Thompson v. State , 1974 Tex. Crim. App. LEXIS 1919 ( 1974 )

OPINION

DALLY, Commissioner.

The conviction is for assault with the intent to murder a peace officer; the punishment, imprisonment for thirty-five years. In one of his grounds of error, the appellant contends that he was entitled to a charge on the lesser included offense of aggravated assault. He urges that his testimony that he did not intend to kill the prosecuting witness raised the issue of the lack of such intent and required the submission of a charge on aggravated assault. The trial court refused to submit the appellant’s specially requested charge on aggravated assault, although it was timely made in writing, and also overruled the appellant’s objection to the charge submitted because it failed to include an instruction on aggravated assault, although the objection was timely made in writing.

A discussion of this ground of error necessitates a partial summary of the testimony. Gerald Fleming, an Austin police officer, testified that at approximately 10:15 P.M. he arrived at the scene of a reported disturbance in the east part of Austin. He saw the appellant strike a woman in the face with a pistol, and then he saw the appellant run around a corner. Fleming, while he was running after the appellant, heard a gunshot and saw a flash. The officer immediately hid behind a tree. The appellant, while standing in front of a house in an area lighted by a porch light, pointed the gun in Officer Fleming’s direction and fired. Fleming then aimed his weapon above the appellant’s head and fired. The appellant ran a short distance farther; he then turned around, held the pistol in both hands, and fired another shot. Fleming, with the help of two other officers, captured the appellant as he crouched behind a fence.

The appellant testified that he did not aim or shoot the gun toward the pursuing officer, and that he did not intend to shoot, endanger, injure, kill or murder the officer or anyone else. He further testified that his gun went off twice before the officers arrived, that a third shot was fired accidentally while he was running and holding his gun in its holster on his hip, and that a fourth shot was fired accidentally as he leapt over a fence in his attempted escape.

A pistol is a weapon deadly per se when fired at a victim at close range. See, e. g., Gamblin v. State, 476 S.W.2d 18 (Tex.Cr.App.1972); and Cherry v. State, 488 S.W.2d 744 (Tex.Cr.App.1972). The intent to commit murder may be proved by showing the use of a deadly weapon. See, e. g., Ortiz v. State, 490 S.W.2d 594 (Tex.Cr.App.1973); Carlisle v. State, 488 S.W.2d 428 (Tex.Cr.App.1972); Gamblin v. State, supra. And in the absence of other evidence the intent to kill may be presumed from the use of a weapon deadly per se. See Watts v. State, 151 Tex.Cr.R. 349, 207 S.W.2d 94 (1947); Hall v. State, 418 S.W.2d 810 (Tex.Cr.App.1967). This presumption is rebuttable; it may be refuted by other evidence. If there is testimony from any source raising the issue of lack of intent to kill, the accused is entitled to have the jury instructed on the law of aggravated assault. See Watts v. State, supra; Chandler v. State, 155 Tex.Cr.R. 41, 229 S.W.2d 71 (1950); Lira v. State, 113 Tex.Cr.R. 300, 21 S.W.2d 506 (1929). See also Hall v. State, 402 S.W.2d 752 (Tex.Cr.App.1966).

The question presented is whether the appellant’s testimony that he did not intend to kill the officer was sufficient evidence to require the submission to the jury of an instruction on the law of aggravated assault. This Court in Watts v. State, supra, on original submission affirmed the judgment of conviction for assault with the intent to murder and held that the use of a weapon deadly per se was sufficient to show an intent to kill. It was also said that the appellant’s lack of intent to kill would not reduce the offense to aggravated assault, and it was observed that to so hold would require a charge on aggravated assault in every case where the defendant testified that he did not have the intent to kill the prosecuting witness. On rehearing the judgment was reversed by a unanimous court which held that the presumption arising from the use of a weapon deadly per se was a rebuttable presumption, and that the accused’s testimony that he had no intent to kill the prosecuting witness required the submission of a charge on aggravated assault. It was also said that “In order that no confusion might arise, it should be pointed out that the rule here announced appears to be different where death results and the prosecution is for murder. See Hadnot v. State, 110 Tex.Cr.R. 109, 7 S.W.2d 566; Barr v. State, 146 Tex.Cr.R. 178, 172 S.W.2d 322.” See also Stills v. State, 492 S.W.2d 478 (Tex.Cr.App.1973). If this is a valid distinction it may explain what appear to be inconsistent holdings in some cases.

In Chandler v. State, supra, a unanimous court on the motion for rehearing reversed the judgment; the court cited and relied on Watts v. State, supra, and concluded that the defendant, who had stoutly denied any intent to kill the prosecuting witness, was entitled to have the jury instructed on the law of aggravated assault.

In Lira v. State, supra, the defendant testified that he was drunk at the time of the alleged offense, and ran because he was afraid of being arrested. He said he shot to scare the officers; he did not shoot at the officers; and he did not intent to kill any of the officers. That opinion says: “The appellant correctly insists the court erred in refusing to charge on simple and aggravated assault, since there was present under the facts an issue as to a lack of intent to kill and a shot fired only to alarm.”

In Hall v. State, 402 S.W.2d 752 (Tex.Cr.App.1966), although it was dictum, it was said:

“In this case, it was the burden of the state to prove beyond a reasonable doubt that the assault was committed with the intent to kill, and the court’s charge required the jury to so find. The issue of whether or not such intent was presented was raised by appellant’s testimony, and an instruction on the lesser-included offense of aggravated assault should have been given, but no such charge was requested and there was no objection to the charge on that ground.”

The State’s position is that the only issue to be decided is whether or not the appellant fired the pistol at the officer. If he did not, as he testified, then there was no assault and the jury under the instruction given, if it believed appellant’s testimony or had a reasonable doubt thereof, would have acquitted him. The State relies upon Watts v. State, supra; Fuller v. State, 409 S.W.2d 866 (Tex.Cr.App.1966); Royal v. State, 154 Tex.Cr.R. 567, 228 S.W.2d 162 (1950); and Day v. State, 120 Tex.Cr.R. 17, 48 S.W.2d 266 (1932).

The State is not on sound ground in relying on these cases. The opinion in Day v. State, supra, clearly shows the appellant did not testify'at all. Therefore, he could not have testified that he did not intend to kill the prosecuting witness. In Royal v. State, supra, although the opinion does not clearly state that a charge on aggravated assault was submitted to the jury, an inspection of the record of that case on file in this Court shows that a charge on aggravated assault was submitted to the jury. Fuller v. State, supra, relies upon Day v. State, supra, and Royal v. State, supra, for its holding. Furthermore, the holding in Fuller v. State, supra, that permits the trial court to disregard the appellant’s testimony that he did not intend to kill the prosecuting witness, would erroneously permit the court rather than the jury to weigh the evidence.

Moreover, the State’s contention is wrong because it ignores the proposition that the jury may accept or reject all or a part of a witness’s testimony, and even though a part of that testimony is in conflict with or is contradicted by other evidence the jury may give credence to that part of the testimony. See Barrera v. State, 491 S.W.2d 879 (Tex.Cr.App.1973); Pizano v. State, 489 S.W.2d 284 (Tex.Cr.App.1973); Angle v. State, 486 S.W.2d 308 (Tex.Cr.App.1972); Dawson v. State, 472 S.W.2d 775 (Tex.Cr.App.1971).

It is also well recognized that a defendant is entitled to an instruction on' every issue raised by the evidence, whether produced by the State or the defendant, and whether it be strong, weak, unim-peached, or contradicted. See Gavia v. State, 488 S.W.2d 420 (Tex.Cr.App.1972); Yeager v. State, 96 Tex.Cr.R. 124, 256 S. W. 914 (1923); Hubbard v. State, 153 Tex.Cr.R. 143, 217 S.W.2d 1019 (1949); Perez v. State, 146 Tex.Cr.R. 241, 172 S.W.2d 314 (1943); Pounds v. State, 142 Tex.Cr.R. 52, 150 S.W.2d 798 (1941); 31 Tex.Jur.2d, Instructions, § 110, pp. 660-61.

The jury in the present case could have reasonably rejected the appellant’s testimony that he did not fire at the officer; it could have reasonably believed the officer’s testimony that the appellant did fire the pistol at him at close range; it could have reasonably believed the appellant’s testimony that he did not intend to kill the officer. The appellant has the right to have the jury and not the court decide these issues from the evidence under proper instruction. See Watts v. State, supra; Chandler v. State, supra; Lira v. State, supra.

Although the use of a weapon deadly per se raises a presumption of the defendant’s intent to kill in a prosecution for assault with the intent to murder, the defendant’s testimony that he did not have the intent to kill raises the issue of whether the offense committed was the lesser included offense of aggravated assault, and the jury should be instructed on the law of aggravated assault if a proper request is submitted or a proper objection is made. The holding in Fuller v. State, 409 S.W.2d 866 (Tex.Cr.App.1966) is overruled insofar as it is contrary to our holding here.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.