Flanagan v. State

ROBERTS, Before DALLY and TEAG- UE, JJ.

OPINION TEAGUE, Judge. appeal

This is an from a conviction for committing the offense of mur- plea der. After trial on a bench guilty, appellant was found and the judge punishment trial assessed years’ penitentiary. confinement challenges Because the suf- ficiency of to sustain the the evidence ver- court, necessary dict of the trial doing so, we review the evidence. Before however, indictment, point out that the omitting introductory the formal and con- cluding portions, alleges: one, Rhodes, LAFAINE FLAN- roadway. ... that DENNIS lane ap- who identified Defendant, styled AGAN hereinafter on pellant as the who fired shot- April day year the 18 about gun, testified that sticking “was Lord our One Thousand Nine Hundred vehicle, part body of his out of the out of aforesaid, County and 77 in the State that appel- the window.” Rhodes testified there, unlawfully, did then and with the shotgun fired “directly lant the at me”. specific intent to commit the offense However, any type Rhodes did not sustain murder, attempt to the cause death injuries. Pellets from the of the Rhodes, individual, Jerry M. an know- shotgun pick- struck the front of the ingly intentionally shooting Jerry and at causing very to up, damage minor the cen- shotgun, M. Rhodes with a act said grill the ter of the and hood. Rhodes also amounting prepara- to more than mere opinion shotgun, testified that in his the tion tended failed but to effect evidence, in which was not offered was a commission of the offense intended. shotgun.” shell, “single spent barrel

n n n s¡c recovered, n n which was not was described green shotgun him as “a shell.” upon It was thus incumbent State opinion, damage Rhodes’ done to his prove beyond a reasonable doubt each vehicle “was done birdshot. Sounded following elements: hitting something.” like little B-B’s it or (1) Appellant shotgun He also testified that blast (2) theWith intent to commit the him in placed fear of his life and “scared offense murder him”, which, course, is understandable. (3) Attempted to Jer- cause death of Only shotgun. one shot fired from was ry M. Rhodes Although pistol, police armed with his (4) By knowingly intentionally shoot- it, Rhodes did not to use because ing Jerry at M. Rhodes traveling other vehicles were on the free- (5) shotgun With a way and business establishments were lo- Rhodes, officer, Jerry police M. a Dallas nearby cated on the feeder road to the got duty off at 12:30 freeway. on in day question. o’clock a.m. He blast, the shotgun After Rhodes contin- proceeded then in pickup his motor vehicle traveling freeway ued on the in same to his traveling residence. While in his as the direction other vehicle. After travel- pickup Freeway truck on R.L. Thornton in ing blocks, approximately fifteen the other Dallas, Rhodes observed automobile passed vehicle slowed and down Rhodes it. traveling same lane of vehicles, however, traveling Both continued traffic he was in. The automobile same until direction Rhodes turned approximately 75 to 80 feet in him. front of freeway off the 20 exit. Interstate traveling Rhodes was between and time, At that the driver of the other vehicle per throughout miles hour the times men- began to speed accelerate the his vehi- tioned herein. His attention at- became Rhodes, however, cle. maintained oth- tracted other vehicle due to the er vehicle his view and down wrote making, erratic movements vehicle was partial plate license number. then con- He freeway. which weaving included traveling tinued residence. After When approximately Rhodes’ vehicle was arrival, he Mesquite called the Police vehicle, De- 50 feet from the other he “noticed partment reported and appeared what incident be a [him] agency. law enforcement blast Later that morn- passenger side of the other [from ing, Mesquite Depart- he went to the go toward front of vehi- Police vehicle] [his] ment where appeared cle.” “It me he saw the Rhodes testified: an- person, gun apparently appellant’s that a had been toward the front shot broth- er, custody. police east of me fired forward.” Thornton theAt station he occurred, four- Freeway, where this is a identified as the who fired shooting single of a barrel night ques- to the Whether shotgun. Prior motor vehicle shotgun by person one appel- tion, seen he had never before vehicle, truck, pick-up another toward lant. traveling between 50 both vehicles with that he had Although Rhodes testified time, with per hour at the miles and 60 shotguns, he was un- experience with being the vehicles between the distance opinion as to whether express able to 50', describ- with the shell approximately birdshot, fired at a shotgun, using that was birdshot, the bird- containing ed as feet, the wind- of 50 would “break distance center striking approximately the shot However, the shield of a car.” grill of the other vehicle the front damage no showed that sufficient damage, minor doing very pickup of the truck. done to the windshield the element evidence to sustain for the A. Golden also testified Charles of specific intent to kill the driver vehicle, that near the time not sus- State and he testified who did second or other Rhodes, involving at another any bodily injuries? the incident tain per- location, an unidentified observed he facts, answer upon the above Based son “hanging out the window an auto- [of negative, and hold question holding shotgun. He was it with a mobile] in this presented the State the evidence this, know, you hanging out about like insufficient to show that cause is just holding gun like this.”1 window specific intent to kill Rhodes when had the radio, relayed over his “CB” Golden shotgun. he fired the con- unnamed friends2 with whom he was conviction, the State re- To time, message had versing at the a of what law, principles of general several lies on “Well, happened. I told them what se, 1.e., per shotgun deadly weapon a is gave happened and I the license number State, 492 S.W.2d 524 v. McClennon see times, know, you to make three or four State, 476 (Tex.Cr.App.1973); Stallings v. sure it was understood.” Golden was not v. Burks (Tex.Cr.App.1972); 679 S.W.2d asked, testify descrip- nor did he as to the State, (Tex.Cr.App.1942), vehicle, description tion the other may murder be and the intent to commit vehicle, persons in the other or what weapon deadly inferred from the use of a gave he license number was that those per agree with the State that se. We “them”. principles of law. are sound and reasonable However, valid inference from whether a Appellant he also testified. He admitted facts, shoots given person where one set of in the vehicle Rhodes. described shotgun, may be deduced at with a another However, he testified it was his brother depends specific intent to kill to reflect a displaying “shooting shot- who was [a upon in which the the factual context (Em- lights roadway.” at the gun] a man shooting “Simply because occurred. added) phasis Appellant also testified shotgun] not shoots at another does [with follows: intent necessarily make it an assault with (Mr. Q: Hight, prosecutor): It’s State, Cooper v. Tex.Cr.R. to murder.” 60 essentially every- your (1910); Montalvo v. 411, 132 355 S.W. hap- thing we’ve talked about here did State, (1868). “The element of 31 Tex. 63 pen. just your It was brother weapon use must the manner of of such you? wasn’t A always taken into consideration. be Yes, (Appellant): A: sir. range make it shotgun at as to [fired such] reasonably apparent that death We are confronted at the outset with injury its use could not result from following question: factual means, persons spoke actually Golden his "CB” we are 2. The to over 1. As to what "like this” statement, say, testify. unable to because "Like did not radio this", is all that us. is in the record before 738 legally deadly intended victim weapon. spread

would not reached the it had Scott v. State, 46 Tex.Cr.R. ^[315] 81 sufficiently that one of the shot penetrated State, v. S.W. 952.” 86 Tex.Cr.R. hat another the victim’s while shot entered Medford S.W. See also However, a shirt sleeve victim. State, supra; Cooper v. Burks uninjured. This victim was Court held that supra; King 166 Tex.Cr.R. judge the trial was not authorized to render (1958); 312 S.W.2d Neal v. judgment of convictionbecause the evi- 675, 676 (Tex.Cr.App.1975). If the dence was insufficient establish that the type of shot fired a shotgun incapa- is necessary defendant had the intent to kill death, inflicting firing ble the mere arriving result, his victim. at its shotgun by person one another will applied Court stated abstract and not, more, permit without the inference rudimentary principles the cause several specific was fired with the law, namely: intent to kill. If shot Mitchell with no intent It is therefore clear from the above deci- him, kill would and could not be specific sions this Court that before the guilty of assault with intent person intent to cause the death another kill because is an may be inferred from the of a shot- ingredient essential that offense. gun by one at or toward another is made so Such statute ... The person, additionally it must be shown that instrument which the assault firing shotgun the of the occurred with the may committed be looked to in determin- capacity and under such circumstances ing grade Ordinarily, the of assault. reasonably produce are calculated to the when an assault is committed with a However, person. death of the each deadly weapon, intent kill may the be case must In setting. be viewed in its own inferred ... The instrument used in the regard, compare that the facts of this was, being shotgun, instant case in a State, in Tapley cause with those found v. used, deadly weapon the per manner 495, (1953). 158 Tex.Cr.R. 256 583 S.W.2d But with gun se. to shoot at another reversed, which this Cases Court has be- necessarily does not constitute an assault cause the evidence was ruled insufficient deadly weapon or an with assault with specific sustain the element of intent intent to murder. The shot must be fired kill, person shotgun where one fired at under such circumstances as are reason- another, highly are Notwith- instructive. ably produce calculated to the result in- standing the in that facts the case at bar tended. Hence if the intended victim be State, supra, and those stated Burks v. range at such a distance as to be out different, we are find what this Court stat- gun, may of the the intent to kill applicable ed is that decision to this lacking. Burks, cause. the defendant was con- also, State, supra. v. See Neal plea guilty charge victed on a to the that case, only In the instant the evidence of had committed he the offense assault appellant having specific the with intent to murder. Trial was to the Rhodes, required cause the death of ele- Although plead- court. the defendant had ment of the offense charge, appeal ed to the issue shotgun is toward the concerned whether the evidence was suffi- Rhodes, by vehicle driven which then and, turn, plea, cient to sustain the traveling per between 50 60 miles judge. verdict rendered the trial This hour, pellets from blast strik- Court held evidence was insuffi- part ing Yet, the front of Rhodes’ vehicle. cient to plea sustain the and ordered the there is no or evidence that conviction The as set reversed. facts out shotgun, which was fired opinion “approxi- defendant from reflect feet”, shotgun mately fifty capable causing fired a at a at another shot-pattern damage The distance of 75 feet. death. actual When Rhodes’ vehicle whether, question “B.B.” in the ... is sized dents relevant af- sustained was two [T]he chipped paint light some grill viewing front the evidence in the most ter damage prosecution, any no done to hood. There was to the rational favorable front of the vehicle. Rhodes did windshield could have found essential trier of fact The minor any injuries. not sustain beyond a reasonable elements of crime damage injuries and the lack of indi- 307, done Virginia, v. 443 U.S. doubt.” Jackson blast, cates shotgun to us that “this” 2789, 12, no. no. 99 S.Ct. range least at the stated under the v. also L.Ed.2d 560 See Griffin circumstances, causing capable was not (Tex.Cr.App.1981). 614 S.W.2d 155 Furthermore, shotgun death. when Applying that to the case before standard fired, Rhodes was to be within shown us, hold that has failed to State truck, pickup also cab of which present in- sufficient evidence to us that the distance indicates because of kill tent to Rhodes. certain between the vehicles he had a No judgment The is reversed. further protection being physically amount of prosecution shall be had for offense pellets struck which came from the Rhodes, attempted murder of but should shotgun. shot fired from the appellant the State determine that appellant fired was offered never guilty of a lesser included offense at- showing by evidence and there is not tempted murder of Rhodes it is free to whereabouts, to account for State its committing prosecute the although inferentially the facts show that Rogers offense. See both and his arrest- brother were Moss (Tex.Cr.App.1979); place ed together at an time and unknown (Tex.Cr.App.1978). Mesquite unknown officers of Police Department very long the inci- after DALLY, J. concurs. involving dent place. Rhodes Rhodes took the court Before en banc. also shooting testified that after oc- curred, casing the spent observed shell freeway,

bounce on the made but he never ON MOTION FOR OPINION STATE’S Thus, to recover effort it. we are REHEARING AND ON COURT’S OWN testimony or the without evidence to show MOTION FOR REHEARING size, weight, type or what in the shot was MILLER, Judge. however, shell easing. testify, Rhodes did submission, original panel a of this On that opinion in his the of shot consisted held that Court the evidence instant pellets and not lead balls. cause was to show that the insufficient Although appel find the we conduct of appellant, attempted who convicted of nevertheless, are, reprehensible, lant we specific had the intent to kill. unable conclude from the facts and cir to argues in motion for The State its re- presented cumstances that the State hearing en banc that since offense of proved beyond a that the reasonable doubt § Code, murder under V.T.C.A. Penal 19.- had appellant, shotgun, he fired the when 02(a)(2), person not a require does that Al specific intent to kill Rhodes. kill, specific panel have the intent to review though duty Court is bound to engrafting incorrect in such intent into in a sufficiency a of evidence claim attempted the offense of murder. As au- light to most favorable the verdict argument, thority for its the State refers finder, see Johnson v. fact 93 Tex. to Baldwin v. Glas (1922); us Cr.R. 245 S.W. States, ser and Garcia (Tex.Cr.App.1976), United 315 U.S. 62 S.Ct. (1942), (Tex.Cr.App.1976). After care- 86 L.Ed. 680 are also Consti S.W.2d reconsideration, Baldwin tutionally ful we find the bound to determine whether reasonably support analysis according- record could to be and will incorrect guilt beyond finding deny Rehearing. doubt. for ly reasonable State’s Motion Nevertheless, although first, did prove State State must that the actor directly holding panel attack the bodily injury, to intends cause serious opinion second, clearly evidence was insufficient an act the actor commits kill, life, that, third, to an show intent to we will en banc dangerous on to human motion, our own also reconsider hold- an causes death of individual. erroneous, ing, judg- find and affirm the the offense “A commits ment of trial court. V.T.C.A. Penal criminal under first,

Code, if, specific 15.01 Sec. I. he, second, intent commit offense to an amounting does an act to more than REQUIRED INTENT TO COMMIT third, preparation mere tends but ATTEMPTED MURDER fails to effect of the of- the commission will We first address the issue fense intended. by the raised State rehearing. foregoing analysis “Applying the Prior 1973 enactment new case the State facts the instant code, penal general Texas had neither a following ele- required show attempt statute similar to Penal V.T.C.A. First, attempted ments of murder. § Code, 15.01,1 nor a statute which autho- to cause serious intended only rized a conviction for murder when bodily Second, injury.... the State was intent to cause injury exists required com- show that Code, as is found in now V.T.C.A. Penal amounting mitted act to more than § 19.02(a)(2).2 preparation.... mere element The third of murder is not the vic- shown because Although specific intent kill tim in this case did not die as a result been penal an essential old element therefore, appellant; the acts of the code offense assault with to mur- intent appellant failed der,3 to effect the commission question which arose in Baldwin of the offense intended. penal was whether the new code’s enact- § 19.02(a)(2) permitted ment of now a con- specific “A not re- intent kill is viction per- for murder when Code, quired under Penal V.T.C.A. son § only acts with the intent to cause seri- 19.02(a)(2) murder the offense bodily injury. ous intent, specific be committed. The therefore, required under Pe- V.T.C.A. Baldwin, supra, ap- an opinion § Code, specif- nal 15.01 not be would proved Court, by the Commissioner Brown ic to kill need be the but found that a intent to kill was no ” bodily injury. intent to cause serious longer necessary attempted element of Baldwin, supra, add- (emphasis at 616. analysis murder. The justified ed) conclusion follows: prove “In order to finding murder under V.T. This was reiterated Commission- Code, 19.02(a)(2) Garcia, supra, C.A. Penal Sec. er Brown in and Com- Code, 15.01(a) (3)commits provides: felony, 1. § V.T.C.A.Penal attempts or to commit a if, involuntary voluntary person specific other than or man- "A commits an offense with offense, slaughter, to intent commit an he does an act and in of and in further- the course amounting preparation to than more mere attempt, ance of the or or in commission that tends but fails to effect the commission flight immediate or at- from commission added) (emphasis of the offense intended.” tempt, attempts he commits or to commit an clearly dangerous act caus- to human life that Code, 19.02(a) provides: 2. Penal § V.T.C.A. es the death an individual.” person “A commits an offense if he: (1) intentionally knowingly causes the State, (Tex.Cr. 3.Robertson 426 S.W.2d 872 individual; an death of (2) App.1968); (Tex. Young v. injury bodily intends to cause serious Cr.App.1964). clearly dangerous an commits act to human individual; life that causes the death of an Baylor Required? 31 Keith in Kill be missioner Teal v. ic Intent (Tex.Cr.App.1976). L.Rev. S.W.2d 371 § initially plainly note that 15.01 re- leads Moreover,

We conclusion the Baldwin the offenses quires person specific overlap that a must act “with between potential to a mur- attempted (emphasis intent to assault and aggravated commit an offense.” correctly added) Judge observed attempts to construe that der. Odom Baldwin concurring opinion in Dovalina language person may to mean that a be (Tex.Cr.App.1978) 385-86 attempted convicted of an offense when he that: required acts “with the same intent requirement misconstrued the

attempted offense.” If that the lan- “Baldwin were specific of a intent to commit an statute, guage it then would follow offense accompanying specif- by stating that the necessary support that the intent a con- bodily injury, ic intent to cause serious attempted viction for murder could be Sec. 19.- required for murder under § 19.02(a)(2) required by same as that —the suffice, 02(a)(2), [emphasis in would bodily injury. intent to cause serious original] serious Such intent to cause statute, however, is not so worded. in- bodily injury is not the same as the § Indeed, 15.01 the elements of defines murder. A tent to commit the offense of attempt criminal terms. The traditional 19.02(a)(2) killing under Sec. is murder specific element “with intent to commit an notwithstanding the that no murder fact interpreted traditionally offense” has been precisely that was intended. And for to mean that the actor must the intent have reason, 19.02(a)(2) support may not Sec. bring result, about the desired which attempted prosecution: A an murder attempted the case of murder is the death prosecution attempted for an offense will of the individual. only if is intent to commit lie there Thus, specific intent kill neces- is a attempted such offense. The intent sary attempted element of murder. The injury relied on in cause serious interpretation authorities of this Garcia, supra, is the in- Baldwin convincing. are numerous and R. Per- See aggravated un- tent to commit assault (3rd Boyce, kins and R. Criminal Law 637 22.02(a)(1), supra, der such Sec. if 1982);4 Torcía, ed. C. 4 Wharton’s Criminal accompanies an act that tends intent (4th 1981);5 Law 565 ed. W. LaFave and A. bodily injury, but fails effect Scott, Jr., (1972);6 aggravated Criminal Law 428 attempted as- offense Notes, sault, [empha- Attempted attempted Specif- Murder: Should try; ‘attempt’ implies need not be an intent 4. "The word means to some mental state which Thus, bring A, B, bring an effort to about a desired result. Hence that result. if and C about attempt any requires another, to commit crime acting have each taken the life of A particular of- to commit kill, intent to B with an intent to do serious fallacy fense. ... ‘The statement that an [the disregard bodily injury, and C with a reckless act which would be sufficient for murder life, guilty three are of murder be- human all attempted death results should be murder if life cause the crime of murder is defined in such may is not guilty is that while a taken] way will one of these mental states though of murder there was no actual However, suffice. if the victims do not die kill, guilty intent to he cannot be of an injuries, then A is their specific to commit murder unless he has a intent murder; charge attempted it is on a murder ” added). (emphasis Boyce, to kill’ Perkins & not sufficient to show that the defendant intend- supra at 637-638. in ed to do serious harm or that he acted life, [emphasis disregard reckless for human attempt, 5. "To constitute an there must be an crime_ original.] Again, need- this is because intent is particular intent to commit a Al- attempt, attempted though may a without an ed for the crime of so that murder be committed kill, requires bring murder intent to requires to commit about that murder intent to specific (i.e., to kill.” Wharton’s intent described murder result crime of Law, supra another)." Criminal at 571-572. added) (emphasis death LaFave Scott, supra & at 428-429. crimes, murder, 6. "Some are defined such as plus causing particular terms of result acts they If the act does cause this hold- sis to the extent conflict with added] bodily injury, aggravated the offense is ing. assault, attempted murder. Sec. 19.- rehearing is de- The State’s motion 02(a)(1) only is the form of murder that nied. murder,

requires an intent to and since 15.01(a) requires Sec. intent to commit II. attempted, only

the offense Sec. 19.- 02(a)(1) support attempted will murder.” THE SUFFICIENCY OF EVIDENCE Notes, Attempted See also Murder: We next address issue which was not Specific Should Intent to Kill be Re- rehearing raised in the State’s but brief quired? Baylor L.Rev. 243 which will be considered on our own motion Furthermore, apply we were to panel opinion en banc. We find the incor- § interpretation

Baldwin 15.01 to the rectly held the insufficient evidence was § remaining 19.02, other of- subsection prove specific that the had the potentially overlap, fenses would such as intent to kill. attempted robbery. murder in- For stance, complainant, Dallas Police Officer is a who is the immediate Rhodes, Jerry flight M. on the robbery from the commission of a 18, 1977, morning April around 1:00 clearly and who commits an act that a.m., driving life, driving pickup he was his truck down dangerous to human such Freeway Thornton in Dallas “getaway” wrong way R.L. when he his car the down a street, just observed the car the lane ahead of one-way murder weaving him in and out of its lane. He though even no one is killed or even in- passenger the front seat next observed jured? According analysis, to the Baldwin part body out of the stick of his window only necessary to commit at- and fire a toward the front of the tempted murder would be intent re- § 19.02(a)(3) car. Rhodes then testified: quired by in- which required stance would the intent com- “Q. happened What after that? robbery. Legisla- mit the We contend the Shortly continued “A. thereafter we § ture did not intend for 15.01to have such I was behind the eastbound. vehi- absurd results. cle, subject I noticed the I believed only had done the turn around cursory We can conclude that the Baldwin, body analysis and look at me. He stuck his of this issue in which Teal, of the car.” blindly outside followed Garcia supra, was erroneous and obiter dicta.7 “Q. you he turned to look at When through looking glass the rear contrary For the reasons discussed and inside the car or what? while contention, attempted to the State’s murder No, by person body, who has “A. sir. He stuck his can be committed complete upper part body to commit or the of- of his outside the intent viz., hanging passen- the intent to kill. the car fense Baldwin, Teal, ger and turned around and and Garcia are overruled window trial, partial paral- of the three cases would the victim still suffered from The facts in each 7. finding clearly supported right ysis have to his hand as a result of the assault. Garcia, defendant in Baldwin was intent to kill. The supra, In the defendant fired his .22 length a half foot a three and armed with pistol people, hitting several times at two one in hit the victim several pipe, he used to which Teal, pulled the abdomen. defendant arms, even after the head and times on the pistol, pointed eyes, it between the victim’s ground. to the The victim’s had fallen victim skull was pulled trigger. pistol When the failed to fire assault, during the which fractured time, pull the first the defendant continued to surgery to remove bone immediate necessitated shots, trigger, successfully firing the several one surgery fragments and further from the brain hitting the victim. skull; plate in the at the time of a metal insert you “Q. only The reason that believe at vehicle behind him looked the you they attempted to murder which was me. shot- you saw the was the fact that “Q. body protrud- much his was How trigger the gun you at and aimed ing passenger out the window? pulled? Probably “A. a third of it. about shotgun at me and aimed “A. I the saw “Q. The area the navel or around shotgun fired at me. the was above? you “Q. reason believe That is Right, yes, “A. sir. idea they attempted to or “Q. you see him do? What did then murdering at killing you you I in the “A. him sit down saw back all? seat, vehicle and reach in back “A. That’s correct. pick up something that I didn’t “Q. only damage to And in fact the approxi- it I know what was. was place re- your some vehicle was mately fifty I feet behind him. sitting you were moved where again part him of his saw stick driving? and body out of car and I noticed his damage my “A. The the front of he had in his and gun hand vehicle, my the front of truck. me. gun was fired at damage is no concentrated There “Q. type gun What was this? whatsoever, on I was in front it but “A. a shotgun. This was driving it.” my truck “Q. you gun fired at say When he blast, shotgun Rhodes After the second you, you directly it at mean fired car, passed the which had slowed down you? thirty-five miles He even- per hour. about Yes, “A. sir. fired, directly He at spot tually freeway at a where exited [emphasis me. added] he drive a service station he felt could into “Q. trying to It wasn’t like he was attempt- car police and call the the other your anything like shoot tire or freeway. The him off the ed follow that? car, however, continued travel other No, “A. sir. freeway exited. after Rhodes down “Q. great is how a distance? This on that while he was still Rhodes testified Approximately fifty “A. feet.” plate he license freeway wrote the Under “Q. “A. “Q. “A. ^[******] When they pointed blast was fired? The cross-examination, They other Yes, fired sir.” muzzle part were fired directly directly shots at pickup? were fired were at directly Rhodes you you shotgun when or at further at me. an- report pellant pects had been partment, where license number of the car two one Rhodes went to the called shotgun. of the six individuals plate number. The incident, Mesquite arrested, digits. he describe had been Police Mesquite who car, After hand, mistaking Department next had fired the identified told two car exiting, he Police relay morning, sus- De- ap- explained: although he he “Q. you aimed And said question, night on the car right you. at brother, of the ear. His was the driver driving words, body, right your who was passenger, drunk and was truck? firing shotgun out the window of the car Yes, “A. sir.” lights. hit Appellant in an

[*] ^{[*] [*] [*] [*] [*]} testified he had no knowledge of any at- 744

tempt pickup. to shoot at grill Rhodes’ of the His the front other vehicle and brother testify did not at trial. doing very damage, minor is sufficient evidence to sustain the element of the specific may The intent kill specific to kill intent the driver of the deadly inferred from the use of weapon, a vehicle, second or did not who sus- State, Bell v. 501 (Tex.Cr.App. S.W.2d 137 any bodily injuries?” opinion tain Panel 1973), shotgun deadly and a weapon is a p. at 737. per se, Stallings State, v. 476 S.W.2d 679 (Tex.Cr.App.1972), unless the manner of posed If ques- the as above facts the its use reasonably apparent it is that death presented tion that were all had been or bodily injury result, not could support the State in of the element of in- State, v. 237, 86 Tex.Cr.R. 216 Medford tent, holding might our be different. State, 175, (1919); v. S.W. Hatton 177 31 case, however, specifi- instant Rhodes Tex.Cr.R. 21 S.W. 679 For cally him, saw State, v. example, Scott Tex.Cr.R. picked up shotgun, aimed shot- and (1904), S.W. 952 where defend gun at directly him before pulling shotgun ant fired a loaded with bird or trigger. Accordingly, question ap- squirrel complainant shot at the who was kill, pellant’s intent under a traditional yards some 125 to 200 away, this Court sufficiency analysis, of the evidence should possible held that any it was seri be: injury ous have could been inflicted and whether rational trier of fact could shotgun thus the was not in the manner of beyond find a doubt that Den- reasonable also, its use Barnes deadly weapon. See Flanagan nis LaFaine had the intent to 172 Tex.Cr.R. kill Jerry Rhodes when reached into (1961); Hargrove and 501 S.W.2d of the traveling backseat car he was 878 (Tex.Cr.App.1973). up picked shotgun, leaned out Applying the above rules to the it window the car as traveled case, facts in panel opinion the instant hour, aimed per between 50 and 60 miles “firing shotgun found that did directly shotgun Jerry muzzle not occur the capacity with and under such driving pickup Rhodes was who truck reasonably circumstances as are calculated him, pulled about 50 behind feet produce person”, the death of the other trigger shotgun causing it to and that the evidence was insufficient firel prove beyond n reasonable doubt that the analysis, clearly Under this there suffi- kill. On support cient trial court’s rehearing, opinion find panel finding. Appellant’s pointing act of failed totality to consider the of the facts Rhodes, directly at who before reaching its conclusion. The issue driving him, a car 50 feet behind panel considered case demonstrates his “conscious phrased as follows: objective or desire” to cause death of shooting single “Whether the of a barrel target.8 his shotgun by person in one motor vehicle panel Burks v. vehicle, opinion’s truck, reliance pick-up toward another 145 Tex.Cr.R. traveling with both vehicles between 50 (1942), time, authority support and 60 its conclu- per miles hour at the with misplaced sion is being between for several reasons. The distance the vehicles 50', approximately Court in Burks with the shell was faced with the situa- describ- birdshot, containing pled ed tion with the bird- wherein the defendant had striking approximately shot the center of and then in application for a V.T.C.A., Code, 6.03, provides: 8. Sec. Penal to a result of his conduct when it is his engage "(a) objective intentionally, conscious or desire to A acts with in- tent, the result.” respect to the nature of his conduct or cause conduct away.9 first Appellant’s him feet suspension of the State elicited from 50 sentence testimony denying ground from that is overruled. the defendant of error complainant. he had intended to kill the III. question

The then was whether the trial court should have withdrawn defend- OF ERROR REMAINING GROUNDS guilty guilty plea of and entered a not ant’s remain- appellant’s We will next address (not verdict) plea since the evidence raised ing grounds of error. part appellant. of intent the lack on the error, appel ground did In his second The Court not hold that evidence insuffi lant contends that the evidence was “insufficient to establish the de- was identify appellant man who necessary had the intent to kill his cient to as the fendant victim”, fired the shot. panel p. opinion see at but testimony “rea- rather that the defendant’s prior to Officer Rhodes fairly” sonably presented and issue of appellant lean the shooting he observed Burks, to the intent. fact as defendant’s body car and upper third of his out of the supra Thus the trial 165 S.W.2d at 464. him. directly turn toward He described not, law, accept could his court under lighting freeway “pret- conditions on not guilty. did hold that plea Court my headlights illuminated ty plus well had court have found the the trial could not got a his He also testified that he vehicle.” guilty defendant under the same evidence only 50 good subject, look at who guilty. not plea if the defendant’s had been tes- away. morning, feet The next Rhodes contrary, specifically To the the Court De- Mesquite to the Police tified he went that the State satisfied its bur- found had following: partment and observed introducing sufficient to den of Flanagan Flanagan, “A. Mr. Dennis guilty by show the defendant was the testi- I sitting in chair when mony complainant of the that the defend- booking area in to a little walked complainant had fired a at the ant approached I an Officer there. Burks, supra away. from about feet De- Mesquite of the Police O’Neal Accordingly, in 464. the result Burks they had he told partment, me that presumably would have been different subjects the two which arrested during not the issue had raised testi- been they had involved believed been if the mony plea on a State had shooting. attempted shooting or not elicited the defendant any- they him if had said I asked denying intent to specifically his kill. no, that thing to him and he said Flanagan quite been Joseph not We find the decision Burks get and was appellant’s posi- along hard to does not problems. He asked tion, creating A some actually antipodal. is rational but I knew one did irrational me if which trier of facts would not be said, I I turned shooting in- concluding manifested an know, said, sir, ‘Yes, I reaching for, I point- kill around and tent to Rhodes mind,’ and my no doubt in shooting shotgun directly at there’s ing, and Presiding Judge it would be established other facts. But 9. We find comments that, Hatton 31 Tex.Cr.R. because Hurt in v. particularly monstrous doctrine hold (1893), appropriate this ability S.W. 679 fact accused did not have the kill, case: A. he did not intend to kill. therefore B., fails, question physi- attempts rape in a arises as "When case the but because kill, intended cally accomplish purpose. whether accused A. unable to his may looked If a used to. manner, means him fails B. to kill. He shoots at with intent deadly deadly weapon in a mark, is used gun his was not true to the because he in- conclusive that the inference almost enough large were because his shot hand, kill; weap- if the tended on the can- purpose. To doctrine we effect his this one, dangerous or was not used on was not not assent.” manner, deadly must be the evidence in a he asked me which I occupants partial one and told car its and a descrip- him, I (3) said was Dennis. plate; immediately tion the license offense, complainant gave after the “Q. you At that time identified De- description who had fired the fendant? police, to the and nothing shots Yes, “A. sir. showing presented at that descrip- trial the “Q. Flanagan Dennis is the one who appellant’s phys- tion was inconsistent with you fired the earlier characteristics; (4) complainant the ical morning? that unwavering was and immediate in his iden- Right. “A. appellant shooter; of as the tification and “Q. Now, your was of identification (5) time the between the offense and the Flanagan police Dennis there in the only a confrontation was matter of a few any sug- station based on kind We find the prior hours. that witness’ gestions given you by police? the of the was observation accused sufficient “A. no suggestion There was because independent origin as an serve for the Flanagan suspects both had not Jackson, supra. in-court identification. Mesquite talked to the officer at all Appellant’s ground of second error is recognized I my and Dennis from overruled. him freeway. contact with on the “Q. right. recognized All You him that ground In a third and multifarious morning you recognize and him error, appellant contends he was denied now? effective assistance of counsel. He first Yes, “A. sir.” that surety claims his trial counsel was on probable and “It hurry- his bond is that the course, appellant, that up proceeding Appellant that through went his brother was who fired the shots. jumping year was a result of his bond one facts, The trial court was trier of the “hurry-up proceeding” earlier.” The witnesses, credibility of the and appellant complains apparently which con weight given testimony to be to their sists of trial before the court wherein such accept reject was free to or apply probation, counsel failed to for testimony of any witness. The court chose motions, pre-trial including all waived to believe the version of facts. State’s identification, suppress motion (Tex.Cr. Limuel jury Appellant might a trial waived “where identity App.1978). The as to was probation had a chance have to obtain sufficient. application probation had also been ground error, appel In this same Appellant complains filed.” of coun also argue appears pre-trial lant perfect éxceptions sel’s failure to a bill complainant’s in- identification tainted on one matter and the “ineffeetivness [sic] Examining identi court identification. of trial counsel’s illus cross-examination” totality under a of the circumstanc fication by his ask trated failure to Rhodes the test, see es Jackson 657 S.W.2d following questions: (1) (Tex. Cr.App.1983),we note you do were “How know there shot- complainant opportunity view had the gun pellets your radiator whatsoever? appellant at time of the offense you dig pellets “Did out the from the freeway on away from 50 feet a well lit radiator?” appellant hanging out while (2) The record reflects that trial counsel was car; complainant, of the window on surety appellant’s police officer, bond and filed an city of Dallas careful trained prior to, during, Surety “Affidavit to Surrender Princi- ly appellant observed the driving pal” approximately months and after the offense while four before tri- instant behind, to, appel appellant’s in front of al failure cooper- next because car, description of the a fear lant’s and noted ate and would leave counsel, car hanging out of a window jurisdiction Trial saw a man court. Golden, however, in an effort the effect apparent shotgun. to diffuse violation, appellant’s also elicited at bond man. More- identify at trial to unable explaining trial over, to re- nothing in the record there surrounding leaving his the circumstances occurred. To flect such visit voluntary the state while bond and specifically asked contrary, trial counsel return and surrender to the authorities. peo- appellant if he recalled “some whether nothing There is the record being he ple” to see him came while appeal the claim on that trial counsel was Department. Mesquite Police held at the any way prejudiced by appellant’s ac- people coming Although he remembered ap- tions that as result he influenced either Rhodes not recall could whether up” pellant to his detriment or “hurried was there. Golden proceedings. appellant complains of trial coun- Finally, Although appel the record reflects that at trial. sel’s ineffective cross-examination trial, nothing right jury lant waived examined the entire record We have reflects this record whether waiver of on trial perceive no lack effectiveness suggestion was made on counsel’s or posed on part. questions The counsel’s appellant’s the decision to insistence or that inadequa- examples appeal as of counsel’s pre-trial trial and mo jury waive strategy significance tions valid on the was not a trial cies of or no appear to be little part appellant’s In the trial counsel. light a whole. Sim- in of the as record, to judge face a silent decline we ply appeal have because counsel on would hindsight. the decision on the See basis questions phrased some of asked other (Tex.Cr. State, Passmore v. 617 682 differently reflect trial them does not on App.1981); Mercado 615 S.W.2d v. counsel’s total effectiveness. (Tex.Cr.App.1981); v. Witt (Tex.Cr.App.1971). S.W.2d 259 applied The test to be determin ing provided constitution We note that trial whether counsel also since the court, “reasonably before the there was no need for ally satisfactory is the services request proba- counsel file a written for standard, upon assistance” based effective 42.12, Special Commentary, tion. Art. See representation. totality of counsel’s transcription no Y.A.C.C.P. There is of the Passmore, v. supra. also See Strickland reporter’s punishment court notes from the — 2052, U.S.-, 104 S.Ct. Washington, trial, phase of the so cannot determine From the record 80 L.Ed.2d probation was whether an oral motion for us, appellant was we conclude that before Moreover, punish- in light made. of the provided reasonably effective counsel. court, appellant ment the trial assessed of error is over- Appellant’s ground third probation. eligible would been not have ruled. Mercado, supra. and filed Appellant has also written complains Appellant also of trial coun- Appellant is not pro se Court brief. perfect exceptions sel’s failure to a bill appeal. matters, example being hybrid representation entitled to on certain however, develop showing have, justice his failure to facts interest of We Golden, witness, visited “civilian Charles find it to be without examined the brief and Appellant jail his name....” and asked merit. Appellant in what man- fails inform us is af- of the trial court judgment visit, occurred, if it was harmful ner such a firmed. testimony at trial cer- appellant and the as to tainly give any idea what does not us P.J., ONION, and McCORMICK possible prejudice might be. Golden JJ., CAMPBELL, in result. the offense he concur night that on the TEAGUE, dissenting. Judge, legally factually impossible, either sufficiency of the evidence is chal- agree am Because I unable to with the lenged, the facts of the case must be majority sufficient to I light, viewed in that and find that it is far appellant’s conviction, sustain the due to strange criminality view impossibility factual con attempt completed in relation to the of- summating the intended offense of Therefore, fense. un- occurs aswell the fact that I do believe that der such factual circumstances as those at found, rational trier of fact could have bar, conclusively where it presented, under the facts established that were charged factually impossible essential elements the crime that it was to consum- beyond doubt, offense, see reasonable Jackson mate the intended then the ac- Virginia, 443 U.S. n. 99 S.Ct. cused cannot 2781, 2789, (1979); n. 61 L.Ed.2d 560 offense. (Tex.Cr. Griffin majority’s If it is the intention to hold App.1981), compelled amI to dissent to impossibility that factual cannot ever be a majority opinion. Part II of the alleged defense to an criminal offense of majority’s analysis What causes the to be attempt, expressly it should make this hold- conclusion, faulty reaching its that the ing. majority’s intention, If that is not the sufficient, evidence is is the fact that it expressly state then should that it is not its solely directs attention act eliminating from our law the defense of (cid:127) pointing the in the di- impossibility, explain and then factual how of complainant firing rection and then evidence in this cause is sufficient to me, else, apparent it. It if no is to one that appellant’s sustain conviction. in resolving of the issue whether the evi- To do neither is to do disservice to the sufficient, ignores, dence is majority bench and bar of this State. among things, question, whether type that shot was fired from the shot- (Tex.Cr. State, King v. 312 677 gun capable inflicting of was death or seri- App.1958), panel opinion was cited as bodily complainant. ous injury on the authority for the conclusion that the evi King, supra, dence insufficient. In pointed As out was panel opinion, be- majority fore the another case which the fails to evidence can be held sufficient to murder, acknowledge, this Court held that the evi conviction here, under such a factual situation as dence insufficient to sustain a convic firing shotgun of from shot must occur tion for to murder with assault with intent capacity though with the and under such aforethought, circum- malice even the facts reasonably pro- stances are calculated to only yards showed that at a 25 distance bodily inju- duce the death or cause serious fired his rifle in the defendant direction least, ry to the fired at. At there officers, police of several “and the officers possibility must reasonable be established a by heard the bullet ‘whistle’ them.” Also that could have occurred. such 315, 317, 46 see Scott v. Tex.Cr.R. 81 (1904); S.W. 952 v. 86 Tex. me, else, It is also to no one Medford obvious 237, (1919); Cooper Cr.R. 175 S.W. majority fails to come grips 60 Tex.Cr.R. 132 S.W. 355 of impossibil- the common law defense (1910). ity, which has existed since at least 1846. (1846) Cr Regina See v. Goodchild 2 & K cause, In the instant the State’s Reprint Eng 121. Also see establishing appellant basis for that when (1864) Eng Regina v. 9 Cox Collins CC shotgun in fired the the direction of the there can no which held that at- complainant’s vehicle he had the tempt pocket. empty from to steal an complainant intent to murder the was the thought following: shotgun I the mere am of the school that when intended crime is in the direction of consummation the vehicle causing capable of complainant shotgun from the driven was sufficient However, bodily in- injury. In this establish the intent murder. death or serious stance, presented present testimony the State no or evi- the State failed to Thus, shotgun majority shot errs dence that the fired this issue. causing capable fired holding the evidence is sufficient. bodily injury death or serious the com- of this State long It has been law is plainant. There also no of assault with to constitute the crime us- shotgun, evidence in the record that a there must be ing any shot, ap- type of and fired from present ability to effectuate plus actual fifty proximately in the direction of feet State, 46 Tex.Cr.R. intent. See Scott traveling miles 50 and 60 vehicle between put it To another 81 S.W. 952 hour, capable causing per is death long It the law of this State way: has been injury to the driver inherent in the impossibility that factual vehicle. always an affirmative means used has been record, however, only reflects that charge of with intent to a assault defense damage complainant’s the actual vehi- pause point murder. I out that there cle sustained was two “B.B.” sized dents meaningful difference between that is no chipped paint in grill the front and some attempt- present and the offense offense no the hood of the vehicle. There was also murder. ed damage front to the windshield of the vehi- expressly over- This Court should either complainant cle. The did not sustain applied such rule rule all eases which have gunshot. injuries from the law or it should follow what this Court range knowledge It is common past. do neither does has held To comparatively of shot from a bar of this State. not assist the bench and lightness short due to the shot. See To the con- The evidence is insufficient. Inbau, Moenssens, Moses and Scientific respectful- I trary holding majority, (1973 Edi- Evidence in Criminal Cases ly dissent. tion). cause, In this no evidence was prosecution presented by the that concerns size, weight, type what shot projectile that was fired from the shot-

gun. complainant testified that

opinion pellets the shot fired consisted of Evi-

and not lead balls. See Scientific Cases, supra, page

dence in Criminal how, un- 125. I unable am to understand COBARRUBIO, Appellant, Martinez Joe cause, the der the of this circumstances capable pellets fired from the were Texas, Appellee. The STATE of injury to causing death or serious they incapable complainant, were No. 63801. bodily injury causing death Texas, Appeals Court Criminal tell could complainant, pray then how En Banc. of- they the intended have effectuated fense? Jan. 1983. make it of this should Decisions Court Rehearing Sept. Denied 1984. anyone

obvious to that before bodily inju- cause death or serious act of ry may the mere be inferred from shotgun at or

the accused must ad- there person,

direction of another fired the shot

ditionally be established

Case Details

Case Name: Flanagan v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Sep 19, 1984

Citation: 675 S.W.2d 734

Docket Number: 60580

Court Abbreviation: Tex. Crim. App.