officier pulled in beside me. He asked me for my drivers lixcense. I took my drivers lixcense out and asked him what I had done. He did not say for sure what the violation was. Then I said I mightjust as well gone on home. I stated the motor and he jumped on the running board and grabed the key. And after he got the key he took his gun out and pointed it at me and said give me your drivers xxx license or I'll blow your head off. I knew that I had a gun under the seat. I dont remember after that what happened until the officers came up and the pickup had stopped running. I have had the gun about 3 or 4 years and have had it in (the) pickup for five or six days.'

Appellant testifying in his own behalf admitted having taken one drink of vodka mixed with vegetable juice before he stopped at the tavern but denied that he was intoxicated at the time of the difficulty, and stated that the bottles of vodka and whiskey in his pick-up were sealed. He further testified that he did not run a red traffic light and was not speeding before stopping at the tavern; that as he stopped at the tavern to get some cold drinks to take with him, Kelliher immediately came in on his left, stopped and got off his motorcycle, picked up and talked over his radio telephone. 'When he put the telephone down he turned and asked for my drivers license which I produced and exhibited to him and asked, 'Why do you want them?', to which he replied, 'I don't have to have any reason for wanting them.' After I had told him I thought I was entitled to know why he walked around his motorcycle--he was on the opposite of it--as he did he drew his gun out and stuck it right in my face and said, 'I'll blow your damned head off of you.' He jerked my pick-up door open, took my keys out, prodded me with his gun, took my keys, slammed the door and went back again to his motorcycle,' and talked again over the telephone. Kelliher started back to the pick-up, pulled his gun and pointed it at him through the window and said: 'I'm going to drag you out of there and stomp you through the ground.' He reached under the seat and came up with the pistol and when Kelliher jerked the door open the second time, appellant fired because he thought Kelliher was going to shoot him. He next took his keys from Kelliher and left in the pick-up but did not remember backing or driving over him.

Appellant called several witnesses who testified that he was sober shortly before the shooting and also called numerous witnesses who testified that his general reputation for being a peaceful and law abiding citizen and for truth and...