*1 court did not abuse its discretion in refus-
ing to allow testify. said witness to
The sup evidence is sufficient to
port the conviction and no appearing, error judgment is affirmed.
Opinion approved by the Court. HALL, Jr., Appellant,
Frank Texas, Appellee.
The STATE of
No. 39115. Appeals
Court of Criminal of Texas.
April 20, 1966.
Rehearing May 25, Denied
753 trans- during fired six shots were about action. in- physician attending
Testimony of wound suffered one that dicated Woods head, and that thigh in the and one the left Weatherly appeal Gerald (appointed bullets nature that these wounds were only), Wheeler, Worth, Charles R. for Fort produce. might appellant. was ac- Appellant testified Woods Crouch, Power, Doug Atty., Dist. Truman and that persons companied by other several Atty., Worth, Asst. B. Dist. Fort and Leon safety afraid for his (appellant) he Douglas, Austin, Atty., State’s State. for the He testified his safety and for the of wife. pocket a him approached with that Woods only to and that he fired at knife Woods McDONALD, Presiding Judge. kill him. stop him and not intend to did The offense is with to mur- assault intent only fired two According appellant, to he der; punishment, years Texas 14 ground, shots, aiming first into the one Department of Corrections. firing then, stop, when failed to Woods time at second Woods. The evidence that all the witnesses shows spent evening to the assault had much of the testimony Other that Woods than complain- No-Peep-Inn, in the that the during pocket his hand in much had his witness, ing Woods, talked and drunk had support little to the transaction there was McKee, Betty beer wife with common-law self-defense, appellant’s theory appellant. appellant At 12:30 a. m. about evidence jury chose not it. The to believe tavern, wife, his girl another left the is to the conviction. sufficient sustain 15 and another man left about Woods Appellant objected to the court’s or met parties 20 minutes The two later. jury did instruct the because it not No-Peep-Inn. a short distance from the of as- pellant, guilty in order be found to According Woods, attempted he murder, with have had sault intent to must apologize appellant for his earlier fa- the intent kill the time the shots were at miliarity Betty McKee, with appel- telling Appellant re- a fired at Woods. submitted lant that “I did your not know that was quested unless the the effect that wife.” exchanged, appel- Words were then specific jury found had the said, “Betty, lant give my pistol.” me When deceased,” could intent kill “the then the girl refused, appellant pistol took the intent to not him of with convict assault from her purse. brassiere or girls Both and murder, acquitted. This and he must be pleaded Woods with shoot not to requested refused instruction was Woods, and one girls of the attempted dis- trial court. appellant, arm away, but as Woods backed appeal, appellant that “The On concedes Woods, fired two shots at him. Court, part general merely Trial as a of it— wounded, arose, fell ground. to the He charge, incidentally, did along charge, attempted as he to flee he heard two or three offense, alleged the several elements of the shots, other one of which struck him in the that, convict, beyond must find leg, after again ground fell to the doubt various elements of reasonable and lost consciousness. offense, kill alleged including intent to ‘the ” Witness Retha testimony Gardner’s the said Calvin Woods.’ substantially contention, however, similar to that She entitled to Woods. that he was stated that affirmatively continued at separate, charge, fire distinct until he sight, submitted, Woods out and that to kill. on the element of intent 754 State,
Appellant 502; 206, cites 4 Branch’s Barnes (2nd Ann.P.C. v. Cr.R. 172 S.W.2d 187, 197; ed.) 179, 1846, Sec. is stated 145 where rule Tex.Cr.R. 167 S.W.2d John- 493, State, that “If 164 S.W.2d defendant testified that he did son v. 675; State, intend to kill Tex.Cr.R. he is entitled to an affirmative Buchanan 127 1022; 118 theory.” Irlbeck v. submission his think 74 S.W.2d We 124; urged contention to that Eubank v. here is similar Tex.Cr.R. S.W.2d *3 808, 112, Royal State, 567, State, in S. 115 28 S.W.2d v. 154 Tex.Cr.R. 228 Tex.Cr.R. 162, State, 287, S.W. rehearing W.2d denied 229 808. and Carr v. Tex.Cr.R. 87 S.W.2d 48 There, 346, by appellant, the offense assault with intent as well as the cited was cases murder, fully It becomes charge and discussed more below. an affirmative was requested kill, requested clear is an af- on intent that an accused entitled to any affirmative by instruction was refused court. firmative instruction on the trial addition, conviction, by This In stating: Court affirmed the defense raised the evidence. where is was there evidence the assault justi only “The in evidence the case to kill, made with no intention an accused fy quoted foregoing charge is the tes lesser- is entitled to an instruction on the timony of himself. This is not and aggravated included offenses of assault defense, an only nega affirmative a but simple and, an in- along assault with such very tive is dif statement. sometimes struction, an affirmative submission of the distinguish, holdings ficult to under the charge issue intent kill. See court, of our the difference between a Forms Anno- Willson’s Texas Criminal negative defense and an affirmative de (7th Ed.), tated 3472. We do Section requiring charge. fense an affirmative simple find that a of that element of denial case, In the instant testified to the offense entitles an accused to an affirm- nothing which if found to be true would ative of the issue of intent to submission justify his jury acts if the should find kill, lesser included charge absent a on the merely intended to He denied the kill. offense. allegation of intention to kill. There requirement no that this defense af be State, Appellant upon 151 relies v. Watts 162, firmatively submitted.” 228 S.W.2d 94; 349, Minor v. Tex.Cr.R. 207 S.W.2d also, State, 163. See Fields 171 Tex. v. 315; State, 413, 108 1 Tex.Cr.R. S.W.2d 729; 636, Tapley Cr.R. 352 v. S.W.2d 318, State, 131 S.W. Scott v. 60 Tex.Cr.R. State, 495, 158 Tex.Cr.R. 256 S.W.2d contrary 1072. These cases are not Scott, con- principles stated In above. bar, only In the case at af court viction was reversed because trial by firmative defense raised the evidence requested on in- give charge refused to self-defense, upon appellant’s theory was charge to kill contained though tent even charged, jury properly which the was an lesser-included offense instruction no affirmative submission of the issue aggravated Minor was reversed assault. required. reaching intent kill was In charge given in.such the court’s because reviewed, conclusion, among this have we way though jury a that even found State, cases, following: other Melton v. in- committed the assault no 678; Tex.Cr.App., Barnes v. 367 S.W.2d kill, guilty still find him tent to could 679; State, 303, 172 Tex.Cr.R. 356 S.W.2d Although intent to murder. of assault with 495, State, 341 Trotter 170 Tex.Cr.R. v. opinion, a clearly from the it is not evident 923; State, Tex.Cr.R. Mixon v. 168 S.W.2d reveals of the record in Watts review 438; State, 613, 155 Brown v. 330 S.W.2d the trial reversed because of case was 578; 233, v. Chandler Tex.Cr.R. 233 S.W.2d kill intent to charge on court’s failure to 71; 41, State, 229 155 Tex.Cr.R. S.W.2d by the requested as aggravated assault 269, State, 174 Crowley 146 Tex.Cr.R. v. in that case. defendant State, Tex. 321; 146 Rodriguez v. S.W.2d
755
case,
In
it
burden
Such circumstances call for a
this
was the
defense.
prove beyond
charge upon provoking
the state
reasonable
State,
doubt that
committed with
135 Tex.Cr.R.
120
the assault was
Norwood v.
kill,
charge
re
has
charge
the intent
806. A
on this issue
the court’s
S.W.2d
quired
approved
support
in cases where the
so
The issue
been
find.
present
ing facts
Ervin v.
whether or not such intent was
much weaker.
were
680;
State,
by
testimony,
Tex.Cr.App.,
in
raised
S.W.2d
an
367
State,
629, 310
Muckleroy
struction on
the lesser-included
v.
offense
315;
Crowley
Tex.
aggravated
given,
assault should have been
S.W.2d
requested
but
such
no
and there Cr.R.
was no to the on that ground. find We no error the trial response In motion to a give appellant’s requested court’s refusal to state, the trial court instructed *4 on charge intent to kill. complain the fact that the not to allude to was, the ing at time of witness Woods provoking The court’s on the dif- trial, under theft and con indictment for ficulty, given which conjunction was in with county Appellant argues jail. fined in the self-defense, on instructions ob- was in evi that this information was admissible jected by appellant, who contends that appeared the witness dence because that it provoking difficulty issue of changed testimony being ar had his since by raised the evidence. rested, being the intimation that Woods’ testimony state was in favor biased complaining was There evidence that the anticipation gaining because of his quite was friendly appellant’s witness with disposition of the more favorable that, wife. There is evidence when the two pending against Appellant was allow him. parties met later about two blocks from impeach cross-examin by ed to the witness tavern, appellant instigator was ing prior inconsistent state him as to his argument” a “big led the shoot- ment, variation and we find no substantial ing spoke words, asking the first —he and testimony the trial between Woods’ at Woods what doing (appel- he was with his prior made arrest his statements his lant’s) wife. There is evidence that note day began. before We also the trial pellant pistol, demanded his and also evi- appellant to ask that was allowed Woods dence that Woods thereafter stuck his hand you and question: “During time this in pocket, his impliedly purpose for the Hall, morn Jr., together Frank were this arming himself. There is evidence that Woods, you make the- follow ing, Mr. did upon Woods appellant advanced with a rea ing Hall ? ‘That statement to Mr. knife, appellant and thereupon that you changed your be story shot son had so, you out cause if would throw did him. ” you against case ?’ The answer old “No, sir, appears that was, I not.” did One conclusion to drawn from be every opportunity allowed this appellant, evidence is that incensed except showing impeach by the witness by familiarity appellant’s Woods’ with with charged by he indictment wife, opportunity common-law took the pre for been final an offense which he had not by subsequent sented meeting their pro ly impeach convicted-. To have allowed argument Woods, voke an with and that his ground on this ment have violated would words acts were calculated to excite 732a, Ann.C.C.P., Arti Art. now Vernon’s to- point Woods would attack 38.29, Procedure, 1965, cle Code Criminal appellant, thereby providing impeachment showing by which forbids justification shooting for in charge pending Woods self- is an there unresolved
7-56
against no reversible a witness. We find
error in the action of the trial court. judgment
The is affirmed.
MORRISON, Judge (dissenting).
I agree cannot that the was au- Court
thorized under the facts before us here right
limit of self defense
charging provoking The
testimony State’s witness Retha Gardner
was that she left her establishment Betty offered ac- McKee
company grocery her to a store and that Betty agreed go
thereafter Baby’s Place on Crawford Street doing
were the act of when Calvin so
Woods and his friend toward came
three them.
Judge scholarly opinion Hawkins in a
Mason v. 228 S.W.
952, set forth the elements which should be
present in order giving to authorize the I provoking the present
find none of them case at
bar and therefore conclude that the court when
erred instructed
pellant right would lose his of self defense
if provoked found that he the diffi-
culty injured party. with the
I respectfully dissent. Moody EVANS, Appellant,
Joe Texas, Appellee.
The STATE of
No. 39410. Appeals
Court of Criminal of Texas.
March 1966.
Rehearing May 25, Denied