Michael Reed v. State ( 2006 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00144-CR

Michael Reed,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court No. 03-00032-CRF-272

DISSENTING Opinion

“That depends on what your definition of … [at] is.”  (Bill Clinton; quotation supplied by Thinkexist.com.) (I believe this quote was in response to a question regarding Clinton’s relationship with Monica Lewinski.).

In the context of discharging a firearm, what does it mean to shoot “at” something?  According to Bubba, when he shot at the juke box and hit it, it was not the reckless discharge of a gun because, in Bubba’s words, “reckless hell I hit just where I was aimin’.”  Mark Chesnutt, Bubba Shot the Jukebox, on Longnecks And Short Stories (Universal 1992). But we know that just because you hit what you are aiming at does not make the discharge any less reckless, or any more lawful.  Thus we know that Bubba’s definition is too narrow to be used in connection with defining “at” for purposes of the Penal Code provision.

Likewise, I would suggest that the majority opinion has put far too narrow of a definition upon the word.  Black’s Law Dictionary discusses the term as follows:

At.  A term of considerable elasticity of meaning, and somewhat indefinite.  A function word to describe or indicate presence or occurrence in, on, or near; or to indicate the means, cause, or manner; or to indicate that with which one is occupied or employed.  As used to fix a time, it does not necessarily mean eo instante or the identical time named, or even a fixed definite moment. Often expresses simply nearness and proximity, and consequently may denote a reasonable time.

Black’s Law Dictionary 124 (6th ed. 1990).

Obviously “at” is a word with a very wide range of uses and meaning.  So much so that its “elasticity” is noted in this venerable legal reference book.

But the jury would not have a legal dictionary in the jury room.  So how is “at” defined in an ordinary dictionary?  The American Heritage College Dictionary defines “at” as follows:

At . .. 1.a. In or near the area occupied by; in or near the location of; at the market.  b. In or near the position of; at the center of the page.  2. To or toward the direction of, esp. for a specific purpose:  Questions came at us from all sides.  3. Present during; attending:  at the dance.  4. Within the interval or span of:  at a glance.  5. In the state of:  at peace.  6. In the activity or field of:  good at math.  7. To or using the rate, extent, or amount of; to the point of:  at 350° F.  8. On, near, or by the time or age of:  at three o’clock.  9. On account of; because of.  10. By way of; through:  exited at the rear gate. 11. In accord with; following:  at my request.  12. Dependent upon:  at the mercy of the court.  13. Occupied with:  at work.  – idiom. At it.  Informal.  Engaged in verbal or physical conflict.

The American Heritage College Dictionary 85 (3d ed. 1997). The Merriam Webster’s Collegiate Dictionary defines “at” as “used as a function word to indicate presence or occurrence in, on, or near.”  The Merriam Webster’s Collegiate Dictionary 72 (10th ed. 1993).

In the context of the Penal Code, this case, according to the majority, turns upon whether the “actor is outside the habitation.”  Balderdash.

The majority’s definition is only one of many that could be used by a jury in evaluating the evidence.  Because the term is not defined in the statute the jury is not limited to the definition the majority would like to use.  The jury could use any common usage of the term.

I need go no further than the first definition in the general dictionary cited above to know that the majority’s reading is entirely too restrictive.  If “at” means “in or near” then I have no problem determining that the jury was within its prerogative to determine that Reed fired the gun “at” the house.  Maybe an English linguistic expert could analyze it in such a manner as to construct the argument that such a use is improper, but the average juror in Texas is not, no disrespect intended, a linguistic expert.

Let us examine the issue from a different perspective, literally.  Should the result in this appeal be different if the struggle occurred on the porch or in the yard rather than in the hall?  I think not.  But under the majority’s analysis, if they struggled on the porch or in the yard, then the conviction stands; but if the same struggle occurs in the hall, it does not?  That seems terribly illogical. 

Let us examine the issue from yet another perspective, literally.  The perspective is from that of the house.  Oh, if only walls could talk.  If the house could tell us how it felt about it I have no doubt that it would say, “Let us not forget that the bullet came to rest in my wall.”  There is no indication that it came to rest there as a result of a ricochet.  Because bullets tend to leave the gun from which they were fired in a straight line, the location of where the bullet stopped is all but conclusive evidence that the gun was pointed “at” the wall, a part of the house, when it was discharged.  So from the perspective of the habitation:  “Not only did Reed shoot at me, he hit me!”

Based upon the foregoing, I conclude that the jury was well within the bounds of being rational when it determined, based upon the evidence, that Reed discharged “a firearm at or in the direction of a habitation.”  From the jury’s perspective, Reed could hardly have missed.

I dissent.

                                                          TOM GRAY

                                                          Chief Justice

Dissenting opinion delivered and filed December 20, 2006

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herently suggestive. At trial, Smith did not object to the admission of the identification testimony by January. Nor has he complained on appeal of January's in-court identification. Because the evidence was admitted without objection, Smith cannot now challenge the sufficiency of the evidence on the basis that it was unreliable. We overrule Smith's single point of error.

      The judgment of the trial court is affirmed.

                                                                                 BOBBY L. CUMMINGS

                                                                                 Justice

Before Justice Cummings and

          Justice Vance

          (Chief Justice Thomas not participating)

Affirmed

Opinion delivered and filed December 16, 1992

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