*1 408 46.03, under the record Article
found 2(a), a trial court may
Section the admission of
still 2(b), Section V.A.C.C.P. happened in the instant apparently requested, and the Appellant insanity
gave, prosecu- find no error in the
defense. defense and anticipating appellant’s
tor’s jurors with the
discussing prospective same members challenge individual
in order peremp- or in order to exercise his
for cause challenges.2
tory shown; is af- judgment is
No
firmed.
Jimmy Jr., Phillips, Angleton, appel- lant. SAVANT, Appellant, Blanchard Lee Hanna, Thomas L. Atty. Dist. and Jimmie Stanton, Beaumont, R. Atty., Asst. Dist. Vollers, STATE Jim D. State’s Atty., David S. Austin, McAngus, Asst. State’s Atty., No. 52121. the State. OPINION DALLY, Commissioner. 12, Rehearing Denied Jan. 1977. appeal
This is an from a conviction for the offense assault with a (Art. V.A.P.C., weapon 1925); imprisonment years. is for 5 punishment imposition suspended sentence was granted probation. appellant complains charge; he asserts that theory to convict him on a sup ported agree evidence. We charge was respect erroneous in this holdings under our in Oliver v. S.W.2d 467 (Tex. Cr.App.1974), must be re versed. also, F.2d 190. See
The indictment charged follows: that BLANCHARD LEE SA- JIMMY LEE VANT and BACON on or October, day of One Thou- the 6th about pro prepared complete 2. The se motion to of facts can statement abate so that denied. *2 offense, persons so Seventy-three, Nine Hundred mission of sand encouraging aiding principles, or are this presentment and anterior pres- convicted as such. Mere should be County of Jefferson indictment prin- will not constitute one a alone ence Texas, State of did while then and ciple. unlawfully carrying there on and about you if “Now therefore and find believe a person pistol, with pistol, the said evidence a from the reasonable unlawfully then and there and will- did doubt, defendant, that the either an fully upon commit in and assault Rob- together alone person or some other pistol, H. Broussard with said and did ert persons principle, or as a as that term has pistol there with said so then and unlaw- defined, been committed the offense al- carried, said fully shoot the indictment, leged you will find the guilty. you defendant Unless so find or appellant was The separately in this tried thereof, you have a if reasonable doubt The evidence Jim- clearly shows that acquit will you defendant.” unlawfully a my pistol Lee carried appellant made timely objection a Broussard. There is no evidence that the pointing would permit appellant unlawfully pis- carried a the defendant’s a theory conviction on or that he shot tol Broussard. There is evidence; is, supported by the appellant attacked and H. with a assaulted Robert struck with the butt of a carrying appellant, un-
just before Bacon shot This evi- lawfully. Cf. Dowden v. 537 S.W.2d support would have dence been sufficient 11) at- (footnote (Tex.Cr.App.1976). The jury finding guilty that the a apply the law of to the tempt to but principal, only theory that is the because it was erroneous facts which the evidence would a if he guilty the appellant to find jury finding of jury guilty. offense, a theory un- committed charged The court as follows: by evidence. supported “Now, you if find from the evidence reading opinions Oliver a beyond reasonable doubt that in Jeffer- supra, supra, as Texas, County, son on or about October inspection of in those the records defendant, an Blanchard Lee Sa- them to be vant, in this Court show on file unlawfully willfully did make from this case. indistinguishable assault in and upon an Robert H. Brous- by shooting pistol, and, if the cause is reversed and you further find from the evidence be- remanded. yond assault, reasonable a doubt that said was, any there if by made while the said Opinion approved the Court. any, pistol, being if was then and there DOUGLAS, Judge (dissenting). unlawfully by carried or defendant on majority reverses this conviction on person, you about his will find which under the facts guilty an defendant assault with case could not have the jury this misled or find, weapon. If do not so 36.19, V.A.C.C.P., harmed Savant. thereof, if have or reasonable doubt conviction should not be provides guilty will find the defendant not an error in the court’s reversed herein. it was calculated provides persons “Our law all defendant or unless it appears of a if principles act record defendant has not had a fair mission offense. When an offense impartial trial. actually by one or committed more others, knowing the unlaw- persons, The court intent, by encourage by ful aid Savant if with Bacon acts or convict he acted unlawfully those actually engaged carrying words com- who committing an Thomas Scofield of the assault on Beaumont Police Broussard or if report alone. received the inci- The evidence and drove dent toward Savant’s house. had the shows and Savant pulled into a shotgun during side street and had attack. To see if out, (driven started to back car Sa- was error calculated to harm *3 vant) came down a high evidence will be the street at rate the discussed. speed of and hit the patrol almost car. He injured party, the pursued patrol light car with the red Craig Haynes eating and were in the Pitt on, and siren stop Savant did not and People waiting Grill Beaumont. were to driveway drove the into at his home aat Two young seated. ladies be entered a high speed. of occupants rate four men, group of four booth. including got out the car and went into the house. Bacon, wanted to sit there. Ba- Savant waited for other Scofield officers before young told the ladies to leave. con Brous- going inside. that group told the he Haynes sard Savant testified that at ready ques- to leave and the were could have managed he the Lighthouse table. Club in Bacon cursed and called Brous- Nederland and he that had met a “smart Bacon at aleck.” Bacon and Savant night. club that closing then went to rest After room. While that Brous- register, sard was at the cash Bacon and night, they went They to Pitt Grill. came out of Savant the rest room and went large wanted a booth. Bacon told the girls outside. Broussard Haynes asked to wait to move to a smaller then booth and him. they got outside, for When Bacon was were some words between them. Savant standing at the front door with a to car “to testified he went outside his his hand. straight, get it between me and him . * * * Bacon called Broussard a fat bastard and problem was. to find out what his told him to his put hands in the air and to out going get I was to baseball bat come edge around the building. equal.” . . we trunk. would So obeyed. Broussard standing Savant was Haynes. use it on He going He to was back of car with shotgun in his hand opened the trunk and related ducked, He and hit at Broussard. but the He go not there. then started to bat gun hit butt him in the cutting elbow through win- and he looked back inside his arm and the cut required stitches. Sa- big guy saw “the had Bacon dow again hit at vant and Broussard tried shaking came run- coat him.” then back, get building into the to but before he he door said that ning the front out leg could do so Bacon shot him in the learn that son-of-a- .to going Broussard then made it back into lesson.” bitch a grill everyone where was on the floor. to he Bacon not testified that told Craig Haynes testified to substantially' to knot his put Broussard but on shoot the same as did Broussard. In addition to his gave then the rest of head. Savant Haynes related that it was not bound to and story that a big man to took run two women out of a got did not believe. He testified booth. He saw shotgun Savant take a shotgun prevent to Bacon from shoot- the trunk of car. He also saw the blow He Bacon was ing Broussard. related that to Broussard’s shoulder or left elbow. holding Broussard arrived, the officers When the assailants shotgun. hit him with gone. were they left and took He related James Singletary of the Beaumont Police to a house and friend’s testified that he went to the they were to his house where went Grill Pitt on Interstate Highway 10 and cross-examination, he related On arrested. bleeding saw Broussard who was hit Broussard with before he leg got elbow. He description of “I ‘If want to be told him shotgun, assailants and the car that they were in. 4H not raise the evidence did got go far to hero, to see how noted got giving hero,’ and held and that issue abe to up error. taking he was not reversible because acting like a hero cases, no reason. submitted theories young ladies In the above those two by the evidence did nothing raised though done not Broussard had related that even For other necessarily reversals. testified, automatic “It wasn’t him. He not to Law, Digest, me; Texas what he had see to it was he did what “evidently Bacon,” and done Mr. Bacon Bacon to where follow the mandate Mr. should
enough to reverse again him.” He related shoot wanted Broussard out calculated to keep he hit errors There or three times accused. was no He related two trouble. *4 present case. such should be affirmed. of the With all have been mis- could way that no no charge because there is indica-
led possessed or hint that Savant charge au- with it. The
or shot conviction for Savant’s
thorized Bacon shot Broussard HILL, Appellant, Laumont awith v. 441, 149 In Johnson v. 67 Tex.Cr.R. The STATE this Court wrote that criti S.W. on principals cism and 52338. Nos. 52337 present did not to be both Court of of the of the commission offense founded; perhaps “However, 15, 1976. the testimony discloses doubt that Rehearing Jan. Denied present, were both this would not error, present reversible as this is an undisputed fact.”
In Johns 129 Tex.Cr.R. (1935), finding that defendant stole
by his own acts the cattle involved finding
was made a him guilty. condition of part held that a Court all persons
mission of an offense were was not prosecuted preju- wrote:
dicial error. Court circumstances, . Under the
order a reversal because of the do
mentioned would violence to the statu-
tory command reversal inhibiting
conviction on account of a
calculated ac- 666, C.C.P.,
cused. Article V.A.C.C.P.”
[now 395, 16
In Durham (1923), the
S.W.2d principals.