Thompson v. State

¶1(dissenting).

¶2The only defense in the case at bar was raised by the appellant’s testimony from which I quote in part:

“Q Did anything occur as you ran around that corner of 12th and Salina?

A Yes.

Q What was that?

A My pistol went off.

Q Did you have that pistol in your hand?

A Yes, I had it in my hand, you know, holding it in my holster as I was running.

Q You had it in your hand, holding it in the holster ?

A Right. '

Q What happened 'to the holster ?

A Well, after I shot, it split the holster open on the bottom.

******

*625Q All right, now there was testimony earlier, I believe, to the effect that way back down at the Groovy Bar, at the very beginning, your gun went off and hit the pavement there in front of the door. Is that true?

A Yes, it is true.

Q How many times ?

A Two.

Q Went off two times ?

A Right.

Q So you have two times there in front of the Groovy Bar, and once up at Sali-na?

A That is right.

Q Now, there were four empty cartridges found in the pistol. That explains three of them. Do you know where the fourth empty cartridge came from?

A Right.

Q Where was that ?

A When I dived over the fence, the gun went off.

Q Did you ever have any intention that night to shoot that gun at anyone ?

A No.

Q Or to assault anyone with that pistol?

A No, I did not.

Q To endanger anyone’s life?

A No.

Q Cause bodily injury to anyone ?

A No.”

¶3Appellant’s evidence and defense was that the pistol discharged accidentally. As shown by the above quoted testimony, appellant specifically and unequivocally denied that he intended to commit any kind of an assault.1 The State’s evidence was to the effect that appellant intended to kill the injured party. Under the evidence, either the appellant intended to kill, or the pistol went off accidentally, but aggravated assault was not raised. A defendant may well be entitled to a charge on aggravated assault, if he testifies that he intentionally shoots a pistol, but gives sufficient details showing a lack of intent to kill to overcome the presumption of intent to kill arising from the use of a deadly weapon. Such, however, is not the case here.

¶4The majority relies on Chandler, Lira and Hall. In Chandler, the Court on Appellant’s Motion for Rehearing held that a charge on aggravated assault should have been given, but the primary error was the alleged failure of the trial court to charge on intent to kill, with the Court relying on Watts, supra. The defendant in Chandler admitted he pulled a pistol on the complaining witness and relied on the defense of self-defense and accident, as contrasted with a strictly accident defense in the case at bar. Furthermore, the majority overlooks the fact that Chandler was ultimately affirmed on State’s Motion for Rehearing in Chandler v. State, 155 Tex.Cr.R. 41, 230 S.W.2d 526.

¶5The majority’s reliance on Libra is likewise misplaced because there the defendant testified that he fired the shot only to alarm, which itself constitutes an assault.2

¶6Hall3is also questionable authority because the majority is admittedly relying on dictum, and actually misapplying this dictum. The defendant there was relying on self-defense, but testified that he shot one *626time at the complaining witness to stop him, but not to kill him. The defendant there admitted to an assault (based on self-defense) but denied an intent to kill. In the case at bar, the appellant denied altogether that he committed an assault of any kind.

¶7See my dissent in Shaw v. State, 510 S.W.2d 926 (Tex.Cr.App.). The principle behind this dissent and my dissent herein is a simple one, and that is that a trial court is only bound to charge the jury on defenses that are relied upon by the defendant.

¶8In Beasley v. State, 177 Tex.Cr.R. 115, 346 S.W.2d 123 (1961), the defendant testified that he had no intention of killing the deceased and explained the firing of the rifle by stating that he jerked back from the deceased, and his hand slipped on the trigger. This Court held that no aggravated assault charge was required.

¶9In Shelton v. State, 367 S.W.2d 867 (1963), we held that a charge on negligent homicide was not required where the defense was accident.

¶10In Dickson v. State, 463 S.W.2d 20 (Tex.Cr.App.1970), evidence was elicited that “When the deceased ran behind a bush and ‘went for his pocket’, appellant admitted he took the gun and ‘shot at the cab driver’ though he ‘did not intend to hit him in the back.’ ” In spite of this testimony, this Court held that an aggravated assault charge was not required.

¶11The conclusions expressed in this dissent are further fortified by our holdings in Redd v. State, 452 S.W.2d 919 (Tex.Cr.App.1970); Barton v. State, 162 Tex.Cr.R. 75, 282 S.W.2d 237 (1955) and Butler v. State, 160 Tex.Cr.R. 492, 272 S.W.2d 125 (1954).

¶12I dissent to the reversal of this conviction.