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491 S.W.2d 888

Mendoza v. State

Court of Criminal Appeals of Texas

Decided March 28, 1973

Court of Criminal Appeals of Texas · decided 1973-03-28

Cited by 9 later decisions — most recently November 1978

9 state decisions

Key passage — most relied on by later courts

““Now if you find from the evidence beyond a reasonable doubt that on the occasion in question the Defendant, Johnny Robert Windham, did intentionally or knowingly or recklessly cause bodily injury to Jerry Turnbow by cutting him with a knife, but you further believe from the evidence, or you have a reasonable doubt thereof, that the Defendant did not intend to kill the said Jerry Turnbow, then you will find the Defendant guilty of an aggravated assault; or, if at the time and place aforesaid, you find from the evidence beyond a reasonable doubt that Defendant made an assault upon Jerry Turnbow by cutting him with a knife and inflicted upon him serious bodily injury, but you further find from the evidence that the Defendant did not intend to kill the said Jerry Turnbow, or if you have a reasonable doubt thereof, then you will find the Defendant guilty of an aggravated assault.””

quoted by 2 later decisions, including Young v. State, Windham v. State

Relies on Flinn v. State · 155 Tex. Crim. 190 - Smith v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1973-03-28

View the full empirical analysis of this case →

¶1 OPINION

DAVIS, Commissioner.

¶2 Appeal is taken from a conviction of assault with intent to murder with malice.

¶3 Appellant contends the court’s charge was fundamentally erroneous in that it authorizes a conviction for assault with intent to murder without requiring the jury to find an intent to kill.

¶4 The complained of portion of the court’s charge reads:

“Now if you believe from the evidence beyond a reasonable doubt that on or about the 24th day of April, 1971, in Tarrant County, Texas the defendant Carmen Mendoza, with malice aforethought, as that term has been defined, did make an assault in and upon R. W. Bishop, you will find the defendant guilty of an assault with intent to murder with malice aforethought.”

¶5 This Court was faced with a similar question in Smith v. State, 155 Tex.Cr.R. 190, 233 S.W.2d 138, where the complained of portion of the charge read:

“But if from the evidence you believe beyond a reasonable doubt that the de-fenant, Harrison Smith, on or about the 11th day of December, 1949, in the county of Lubbock and state of Texas, with a deadly weapon, to wit, a rifle, and without malice, as that term has been hereinbefore defined to you, and not in his own proper self-defense, did assault Charles B. Sims, you will find the defendant guilty of assault with intent to murder without malice . . . .”

¶6 In Smith v. State, supra, it was held:

“A charge is fundamentally erroneous if it authorizes a conviction for an assault with intent to murder without requiring the jury to find an intent to kill.”

¶7 In the instant case, the court did not require the jury to find that appellant did make an assault in and upon R. W. Bishop with intent to kill said R. W. Bishop and, thus, authorized a conviction for an assault with intent to murder without requiring the jury to find an intent to kill. Such omission in the court’s charge constitutes fundamental error. Smith v. State, supra; 4 Branch’s Ann.P.C., Sec. 1846 (2d ed); Garza v. State, 162 Tex.Cr.R. 655, 288 S. W.2d 785; see Willson’s Texas Criminal Forms, Sec. 3472; McClung’s Jury Charges, p. 25.

¶8 The judgment is reversed and the cause remanded.

¶9 Opinion approved by the Court.

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