Walker v. State

• Decision Date: 02 April 1969
• Docket Number: No. 41897,41897
• Citation: 440 S.W.2d 653
• Parties: Mary WALKER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 653

440 S.W.2d 653

Mary WALKER, Appellant, v. The STATE of Texas, Appellee.

No. 41897.

Court of Criminal Appeals of Texas.

April 2, 1969.

Rehearing Denied May 28, 1969.

Fred Hudson, Jr., Center, for appellant.

Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is murder without malice; the punishment, 5 years.

At the outset we are confronted with appellant's hydra-headed challenge as to the sufficiency of the evidence to sustain the conviction. In addition to a general assault, she centers her attack upon the evidence relating to the cause of death and the intent to kill.

The State's evidence reflects that in the early morning hours of Sunday, January 22, 1967, the 46-year-old deceased, James Willis Hill, in company with Ernest Baggett and Bobby Joe Cassell, both in their very early twenties, all of whom had been drinking beer, arrived at the Toledo Cafe in the City of Center in Cassell's car. They parked behind appellant's car. At this point appellant and one Jim Langford emerged from the care and Langford remarked that appellant's car had a flat tire. After pulling to the side of appellant's car the deceased asked if he could assist with the flat tire and appellant replied 'The best damn thing you can do is move your m_ _ f_ _ ass on.' Stating 'Lady, have you ever heard of friendship,' Hill, who appeared peeved, got out of Cassell's car and approached appellant's car. Appellant then fired 4 or 5 shots from a pistol at the deceased. During the shooting Langford was heard to say 'If you can't kill him, give me the damn gun, I will.' The deceased then returned and learned up against Cassell's car and he asked 'Why did the lady shoot me?' The deceased was then taken to a local hospital and transferred to the Veterans Hospital in Shreveport where he expired on January 23, 1967.

Testifying in her own behalf, the 37-year-old appellant, mother of four, related that she and Langford, a married man with whom she had been keeping company, had been across the Louisiana border earlier in the evening drinking beer and dancing; that upon their return to Center they stopped at the Toledo Cafe; that upon their departure Langford had jokingly stated her car had a flat tire but she had determined the car did not have a flat tire and entered the automobile; that the deceased and his companions took up the subject matter of the flat tire; that she asked them to mind their own business; that she would have left except that Langford could not find the ignition key; that the deceased threatened to 'stomp' her and her 'smart alec' boyfriend into the concrete; that when it appeared to her that the three men were getting out of the car she feared she was going to be abducted and raped; that she pulled a pistol from her purse and fired at the approaching Hill (the deceased); that Hill reached through the car window and began to scuffle with her pouring or spilling beer over her; that one shot fired smashed her car window; that the deceased left her side of the car and went to the passenger side where he briefly struggled with Langford before he returned to Cassell's car; that finding the ignition key she left the scene not knowing that the deceased had been shot.

Langford generally corroborated the appellant's testimony.

The jury was charged on the law of self defense.

Appellant insists that the cause of death was not established beyond a reasonable doubt. This claim is apparently based on the fact that while Dr. Darron testified the cause of death was without question a gunshot wound of the abdomen he related that the deceased's abnormal liver condition (serohepatitis) and his acute intoxication at the time of the injury were contributing causes of death. He also testified that while the contributing causes would not have proved fatal in themselves they 'complicated the condition considerably' and 'possibly' appellant would have survived the gunshot wound if it had not been not them.

Wright v. State, Tex.Cr.App., 388 S.W.2d 703, has been decided contrary to appellant's contention. There the Court said:

'The destruction of life must have been occasioned by the act of appellant, but appellant is responsible if his act of shooting contributed to the death, though there were other concurring causes. Tomerlin v. State, Tex.Cr.App., 26 S.W. 66; Rhodes v. State, 39 Tex.Cr.R. 332, 45 S.W. 1009; Ex parte Pettis, 60 Tex.Cr.R. 288, 131 S.W. 1081.'

See also Articles 1201 and 1202, V.A.P.C.; 29 Tex.Juris.2d, Sec. 68, p. 71; Adams v. State, 150 Tex.Cr.R. 431, 202 S.W.2d 933.

Further, in 4 Branch's Anno.P.C.2d, Sec. 2025, it is said:

'If deceased was suffering from a disease or a wound and defendant's shot or blows hastened the death of deceased defendant would be responsible for the death. An accused cannot speculate as to how long his victim may live with an incurable disease or mortal wound when he inflicts a wound that hastens the death or the action of the fatal disease.'

There is no evidence to warrant a finding that the deceased Hill died from causes arising independent of the gunshot wound ans no suggestion of neglect or improper treatment. Appellant's claim is without merit.

As to appellant's contention that the evidence fails to establish an intent to kill, we note that it is undisputed that appellant had a pistol and fired 4 or 5 shots at the deceased inflicting a gunshot wound of the upper right abdomen which proved fatal.

Article 45, V.A.P.C., provides 'The intention to commit an offense is presumed whenever the means used is such as would ordinarily result in the commission of the forbidden act.'

'The intent of the defendant may always be ascertained or inferred from the means used and the wounds inflicted by him.' 4 Branch's Anno.P.C., 2d. ed., Sec. 2190, p. 535--536.

Further, the trier of the facts may infer intent to kill from any facts in evidence which to his mind prove existence of such intent to kill, as from use of a deadly weapon. Hall v. State, Tex.Cr.App., 418 S.W.2d 810. See also Sadler v. State, Tex.Cr.App., 364 S.W.2d 234 (intent to kill is either presumed or established by facts in murder prosecution).

'It is well settled that when the weapon used in effecting an unlawful killing is a deadly weapon, per se, the intent to kill is presumed as a matter of law.' Baylor v. State, 151 Tex.Cr.R. 365, 208 S.W.2d 558. See also 20 Texas Digest, Homicide, k145.

A pistol is a 'deadly weapon' per se and, when used to shoot another in the abdomen, under circumstances presented, the law presumes an intent to kill. See Valle v. State, Tex.Cr.App., 438 S.W.2d 583; Barr v. State, 146 Tex.Cr.R. 178, 172 S.W.2d 322; Baylor v. State, supra.

Viewed in the light most favorable to the jury's verdict, we find the evidence sufficient to support the conviction. Both prongs of ground of error #7 as well as ground of error #10 are overruled.

In his first ground of error appellant contends the trial court erred in refusing to entertain her application for a suspended sentence. The Suspended Sentence Act (former Articles 776--781 V.A.C.C.P., 1925) was repealed by the 1965 Code of Criminal Procedure (effective January 1, 1966). See Article 54.02, V.A.C.C.P. Moats v. State, Tex.Cr.App., 402 S.W.2d 923; Ex parte McCarter, Tex.Cr.App., 415 S.W.2d 409; Attorney General's Opinion M--27 (1967). Nevertheless, appellant relies upon Article 1257a, V.A.P.C. which prescribes in part 'Provided, however, that in all convictions under this act and where the punishment assessed by the jury does not exceed five years, the defendant shall have the benefits of the suspended sentence act.'

She also calls our attention to that part of Article 54.02, Sec. 2(a), supra, which provides that any part of the penal code containing special or specific provisions of criminal procedure covering specific instances are saved from repeal.

First, we do not view the quoted portion of Article 1257a, supra, as containing specific instances of criminal procedure in itself. Further, at the time Article 1257a, supra, was enacted in 1927 the Suspended Sentence Law or Act was not applicable to murder cases. The purpose of the quoted portion of such statute was to remove that restriction where the punishment assessed did not exceed five years. In view of the clear intent of the Legislature to repeal the Suspended Sentence Law and the procedure therein prescribed, ¹ we find no merit in appellant's contention that such law and procedure is still 'alive and well' as to murder cases where the punishment assessed does not exceed five years. Ground of error #1 is overruled.

Next, appellant contends reversible error occurred when the clerk, without the knowledge of the court or appellant's counsel, handed the jury empaneled for the case copies of unsigned general instructions and admonishments. It appears to be appellant's position that the same constituted a charge to the jury not in compliance with Article 36.14, V.A.C.C.P., and that some of the instructions related primarily or exclusively to the trial of civil cases, i.e., special issues, discussion of insurance or attorney fees. The trial court found that no harm or prejudice had resulted and overruled the motion for mistrial. These admonitory instructions appear to have been prepared in accordance with Rule 226a, Secs. I and II, Texas Rules of Civil Procedure.

It must be borne in mind that many jury panels for the trial of criminal cases are selected and summoned in the same manner as provided in criminal cases. See Article 33.09, V.A.C.C.P. When this provision is considered with the provisions for interchangeable jury panels, Article 2101, V.A.C.S., etc., it stands to reason that many jurors chosen in criminal cases will have been exposed to the admonitory instructions required by Rule 226a, supra.

Many of these admonitory or cautionary instructions are customarily used by criminal trial judges at the time of the voir dire examination of the jury panel and at...